Tuesday, February 12, 2019

The proper Originalist interpretation of the Second Amendment

I can go into a long analysis of why the Heller and McDonald decisions are bullshit, but here is the simple take down using the Originalists' own description of their school of interpretation. That is:
"Constitutional interpretation should remain anchored in the original meaning of the Constitution’s text, which is the source of the Court’s authority and legitimacy."
 OK, it's not popular to use the preamble. Most people miss that it says more than just "We the people". Instead it says:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Let's take these words as the original intent of the founders for what the Constitution is supposed to be about. How do the Heller and McDonald decisions address these issues? They don't: they expand the Constitution to include matters of self-defence.

On the other hand, the Constitution makes it clear that it addresses matters of the common defence. One can look at the transcripts of the debates relating to the adoption of the Constitution to see that the intent of the founders was to address the common defence. While the people who try to promote a concept of gun rights use the Patrick Henry's "The great object is, that every man be armed" to support that, the actual quotation was made in relationship to Article I, Section 8, Clause 16.

Henry makes that clear in the paragraph before the above misquotation comes from. In fact the complete paragraph takes a different meaning when it is read in its complete form:
May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms, &c.? Every one who is able may have a gun. But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties; and when you speak of arming the militia by a concurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world, for trusting your safety implicitly to implication.
That takes us to the real concern of the founders, which wasn't private guns. The concern was the militia. It was that Congress would indeed arm the militia as required by Article I, Section 8, Clause 16.

Had the authors of Heller and McDonald done some source checking, they would have seen the quotations used were taken out of context. Toss in that their cases were not cases of first impression: although US v Miller, is indeed not helpful since it contradicts the assertions made in the later cases.

This is a topic I've gone over before, but one doesn't need to go beyond the four corners of the US Constitution to see that Heller and McDonald are bullshit.

The authors were bound by precedent: even if they disagreed with that precedent.

Likewise, they were bound by their own claimed theory of interpretation to stick to the text and not engage in mental masturbation. And here is the text of the Second Amendment:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
The text explicitly says militia. It also says "provide for the common defence."

There is no mention of self-defence in the US Constitution. Even more importantly: there is no mention of keeping handguns in the home for defence.

If one wants to go to basic statutory interpretation as used by the founders: "expressio unius est exclusio alterius."  That is when one or more things of a class are expressly mentioned others of the same class are excluded. In other words, you can't read shit into the text which isn't there.

That is called legislation, which is a no no for judges.

Judges interpret the law as written, they don't make it. And they sure as fuck don't amend the constitution if they believe that is the source of their authority.

It says fuck all about self-defence. As Presser v. Illinois said:
The Constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.
And while Presser was more along the lines of the "unorganised militia" argument. I would say that its holding would be even stronger had the issue been solely the possession of arms by civilians. That's because promoting the general welfare makes regulation of firearms a no brainer.

And the Second Amendment only relates to Congress' power under Article I, Section 8, Clause 16 to arm the militia.

So, let's cut the silly buggers. US v Miller said:
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.
And Aymette said:
Suppose it were to suit the whim of a set of ruffians to enter the theatre in the midst of the performance, with drawn swords, guns and fixed bayonets, or to enter the church in the same manner, during service, to the terror of the audience; and this were to become habitual; can it be, that it would be beyond the power of the legislature to pass laws to remedy such an evil? Surely not. If the use of arms in this way cannot be prohibited, it is in the power of fifty armed ruffians to break up the churches, and all other public assemblages, where they might lawfully come, and there would be no remedy. But we are perfectly satisfied that a remedy might be applied.
To make this view of the case still more clear, we may remark, that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides, "that no citizen of this State shall be compelled to bear arms, provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.
Sorry, but the Second Amendment relates to the military, not private arms.

Bottom line: the US Constitution addresses matters of the common defence, not self-defence. A judge cannot change that by fiat.

Especially if they believe in the Constitution as written.

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