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Old 08-28-2019, 02:48 AM
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Founding Fathers influencing today's politics


Hello Everyone,

This is of course politely fantasy and I wasn't sure which category to put this in, so GD it is. Let say that we have somehow perfected time travel and for kicks went back to the founding of our Nation and brought the Founding Fathers to present day. Would their opinions on current day issues matter? Take for example the 2nd Amendment. If we could ask them, what exactly did you mean by well regulated militia? Do you consider modern weapons to be covered under your intent? Etc...

Would their clarification today end the debate? If they said, we never meant weapons that could fire more than a single shot to be covered by the 2nd OR just that opposite, we think that civilians should have aces to all weapons including fully automatic firearms. Would that be the end of the arguments concerning the 2nd or would their opinions, although all we do is based on the Constitution, be irrelevant to us?

This of course would not only be applied to the 2nd, but to everything laid out in the Constitution.

And I picked the 2nd for an example as we always hear each side trying to interpret what was meant and we can't agree on what they intended. Would both sides consider it settled if we could hear an expanded explanation right from the horses mouths?

Last edited by obbn; 08-28-2019 at 02:52 AM.
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Old 08-28-2019, 02:53 AM
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If the founding fathers had any special genius, it was the awareness that they were men of their time. They realized that the country would change and that the laws they were writing in 1789 might not be the right laws in 1889 or 1989 or 2089. They recognized that changes would be needed and they made sure to make it possible for people in their future to change the laws as needed.
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Old 08-28-2019, 03:33 AM
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Would both sides consider it settled if we could hear an expanded explanation right from the horses mouths?
Only the originalist faction might be satisfied. The late Justice Scalia was an originalist. He delivered the majority opinion in District of Columbia v. Heller (2008). If James Madison had risen from the grave and told Justice Scalia that the Second Amendment did not guarantee an individual right, we would have a different jurisprudence for that Amendment.
District of Columbia v. Heller, 554 U.S. 570 (2008)
~Max
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Old 08-28-2019, 03:06 PM
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Hello Everyone,

This is of course politely fantasy and I wasn't sure which category to put this in, so GD it is. Let say that we have somehow perfected time travel and for kicks went back to the founding of our Nation and brought the Founding Fathers to present day. Would their opinions on current day issues matter? Take for example the 2nd Amendment. If we could ask them, what exactly did you mean by well regulated militia? Do you consider modern weapons to be covered under your intent? Etc...

Would their clarification today end the debate? If they said, we never meant weapons that could fire more than a single shot to be covered by the 2nd OR just that opposite, we think that civilians should have aces to all weapons including fully automatic firearms. Would that be the end of the arguments concerning the 2nd or would their opinions, although all we do is based on the Constitution, be irrelevant to us?
The real question raised by your post is not what did / would the framers think, it is are you really that unaware of what they did say or are you just proposing dismissing what hey said and start afresh, writing a new, more palatable "history" for them?
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Old 08-28-2019, 05:36 PM
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We know what they meant by "well regulated," both from contemporary non-constitutional definitions and their more private "deuterocanonical" writings. As you don't say whether you want this thread to be specifically addressing that issue, I won't turn that into a debate.
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Old 08-28-2019, 06:12 PM
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The two sides are too well entrenched now to have their opinions changed by any particular bunch of people. The pro-gun side may say it's because of the Founding Fathers' intent in the second amendment, but if the Founding Fathers actually got in a time machine, showed up and looked around and collectively exclaimed "Oh God, NO - ban everything more powerful than a musket!" I don't actually think the NRA would nod politely, say "well, if you say so" and shut up shop. They'd just drop that specific justification, but keep arguing for the same actual policies. Founding Fathers' intent is a useful justification precisely because in the normal way of things nobody can prove you wrong.
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Old 08-28-2019, 06:34 PM
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I don't know what any of them would actually say, after they got over the shock. But I am quite certain that they wouldn't all say the same thing.
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Old 08-28-2019, 06:45 PM
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The two sides are too well entrenched now to have their opinions changed by any particular bunch of people. The pro-gun side may say it's because of the Founding Fathers' intent in the second amendment, but if the Founding Fathers actually got in a time machine, showed up and looked around and collectively exclaimed "Oh God, NO - ban everything more powerful than a musket!" I don't actually think the NRA would nod politely, say "well, if you say so" and shut up shop. They'd just drop that specific justification, but keep arguing for the same actual policies. Founding Fathers' intent is a useful justification precisely because in the normal way of things nobody can prove you wrong.
Maybe I am giving Justice Scalia more credit than he deserved, but I think he would have admitted that he was wrong.

~Max
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Old 08-28-2019, 06:49 PM
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Only the originalist faction might be satisfied. The late Justice Scalia was an originalist.
Originalism is a pretty easy legal principle to satisfy. It basically amounts to "What do I think the person who wrote this document was thinking?" And of course, it's easy to assume that person was thinking the same thing then that you're thinking now.
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Old 08-28-2019, 06:53 PM
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I don't know what any of them would actually say, after they got over the shock. But I am quite certain that they wouldn't all say the same thing.
True, 'dat
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Old 08-28-2019, 07:05 PM
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If it came down to what the Founding Fathers actually say, vs. what Scalia and his ilk like to imagine them saying, the imaginary Founders would beat the real ones every time.
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Old 08-28-2019, 08:01 PM
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It would be a drastic mistake to presume that all of the Founding Fathers would agree on what the words of the constitution meant - it was borne out of compromise, not necessarily consensus. And when confronted with circumstances not originally considered, they debated vigorously over what they had designed (take Thomas Jefferson, for example - he was the quintessential small government politician who opposed central power, until he became President and had the chance to more than double the country by purchasing "Louisiana"; suddenly, his studied principles were cast aside to justify his authority to make such a large decision).

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[T]here was a debate about how such a large purchase was allowed under the Constitution.
Jefferson took a strict, literal view of constitutional powers, meaning that specific powers reserved for the President and Executive Branch needed to be spelled out in the Constitution. The ability to buy property from foreign governments was not among these powers listed in Article IV of the Constitution – a fact that his political opponents, the Federalists, were eager to point out to the President...
Instead, Jefferson considered a constitutional amendment as the only way to conclude the deal with France...
By that time, Jefferson and his supporters faced an October 31, 1803 deadline to ratify the treaty or lose the purchase. Ironically, the deal to expand federal powers would need to be sold to the Federalists, who had advocated such a position before the treaty was signed, and supported by the Republicans, Jefferson’s party, which had opposed such a broad extension of presidential powers.
Cite: https://constitutioncenter.org/blog/...tional-gamble/
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Old 08-28-2019, 08:28 PM
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Scalia is often lumped with originalists, but I am pretty sure that he was a textualist. From that perspective, it does not matter what the author desired, it is a matter of what he actually said. Bringing in all the Founding Fathers to re-convene the Constitutional convention would have no bearing on current interpretation because if the authors goofed and said the wrong thing, that is how the law should be decided.

Of course, we still get no satisfaction in appealing to texts, as the recent decision demonstrates with Scalia and company's decision to simply ignore (or handwave away), the opening clause of the 2d Amendment.
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Old 08-28-2019, 08:35 PM
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Originally Posted by thorny locust View Post
But I am quite certain that they wouldn't all say the same thing.
This.


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Originally Posted by Moriarty View Post
It would be a drastic mistake to presume that all of the Founding Fathers would agree on what the words of the constitution meant - it was borne out of compromise, not necessarily consensus.
And this. Many time, this. Except I would say that a series of compromises can be accepted by a general consensus, even if not everyone agrees on it all.


I once interviewed one of the politicians who had a major hand in drafting the Patriation package of constitutional amendments that brought Canada's constitution home from Britain in 1982. And that was what he emphasized: that everyone in the room had to give way on some points, that no-one got everything they wanted, and that everyone in the room disliked something in the final version. Not that everyone disliked the same things, of course, but rather that no-one was completely satisfied. But overall, there was consensus to accept it (except, of course, for the fact that the Quebec delegation rejected the package entirely.)

So I asked him the natural follow-up question: since there were things in the final package he disagreed with, if he could go back and change something, what would he change? His response? "Not a thing." It was the overall package that attracted consensus (and even that was a flawed consensus, as Quebec dissented). But his basic point was that in constitution building, there will never be unanimity. At best, there will be consensus, and consensus is what is necessary to get it passed. He accepted that everyone gave up something to get the final deal that attracted the most support, and if he had the power to change it, it would have unraveled.

And even then, even with a consensus, there will be disagreements. Farrand records that after the deal was done in Philadelphia, and the delegates were leaving, a discussion came up about education. One of the drafters said that he hoped the new federal government would establish a national university. Another delegate interrupted and said that the Constitution wouldn't give the federal government the power to create universities. And then they both pointed to different parts of the text that they had just drafted and agreed on, to support their position.

Thinks about it: if you've ever been in a group of about 30 or 40 people, and polled them on an issue, have you ever got unanimity? And not on general terms, but if the question is one of detail, and carries issues of social policy? Why would it be any different for the guys at Philadelphia?

That to my mind is the deep flaw in originalism. It assumes unanimity, when really there was only consensus.
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Old 08-28-2019, 08:50 PM
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Scalia is often lumped with originalists, but I am pretty sure that he was a textualist. From that perspective, it does not matter what the author desired, it is a matter of what he actually said. Bringing in all the Founding Fathers to re-convene the Constitutional convention would have no bearing on current interpretation because if the authors goofed and said the wrong thing, that is how the law should be decided.
I once read an interview that gave an interesting take on textualism. It was back when the dangers of second-hand smoke were coming into view, and some workers were arguing that occupational health and safety laws entitled them to smoke-free workplaces. The journalist interviewed an expert in Occupational health and safety, and the expert said something along the lines of:

"I've helped draft those laws and regulations that require safe workplaces. And everyone around the table was smoking - the rooms would be filled with smoke. If you had asked us if our smoking would be contrary to the laws we had just drafted, we would have laughed you out of the room and lit up another one."

"But now the situation has changed. The science is making it clear that second-hand smoke is contrary to the laws I helped draft. Even though none of us doing the drafting knew it at the time."
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Old 08-28-2019, 09:00 PM
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Scalia is often lumped with originalists, but I am pretty sure that he was a textualist.
I disagree. Scalia called himself an originalist and his actions matched his words.
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Old 08-28-2019, 09:03 PM
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(before reading anyone else's responses)
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Would their opinions on current day issues matter?
Yes, because some people would care , and take their opinions into account. And, after all, they were pretty smart guys.
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Would their clarification today end the debate?
No, of course not. Even among people who cared what they think, it would just be one more thing to take into account, not a definitive end to the debate (unless their opinions reinforced what you already believe and want).
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Old 08-28-2019, 09:39 PM
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If James Madison had risen from the grave and told Justice Scalia that the Second Amendment did not guarantee an individual right, we would have a different jurisprudence for that Amendment
Why does Madison get to be the deciding voice? There are two problems with that.

First, he was only one of about 60 Representatives. He only had one vote. Why should he have the deciding say?

Second, what he proposed as the text in relation to guns was rejected by Congress. His proposal in relation to guns was significantly different from what Congress ultimately approved.

Madison's version in the first draft presented to the was:

Quote:
Originally Posted by Representative Madison
A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.
A variant of that was accepted by the Representatives, and then it was changed by the Senate, and then the final version was settled by the House-Senate conference. The Second Amendment, as framed, isn't the work of Madison, or any other single individual. It was the joint product of over 80 individuals in the House and the Senate. How can originalism say that those 80+ politicians would have all agreed on the meaning of what they had just drafted?

And of course it doesn't end there. The Fourth Article of Amendment went off to the states. It got ratified, unlike the First and Second Articles, by the necessary 11 state legislatures, totalling additional hundreds of politicians. They didn't draft it, but their approval was necessary, as the fate of the First and Second Articles show. They too were part of the original voters on the proposal.

How is it possible to say that there is a common, original intent? That if you asked all of those hundreds of politicians the meaning and application, they all would have agreed, unanimously? (And, as an aside, this language of "Founding Fathers" masks what they were : politicians. Two centuries ago, but politicians.)

Originalism only works if you assume that old dead politicians were omniscient, able to foresee all social problems, and unanimous in their interpretation of the law they had drafted. But they wren't. They were politicians, not Demi-gods.
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Old 08-28-2019, 09:44 PM
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The framers would all hold the idea that the right to arms is conditioned and qualified or restrained by the words of the 2nd Amendment with contempt -- after they stopped laughing when they realized people were seriously saying that the declaratory clause modifies the right.

None of them believed they were granting or giving "the people" the right to arms. They all believed in the principle of conferred powers and retained rights . . . That anything and everything not spelled out in the body of the Constitution, (granting government a power over that interest), was retained by the people as a right.

The fight over adding a bill of rights was on that point, not any disagreement about what rights were. The Federalists thought it dangerous and absurd to call out that things shall not be done when no power was ever granted that allowed government to act. Yeah, they lost that fight and we have a Bill of Rights but Federalist arguments against adding a bill of rights were codified and became the 9th and 10th Amendments, and speak directly on this point.

The framers would be shocked that people were dissecting and parsing the 2nd Amendment and trying to discern what rights the framers "intended" to give the people They would think it preposterous that people are reading the 2ndA to try to discover what arms the people were "allowed" to possess and use. They would be horrified that such ridiculous things were being said. . .

"We the People" don't possess the right to arms because the 2nd Amendment is there . . . "We the People" possess the right because "We the People" never granted government any power to have any interest in the personal arms of the private citizen.

IOW, the right isn't ours because of what the 2nd Amendment says, the right is ours because of what the body of the Constitution DOESN'T say.

That's what the framers would be telling us if they could.

.

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Old 08-29-2019, 01:28 AM
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The framers would all hold the idea that the right to arms is conditioned and qualified or restrained by the words of the 2nd Amendment with contempt -- after they stopped laughing when they realized people were seriously saying that the declaratory clause modifies the right.

None of them believed they were granting or giving "the people" the right to arms. They all believed in the principle of conferred powers and retained rights . . . That anything and everything not spelled out in the body of the Constitution, (granting government a power over that interest), was retained by the people as a right.

The fight over adding a bill of rights was on that point, not any disagreement about what rights were. The Federalists thought it dangerous and absurd to call out that things shall not be done when no power was ever granted that allowed government to act. Yeah, they lost that fight and we have a Bill of Rights but Federalist arguments against adding a bill of rights were codified and became the 9th and 10th Amendments, and speak directly on this point.

The framers would be shocked that people were dissecting and parsing the 2nd Amendment and trying to discern what rights the framers "intended" to give the people They would think it preposterous that people are reading the 2ndA to try to discover what arms the people were "allowed" to possess and use. They would be horrified that such ridiculous things were being said. . .

"We the People" don't possess the right to arms because the 2nd Amendment is there . . . "We the People" possess the right because "We the People" never granted government any power to have any interest in the personal arms of the private citizen.

IOW, the right isn't ours because of what the 2nd Amendment says, the right is ours because of what the body of the Constitution DOESN'T say.

That's what the framers would be telling us if they could.

.
If people have some natural right to own firearms, why don't people in other countries have this right?

You have the right to own a firearm for one reason only - you live in a country where the government gives you that right.

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Old 08-29-2019, 09:33 AM
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If people have some natural right to own firearms, . . .
The undeniable "natural right" is the right of self defense. I recognize that some governments assume they possess a power to dictate to people what tools they can use to defend their life.

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why don't people in other countries have this right?

You have the right to own a firearm for one reason only - you live in a country where the government gives you that right.
I will reply assuming you are actually interested in "why" and that you haven't been instructed in "why".

Short answer, (which you have already been given), US citizens posses the right to arms because "We the People", when establishing the Constitution (a compact which empowers and establishes government and delegates specific duties for it to perform on our behalf) did not grant the government any power to allow it to have any interest in the personal arms of the private citizen.

Long answer:

US citizens possess the right to arms because the United States is the only nation founded on the principle of unalienable rights. So while . . .

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

.. . the reality is, not everyone in the world is able to claim the full complement of rights under the governments they subject themselves to, or allow themselves to be subjected under. As stated, a vital part of claiming unalienable rights is society establishing a government of their choosing, an exercise in free will.

So, actionable unalienable rights are not universal. They do not exist for everyone, everywhere under all forms of government. The concept of unalienable rights has a very limited and specific application . . .

The founders / framers of the USA embraced and based their governmental model on the principles of conferred powers and retained rights. The people empower government by surrendering specific powers in a limited, delegated fashion. This established the principle that government cannot legitimately be arbitrary over the lives and fortunes of the people because government's power is only the sum of that limited amount of power each member of the society gives up to the legislative assembly.

The power vested in the assembly can be no greater than that which the people had before they entered into that society because no person can transfer to another, more power than he possesses himself, and nobody has an absolute arbitrary power over any other, to destroy or take away, the life, liberty or property of another person.

Here is the vital point; under these principles, government only keeps that power with the consent of the governed and the citizens retained everything not delegated to the government. Our rights were understood to be inherent and among those inherent rights a subset, called unalienable rights (sometimes inalienable), were considered of such intrinsic value to being human that a person, even willingly, cannot confer or surrender them to another person.

Unalienable rights is a concept focused on legitimacy; a person cannot legitimately confer to government the care or defense of his life, liberty or property. Unalienable also denotes legitimacy of action for government because no legitimate government would ever accept such a surrender by a citizen if offered.

Unalienable really has nothing to do with whether a particular right can be violated by government . . . Of course it can, that's a given. The term again is centered on legitimacy; when an unalienable right is violated, that government is no longer operating according to the principles of its establishment, thus it has lost its legitimacy to govern. It is then subject to the people's original "natural", never surrendered right of self dense, to rescind their consent to be governed and retake the powers originally conferred.

Important to your question, this is the principle of the 2nd Amendment; if this rescinding of their consent to be governed can not be done peacefully, then the people retain the right and the means, to bear arms and use force to oust the usurpers.

Unalienable rights is a concept of importance primarily at the genesis of the social compact / contract. Once the government's powers have been established, (by a ratified by the people constitution, consenting to be governed), unalienable rights become relatively moot because their status has unalterably been codified. The only concern is whether they are being violated and the only enforcers of violations are the people (again, because the care of these rights can not be surrendered or transferred) . . .

In the final analysis, one must understand that "unalienable rights" is a meaningless concept if there isn't a government being established to NOT surrender rights to.

It makes no sense to apply the term or use it in the context of people living under say, a monarchy or a dictatorship or even a parliamentary scheme . . . It is at its core a refutation of a monarchy and any authoritarian rule that is not subject to the citizen's determination and ultimately, their right to rescind their consent to be governed.

Even more nonsensical is a modern enlightened socialist/communist/anarchist discussing the term only to deny the existence of unalienable rights.

.
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Old 08-29-2019, 12:32 PM
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My point is that it's obviously wrong to speak of unalienable rights while observing these rights don't exist in other countries. That's proof that these rights are, in fact, quite alienable.

And that's evidence of the bigger point. People don't have rights despite the government. We have rights because of our government. Government is the tool we collectively use to establish and protect our rights. Without government, we're just a mob of individuals who have no rights.
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Old 08-29-2019, 12:48 PM
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And that's evidence of the bigger point. People don't have rights despite the government. We have rights because of our government. Government is the tool we collectively use to establish and protect our rights. Without government, we're just a mob of individuals who have no rights.
That's the opposite of what the Declaration of Independence and the Ninth Amendment say.

Maybe the Founding Fathers will rise from the dead tomorrow and say "jk lol" but I doubt it.
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Originally Posted by Aspidistra
The two sides are too well entrenched now to have their opinions changed by any particular bunch of people.
Bingo.

Regards,
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Old 08-29-2019, 01:37 PM
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Scalia is often lumped with originalists, but I am pretty sure that he was a textualist. From that perspective, it does not matter what the author desired, it is a matter of what he actually said. Bringing in all the Founding Fathers to re-convene the Constitutional convention would have no bearing on current interpretation because if the authors goofed and said the wrong thing, that is how the law should be decided.

Of course, we still get no satisfaction in appealing to texts, as the recent decision demonstrates with Scalia and company's decision to simply ignore (or handwave away), the opening clause of the 2d Amendment.
The opening clause of the 2nd amendment is not ignored. Well regulated at the time meant something like "in good working order" and a militia was all of the adult males of a territory that could be called on to serve in times of war. Those who insist otherwise are either ignorant or being tendentious.
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Old 08-29-2019, 01:53 PM
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If the founding fathers had any special genius, it was the awareness that they were men of their time. They realized that the country would change and that the laws they were writing in 1789 might not be the right laws in 1889 or 1989 or 2089. They recognized that changes would be needed and they made sure to make it possible for people in their future to change the laws as needed.
They also made sure to make it possible for people in their future to change the Constitution as needed.



Not just hand-wave it away.
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Old 08-29-2019, 01:54 PM
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That's the opposite of what the Declaration of Independence and the Ninth Amendment say.

Maybe the Founding Fathers will rise from the dead tomorrow and say "jk lol" but I doubt it.
I disagree. Both documents are about the role of the government. The Declaration of Independence outlines what's wrong with what was then the current government and the Constitution, including the Ninth Amendment, is about setting up a new government.
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Old 08-29-2019, 01:57 PM
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The opening clause of the 2nd amendment is not ignored. Well regulated at the time meant something like "in good working order" and a militia was all of the adult males of a territory that could be called on to serve in times of war. Those who insist otherwise are either ignorant or being tendentious.
I can't seem to recall any time in U.S. history where a civilian was brought up on charges for not keeping firearms "in good working order". Seems like a strange thing to stick in the Constitution.
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Old 08-29-2019, 02:45 PM
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That's the opposite of what the Declaration of Independence and the Ninth Amendment say.



Maybe the Founding Fathers will rise from the dead tomorrow and say "jk lol" but I doubt it.

Bingo.



Regards,

Shodan


The people who wrote those were also cool with slavery.
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Old 08-29-2019, 02:58 PM
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Originally Posted by puddleglum View Post
The opening clause of the 2nd amendment is not ignored. Well regulated at the time meant something like "in good working order" and a militia was all of the adult males of a territory that could be called on to serve in times of war. Those who insist otherwise are either ignorant or being tendentious.
Not sure where you're going with this. Are you saying our current laws on gun ownership are based on membership in a militia?
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Old 08-29-2019, 03:01 PM
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My point is that it's obviously wrong to speak of unalienable rights while observing these rights don't exist in other countries. That's proof that these rights are, in fact, quite alienable.

And that's evidence of the bigger point. People don't have rights despite the government. We have rights because of our government. Government is the tool we collectively use to establish and protect our rights. Without government, we're just a mob of individuals who have no rights.
Do you think there is such a thing as "human rights"? Something such that a country like, North Korea, could violate?

Everyone starts with certain unalienable rights. The right to not be killed for example. Just because someone kills another person, doesn't mean they didn't possess that right, it means that someone violated their rights. That a right is violated does not mean that it never existed, though depending on circumstances one may not have the ability to enforce those rights.

In your view, people are subjects of the government. In the context of the US, the government is subject to the people.
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Old 08-29-2019, 03:02 PM
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Not sure where you're going with this. Are you saying our current laws on gun ownership are based on membership in a militia?
Only people that can be called on in time of war can own guns, and the guns they own must be in good working order.
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Old 08-29-2019, 03:32 PM
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I can't seem to recall any time in U.S. history where a civilian was brought up on charges for not keeping firearms "in good working order". Seems like a strange thing to stick in the Constitution.
The idea of charging a civilian with not keeping his firearms "well regulated" isn't in the Constitution. "Arms" and "militia" are different words, referring to different things.

Maybe the Founding Fathers could explain that clearly enough, but I doubt it.

Regards,
Shodan
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Old 08-29-2019, 03:36 PM
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Originally Posted by Shodan View Post
The idea of charging a civilian with not keeping his firearms "well regulated" isn't in the Constitution. "Arms" and "militia" are different words, referring to different things.

Maybe the Founding Fathers could explain that clearly enough, but I doubt it.

Regards,
Shodan
Take it up with puddleglum-he was the one interpreting it.
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Old 08-29-2019, 03:44 PM
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Do you think there is such a thing as "human rights"? Something such that a country like, North Korea, could violate?
Yes, I think there are human rights. But I don't think they appear out of thin air. I think we choose to establish a right. And then we establish a government to make the right happen.

I don't see any point in having rights which only exist in a theoretical sense. It doesn't matter if I have a right to free speech, for example, if I'm surrounded by people who will act against me if I say something they don't like.

Real rights only exist when people live in a society where they can practice those rights. And government is the means we use to do this.

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In your view, people are subjects of the government. In the context of the US, the government is subject to the people.
No, that's the opposite of my view. As you note, the government is subject to the people in this country. I thought that was clear from me referring to the government as a tool used by the people.
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Old 08-29-2019, 03:45 PM
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Only people that can be called on in time of war can own guns, and the guns they own must be in good working order.
I don't think our current laws require this.
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Old 08-29-2019, 03:54 PM
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Take it up with puddleglum-he was the one interpreting it.
No, actually he didn't say anything like what you claimed. He apparently understands that the words "militia" and "arms" are different.

It's a problem with debates like this one. One side calls it "interpreting" - textualists call it "reading for comprehension".

Regards,
Shodan
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Old 08-29-2019, 04:01 PM
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No, actually he didn't say anything like what you claimed. He apparently understands that the words "militia" and "arms" are different.

It's a problem with debates like this one. One side calls it "interpreting" - textualists call it "reading for comprehension".
I think you are confusing "textualism" with "originalism".
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Old 08-29-2019, 04:19 PM
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I think you are confusing "textualism" with "originalism".
"Originalism" is what puddleglum was doing when he explained what the words "well-regulated" meant. "Textualism" is what I was doing when I pointed out what puddleglum actually said. "Interpretation" is what you were doing, when you claimed the Constitution said something because you wanted it to be there.

Regards,
Shodan
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Old 08-29-2019, 04:21 PM
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Originally Posted by puddleglum View Post
The opening clause of the 2nd amendment is not ignored. Well regulated at the time meant something like "in good working order" and a militia was all of the adult males of a territory that could be called on to serve in times of war. Those who insist otherwise are either ignorant or being tendentious.
OK. Not ignored, just hand-waved away with odd interpretation of grammar.

Last edited by tomndebb; 08-29-2019 at 04:23 PM.
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Old 08-29-2019, 04:35 PM
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My point is that it's obviously wrong to speak of unalienable rights while observing these rights don't exist in other countries. That's proof that these rights are, in fact, quite alienable.
What definition of the word "alienable" are you using?

Did the people in your "other countries" willingly surrender those rights to their rulers, or were those rights never recognized to exist in the people when the ruler took power?

If the people are living under an authoritarian government of a conqueror or the vestiges of a monarch that doesn't recognize rights, those rights can't be said to have ever been alienated by the people . . . perhaps stolen, or in the parlance of the framers, "usurped", but definitely NOT alienated.

When rights theory is being discussed, there is a particular lexicon with specific definitions that needs to be respected and adhered to. If you insist on using a bastardized or perverted meaning for these words, I'm afraid no reasoned discussion can be had.

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And that's evidence of the bigger point. People don't have rights despite the government. We have rights because of our government.
Well, that depends on what political philosophy you are operating under and what rights theory you embrace. In Lockean rights theory, humans originally had "natural rights" when one was living in the wild, unencumbered by any other person's will. You were free to do anything, all rights are absolute, limited only by your physical abilities to take what you want or defend what you have. The risk was encountering a stronger person that wished to subjugate you or enslave you or even kill you and take what is yours.

Humans, being "social" creatures, desire and choose to form "society", to enjoy the mutual benefits of task sharing cooperation with others and to combine their power to defend against outside forces that would subjugate, enslave or kill them.

The classic instructional philosophies of how humans form "society" is a long story (back to Plato and Aristotle) and quite well understood. The founders / framers of the USA's governing system primarily had the absolutists Jean Bodin and Sir Robert Filmer (with some Hobbes thrown in) vs. Locke and Sidney to choose from . . . They chose Locke and Sidney.

Locke advocated a society (government) that is established from the free will of its members, who choose what limited powers the society (government) shall have -- which also determines what rights the people shall enjoy -- which is to say, what interests society (government) may not intrude upon.

Under absolutists, you have the rights they decide you will have -- generally limited to "rights" that do not threaten their power, so free speech, a free press, assembly and certainly the right to arms are NOT recognized to exist.

OTOH, in a Constitutional Republic, the people grant government its powers and tell the government what it is allowed to do and tell that government it only keeps those powers for as long as we believe it is operating in our best interest.

We can not be barred from speaking out against that government or writing in opposition to the government or assembling to protest the government or even, if we decide the government is violating the principles of its establishment, take up arms and abolish that government. None of these rights are given, granted, created or established by the government, such a concept is absurd; as is the belief these rights are granted by the compact by which the people grant government its powers. We possess those rights because we retained them, we never gave government any power to act against those interests.

I'm sad to say you seem to have a particular affinity for the mindset of the absolutist or conqueror and a particular respect for his assumed power to pick and chose what rights people should have.

.

Last edited by Abatis; 08-29-2019 at 04:39 PM.
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Old 08-29-2019, 05:00 PM
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I can't seem to recall any time in U.S. history where a civilian was brought up on charges for not keeping firearms "in good working order". Seems like a strange thing to stick in the Constitution.
Formally enrolled members of militia were under Militia Act of 1792 impressment and obligated to "provide himself with a good musket or firelock", I would say that "good" is a qualifier that denotes a gun "in good working order".

While charges or fines were not set-out in federal law, many states had penalties and fines for failing to keep up with the requirements as to arms and accouterments; when called, one had to muster in a condition to fight.

Of course this has NOTHING to do with "the right of the people to keep and bear arms" .
  #42  
Old 08-29-2019, 05:02 PM
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The idea of charging a civilian with not keeping his firearms "well regulated" isn't in the Constitution. "Arms" and "militia" are different words, referring to different things.

Maybe the Founding Fathers could explain that clearly enough, but I doubt it.
They did . . .
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Old 08-29-2019, 05:04 PM
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Originally Posted by Abatis View Post
Formally enrolled members of militia were under Militia Act of 1792 impressment and obligated to "provide himself with a good musket or firelock", I would say that "good" is a qualifier that denotes a gun "in good working order".

While charges or fines were not set-out in federal law, many states had penalties and fines for failing to keep up with the requirements as to arms and accouterments; when called, one had to muster in a condition to fight.

Of course this has NOTHING to do with "the right of the people to keep and bear arms" .
Again, I'm not the one who connected the two.
Not that it matters a whit what the 2nd Amendment says and/or means if carrying weaponry is some sort of "Natural Right", correct?
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Old 08-29-2019, 05:29 PM
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Yes, I think there are human rights. But I don't think they appear out of thin air. I think we choose to establish a right. And then we establish a government to make the right happen.

I don't see any point in having rights which only exist in a theoretical sense.
????

The entire realm of political systems and their operation is one of philosophy, of theory residing in the mind.

Physical, tangible representations of the philosophy can be generated (e.g., the Constitution) but even that, a contract outlining the philosophy, is dependent upon humans considering the philosophy is something to cherish, respect and obey, itself a construction of the mind

Physical, tangible "things" that facilitate the exercise of a right are important and protected as ancillary / contributory / complementary to the right, like the printing press, religious texts and items and yes, guns and ammunition.

Last edited by Abatis; 08-29-2019 at 05:29 PM.
  #45  
Old 08-29-2019, 05:31 PM
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I'm sad to say you seem to have a particular affinity for the mindset of the absolutist or conqueror and a particular respect for his assumed power to pick and chose what rights people should have.
Don't be sad. What you said has no resemblance to what I believe. More pointedly, it has no resemblance to anything I've said.

I've said that the people should choose what rights they want. I don't see how you can stretch that to claim I think an absolutist or a conqueror should be deciding what rights people have.

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If you insist on using a bastardized or perverted meaning for these words, I'm afraid no reasoned discussion can be had.
I'm reaching the same conclusion.
  #46  
Old 08-29-2019, 05:33 PM
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The entire realm of political systems and their operation is one of philosophy, of theory residing in the mind.
Philosophical politics that only exist in theory are pointless. The only politics that matter are those that exist in the real world and affect real people.
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Old 08-29-2019, 05:47 PM
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No, actually he didn't say anything like what you claimed. He apparently understands that the words "militia" and "arms" are different.

It's a problem with debates like this one. One side calls it "interpreting" - textualists call it "reading for comprehension".
I can see, as a hypothetical, an interpretation of the text and meaning of the Second Amendment which would say that the right to keep and bear arms is contingent on membership in a militia. At which point, we could debate the meanings of well-regulated and militia.

But puddleglum seems to be saying that such an interpretation isn't just hypothetical. He said "The opening clause of the 2nd amendment is not ignored." And I disagree.

My understanding of our current gun laws is that they are based on the theory that the right to own firearms is a right held by individuals, not a right held by members of a group, even if it's a group of which everyone is automatically a member.

Unfortunately, at the moment we're all forced to apply a textualist approach to puddleglum's post. It would be helpful if he would respond and explain what he meant so we could take an originalist approach.
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Old 08-29-2019, 05:59 PM
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Not that it matters a whit what the 2nd Amendment says and/or means if carrying weaponry is some sort of "Natural Right", correct?
I resist calling any right a "natural right" once we are talking about humans in society (and living under a government). The term "natural right" assumes one is in a "state of nature" as opposed to in society.

Certainly what are deemed to be "natural rights" survive the move to society but at that point I'd rather call those rights "original" or "inherent"; basically, those rights that humans possess in or out of society . . . Now, whether the society (government) that particular humans find themselves living under actually respect inherent rights is the larger discussion we are having.

It's just that I would rather keep the terms segregated in the states of human condition that they remain logically coherent and contained within the philosophy that birthed the term . . .

Natural rights = State of Nature.

As to, "Not that it matters a whit what the 2nd Amendment says and/or means if carrying weaponry is an [original, inherent right], correct? . . .

That is correct. The right to keep and bear arms is a pre-existing right, not in any manner dependent on what the 2nd Amendment says. SCOTUS has been boringly consistent on that point for over 140 years.

Recent lower court decisions (Young v Hawaii) have said that the right to bear arms is the right to carry a gun in public for self defense and States can not impair this right. Deciding the manner of carry is in the power of the States but the basic right must be respected and protected (the panel decision is set aside for now, awaiting an en banc review, so we will see if this holding becomes the law in the 9th).
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Old 08-29-2019, 06:13 PM
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I'm reaching the same conclusion.
And nowhere in your post do I see you define the word "alienated". . .

I've replied to you assuming you were interested in a reasoned discussion; if we can not establish we are defining and using words in a consistent manner how can that happen?
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Old 08-29-2019, 06:17 PM
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And nowhere in your post do I see you define the word "alienated". . .

I've replied to you assuming you were interested in a reasoned discussion; if we can not establish we are defining and using words in a consistent manner how can that happen?
Maybe it is a mite hard to believe that someone who posts
Quote:
I'm sad to say you seem to have a particular affinity for the mindset of the absolutist or conqueror and a particular respect for his assumed power to pick and chose what rights people should have.
is interested in a reasoned discussion?
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