Parsing the Second Amendment

[Stoid]

Over in the Pit, in the “stupid liberal idea” thread, the topic of the good 'ol Second Amendment came up.

And the following series of posts occurred, in this order, leading to this thread:

Starving Artist re: the First Amendment:

Originally Posted by Starving Artist
Exactly! Especially and “specifically” political speech. That means it was intended to protect political speech specifically and it says nothing one way or the other about other types of speech or other types of expression. The deceit that it does is a liberal invention.

Woodstockybird in response:

Funny, I’d bet you have no problem with deciding how the ambiguous wording of the 2nd Amendment should be applied.

Me in support:

Oh SNAP!
(Except as we all know it’s not really very ambiguous at all, it’s very specific, what with the “well-regulated militia” and everything)

To which Zerial responded:

Don’t MAKE me define “well-regulated”, “militia”, and “dependent clauses” again.

Then Zerial, back at the First, said:

Also, still waiting for you to show me where the First Amendment says “political”. I mean, this liberal astigmatism is getting so bad, I wonder what other random adjectives I’m not seeing in there.

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

And I replied:

It’s that fancypants righty way of reading the Constitution: even though the Founders didn’t explicity say “political” speech, we are supposed to infer that they intended us to understand that they were limiting it to political speech, and even though the founders DID explicitly say “well-regulated militia” we’re supposed to infer they never intended any limitation on gun ownership.

IN other words, when it’s open ended, they meant a limitation we’re supposed to understand, when it’s specifically limited we’re supposed to understand that they meant no limits.

The Founders originally wanted to name the country OppositeLand.

And then Zerial said, talking to SA:

Just as I don’t believe the subordinate explanatory clause in the Second Amendment lets the government confine weapons to “well-regulated militias”,

And I linkyed to this, which concludes, after parsing the second,

Thus, I conclude, rather differently than I suggested in an essay a few months ago, that this right can only be exercised in the context of something that is “well-regulated” and can be consistent with the word “Militia.” To find a right in these words to arm oneself in a DC condo seems to be quite a stretch, indeed a stretch beyond the bounds of credulity. If one wants to find a right to private handgun ownership in the US Constitution, one might look to other clauses, but one shouldn’t look to the 2nd Amendment. The text of this Amendment just won’t support it.

And Zerial then said:

Start another thread if you want to continue this hijack, I’m not addressing the argument here, merely staking claim to “not a Democrat” ground.

But please do start another thread with that link, because that guy’s an idiot and doesn’t know the definitions of the words he is reading in a legal context.

And then Really Not All That Bright Pointed out:

The guy is a lawyer (and a former law professor), so while I don’t agree with him either I hope you do better in the other thread.

To which Zerial replied:

When a guy spends time speculating about the definition of a term that is defined in Federal law, I am not particularly swayed by his supposed credentials.

Which I frankly find a surprising response, seeing as how that’s what the guy does. It’s what law professors do. It’s what legal scholars do. It’s what the Supreme Court does. Why Zerial finds this man’s doing what he is trained to do *de facto *evidence of the inadequacy of that training, I do not understand.

But Zerial, the floor is yours to tell us why this law professor’s parsing of the text of the Second Amendment is idiocy while yours, which you presumably also spent time speculating about, and which of course I’m certain you will share, is correct.

[Peremensoe]

I’m not Zeriel, but I notice your guy uses the three-comma Congressional draft, which reads more confusingly than the version that was officially ratified into the Constitution by the states (omitting the first and third commas). If he’s either unaware of the difference or deliberately using this one, it doesn’t speak well of his authority as an interpreter.

[Bricker]

Stoid’s ability to correctly analyze and apply law is of course beyond reproach.

But the Constitution means what the Supreme Court says it means. Of course you can argue, with some reasonableness, that the “well regulated militia” means that possession outside the militia is not covered, but you just as well argue that if that were the intent, then it wouldn’t have said “the people” but instead said that the government couldn’t constrain militias.

This fidelity to what the words of the Constitution say is pleasing to me, though, since I assume you’ll apply the same type of analysis to the abortion issue? The claim that the Constitution forbids states from prohibiting first-trimester abortions is, after all, even less grounded in the text than the claim that owndership of handguns is a protected right.

Of course, you won’t. You’ll argue, quite correctly, that the Constitution means what the Supreme Court says it means. And in this case, in Heller and MacDonald are pretty clear on the issue.

[Captain_Amazing]

@Bricker

Of course, you won’t. You’ll argue, quite correctly, that the Constitution means what the Supreme Court says it means. And in this case, in Heller and MacDonald are pretty clear on the issue.

Well, that sort of puts a damper on Constitutional interpretation debates, doesn’t it? Citing Heller and MacDonald is a pretty good primer on what the 2nd Amendment is currently understood by the courts to mean, but it’s not helpful in discussing what the 2nd Amendment should mean or what the people who wrote or ratified the 2nd Amendment intended it to mean.

Just like, to use your analogy, Roe and Casey (Casey is the most recent big abortion case, right?) are primers on the Constitutional guarantee to have an abortion as guaranteed by the (5th amendment? 9th amendment? 14th amendment? Whatever bullshit Blackmun came up with), but not necessarily what the writers of whatever amendment he was relying on when they passed that amendment.

[Starving_Artist]

I’ve often wondered whether the framers of the Constitution would be sad, angry or amused at what this country’s courts have contorted it into.

[Little_Nemo]

I go with the most direct reading of the text. I think it means that Americans have a right to personally own and carry firearms as individuals.

If the intent of the amendment was supposed to create a right to form militias, then the text would have read, “The right of the People to form a well regulated militia shall not be infringed.”

[Whack-a-Mole]

@Little_Nemo

I go with the most direct reading of the text. I think it means that Americans have a right to personally own and carry firearms as individuals.

If the intent of the amendment was supposed to create a right to form militias, then the text would have read, “The right of the People to form a well regulated militia shall not be infringed.”

We can both play that game.

If the intent of the amendment was supposed to create a right for individuals to bear arms, then the text would have read, “The right of the People to keep and bear arms shall not be infringed.”

Are there a lot of other places in the constitution (or law in general) where the writers just added a rhetorical flourish for the sake of it that had no meaning whatsoever as regarded the law? Seems to me the law is written as concisely as possible. Admittedly with tens of thousands of laws out there and me not having read very many of them I can’t say for sure. Generally I thought in law if it is written it is intended to mean something.

[Whack-a-Mole]

@Whack-a-Mole

Are there a lot of other places in the constitution (or law in general) where the writers just added a rhetorical flourish for the sake of it that had no meaning whatsoever as regarded the law?

I just read all the amendments and the only thing I saw that might be a rhetorical flourish is in the 23rd Amendment which starts:

Section 1. The District constituting the seat of government of the United States shall appoint in such manner as the Congress may direct:

Clearly it is set apart from the rest of the amendment and in no way makes the rest unclear. Aside from that I cannot find one rhetorical flourish in the lot. Everything written down is important to the text of the amendments.

The Supreme Court may have interpreted the 2nd Amendment to allow individuals the right to bear arms but they only did so by, literally, ignoring part of the clear text of the amendment.

If they can do it with that they can do it with anything and the constitution is not worth the paper it is written on.

[XT]

@Whack-a-Mole

If the intent of the amendment was supposed to create a right for individuals to bear arms, then the text would have read, “The right of the People to keep and bear arms shall not be infringed.”

And, as has been mentioned in countless of these threads in the past, the original draft DID sort of say that. But the original draft was changed and modified into, with multiple paragraphs condensed down into what we have today. Viewed through the context of the actual history and looking at the folks who put pen to ink on this, it’s pretty clear what they MEANT it to say.

But all of that is meaningless, as Bricker points out…because the Constitution and the various Amendments mean whatever the SC SAYS they mean. We all have to live with these little setbacks.

ETA: Here is a Wiki article going through some of the permutations of the 2nd Amendment drafts. More is available in the various papers and letters from the principals responsible for writing the thing:

Earlier proposals and drafts of the Amendment

And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms.

    Samuel Adams, (February 6, 1788), reported in Charles Hale, Debates and Proceedings in the Convention of the Commonwealth of Massachusetts (1856), p. 86. This language was proposed in the Massachusetts convention for ratification of the U.S. Constitution to be added to Article I of that document.

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

    Original text of what was to become the Second Amendment, as brought to the floor to the first session of the first congress of the U.S. House of Representatives. original text

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.

    Reworded version of the Second Amendment by the select committee on the Bill of Rights, July 28th 1789. AoC pp. 669)

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 one religiously scrupulous of bearing arms shall be compelled to render military service in person.

    Draft version of the Second Amendment sent by the House of Representatives to the United States Senate, on August 24th, 1789. (Note: When the Amendment was transcribed, the semicolon in the religious exemption portion was changed to a comma by the Senate scribe).

A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed

    Revision voted on in the U.S. Senate, September 4th, 1789.

A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.

    Final version passed by the U.S. Senate; the phrase "necessary to" was added when the proposed Amendment was entered into the U.S. House journal.

-XT

[XT]

And the obligatory link to Cecil’s take on this, since this is the SD and all.

OK, some gun-control advocates will concede, but that merely means infringed by the federal government. As an article in Mother Jones put it, “The legal precedents are clear: Almost any state or local gun-control action is fine; the Second Amendment does not apply. On the federal level, only laws interfering with state militias are prohibited.”

This is a crock. The legal precedents are far from clear. They’re also pathetically sparse, suggesting a reluctance on the part of the courts and the legal community generally to deal with the issue. (An enlightening article in the Yale Law Journal a few years ago was titled “The Embarrassing Second Amendment.”) In almost every other aspect of law the Bill of Rights has been broadly construed to restrain the states as well as the federal government. Few today would argue that states can abrogate the right to free speech guaranteed by the First Amendment. Yet many are prepared to let them gut the second, on the grounds that the framers didn’t foresee urban violence on the scale we face now. Maybe they didn’t, but so what? Civil-liberties advocates don’t accept urban violence as an excuse to curtail other constitutional rights, such as the protection against unlawful search and seizure.

That was then, you may say, and this is now. In the 1990s it may well be foolish, as a matter of public policy, to allow law-abiding private citizens to own guns (although I’m not persuaded this is so). But it seems pretty clear that’s what the founders intended, and it eats at the heart of the constitutional process to simply wave that right away. No one doubts today that slavery is bad, but the constitution as written permitted it, and a duly ratified amendment was required to put the matter right. Likewise we should concede that the Second Amendment means what it seems to mean and that if we want to control guns to the point of prohibition, amending the amendment is the honest thing to do.

-XT

[Left_Hand_of_Dorkness]

@xtisme

But all of that is meaningless, as Bricker points out…because the Constitution and the various Amendments mean whatever the SC SAYS they mean. We all have to live with these little setbacks.

Of course we do. But:

1. We can still shoot the shit on a messageboard about how we THINK it should be interpreted; and
2. We need not limit ourselves to a bloodlessly legalistic reading of it. On the contrary, I encourage folks looking for such a discussion to find a messageboard whose members are limited to constitutional scholars, or at the very least to discuss it in GQ. A legalistic reading is certainly informative, but it’s a start to the conversation rather than an ending to it.

[XT]

@Left Hand of Dorkness

Of course we do. But:

1. We can still shoot the shit on a messageboard about how we THINK it should be interpreted; and
2. We need not limit ourselves to a bloodlessly legalistic reading of it. On the contrary, I encourage folks looking for such a discussion to find a messageboard whose members are limited to constitutional scholars, or at the very least to discuss it in GQ. A legalistic reading is certainly informative, but it’s a start to the conversation rather than an ending to it.

I agree…but this subject has come up nearly as many times as the JFK assassination and 9/11 CT threads. I can practically tell you ahead of time what the responses will be from folks who think the 2nd Amendment means one thing, and the counters from the folks who think it means something else. To me, it boils down to looking at this historically, reading the various papers and letters of the founders and others involved in creating the Amendment, and looking at it form THEIR perspective as to what they did or didn’t mean. And also looking at their actions, to see if, for instance, they implemented the Amendment to mean it was only about militias, or whether the emphasis was on personal ownership of arms. It’s pretty clear to me that they didn’t try and regulate arms, only militias…and that ‘regulate’ basically meant something along the lines of what Cecil is saying in that article I linked to. While it’s obvious that MMV, I can’t for the life of me see how anyone could really THINK that it does, looking at our history and how personal gun ownership has always been held up as one of the pillars of our country.

That was then and this is now, as Cecil says…and the right thing to do is that if the times, they are a changin’, we should amend the Amendment to reflect the realities of our own times.

-XT

[Evil_Captor]

I’ll make a deal with the right: I’ll keep my hands off fricking guns if you’ll keep your hands off free speech. If the First Amendment doesn’t mean what it clearly says it does, neither does the Second.

[TriPolar]

@Constitution of the United States

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.

Where is the ambiguity? There are 2 parts to the sentence. The 1st part states the reason for the 2nd part, which is an entirely unambiguous statement.

If you don’t like the 2nd amendment, come up with a new one. Don’t keep trying to say it means something it doesn’t.

This from the esteemed Law Professor’s resume should have been a clue:
"Bill holds the B.A (honors) and Ph. D. from Brown University in Providence, R.I. "

And if you are insulted because you have a BA and PhD from Brown, hey look, your shoes are untied!

[Whack-a-Mole]

@xtisme

And, as has been mentioned in countless of these threads in the past, the original draft DID sort of say that. But the original draft was changed and modified into, with multiple paragraphs condensed down into what we have today. Viewed through the context of the actual history and looking at the folks who put pen to ink on this, it’s pretty clear what they MEANT it to say.

Huh?

Who cares what the drafts said? The law is the one that was ratified. They could have had a “kittens are cute” clause. So what?

How can you say it is “pretty clear what they MEANT it to say” if that is not what was passed and written into law? Were they incapable of writing what they meant to say and instead some strange compulsion caused them to write something else down?

At the end of the day the law is what is there in the books. Not what was left on the editing room floor.

[Little_Nemo]

@xtisme

And, as has been mentioned in countless of these threads in the past, the original draft DID sort of say that. But the original draft was changed and modified into, with multiple paragraphs condensed down into what we have today. Viewed through the context of the actual history and looking at the folks who put pen to ink on this, it’s pretty clear what they MEANT it to say.

Hate to disagree but the original versions of the text were actually the opposite. They placed greater rhetorical emphasis on the militia aspect of the proposal.

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

I think part of the problem is the changing technology in firearms. Nobody in the eighteenth century was likely to think of a musket as a weapon to be used in a crime or as an instrument for self-defense against a criminal. It would be pretty unwieldy to try to mug somebody with a musket. In terms of a weapon you’d use to commit a crime or defend against a crime, somebody of that era would have been more likely to think about a knife. (That’s why street criminals of that era were known as cut-throats.)

[XT]

@Whack-a-Mole

Who cares what the drafts said? The law is the one that was ratified. They could have had a “kittens are cute” clause. So what?

Well, only someone interesting in parsing the 2nd Amendment to try and figure out what the folks who wrote it were trying to say, I suppose. You can get an even better insight if you read through their writings and papers, letters and correspondence with each other, but looking at the various permutations of the drafts can give some clues.

Or, you could just try reading it directly and making assumptions and guesses filtered through your own worldview and the times you grew up in, I suppose. That seems to be the standard method people use. Sort of like folks who read the Bible literally, and don’t bother with all that stuffy historical stuff or secondary writings and conferences and such. shrug

-XT

[XT]

@Little Nemo

Hate to disagree but the original versions of the text were actually the opposite. They placed greater rhetorical emphasis on the militia aspect of the proposal.

Look at what you quoted there (that wasn’t the first draft or the first writings on this subject btw): “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”

The right of the people to keep and bear arms SHALL NOT BE INFRINGED. It’s the first sentence. The second part is obviously just talking about trying to control the militia. I don’t know how it could be more clear, to be honest. Could you explain how you parse the above to mean that the militia aspect has greater emphasis?

-XT

[Starving_Artist]

It appears to me that the amendment is clearly not intended to cover all forms of expression under the “speech” umbrella. Otherwise why the specific and separate granting of that freedom to the press?

Don’t we all know that the original intent of the First Amendment was to ensure that people could speak out against and/or criticise the government, and not that it was intended to ensure that people could say “fuck” in the movies and show pornography in libraries?

[Whack-a-Mole]

@xtisme

Well, only someone interesting in parsing the 2nd Amendment to try and figure out what the folks who wrote it were trying to say, I suppose. You can get an even better insight if you read through their writings and papers, letters and correspondence with each other, but looking at the various permutations of the drafts can give some clues.

Or, you could just try reading it directly and making assumptions and guesses filtered through your own worldview and the times you grew up in, I suppose. That seems to be the standard method people use. Sort of like folks who read the Bible literally, and don’t bother with all that stuffy historical stuff or secondary writings and conferences and such. shrug

-XT

Or one could read the plain text of a short sentence.

You have not answered why they would put a meaningless rhetorical flourish in there when they never did that anywhere else.

If they wanted to say, “The right of the People to keep and bear arms shall not be infringed.” then they could have said that. It is not difficult. I just did it. No ambiguity and we’d not be arguing about it today. Supposedly that is what many here are pretending it really says. You and they are ignoring the obvious other part and given no explanation for the existence of what you deem superfluous words or why they should be ignored. I do not think you could point to any other part of the US Constitution and pick out clauses we could equally well ignore as meaningless.