And, of course, the right to bear arms is infringed, massively, and nobody seems to care much about most of the infringements. Why am I not allowed to have a nuke? It’s an arm, and the Second Amendment says I’m allowed to bear those. If we grant that the government has the right and power to prohibit private ownership of nukes, well, then, we know what the amendment is, we’re just haggling over the price.
The final version went through several drafts and were voted on by a committee. THEY knew what it meant, but as often happens when multiple people are involved (read: multiple politicians and intellectuals, some with towering egos), especially when we are talking about writings from said committee over a century later and through a whole different filter, it was less than clear. So…you could read the short sentence, as you seem to indicate is your optimal choice, not bother with any of the historical aspects, not bother looking over the various drafts the thing went through, and just wing it…or you could look at the thing in the context it was written in, and dig deeper into other related writings of the folks who put the thing together to try and parse what they were ACTUALLY saying.
Like I said…to me it’s akin to folks who have no theological or historical background reading the Bible and just winging their interpretation based on what they think it’s saying. That’s how we get all the nutters going on about Revelations all the time…they THINK it means all sort of mystical bullshit, when in fact it’s code for stuff that was happening at the time the writer put pen to ink.
-XT
Deal. The First Amendment protects flags from being burned, and people have an individual right to possess guns.
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No, we don’t know that. Most of the same legislators who submitted the Bill of Rights to the states for ratification also voted for the Alien and Sedition Acts 10 years later, which directly prohibited criticism of the government. One might argue that the Founders intended to protect everything except political speech.
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The original intent of the First Amendment is irrelevant. The text of the Amendment was ratified; the intentions of its drafters was not. If the Framers intended to protect only political speech, they should have said so.
Freedom of speech is an individual right, while freedom of the press is a collective right.
You can reasonably have the right to have certain arms infringed. The nuke case could qualify as something inherently dangerous outside of its use as an weapon (though they are probably less likely to go off by accident than many other bombs), or regulated based on the radioactive material it contains.
A better argument is the ownership of automatic weapons, switchblades, nunchuks, teflon coated bullets, and other things which are inconsequentially distinquishable from other weapons whose ownership is unrestricted.
But that just means those restrictions should be removed based on the 2nd amendment, or a new amendment should be added to allow such restrictions.
So, they managed to be concise everywhere else in the constitution. They managed to write the whole of the Bill of Rights cleanly but they dropped the ball on the 2nd Amendment? All of a sudden in this one case we need to look to drafts and other sources so we can change the meaning of what is written by ignoring a chunk of text that is there?
You have not answered where else in the constitution do we do this and then ignore a clause outright as meaningless. That whatever was written is so much meaningless fluff. Anywhere else in the Bill of Rights? These guys were pretty good with the English language. I am sure they could have added some panache elsewhere.
Actually, you’d have to look at the most powerful weapons of the framers day and then see if ordinary citizens were banned from owning them. AFAIK, ordinary citizens could own cannon and rockets and even warships (all the most powerful weapons of those times).
The thing is, it doesn’t matter today…it’s all about how the SC interprets what the Amendment means. Same with the 1st. It’s interesting to look back and try and parse what they meant, but it’s all academic at this point…we all pretty much accept that some regulation is perfectly legal for the government or the various states to impose on us today. Were we set the bar is open to debate, somewhat…but the bar is basically set by the SC in the end. So, sadly, no nukes for joo. 
-XT
I don’t need to, since it’s not my decision. How the Constitution and the various Amendments are interpreted and actually used is up to the Supreme Court. THEY are the ones who decide what it means…and they don’t base that on what the original authors intent was, necessarily. Some on the SC do, but others don’t…it’s one of the major divisions between the different schools of thought of the justices.
Some of the Amendments ARE meaningless fluff today…some have actually been abolished (such as Prohibition, for instance).
I don’t believe that the Constitution OR the various Amendments are universally clear or concise with the exception of only the 2nd…if that were the case then the SC wouldn’t need to periodically make rulings on the different aspects of the thing. Did you think that the SC has only looked at the 2nd and interpreted that alone??
-XT
I agree the SC gets to decide. I am not arguing how the law currently stands.
Does this mean we cannot debate whether they got it right? If not tell anyone who argues Roe was decided wrong to shut their traps about it. The SC spoke, that’s the law, shut-up about it.
The only amendment I can think of as meaningless is the 3rd amendment. Technically it is not meaningless though. It still stands, just not something I can ever imagine becoming an issue. If it did for some reason then the 3rd still counts. What other fluff is there?
As for repealed amendments they were done so with other amendments. That’s fine. The new amendment supersedes the old one. In that case there is no interpretation, you just read the law as it is written.
Obviously not all rights are absolute. Free speech is not absolute. A literal reading of “arms” in the 2nd amendment would mean you could buy AA missiles if you wanted to. Nothing particularly new there.
Others are just how far they go in implementation as a practical matter. For instance the state has the right to bring you to trial for a crime. The constitution says the accused has certain rights. Someone needs to decide where the bright line is drawn in practice between the two. We can certainly argue about that too but nowhere do we suggest what is written should just be ignored as you would have it in this case.
In a way, yes. The Supremes interpreted the Seventh Amendment (“In Suits at common law… …the right of trial by jury shall be preserved”) to mean that the right to a jury trial was guaranteed only in civil suits based on writs (types of legal action) which existed in 1791, when the Bill of Rights was ratified.
So for each new legal action which has developed since, courts have to determine whether it resembles one of the causes of action which existed at common law in 1791; if it doesn’t, you get a bench trial (unless a specific statute guarantees a jury trial for that issue).
SCOTUS could easily have applied the same logic to the 2nd Amendment, and determined that it guaranteed the right to carry, say, flintlock rifles, but not semi-automatic handguns.
No doubt the Supremes decide in the end. But even in the framer’s day they might have considered it reasonable to prevent someone from maintaining a large stockpile of black powder in a densly populated area, or dry-docking your warship on the commons, or stealing guns to obtain ownership. So there are always reasonable restrictions that do not infringe on your right to bear arms, or only do so through due process of law.
I’ll also point out that the time that the Constitution is irrelevant to the intent. It was written to last until it was changed. If the definition of words has changed that would make a difference, but unless the ‘bear’ and ‘arms’ had different definitions back then, the differences in weapons shouldn’t matter.
Also, the Supremes do not modify the constitution. A new batch could always come in and reject the old interpretation and provide a new one. Over time, they are likely to average out around the obvious meaning of the words in the Constitution.
Personally, I don’t think literalism is the only way to interpret the Consitution, but I don’t think other interpretations should contradict the literal reading. I also don’t object to interpretation used by the Supremes to find additional rights that are not literally specified, but I do object to that being the basis to remove people’s rights.
And personally, I don’t like the 2nd amendment. It gives too much power to the individual to violate the rights of others and prevent the state from protecting them. I think we need an amendment to fix it that specifies the limits of government’s ability to regulate arms.
I haven’t looked at the 7th much, but I don’t see a change in interpretation from the literal statement.
The Supremes have just decided what is a ‘Suit of common law’ which had a specific definition at the time. In the 2nd amendment the term ‘arms’ was not limited to some specified subset of weapons known at the time. Likewise, the first amendment is not limited to the spoken word or the product of printing presses.
You’re missing the point.
“Suits at common law” did have a specific definition at the time, but that definition* has now changed*. Many of the civil actions which have come into existence since then are based on statute, but many are based on evolving common law. However, SCOTUS chose to stick with the definition of the phrase as it existed at the time of ratification.
SCOTUS took the opposite path with “arms”, “speech” and “press”.
You know, I remember in the earlier days of this message board members of the anti-gun contingent on here frequently dropping the bomb into gun control threads of “Sorry, the USSC disagrees with you. See Miller. Suck it down.” Yet when the USSC shows in two back-to-back landmark decisions that the anti-gun contingent is not correct any more (let’s leave aside whether or not they were correct before; assume that they were and it still doesn’t change my point), suddenly there’s this reluctance, and equivocation, and hemming and hawing, and handwaving and goal-post moving, and even sometimes “oh, it was only a 5-4 decision…”-ing (yeah, so was Miranda, anyone want to throw that out? You there, next to the American flag? Oh, you were just scratching your back; never mind…), and no one saying “You’re right, the USSC disagrees with me, I need to suck it down.”
I find that most unfortunate.
And as far as this thread goes…2008 called, it wants its topic back.
It’s a good thing the pro-gun people accepted that the Supreme Court was correct in Miller and let the whole thing drop, right?
Why would you think that? What’s bad for the goose is bad for the gander. Plus I’m only referring to people who said Miller was the be-all and end-all because it fit their agenda, and suddenly when the wind blows the other way the USSC isn’t so infallible, is it?
But if pro-gun people were completely dismissing Miller out of hand (and yes that includes me, if I did such) then they were wrong too. Right?
All right, SA. Give me your damn gun! Now!!!
I’ll need your man card, too.
Fair enough.
…plus actually reading Heller and McDonald, as opposed to going off of what Angry Teenaged Bloggers (not implying you do this, FTR, it’s just an expression of mine) say about it, shows that they are somewhat open-ended decisions. The Court clearly leaves open the prospect of broad regulation of firearms at the Federal level, and aside from a couple of specific exceptions could allow such things as banning so-called “assault weapons”, carry restrictions, limited gun purchases, hunting restrictions, registration, and expanding the class of people who are disallowed from ownership. I think the only things which appear to be specifically protected by name include the right to possess handguns and the right not to have disabling gun locks (see Heller).
Let us celebrate this meeting of the minds by putting a lot of holes in targets! Oh wait, it’s fencing night for me…um, how about crossing foils?