And yet you contend that its extend is effectively determined by a federal statute.
Look, you said that the “militia” is defined by 10 USC § 13. If that is true, then if the statute is rewritten, then the 2nd Amendment is also effectively being rewritten.
First off there is nothing asinine about what I wrote. It is factually correct. If you can put a period where a comma is (and have the now two sentences be grammatically correct) then your comma amounted to a comma splice…a grammatical error.
There are places where a semicolon can stand-in for a period but semicolon usage is not at issue here.
As for the differently punctuated versions are you saying the punctuation difference made a notable difference in the meaning of the text?
Thanks for pointing out why you use a comma there instead of a period (which another poster felt could be done).
The militia part tells us why the FFs felt the people should have guns. If all they meant to say was the people should have guns they could have said exactly that.
As I have asked repeatedly, show me another amendment where they put fluff language in. It is reasonable to assume the FFs meant what they said. They were smart guys, they could easily have said everyone is allowed to have a gun and left it at that. They didn’t.
My god people! Just read the PLAIN language of the amendment. It is one freaking sentence! How hard do you have to contort to get the meaning you want? "Well, if we do an anagram of every third letter then do a jumble it says “Free guns!” :rolleyes:
Err…the preamble has precisely zero legal force. We are talking about the law. Care to point out the rhetorical flourishes in the rest of the constitution?
As has been mentioned lots of rights are circumscribed. They have to be really (e.g. the famous can’t shout fire in a crowded theater when there is none and claim free speech). That is fine. Obviously the FFs could not even conceive of the weapons we have available today. I am fine that AA missiles and such are not available at Walmart. Of course there will be some gray areas to argue over (yes I know the “assault weapons ban” was silly as written) but I do not hear people moaning they can’t have recoilless rifles.
I was referring to “These guys did not make those kinds of errors.” as the asinine portion of your comment. Attempting analysis of this based on the specifics of punctuation is a fool’s game–hell, two differently punctuated versions were ratified by the two groups that needed to ratify it.
Right. No one’s disputing that. However, in the portion of the sentence with actual verbs, there are no exceptions to the actual verb. “Shall not be infringed” does not have any modifiers attached to or associated with it–I need to borrow your glasses, maybe they’ll let me see where the “political” is in the 1st Amendment too.
Isn’t it equally likely that they were thinking “Well, a lot of idiots might want to ban guns, so we’d better make sure they understand why we think it was important enough to be in the bill of rights? I know, let’s tell them: Because militias are important to having a free state, you can’t infringe on people’s rights to have and use guns!”?
So…you point out that the entire Constitution has an explanatory part at the beginning with no legal force, and that’s supposed to be an argument that amendments can’t possibly have explanatory parts at the beginning with no legal force.
No one sane is in disagreement with what you’ve said above, I don’t think.
Let me try this again: I don’t believe the first clause of the 2nd Amendment has any legal force, I believe it is an attempt to explain the rationale for what seems a relatively sweeping and potentially dangerous right.
I do believe that a lawyer is an idiot when he’s rambling on for a paragraph about what a word might mean in the context of Constitutional jurisprudence, when that word is defined in the US Code.
It’s possible for me to simultaneously believe that the US Code defines “militia”, that a lawyer is an idiot for not even mentioning that, and that the use of “militia” in the Second Amendment is not a meaningful legal constraint on the right defined by the Second Amendment.
Well, the primary egregious error he commits is dismissing what are the most fundamental inseparable principles of our Constitution; that of conferred powers and retained rights. I don’t have the right to keep and bear arms because I think the 2nd Amendment gives it to me, I have the right to arms because no power was ever granted to government to even contemplate the personal arms of the private citizen.
His opening narrative is interesting . . . He mentions Heller and characterizes it as “landmark” and recognizes that oral arguments were just heard but then goes on to writing with complete detachment from the Heller case and what the issues were before the Court and what arguments were presented by the direct parties and in amicus.
His recall of 2nd Amendment case law is wrong. Calling Miller the, “only Supreme Court precedent interpreting this Amendment” can not be explained.
He references another piece he wrote in January (just as ridiculous) where he predicted that, “the Justices probably would find an individual right to own firearms in the US Constitution”.
Well, that was not the question before them and that NEVER is the duty of the Court! Their duty is to decide whether challenged statutes are beyond the limited powers of the Congress (or in this case, its assigns, the DC Council).
The Court doesn’t “find” a right in the Constitution; it finds no power to act against the right claimed (whether it is enumerated or not).
Now we move to his textual analysis.
He begins with another profoundly false statement about SCOTUS:
[INDENT][INDENT]“There is no definitive (from the Supreme Court) interpretation of what this sentence means and whose rights it protects.”[/INDENT][/INDENT]
Well in 1876 the Court considered the right a pre-existing right exercised by the citizen before the Constitution was ratified and as such, “the right to keep and bear arms for a lawful purpose” (of two ex-slaves who were disarmed and lynched by the KKK in this case) did not depend on the Constitution for its existence.
This was reaffirmed in 1886 when the Court said again:
[INDENT]" . . . the right of the people to keep and bear arms is not a right granted by the constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, . . . "
PRESSER v. STATE OF ILLINOIS, 116 U.S. 252 (1886) [/INDENT]
There are two questions I would like to ask those in support of the “collective right” interpretation.
If the right to keep and bear arms (“it”) does not depend “in any manner” on the words of the 2nd Amendment, how is it legitimate to interpret the words of the 2nd Amendment as conditioning, qualifying or restricting “it,” again, “the right to keep and bear arms for a lawful purpose”?
If the 2nd Amendment is just like all the others in the Bill of Rights, just being, “one of the amendments that has no other effect than to restrict the powers of the national government”, how can the 2nd Amendment be interpreted to empower Congress to create the conditions and qualifications and restrictions that you claim the words, upon which the right does not depend, demand?
If you don’t understand the questions you don’t understand just how incorrect the “collective right” interpretation is.
More to come . . . I’m only one sentence into his textual analysis LOL.
I thinnk part of the problem is that today we hear or read the word “militia” and automatically think “state army”, consisting of soldiers issued weapons from the state’s armory. Except that the Constitution forbids state armies, outside of some bounded exceptions:
. Along with the rest of Section Ten and other provisions of Article One, the purpose and meaning of the provision is clear: the Federal government is to have a monopoly on foreign relations and the states are not to possess the means to persue independent foreign policies; there was to be one national army and one national navy. The question then becomes if, under A1S10C3 the states are forbidden to keep troops in peactime, then just what exactly is the Second Amendment promising, as either a check against federal power or as a guarantee of liberty? Specifically, if the Second Amendment talks about something called a “militia” in the context of keeping and bearing arms, then just what exactly is the difference between a militia and “troops”?
In every document contemporary with the Second Amendment, the answer seems unambiguous: the militia is synonomous with the people, the mass of the populace, armed with their own privately owned weapons; the posse comitatus that in time of emergency can be summonded to the common defense. Indeed the argument could be made that the very defining feature of a militia is that it’s members bear their own arms rather than the arms of the state. The first federal law on the subject, the 1792 Miltia Act, required male citizens eligible for militia duty to own their own firearm and ammo. The collective interpretation of the Second Amendment attempts to assert that the purpose of the Second Amendment is to protect a state governnment’s authority to possess armed forces, while leaving open the possibility that private citizens could be completely disarmed. I submit that the original intent of the Second is exactly the opposite: that in the face of the fact that under the letter of Article One Section Ten the states could be forbidden to possess any standing, professional armed force, that an armed populace was meant to be the guarantee of order and security.
And here too, the third clause of Article One Section Ten provides guidance, in it’s ban on states keeping ships of war in peacetime. If the purpose of the passage is to preserve the Federal government’s monopoly on the power to wage foreign war, then the states- and presumably private citizens as well- can be forbidden to possess strategic weapons systems designed to project military power against a foreign nation. Exactly where you draw the line is up for debate but at a minimum, if a civil police force’s SWAT team can possess it, then private citizens under due oversight should be able to possess the same weapons.
If you can find a grammatical error anywhere in the Constitution I’d be curious to see it. The two different versions were punctuated correctly (grammatically speaking). I’ll ask again, did the differences in punctuation change the meaning?
You are then asserting that the militia part is just nice prose. You still haven’t shown that they were inclined to do that anywhere else. Just here I guess for some unfathomable reason. Again, you are jumping through hoops to avoid a plain reading.
No, it is not equally likely. If all they said was, “The rights of the people to bear arms shall not be infringed” then that is it. Period. Succinct. Unambiguous. How could someone ban guns with that in place? How would people banning guns be swayed by thinking, “Well, if they had said it was for a militia or something then that’d be different”?
The preamble is just that…a preamble. None of the amendments, not one, has a preamble. The preamble has no legal force. The amendments do. No part of any amendment is deemed mere pretty language to be ignored. The WHOLE amendment is considered. Not just the parts you like. Except for the 2nd amendment I guess because it is special somehow and to be treated differently according to you and others.
How does “well regulated” fit into your analysis?
If a militia is “synonymous with the people, the mass of the populace” how do you see the masses being a “well regulated militia”?
With “well regulated” there a militia starts to sound a lot more like an organized force and not just the rabble who happen to have a gun.
Let’s ask Cecil, and see what he has to say about it:
Which is why they put in the ‘fluff’…they WANTED to regulate the militia. They didn’t want a rabble, what they wanted was citizen soldiers who had the right to keep and bear arms, and who would be able to pick up those arms and defend the nation. Why that is so hard to understand is a mystery to me. It’s clear in everything the founders wrote and discussed…they wanted the ordinary citizen to have the right to keep and bear arms. And they wanted to make sure the milita units were ‘duly constituted’…i.e. that they were under duly constituted civilian authority, and not just a bunch of armed ‘rabble’ roam about doing the gods know what on their own.
Why you want to focus on grammar (of all things) is, again, a mystery to me. It’s like arguing with a Bible literalist about passages in the Bible. Why would God put in all that stuff about Revelation if it didn’t mean literally what it says?? Without context, and going by the final draft that got passed down, how would you know? You seemingly want to ignore all context and focus on trivialities and your own very narrow and context-less interpretation of the Amendment. Even when it’s pointed out to you that the final version went through several drafts, each of which makes it pretty clear what the framers THOUGHT they were saying…which is that they wanted to guarantee the rights of individual citizens to keep and bear arms, and they wanted to regulate the militia to some sort of common standard and under the authority of duly constituted civilian control.
-XT
It’s possible, but it’s illogical.
OK, this just gets better (or worse, depending on your position) . . .
After his incorrect statement about SCOTUS’s determinations Mr Long’s textual analysis continues with another blatant misrepresentation:
[INDENT]“Let’s actually begin with the declaration clause–the second clause, because that is the “rights-conferring” clause.”[/INDENT]
This guy is a ConLaw expert? Congress defined the clauses contained in the Articles of Amendment transmitted to the states. The Preamble of the proposed amendments stated:
[ul]
[li]“THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”[/li][/ul]
The 4th proposed Article of Amendment was the only one that had two distinct clauses and the definition of those two clauses has been uncontroversial since 1791 . . .
Well until Mr Long switched things up.
The first clause, "A well regulated Militia, being necessary to the security of a free State, " is the inactive, dependent declaratory clause. The second clause, “the right of the people to keep and bear Arms, shall not be infringed.” is the actionable, independent restrictive clause.
Is there anything this guy gets right?
Next we are presented with questions of great importance to Mr Long. Let’s inspect each:
INDENT Who are “the people” here? Are the people here conceived as individuals or are they only considered important when they are a collective? The US Constitution begins with the words, “We the people.” Does that help? [/INDENT]
Well, yes it does, as long as you keep reading and understand what it says. “We the People” established the Constitution and conferred limited powers to government through it. If you believe in the principles of conferred powers and retained rights, Mr Long’s question is nonsensical. One ***should ***be inspecting the body of the Constitution for a grant of power that allows government to define what select class of “the people” shall be the approved arms keepers and bearers. Goodluckwitdat!
One*** should not*** be inspecting the 2nd Amendment trying to divine what degree of a right to arms “the people” shall be allowed to have because the government can not “give” to “the people” something “the people” never parted with!
INDENT What does “arms” mean? The OED, for example, defines arms as any offensive weapon. Should such an expansive definition be given here and, if not, why not? [/INDENT]
This is an interesting question but again, if one embraces the principles of conferred powers and retained rights, it isn’t hard to figure out.
We the People certainly conferred warmaking powers to Congress and the included powers over the weapons of war. Congress possesses exclusive power over those arms and laws restricting the citizen’s access to weapons of war and indiscriminate weapons are constitutionally legitimate. This is a principle from the framing and is evident right in the body of the Constitution in Art I, § 8, cl.11 which states that "Congress shall have the power:
[INDENT]To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water:"[/INDENT]
Letters of marque were granted to private ship owners to outfit and operate Man o’ War at the behest of the federal government. We had no Navy but these “privateers” siezed over 600 British ships during the Revolutionary War. After the war, Congress was granted the power to directly contol the most powerful weapon of the day WHICH WERE OWNED BY PRIVATE CITIZENS.
This clause prohibits anyone (states or private citizens) from outfitting, maintaining or operating such a weapon without the approval of Congress. It is a principle that indisputably is applicable to modern times and conditions and weaponry and I believe the 2nd Amendment is not a claimable immunity.
The question of what arms are protected by the 2nd has been settled for a long time. Those are arms of the type usually employed in civilized warfare and that constitute the ordinary military equipment. There is no “sporting purpose” within the protection sphere of the 2nd Amendment.
INDENT What is the context of the “keeping and bearing arms”? Is it in any context at all? Homes? Military service?[/INDENT]
Once again the answer to that question is a question: Where is any power granted to government to dictate to the private citizen what the “context” shall be for the use of his personal arms?
It is worthy of noting that neither the military or the militia needed a “right” for them to be armed. The power to direct the military and the militia as to their arms when in service to the nation is conferred to Congress. The 2nd Amendment has never been inspected or held to inform in any manner upon Congress’ power to write regulations regarding the arms of the active militia.
Whew, barely halfway and still haven’t found anything correct. Anyone holding out hope for Mr Long(shot)?
Well-regulated, at the time, could also be construed to mean “functioning as expected, well-maintained”. In a militia context the phrase can be construed to mean “in possession of proper equipment and training, ready to go.”
This.
This.
No, because if that’s how they wrote it they would have also thought “Well, lots of idiots might want to restrict speech, so we have to explain why we want speech to be free.” Lather, rinse, repeat for all the amendments.
Explain to whom? Why?
Why would they need to explain it, have a rationale for it, justify it in any manner whatsoever if the right were to be recognized as sweeping and all-inclusive? Why insert anything that might be perceived as limiting if they didn’t really mean for it to operate as a limit?
In all the other ways that the BOR gives “rationales” or explains, or in any way defines anything which falls outside a straigthforward right it is always to limit, regulate or in some way operate on the right or activity described:
Third: quartering of troops requires owners consent in peace, a manner legally created during war.
Fourth: Search and seizure. A good one, because it is similar to 2nd in that assumes some kind of baseline right, that of the people to be “secure in their persons, houses, papers and effects against unreasonable searches and seizures” But it then goes on to “limit” that right, or otherwise allow that baseline right to be taken away: by warrant or upon probably cause supported by oath with descriptions.
Fifth: limitations/descriptions include just compensation, indictment by grandy jury, due process of law.
Nowhere else is there some “rationale” offered without that “rationale” having any kind of force to limit, regulate, define or otherwise operate on the right in any way. So it makes no sense to assume that in this one particular instance they merely felt the need to justify themselves and expect that everyone would understand that unlike the other nine amendments, which have not a single unmeaningful word, the words “well-regulated militia” in the second mean nothing.
Pretty pretzelly reasoning.
This.
Seriously? :dubious:
Um, yeah (warning…PDF file. Of course, you could always just click on the link I provided to the SD article on this earlier if the .PDF is too much trouble)…it’s not like Zeriel made that up or something. If you don’t know that it’s one way of looking at what the term ‘well regulated’ means, then seriously…WTF are you having this debate for?
-XT
It’s not about the definition period, it’s about the definition in the context of the bill of rights. As I described more fully in the post just prior: qualifying language in all other places actually qualifies something, and suggesting that they intended the words “well-regulated” to convey “operating properly” in that context is the kind of stretch that makes things snap altogether.
The subordinate clause, as it is written, places no restrictions on the independent clause with regard to the right. As it is specifically written. The actual words themselves cannot be interpreted literally to mean that the right to bears arms exists only in the interest of forming a well-regulated militia, as long as we’re parsing.
Again, “the right of the people to keep and bear Arms, shall not be infringed” is unambiguous, and there’s noting in the subordinate clause that specifically says it means something other than what it does. The sentence, ISTM, is constructed:
[Unnecessary background explanation for why “A” is a useful right] + [“A” is unambiguously a right]
I don’t see any way to parse the actual words to mean a construction of:
[Specific restriction on right “A”] + [“A” is only sometimes a right]
I think the versions this went through make this even more clear. But no matter–HOWEVER you interpret the subordinate clause, without specific words to the effect of “so only in the interest of…” you’re inferring something not in the text if you say "“the right of the people to keep and bear Arms, shall not be infringed” means something other than “the right of the people to keep and bear Arms, shall not be infringed.” Whether or not such a rhetorical flourish exists anywhere else in the Constitution does not change what the actual words say. As long as we’re parsing.
Part III of my explaining Long’s idiocy . . .
Picking up with Mr Long’s pressing questions he turns to the “first clause” of the Amendment:
[INDENT]"(4) What is a “Militia?” Is it a force of a state or the federal goverment? Or, is it a private band of citizens that stand up against state and federal powers if they think the latter have overstepped their bounds? "[/INDENT]
This is a question that is meaningless in the context of the 2nd Amendment because the 2nd Amendment has never been inspected to inform or held to instruct on any aspect of militia powers, federal or state. No aspect of the structure for the organization, control, discipline and training of the militia was established, modified or enhanced by the “first clause” of the 2nd Amendment (that’s the declaratory clause for Mr Long).
[INDENT]"(5) what does it mean that such a Militia is “well-regulated”? By whom? To what end?" [/INDENT]
And again, a meaningless question in the context of the 2nd because the only constitutional direction and authority for the organization, control, discipline and training of the militia is found in Article I § 8, clause 16. It was under*** that ***clause’s authority the Militia Act of 1792 was written, establishing the commonality of arms, organization, control and training that people like Long read into the 2nd. The government itself does not look to the 2nd for any instruction of the exercise of militia powers, why do “collective right” adherents engage in such legally unsupportable foolishness?
Well, because people like Long get so wrapped up in explaining away the 2nd Amendment, telling us what it is not, it forces them into preposterous legal positions when they try to explain what it is. Has anyone ever argued that the various Militia Acts creating the regulations that would order and discipline the militia needed the “well regulated” statement of the 2nd Amendment for them to be valid? It is a ridiculous position that is philosophically, historically and legally invisible . . . I ask Long to show one instance of the 2nd being used to explain anything about militia.
Mr Long now turns to the respondent’s argument in Heller. I wonder why he did not speak on the petitioner’s argument? Perhaps because they didn’t engage in the foolishness he is pushing?
So Mr Long focuses on Gura’s “preamble” argument and gives it such a simplistic treatment he should be ashamed of himself.
[INDENT]"Crucial to his case, as demonstrated in his brief, was the assumption that the first phrase of the Amendment is a “preamble.” Preambles, in a word, can be ignored. They don’t control the meaning of what follows. He gave examples of a few other “preambles” in the Amendments and text of the Constitution to try to make his case.
I don’t think that is a good textual way to proceed. "[/INDENT]
If one want’s to use a “textual” analysis why doesn’t Long quote Gura’s textual argument? Long utters not a syllable about grammatical rules of dependent and independent clauses, not a syllable of the rules of statutory interpretation of preambles which even the petitioners stipulate that preambles are examined only if the enacting or restrictive clause’s “words happen to still be dubious.”
Long does not mention that the long standing rule for preambles is, "when the words of the enacting clause are clear and positive, recourse must not be had to the preamble.” and that preambles, “can neither limit nor extend the meaning of a statute which is clear. Similarly, it cannot be used to create doubt or uncertainty.”
Well I guess it is obvious why Long didn’t mention any of that; the centuries old rules of the textual analysis of law completely shred his reasoning and destroy his illegitimate, outcome based “textual way to proceed” in parsing the 2nd Amendment.
More to come . . .
You could start with the Federalist Papers #29, in which Hamilton (who actually was one of the more central-authority loving types compared to, say, Jefferson) talks about the militia. He actually uses the phrase “well-regulated” in specifically denying that it was either necessary or desirable to have every able-bodied gun-owning male trained to a military standard:
No, it’s not. “Well-regulated” was used in that sense to describe militias possessing proper training and equipment in many documents from the period, including the Federalist papers as linked above me.
I note you’re also breezing right on by the proof that your cite is a flaming moron for being a lawyer who doesn’t know that a word is defined in the US Code, which was the whole point of this exercise.
Regarding grammar, let’s compare the 2nd and 4th amendments.
“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 right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
You have asserted that the “but upon probable cause…” clause is equivalent in force to “A well regulated Militia…”. Could you, perhaps, point out to me any features of the grammar that indicate it is meant to be taken as binding and modifying the right granted?
For example, in the 4th amendment, you could say “…no Warrants shall issue, **BUT **upon probable cause…” because BUT is clearly a conjunction connecting the phrase about issuing warrants to a specific modification/exception.
If the Founding Fathers had intended the first clause to modify the second, don’t you think they’d have done something similar? “shall not be infringed, in the context of a well-regulated militia…” or some such? There is no way to make the first clause unambiguously binding upon the second without adding words or gratuitously scrambling the sentence.
Further, the second amendment went through a number of drafts (as did the rest of the document), and in reading the earlier drafts, it’s abundantly clear that the first clause is a remnant of a constraint on the GOVERNMENT, denying them the right to force people into the militia. The initial draft by Madison went like so: “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.”
After which they turned out a second draft as follows: “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.” – which ought to put paid to the notion carried by some that every word has loads of meaning and these guys were amazingly good writers. Seriously, its as though James Joyce were trying to write a legal document.
These 2nd amendment threads always fascinate me because no such parsing of words goes on in debates regarding any other amendment. For example:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
When there is a debate about school prayer, the ten commandments posted somewhere, funding for charter schools, etc. I never, ever, ever see a debate parsing the above words.
I never hear any arguments that it only applied to religions that existed in 1789. Nobody ever argues that this doesn’t cover Mormonism or Scientology.
Nobody ever bears down on the word “establishment” and argues that Congress (or the states through the 14th) can do anything and everything except make an official state church. Nobody bears down on the word “law” and says that a teacher leading a class in a prayer is not a “law.”
I’m not trying to hijack the thread, but you can play these games with every amendment (e.g. the 4th amendment doesn’t apply to your computer or car because they didn’t have those in 1789)
Why is it only with the 2nd amendment that everyone turns into Antonin Scalia and tries to parse every word and comma?