It’s impossible to say w/o context of some sort. However I think it would be perfectly valid to apply different rules of interpretation in each situation and get different results as a consequence. What’s important though is that you see that the documents serve different purposes and therefore, even before you read them, you can and should decide what approach makes the most sense.
Do you really want to read a 200 year old document as literally as possible w/o veering off into absurdity, do you want to read it as expansively as possible w/o violating the spirit of its provisions, or do you want to find some middle ground that keeps it relevant to the present and preserves its core values in the process. Similarly, are those the same considerations you would want to apply to a statute that can easily be modified or repealed?
You’re right. But that’s doesn’t change the fact that it’s binding. It just means we don’t know what it means. But that’s true of regular laws too. As I pointed out, regular laws also often suffer from vagueness or self-contradictions. It doesn’t make them any less binding, it just means that in the absence of the law being amended, the courts have to decide what it means.
I don’t disagree with you about the approach to interpretation except that you’re making a distinction between laws based on how hard they are to change, which I don’t think has any legal validity. If a constitutional provision is understood to mean something, and decades of case law agree that it means that thing, then that’s what the law is and the only way to change it is by amendment. Not justices changing their minds, unless it’s because previous courts were blinded by biases of the times, like racism.
I’d agree that we have more than most other free countries.
According to the first amendment, the federal government cannot make a law respecting an establishment of religion. That literally protected Connecticut, and the towns of Massachusetts, from having their established religions monkeyed with by Washington.
Did the fourteenth amendment change the meaning of the first amendment establishment clause to its opposite? Many seems to think that, and it’s the kind of absurd result you can get from taking a platitude literally.
Unreasonable? That word means nothing. Now, I do believe the case law on searches means a lot. But because the literal wording is meaningless, the Supremes have little real guidance in the text.
This is one platitude our founders thankfully left out.
Given the lack of a hereditary nobility in the US, the word peer makes no sense. The phrase “of our peers” is a platitude that seems to mean something big but really, in the US context, means nothing.
Whatever anyone thinks about abortion, I can’t imagine how you can cling to this idea after Roe v. Wade.
I think the US is a good country. But we have a mediocre constitution. It could be worse, though. The US Consitution, could, like that of Pennsylvania, include the platitude about a jury of peers. Then, I suppose, if our US-British joint citizen daughter got on the Queen’s honours list, and became a peer of the realm, she couldn’t serve on a federal jury – assuming a literal constitutional construction.
You’re reading too much into what I’m saying. I don’t mean that the constitution should ALWAYS be reinterpreted in spite of it’s language. I’m saying that the argument for doing so is more easily made in that context - and not just for practical reasons, but for a host of reasons, including some that may be motivated by expedience. The real point is that when a document serve the purpose of providing general guidance rather than specific direction as in the case of a constitution, it is more appropriate to look behind the language to the larger principles and values expressed and less at the specific words.
Certainly you do this to some extent when interpreting a statute, but for differ reasons, using different methods and to different degrees.
Okay, I read you. But I think we would both agree that interpretation cannot actually contradict the text of the Constitution when it is clear, nor can interpretation go beyond the bounds of plausible meanings of unclear text.
To steer this back to the 2nd amendment, it’s clear that there is an individual right to bear arms in there. “The right of the people to bear arms shall not be infringed”. So there’s no way the courts could interpret it so that people didn’t have the right to bear arms.
I do not know how accurate this is, but according to this guy, the second amendment was written and ratified as a sop to the southern, slave owning states, who needed armed militias in order to keep down potential slave revolts, and would not have ratified the constitution if citizen militias, controlled at the state level, had not been constitutionally sanctioned in this way.
It wasn’t about facilitating insurrections, it was about preventing them.
MAybe. If that interpretation is true, then states have the sole authority to decide who can and cannot bear arms. That would actually make federal gun control harder to do(impossible, actually), while making it easier for states like New York to limit gun ownership.
I can buy that the 2nd amendment refers to a reserved state power, or an individual right, but it would make no sense as a collective right or something the federal government had any say in.
I think it would be pretty tough to argue around the 2nd am. and somehow prohibit the possession of firearms, so if that’s the idea, I have to agree.
I’d also say that while I personally don’t think the theory of the OP is necessarily nonsense, it therefore doesn’t really matter much one way or the other.
Definitely. The whole point of insurrection is that is exists outside a legal framework. In insurrections, there’s only one law: the side that wins is right.
But, that’s just it, that’s the ambiguous part – does it mean “the people” collectively or individually? The “well regulated militia” element is hardly relevant to the latter; not even in those days did they expect militiamen, when called up, to bring their own weapons from home like some of them did in the Revolution; as was mentioned upthread, by the time the BoR was ratified, the militias were state organizations and state-armed. That’s why, as I said, debate and litigation on that very point goes back to the 1820s.
That blog is a product of Thom Hartmann, known as a right, perhaps far-right, political “columnist.” I do not know if he is correct, but it smacks of revisionist history. I’d take it with a grain of salt until examined more closely.
In this case (perhaps), the right of states to arm their militias without federal interference or limits (see post #12). As for why – maybe to allow the states to be prepared to resist federal power (but that really can’t be squared with anything else in the Constitution, and see post #33), maybe to allow the states to be prepared for slave revolts (see post #50, but see also post #55).
In any case, the right clearly does have somethingorother to do with militia, which would make it something other than an individual right.
So it’s a state power, not a collective right. Here’s why I don’t think that interpretation really works: First, the second part clearly states an individual right. Second, the states already had that power, by virtue of the federal government NOT having that power(see 10th amendment). The 2nd amendment would have to be unique in having nothing to do with individuals.
It’s odd that you raise this question as if it hasn’t been addressed before. After Heller, “the people” is not ambiguous. From the opinion:
(my bold)
The opinion continues at length and clearly and unambiguously concludes that “the people” are individuals. Feel free to disagree with how the law should be, but there is no question as to what the law says with respect to this phrase.
No. The prefatory clause does not limit or expand the scope of the operative clause. There are rights connected with the militia and the prefatory clause informs those rights, but there are also rights that are recognized independently by the operative clause. From the syllabus of the opinion:
Again, you may disagree with how the law should be, but there is no question as to the meaning of the prefatory and operative clauses.
Of course, this could all change if SCOTUS decides otherwise.
All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.5
I had an argument with some Dopers where I said that “the people” in the Constitution meant people as individuals. Liberal types insisted it meant the people as a collective. They were wrong.