Been there, done that, you didn’t listen then either. If the opening clause wasn’t intended to mean anything, they wouldn’t have put it in there. The FF’s did us the favor of explaining the purpose of the amendment, in greater detail than almost any other part of the Constitution, but you rationalize ignoring it anyway. You’re not reading a damned contract, you’re reading the document that sets out the principles of our laws and government. You cannot ignore any part of it.
Tell us more about this “basic grasp of English grammar” stuff. It’s fascinating.
Bricker, the writers said themselves in the first half of that single sentence how they intended the second half to be interpreted - to establish and guarantee the existence of a “well-regulated militia”. If that’s a problem, perhaps Dewey can help you with this “simple English grammar” stuff which grasp he prides himself on. Now, what do you think the first half of that sentence is there for, if not to guide interpretation of the second half? Decoration only? Whimsy?
Dewey, the short answer to your demand is of course yes, and that is in fact how its interpretation evolved over the years. There are many existing restrictions on speech, even political speech. You know that damn well. I hope.
I know we’ve had this discussion before, but really, there is no contradiction between the 2 clauses (or haves) of the sentence:
“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.”
It does not say that people should have arms only in so far as they do so “in a well regulated militia”. It says quite plainly that a well regulated militia is necessary and therefore the people should be armed. The clauses only become conflicting when you forget what they meant by regulated (trained) and that the difference between people and militia was not meant to be equivilent to the difference between the people and a standing army.
Try reading it like this. “A source of soldiers able to use guns, being necessary to the security of a free state, the right of the people to keep, bear, and train with Arms, shall not be infringed.”
You see, the first clause does not cancel the second, just as the second does not imply that the security of the nation should be damned. The amendment says quite clearly that people should be allowed to have guns and the state should be allowed to secure itself.
however, it seems to me, having read a bushelfull of stuff about militia & standing armies for other purposes, that the idea that the militia was to be drawn from an armed populace, and that a “well-regulated militia”, which phrase, it seems obvious to me, refers to that part of the militia that is under the supervision of the Congress (the National Guard), is a selection of the militia defined as this armed populace, that the Second Amendment does confer an individual right. From Federalist 29:
Please bear in mind that this was written before the Second Amendment was drawn up, although I’m sure there were clauses in state constitutions of the time that were similar to the Second Amendment.
Thus, it appears that there was no thought at all that a well-regulated militia in any way meant that the rest of the populace would be unarmed; quite the opposite.
Also, though, if there can be libel laws regulating First Amendment speech, I see no reason at all why there can’t be gun control laws, even in the presence of the Second Amendment.
I’ve never been able to figure out why libel laws are just dandy but gun-control laws aren’t. Rather an obvious contradiction.
Well, that depends on the gun control law, doesn’t it. Unless I am greatly mistaken libel laws do not prevent me or you from publishing our own work. They only punish us if we misuse that right. That is, if our work harms others. We have plenty of laws which regulate the use of guns. Most of what we call “gun control” laws are in fact gun confiscation or preemptive confiscation laws. Some of these are reasonable (we can’t own pershing missile, for instance) but many of them are based on aa flawed assumption that no one should own fire arms.
So you believe that, in my proffered language, the government could, say, ban outright all creative works that did not speak to the functioning of government or to the political issues of the day? All on the basis of that prefatory clause?
Let me start out by saying that this is probably mostly based on opinion and paradigm.
I think that liberals do not attempt to ammend the constitution as much because it runs contrary to the ‘liberal’ nature. Ammending the constitution would be taking away even more ‘freedoms,’ and liberals are all about freedoms. Much the same, those that the liberals -have- suggested were usually trying to give people more freedoms, like the right to house. I don’t think the poster’s point makes much sense either. How could trying to change the constitution in lieu of the times and angry issues show a ‘lack of respect,’ for the constitution? It seems to me that they’re using the Constitution as the “Ultimate Authority,” that shows no contempt, or disrespect to the document. In fact, I think it shows that the crazy rightwingers respect the document even more so. But I also believe that conservatives read the constitution differently. They read it in black in white, “This is what we can do, this is what we can’t” and Liberals read it a little differently, “Well, this doesn’t say that we ‘can’t’ do this. So we can.” But that’s just my opinion.
Dewey, you really want to be pitted, don’t you? First, I did answer Bricker’s question, you just didn’t read it. As to your latest question, when the Constitution is silent on a topic, it is in fact left to the people or the states. That part’s in there, too - perhaps the Find feature will locate it for you.
Why are you pursuing this? You do know, I hope, that this attempt of yours to rationalize away part of a document that you claim to revere only supports the OP’s point.
You could try an answer to the question I asked Bricker, since you seem to have the same anti-reason and anti-grammar attitude: Why is the first part of the 2nd amendment in there?
Shodan, you’re right, none of the Constitution should be ignored. That it often has been anyway in no way invalidates that. Now, if you have reasonable examples to offer of how the Tenth has been ignored, and the consequences of it, and an assessment of who’s responsible, then please contribute it.
Oh, you quoted Bricker and then wrote some words underneath. But you never answered his question. He asked you what effect you believed the Preamble had. Your entire reply dealt with the Second Amendment, not with the Preamble. You did not answer the question posed. **
Again, this is nonresponsive. I am asking you directly if the addition of “Political discourse being necessary to a free state…” to the first amendment would allow the federal government to ban artistic expression that did not deal with the functioning of government or to the political issues of the day.
Hint: your answer should read “Yes, because _____” or “No, because ______.” **
No, it doesn’t. The language is merely prefatory, like the Preamble. I don’t think the Preamble creates substantive rights; does that, too, show “disrespect” to the Constitution? **
For the same reason the Preamble is in the main body of the Constitution. It gives us an idea of why the founders thought this an important thing – an individual right as national security measure. But it ain’t legally congizable. Like the Preamble.
The Constitution does not mention either “abortion” or “privacy”. Therefore, the right to have an abortion is not covered in the Constitution. Since it is not, it should be addressed by the individual states, or by the people. Under the Tenth Amendment, therefore, the Court had no right to overrule the abortion laws of the several states.
In other words, the Court has no right to come up with new rights under the Constitution. All such new rights automatically devolve to the states, or to individuals. The Federal government should not address this.
All this is in furtherance of limited government, which, to say the least, we do not have. But we should.
Regards,
Shodan
For pity’s sake, Dewey, the “preamble” (as you insist on calling it) is part of the Amendment. You not only didn’t read (or perhaps understand) my reply, you didn’t read or understand the question. If you’re simply going to be argumentative, I have no more time for you.
But you did get this far as to why it’s there: “It gives us an idea of why the founders thought this an important thing – an individual right as national security measure.” Well, bravo. That’s what it’s for. That’s the meaning of that part of the Constitution. That’s the intent of the Second Amendment, organization details to be left to Congress and the Executive. But, having acknowledged its clear meaning, you still rationalize ignoring it so it can have a meaning that you prefer. There is no greater disrespect for it that you could show, and no way for you to demonstrate otherwise with this approach, either. Shodan, the Tenth means that the Constitution does not define all powers or rights or restrictions that may exist. You also are trying to read something into it that it does not say, but at least you’re not trying to actively refuse it like our friend here. So limited government is what we “should have”, according to you? Pity - that doesn’t let you pretend the Constitution says what you think it “should say”. If you don’t like what it does say, there’s a mechanism for changing it. But none of us has the right to ignore it, even selectively.
The Preamble (note the capital “P”) of the Constitution is that thing that begins “We the People, in order to form a more perfect union…”
You clearly didn’t read or understand the question.
A comparison was made between the Preamble and the prefatory clause of the second amendment, noting that the Preamble is not a source of substantive law. Bricker then asked you what you thought the purpose of the Preamble was. You have yet to answer that question.
I’m not being argumentative, I’m just trying to get an answer to the goddamned question.**
Two points: first of all, it’s cute that you’ve suddenly become a born-again original intentist.
Second, you completely ignore the fact that the clause is merely prefatory, and is deliberately structured so as not to diminish the scope of the amendment. Like a hypothetical first amendment that begins with “Political discourse being necessary to a free state” would not limit free speech protections for non-political speech, neither does the prefatory language of the second amendment alter its breadth.
ElvisL1ves, IMHO you’re very solipsistic. You don’t really read anybody else’s point, you simply look for any flawed wording and try to exploit it, and bash and chastize everybody who makes said mistake. Oh! And Elvis is dead, trust me. You’re not going to find the king of Rock in a small-town diner across from Flanagan Street, Des Moines.
Ah, okay, I did confuse Preamble with “prefatory clause”. Sorry. They both mean what they say, though. The Preamble gives the general principles, the rest of the Constitution gets into some specifics, legislation and executive action get into actual implementation. The import of the first half of the single sentence that constitutes the entire Second Amendment is the topic at hand. Neither you nor Bricker is willing to admit that it has any real-world meaning at all, and that is where you open yourselves to the criticism of the OP.
I am not, of course, adopting an original-intent-only interpretation, although it’s natural for you to argue that, I suppose. I am pointing out the flaws in your intent-be-damned, simple-English-meaning-be-damned, common-sense-be-damned argument for what they are (and, Julien, that’s what we do here - it’s part of how ignorance is fought, and the fight isn’t always pretty). The person trying to read it as establishing a blanket right that the first half of the sentence is explicit about not establishing is you.
Now, are you ever going to answer the question about why you don’t need to pay any attention at all to what you call the “prefatory clause”? If it is “deliberately structured” not to limit the second half, then why the hell would they bother putting it in (and the word “deliberately” is yours, acknowledging deliberation)? The Convention went out of their way to guide its interpretation, as you’ve already said - but, since you can find an opening to nitpick their grammar, you’re blowing off the amendment’s meaning in favor of your own preferred Shodanesque should-be. It is not a “fact” as you state that it’s “merely prefatory”, or even that prefatoriness constitutes ignorability. It’s part of the Constitution itself, there for a reason you cannot honestly dismiss.
If that’s the approach you want to take, anything in that or any document can be grammatically nitpicked into meaninglessness by anyone motivated to do so. Your argument is, in short, result-driven, not principle-driven. Some of us care.
Let’s nail this down explicitly: do you believe the Preamble is a source of substantive law? **
Yeah, you’re adopting whatever interpretational scheme you find convenient to fit your political outlook (and before you say it: I’m not doing that; I think the individual-rights view of the amendment is consistent with both the historical record of the framer’s intent and in the raw text of the amendment itself).**
Quite the contrary, I think the “simple English meaning” is consistent with my view. Prefatory language of the type employed in the second amendment is never binding.
Imagine if I am giving you money, and I say “Because you like music, I’m giving you $20.” I do not believe the prefatory clause “because you like music” limits you to spending that $20 on music. You could buy whatever you want with the funds. It is not the same thing as saying “Here is $20 which must be spent on music.”
If the framers had wanted to limit the right to bear arms to active members of state militias, they could have easily done so: “The right of active militia members to keep and bear arms shall not be infringed.” They did not do so. They couched their language in terms of individual rights. Ergo, the individual rights theory is the better interpretation. **
For the same reason they put in the Preamble to the main text of the Constitution. I defy you to find any reputable jurist, legal scholar or historian – from the strictest of strict constructionists to the loosy-gooseyist of living constitutionalists – who argues that that particular chunk of text is a source of substantive rights.
Nonbinding prefatory language is sometimes useful. I do this all the time when drafting complex contracts: the contract invariably begins with a few “Whereas” clauses that tell the reader what’s going on, but which aren’t part of the substance of the contract. When interpreting the contract to determine the rights and responsibilities of the parties, the “Whereas” clauses are not part of the exercise. **
Bullshit. It isn’t a grammatical nitpick – it’s understanding how the structure of a sentence is part of understanding the meaning of that sentence.
But let me ask you this: you’re the one who’s high on interpreting the constitution in accord with “broad principles” rather than with the specific niceities of the text. How, then, can you justify interpreting the second amendment as anything other than an individual right when it is included in a raft of other amendments all of which are speciifically couched in terms of the individual, and when it specificially notes as its object “the people”? Why are you taking the side of lesser individual freedom, given that you believe that securing such freedoms are the broader goal of the Bill of Rights?