Second Amendment Theory/Absolute Interpretation


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Flyboy
November 21, 2008, 09:40 PM
All,
I just read a truly inspired post on how the Second Amendment ought to be read, and I wanted to share it here. Posting in Legal because it's about legal theory; please feel free to move it if appropriate. I apologize for the length, but I assure you it's well worth the time to read.

In my opinion, this is how we ought to be doing things (not just on the firearms front, either: as you read, consider how we executed the prohibition on alcohol vs. how we're handling the prohibition of drugs). The emphasis is my own; it is (in my view) the most important part of the piece, and it explains why absolutism is not only not a bad thing, but actually a very good thing, using the old canard we've all read about nuclear weapons and such.

http://reason.com/blog/show/130133.html#comments

Ben1 | November 18, 2008, 8:59am | #
The USSC did the right thing. Just barely. Mostly by accident. I say this because while it is clear that the four judges (of nine total) who dissented haven’t even got a ghost of a clue as to what the constitution is, much less what it says, there is more here to astonish and perturb those who actually read the decision of the majority of five. They don’t know what they’re doing either; that, or they are involved in a conspiracy against the citizens of the United States.

I’ll start by quoting the 2nd amendment in its entirety, and then I’ll analyze it. Then I’ll discuss the USSC majority and minority positions.


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.

First, there is the prefatory or explicatory phrase: “A well regulated Militia, being necessary to the security of a free State”; this phrase serves to provide a rationale for what follows. It doesn’t instruct the government to do anything, it simply explains something the framers thought would help readers understand why the operative phrase to come says what it does.

Even so, let’s look at it. Militia meant all able bodied males of a reasonable age, such that they could rationally be expected to fight. It does not mean “national guard”, nor does it mean “army” or “state militia.” If you doubt me, look it up. I’ll wait.

Well regulated meant consistent, and in this specific phrase, it meant consistently armed. Laws on the books at that time went so far as to specify exactly what that meant; so many bullets, so much powder in a container suitable to keep it dry, etc.

The “security of a free state” means either to retain the state of being free, or it means to retain a political state, in which freedom is secure. I admit that I have no particular preference in the reading; they could have meant either one. They both seem to amount to the same thing to me.

So basically what they were saying here in modern English is that consistently armed fighting people are needed in order to retain freedom. Once we unveil the somewhat obfuscatory archaic English, it makes perfect sense. Of course such people would be needed.

Regardless, again, it’s not an instruction to the government. It’s just an explanation.

Now we come to the actual instruction, the operative phrase: “the right of the people to keep and bear Arms, shall not be infringed.”

This is as clear today as when it was written. Infringed still means today what it meant then; The Oxford dictionary has it as:


act so as to limit or undermine (something); encroach on : his legal rights were being infringed | [ intrans. ] I wouldn’t infringe on his privacy.

But surely you knew that. Infringe isn’t an uncommon word. When I begin to infringe on your personal space, I’m too close. I’m just inside the edges. When I seriously infringe on your personal space, I’m probably way too close, perhaps touching you. If I’m not infringing on your space, I’m far enough away as to not affect your perception of your own space at all.

Keep and bear... I shouldn’t have to explain this at all, though I’m perfectly happy to do so. Keep means... keep. To have around, nearby, handy, available, ready to access. I keep peanut butter in the cupboard. I can go get it any time, because I kept it; I didn’t get rid of it or give it away. I can bear that peanut butter over to the table or bear it to my neighbor’s house; she can bear a child; I can bear a burden; to bear means to carry. Both then, and now.

So what this is instructing the government to do (or rather, not do) is simple: They are not to, in any way, even a little, interfere with the people’s right to own, hold, have arms; nor are they to interfere in any way with the people’s right to carry them around.

So what does that mean in terms of modern gun laws? Well, for one thing, if they say you can’t carry your gun for any reason, that’s infringing on your right to carry. For another, if they say you can’t keep a gun in your house, that’s infringing on your right to keep. This clearly means that they cannot require you to have a “license” for a gun that has any material effect upon gun ownership or carrying such arms; because then they are saying that without such a license, you cannot keep or bear, and that’s clearly infringing. So any such law is unauthorized, that is, the constitution forbids such laws.

Likewise, if they say you can’t carry some particular weapon, that’s infringing as well. The 2nd amendment specifies “arms.” So we should at least take a look at what “arms” meant at the time.

In 1791 (when the bill of rights were ratified), “arms” included all manner of pistols, rifles, muskets, cannons, explosive and solid cannonballs, cannonballs filled with shards, frigates with multiple decks of cannon, wagons with explosives and multiple guns rigged to fire in unison, chain shot, flaming missiles soaked with pitch and other inflammable, easily spread and hard to extinguish compounds, swords, knives, bayonets, fighting canes, brass knuckles, battering rams, catapults, siege towers, glass bottles, garrotes, whips, chains, both fused and mechanically triggered explosives, striking weapons like sticks and poles and quarterstaffs and maces and war-hammers, spears, bows, axes, arrows and crossbows… I could go on for quite some time. All of these things were in common use in warfare and self-defense at the time. Yet, knowing all these things, all they put in the 2nd amendment was… “arms.” So clearly, that’s what they meant. Arms of any kind. They didn’t say “muskets and pistols.” They said arms.

Today, a few things have changed that make it clear that the 2nd amendment, while it has served us well for centuries, could use some updating. Nuclear weapons are arms; so are biological weapons. I can say with considerable confidence that most people, including myself, are not OK with the idea that John Doe down the street has a working nuke in his basement, or that Jane Doe down the other block has a nice warm batch of weaponized Anthrax baking in the oven. So if we take the 2nd at its word — arms of any kind — aren’t we in trouble here?

Yes, indeed we are.

However — the authors of the constitution knew that over time, circumstances change, and that they would not be able to predict in what precise ways they might change. So they put in article V, Amendment.

This prescient section of the constitution provides the government with a legitimate method to change their own constituting authority in a manner that honors the wishes of the people they are supposed to be working for. Imagine that!

In this case, the obvious thing to do is to offer an amendment that modifies the 2nd to say “arms except those that incorporate biological, fissionable, fusionable, or ionizing radiation means of destruction, either direct or indirect.”

Now ask yourself: Who in their right mind would object to such a modification of the 2nd amendment? Do you seriously think there would be any trouble at all getting a majority to go along with such a reasonable amendment? Of course not. The very idea is absurd. No sane person wants just any random other person to have power of that magnitude in their hands. No matter if they’re far left, centric, far right, libertarian or of any other political and social persuasion.

Unfortunately the government has a long, dark history of just doing what it wants to, as opposed to what it has been authorized to do. That is why you don’t see reasonable constitutional amendments. They’ve got the citizens accepting that the government should be able to rule out things like nukes arbitrarily even though the constitution forbids them to; because, after all, no sane person wants nukes. It sure seems reasonable on the surface.

But the fact is, if they can do one forbidden thing arbitrarily, no matter how well meaning it might be, they can also do anything else forbidden they want to arbitrarily as well, and there’s no assurance at all that the underlying purpose or the actual implementation will be well-meaning. This is why we must hold them to the limits imposed by the constituting authority, and furthermore, why we must be be very careful about how we allow the constituting authority to be modified.

Now, as to the four justices who dissented:

The Washington law forbid any citizen of DC from keeping a pistol at home. We ask: Is this constitutional? Well, does forbidding someone to own a pistol infringe on their right to keep arms? Yes, it certainly does. Well then, there’s your answer. This isn’t rocket science. The command is that the government shall not infringe; in this case, they are infringing; therefore the law is unconstitutional. End of story.

Ergo, the judges who dissented are either traitors (presuming they have actually read the 2nd amendment and understood it) or incompetents (because it is their job to read and understand that amendment); either way, we need to not have them on the supreme court bench.

As to the five who contributed to the majority decision as written by Justice Antonin Scalia, although they did the right thing (by which I mean they struck down the DC law), they still don’t understand why they’re doing it. Scalia says that they did it because the constitution protects “the inherent right of self-defense”, which is entirely beside the point (and not what the constitution says anyway); the law infringed — therefore, it was illegitimate. Period.

If you want to argue why the 2nd amendment is there, you should begin by studying the Declaration of the Independence and the writings of Thomas Jefferson. But again, those words aren’t in the constitution. What is there is simple, clear, and specific. So there’s really no need to argue, unless you’re being intentionally disingenuous.

Scalia also said:


Nothing in our opinion should be taken to cast doubt on long-standing prohibitions on [...] laws forbidding the carrying of firearms in sensitive places, such as schools and government buildings

Which is completely wrong. Because such laws infringe on the right to carry. Those laws are no more legitimate than the one they just struck down, and for the same reason: The government is forbidden to infringe; if a law infringes, it’s out of line. If they want to change this, they must amend. Without an amendment granting it, they have nowhere to go to obtain such authority.

As a side issue, the constitution directly addresses the federal congress, the federal government; so it might seem that we are only talking about federal authority. There is something else to consider, however, and that is the fourteenth amendment, which has been taken to mean that the entire bill of rights (amendments one through ten) apply to the state governments just as they do to the federal government. This means that states also cannot legitimately create such law. Beyond that, the rights fall to the people. So you can say that I cannot keep arms in, or carry arms in, your home or business. But you can’t say I can’t keep or carry them with regard to my own home or business, someone else’s home or business, or out in public.

Now, very seriously, do not go confusing authority with power. Authority is what the government has (from the constitution) that allows it to use a very limited amount of power legitimately.

Power can also be used illegitimately, and that is precisely what we see when government agents infringe on our rights and trample our liberties. Always keep clear in your mind what authority is, and what power is. They are not at all the same thing. Your power, as a citizen, is very limited — I would not advise that you attempt to face down the government’s use of power based on your (100% correct) understanding that they are not exercising power backed by legitimate authority. The government stooge’s bullet that takes you down doesn’t care about authority; it is the very manifestation of arbitrary, illegitimate power, and it will kill you 100% dead just the same, authority or not. At which point you are very little good to anyone, the questionable value of martyrs for a good cause notwithstanding.

So we know one very bad, unauthorized law has been struck down for the wrong reason. We should not be looking at this as an example of proper comportment of supreme court justices, examining an issue to see if it passes constitutional muster. Instead, we should take this as a warning that the entire bench is made up of people who don’t regard the constitution as the over-riding authority, literally the constituting authority, for the entire federal government — despite the oath they swore to the contrary. And that, my friends, is nothing less than a wake-up call.

The problem is, as it has been for some time, is that modern Americans are deaf to such calls. This is why our society is literally crumbling around us with regard to our rights and liberties.

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MIL-DOT
November 21, 2008, 10:11 PM
Great post Flyboy !! And I thought this point was the gem of the essay:
"Scalia says that they did it because the constitution protects “the inherent right of self-defense”, which is entirely beside the point (and not what the constitution says anyway); the law infringed — therefore, it was illegitimate. Period."

Frank Ettin
November 22, 2008, 02:38 AM
All well and good and meaningless.

Courts will continue to rule on the basis of prior ruling and in accordance with the traditions of judicial analysis, without regard to what you, I or any other denizen of the Internet might think. The opinions of judges will affect real people in real life. Our opinions will affect nothing.

Prince Yamato
November 22, 2008, 03:03 AM
However, school carry is a states-rights issue that can be worked at the state level. So what Scalia said doesn't have much clout except in the liberal areas that want to ban guns anyway.

Flyboy
November 22, 2008, 09:55 AM
Fiddletown, I didn't post this because I expected the world to change to conform to it, but more as a topic for discussion to address the long-standing claim here that even we don't want the Second Amendment interpreted literally. I also hoped to spark some recognition that making an exception in one area (say, nuclear weapons) imperils all others, particularly when we have a way to address that concern (the amendment process).

If I really thought that a post on THR would change outcomes, I'd A) be posting a lot more often, on more topics, and B) be living in a rubber room. That said, getting the idea out can be helpful as a means of strengthening our own arguments in the future. It's not going to help today, but it might weigh just a little bit in our favor down the road, if used on the right person. No sense in claiming defeat this early.

And even if not, THR is a place for discussion. Discuss!

Frank Ettin
November 22, 2008, 09:36 PM
I’m not urging that we accept defeat. The point is to understanding how things actually are and work. No one said that we have to accept current or any new restrictions on our rights or that we shouldn't try to change current injustices or fight efforts to impose new ones. But you can't do that effectively unless you understand how things actually are and work in the real world. You can't fix a carburetor unless you understand how it functions.

Twenty years ago, one could not carry a concealed gun in most states. Now one can in most states (at least with a permit that is relatively easy to obtain). This right was won by people who understood and could effective use the political process.

Dick Heller and his lawyers won a Supreme Court decision for the first time directly holding that the Second Amendment is an individual right and rejecting the "collective right" view that had become popular and had been driving anti-gun legislation and court decisions. This can become a powerful tool in our efforts to preserve the RKBA against a generally increasingly antagonistic society. Heller and his lawyers accomplished this by understanding the law and how it works and making appropriate use of it.

If we are to win (as I hope we do and think we should) in the courts, it will be because we have the help of wise and skillful lawyers who understand the law and legal processes. If we are to win in the political arena, it will be because we have the help of people who understand the world of politics and operate effectively in that world. But if we deny the reality of the courts and politics, we will not be effective and will be buried by those interests who can more adroitly "work the system."

gc70
November 24, 2008, 12:46 AM
I also hoped to spark some recognition that making an exception in one area (say, nuclear weapons) imperils all others, particularly when we have a way to address that concern (the amendment process).

Unfortunately, a Constitutional amendment is not a viable way to address the fact that the language of the Second Amendment is open-ended as to the scope of arms that it protects.

In this case, the obvious thing to do is to offer an amendment that modifies the 2nd to say “arms except those that incorporate biological, fissionable, fusionable, or ionizing radiation means of destruction, either direct or indirect.”

It is all so obvious when you or I get to write the proposed amendment. However, you and I would object quite loudly when others proposed adding "or assault weapons" to the list of prohibited arms. Since there is no consensus about what constitutes acceptable types of arms, a Constitutional amendment is not workable.

Bubba613
November 24, 2008, 07:57 AM
All well and good and meaningless.

Courts will continue to rule on the basis of prior ruling and in accordance with the traditions of judicial analysis, without regard to what you, I or any other denizen of the Internet might think. The opinions of judges will affect real people in real life. Our opinions will affect nothing.
Best post yet.
Yelling that "the 2A is all the permit I need" makes for good theater and little else. Time to face the tougher reality that we get what we want by lobbying, informing, and voting, i.e. the political process.

Flyboy
November 24, 2008, 03:29 PM
gc70, I disagree. You're talking about the same problem that plagues all laws: finding language acceptable to all parties.

Yes, there are some who would want to add ever-more-stringent categories of arms to those not covered by the Second, but do you really think they could get thirty-eight states to agree to banning "assault weapons?"

Nukes would be easy--I imagine that would be unanimous, and take about three hours (time zones, and all that). But if certain people tried to add extraneous language, the amendment would fail, possibly before it even got out of the Congress. The "no consensus" isn't actually accurate: there is a consensus on the most extreme, and that's what we're looking to ban. Any attempt to whittle down the more common arms would fail, allowing broad protection while properly permitting the regulation of weapons of mass destruction.

And, once again, I'm not saying this is the way things do work, I'm offering it as a thought experiment for the way things should work. It also makes a good answer to those who bring up the nuclear weapons canard in response to a meaningful Second Amendment. Further, the concept goes beyond guns: as the original author and I both pointed out, disregard for one part of the law tends to bring the whole body of law into disrespect.

K3
November 24, 2008, 04:20 PM
I thought there was a difference between munitions and arms. Nukes being a munition. A 155mm HE arty round being a munition. Etc. :confused:

Sinixstar
November 24, 2008, 04:22 PM
There's a few flaws with this argument.

First, you suggest an amendment that prohibits WMD's.
Great - so, why stop there? How's about WMD's, full auto's - and while we're at it, hi-cap mags for semi-autos. On one hand you're arguing that the constitution is set in stone and should be read 100% by the strict literal definition of the words, but on the other hand you're saying "but,we can always change it if the circumstances call for it..."

Second, You mention the meaning of "well regulated" - but then go on to say that this means ANYBODY should be able to have ANYTHING at any time. That goes directly against the grain of the concept of "well regulated". The case could very easily be made, that a state's permitting process is to ensure the regulation of armed and able-bodied Americans. Convicted felon? you're no longer of sound mind and disposition, therefor you are no longer able bodied. Can't pass the proficiency portion of your CCW Training? Then clearly you are not well trained, and could not reasonably be expected to fight. You even mention that
Well regulated meant consistent, and in this specific phrase, it meant consistently armed. Laws on the books at that time went so far as to specify exactly what that meant; so many bullets, so much powder in a container suitable to keep it dry, etc.

Fine - so a state says that a single-shot .22LR rifle is all that is needed, and therefor all that is allowed for the militia to operate.

I get where you're going, and it is a well thought out argument, but there's too many contradictions.

Sinixstar
November 24, 2008, 04:34 PM
Also, the problem with an amendment to the 2nd that excludes WMDs, is that it sets a precedent that says the 2nd amendment can, and should, be modified to restrict it's meaning and definition based on the needs of the "greater good" of society.
Congratulations, you have now just justified the EXACT argument the anti movement has been making all this time.

Hawkmoon
November 24, 2008, 10:55 PM
The analysis of what the 2nd Amendment means was excellent. So was the analysis of why Scalia's majority decision was badly (fatally?) flawed.

I join those, however, who recoil at the idea of proposing a Constitutional amendment to revise the 2A as a way of banning WMD. Those who have ever had any exposure to the political process understand that, once something gets opened up for "discussion," the lid has been removed from Pandora's box and the devil take the hindmost.

On a state level, I have seen the entire text of a proposed bill get scrapped by a legislative committee and substitute language accomplishing the exact opposite of the original intent put into the "revised" bill under the original title. Unless people (and legislators) were paying attention, they wound up suporting the bill because they thought the original bill had been voted out of committee, and they had no idea it had been hijacked.

I have no doubt that the same thing happens in Washingtoon. As tempting as it might be to try to regulate or ban WMD through a Constitutional amendment, attempting to do so would be disastrously suicidal.

Besides, I've always wanted a STND* of my very own ...







* Small ThermoNuclear Device

gc70
November 25, 2008, 05:42 AM
Yes, there are some who would want to add ever-more-stringent categories of arms to those not covered by the Second, but do you really think they could get thirty-eight states to agree to banning "assault weapons?"

Quite possibly. Once the amendment process starts, anything is possible. Nuclear, biological and chemical weapons would be gone immediately. Missiles and artillery might take a minute or two of discussion. After showing this video (http://www.youtube.com/watch?v=PjVR_E7hQGs) or this video (http://www.youtube.com/watch?v=S5Ev19NsDQ4), there might be a little argument, but 'machine guns' would be gone fairly quickly. Once machine guns are gone, the debate would turn to 'assault weapons' that look like machine guns. Are you confident that enough state legislators know (or care about) the difference between an M-16 and an AR-15 to prevent look-alike 'assault weapons' from being banned? That is a can of worms that I would not care to open.

Frank Ettin
November 25, 2008, 10:55 AM
...Once the amendment process starts, anything is possible...
Exactly -- everything is on the table -- even repeal

Flyboy
November 25, 2008, 05:04 PM
On one hand you're arguing that the constitution is set in stone and should be read 100% by the strict literal definition of the words, but on the other hand you're saying "but,we can always change it if the circumstances call for it..."
The two are not mutually exclusive. You read it literally for what it is, and if it need to change, you go through the (laborious) process of changing it. For example, consider the case of the Eighteenth and Twenty-First Amendments.

A 155mm HE arty round being a munition.
Not necessarily; consider that cannon were privately owned, and even warships.

Once the amendment process starts, anything is possible. Nuclear, biological and chemical weapons would be gone immediately. Missiles and artillery might take a minute or two of discussion. After showing this video or this video, there might be a little argument, but 'machine guns' would be gone fairly quickly. Once machine guns are gone, the debate would turn to 'assault weapons' that look like machine guns. Are you confident that enough state legislators know (or care about) the difference between an M-16 and an AR-15 to prevent look-alike 'assault weapons' from being banned? That is a can of worms that I would not care to open.
Because they're so much safer now, right?

Requiring a literal read of the Constitution would change the requirements for a ban from 50% of the House and 50% of the Senate to 67% of the House, 67% of the Senate, and 75% of the states, and you don't see how that would make it harder to enact a ban?

Also, the problem with an amendment to the 2nd that excludes WMDs, is that it sets a precedent that says the 2nd amendment can, and should, be modified to restrict it's meaning and definition based on the needs of the "greater good" of society.
News flash: that's exactly what the Constitution says, and not just the Second. The entire thing is subject to amendment. What I'm saying (or, more correctly, agreeing with) is that we ought to require the government to go through the formal process of making that change, rather than simply ignoring the rule and proceeding as if the change had been made. By saying it's okay to restrict that which "shall not be infringed" without following the process, you make it okay to eviscerate the entire thing. I propose to set a limit as to what can be done, namely the terms of the amendment; what limit do we have without a proper amendment?

Exactly -- everything is on the table -- even repeal
Again, do you really think you could get the necessary supermajorities to support a repeal? If the conditions were ripe to do so, do you really think the Second is safe either way?

Sinixstar
November 25, 2008, 05:09 PM
News flash: that's exactly what the Constitution says, and not just the Second. The entire thing is subject to amendment. What I'm saying (or, more correctly, agreeing with) is that we ought to require the government to go through the formal process of making that change, rather than simply ignoring the rule and proceeding as if the change had been made. By saying it's okay to restrict that which "shall not be infringed" without following the process, you make it okay to eviscerate the entire thing. I propose to set a limit as to what can be done, namely the terms of the amendment; what limit do we have without a proper amendment?


But you can't have it both ways.
One argument is "it's my constitutional right - it's plain as day - what about that don't you understand!"
On the otherhand - "well - it's my constitutional right, but, we can change that..."

As far as what it would take to get it done - 67% of the house, and 67% of the senate really wouldn't be all that difficult. Especially considering that the first AWB passed the senate with 94%. (House was a voice vote, no records kept - but my understanding is it was pretty overwhelming). Only tricky thing would be the 75% of states - and honestly - if there's that much overwhelming support in the house/senate - i don't think that getting 38 states on board would be all that difficult.

So - I have to ask - do you really want to go down that road? You have a whole campaign of people who would like nothing more then to strike the 2nd off the constitution...

Frank Ettin
November 25, 2008, 08:52 PM
...Again, do you really think you could get the necessary supermajorities to support a repeal? If the conditions were ripe to do so, do you really think the Second is safe either way?...
Yup. It's safer if we don't open the issue of changing it. It's about inertia. Nobody wants to start, but once something is started, everyone comes out of the woodwork. And given the strong anti-gun media bias, the big money interests lined up against the 2nd Amendment, and the strong anti-gun sentiments in large, politically powerful states like New York, Illinois, Massachusetts and California, if we start the amendment process, it's virtually guaranteed to veer out of our control and go off in the wrong direction.

If you open a can of worms, guess what. You find a lot of worms. How good are you at herding worms?

ConstitutionCowboy
November 25, 2008, 10:18 PM
Just a thought: If it were such a "lock" for the anti crowd if someone were to open that can of worms, the anti crowd would have opened that can a long time ago.

Here's something else: This quote taken from DC v. Heller:

Nothing in our opinion should be taken to cast doubt on long-standing prohibitions on [...] laws forbidding the carrying of firearms in sensitive places, such as schools and government buildings...

Is a misleading tidbit taken out of context. In the full context, Scalia and company refer to quotes from Blackstone and other 19th Century cases wherein they conclude as follows:

Like most rights, the right secured by the Second
Amendment is not unlimited. From Blackstone through
the 19th-century cases, commentators and courts routinely
explained that the right was not a right to keep and
carry any weapon whatsoever in any manner whatsoever
and for whatever purpose.

Notice that "use" of arms is included in the text - something not actually covered by the Second Amendment.

Further down in the same paragraph, Scalia mentions that they are not undertaking an exhaustive historical analysis of the full scope of the Second Amendment and conclude the paragraph with the following footnote:

26 We identify these presumptively lawful regulatory measures only
as examples; our list does not purport to be exhaustive.

See that word 'presumptively'? That says all those laws are still open to adjudication. That word "presumptively", and the inclusion of "use" in the second sentence leaves it all up in the air as far as the "scope" of the Second Amendment is concerned.

Because this opinion didn't challenge these "longstanding prohibitions, etc," there were no conclusions drawn in this opinion as to the efficacy of those laws, therefore, Scalia said don't try to draw any such conclusions.

There is a lot to work with in the future in Heller when taken in context.

Woody

I see it clearly as fact. Words mean things. Just as numbers have value, you can add, subtract, multiply and divide them. I just do the math. B.E. Wood

Frank Ettin
November 25, 2008, 10:54 PM
...If it were such a "lock" for the anti crowd if someone were to open that can of worms, the anti crowd would have opened that can a long time ago....
The short answer is that they probably felt no need to. Until Heller there was no solid "individual right" Supreme Court decision. The Second Amendment was still up for grabs, and the "collective right" interpretation was still on the table.

The Supreme Court, as all courts in the U. S., decides cases. Heller dealt only with the D. C. law, and it was necessary to apply the Second Amendment only to the extent required to decide that case. There are many questions regarding the Second Amendment still to be worked out in the courts, and, hopefully, the anti-gun crowd will be content to fight their fight in the courts. Why invite them to a "let's change the Second Amendment" party?

Sinixstar
November 25, 2008, 10:56 PM
Just a thought: If it were such a "lock" for the anti crowd if someone were to open that can of worms, the anti crowd would have opened that can a long time ago.


It's not that it's a lock.
It's that pushing the debate and getting the ball rolling is the hardest part of the process sometimes. For whatever reason, they have chosen not to pursue that avenue of argument - so let's not open that door for them.

Sinixstar
November 25, 2008, 10:58 PM
Why invite them to a "let's change the Second Amendment" party?

Couldn't have said it better myself.

ConstitutionCowboy
November 26, 2008, 10:47 AM
... For whatever reason, they have chosen not to pursue that avenue of argument - so let's not open that door for them.

The antis haven't pursued that avenue because they've had good luck simply ignoring the amendment or spinning it with interpolation, malapropism, and dissembling. If we gain a lot of ground with similar favorable rulings such as Heller, the antis WILL pick up that can of worms and start ripping off that lid all on their own.

When that happens, we'll be in a defensive position - again - but you're right. We stand on much firmer ground sticking to our "guns" and holding the amendment sacrosanct. Let THEM try to marshal 38 states to go along with them.

Woody

yokel
November 27, 2008, 07:18 AM
The Second Amendment provides that the government shall not "infringe" on the people's right to keep and bear arms. As understood by the Founders, the term "infringe", as it relates to rights, means "to encroach on or upon". This means to invade gradually. Thus, the Second Amendment prohibits the government from interfering with this right, no matter how minimally; no matter how subtly. This includes indirect interference, such as oppressive taxation or regulation.

Furthermore, the use of the command "shall not" was used to eliminate any argument that the right was subject to the government's discretion. The Founders did not use the term "shall not be infringed" by accident but by design. They intended to preclude the government from implementing sophisticated means by which to encroach upon this right. After all, the amendment was designed to be a check against government's abuse of power, and it would be in the government's best interest to encroach upon or eliminate this right. Virginia delegate George Mason stated it most succinctly, "To disarm the people is the best and most effective way to enslave them".

Accordingly, the Founders used specific language in order to obtain a specific result, to secure our right to keep and bear arms for our protection against government. Those who actually believe that the Founders were not deliberate in their drafting of the Second Amendment are either naïve or misinformed.

Ditto_95
November 27, 2008, 09:08 AM
The OP presented an excellent disection of the 2A and the USSC decision.
There will always be some interpratation of the 2A because the authors are dead. No further explanation will be forth coming.

In the disection the author presented that there is a method to ammend the 2A. This is a true statement.

While many of us abhorr the idea of ammending the 2A, it is possible. Gaining consensus would be the difficult part.
And who is to say that it would not be ammended during a left leaning (or right leaning) congressional majority. And then when the wind blows the other way it gets changed (ammended) the other way.

Since Heller v. DC was brought as a complaint to the DC gun ban as being unconstitutional, the decision was that it was unconstitutional. Period.
The balance of Scalia's opinion is of no consiquence as it relates to the decision.

Flyboy
November 27, 2008, 09:54 AM
Ditto is getting close to where I was hoping to go with this, in particular the part about amendments changing with the political wind.

That's exactly why I want to see the Constitution taken literally, and any variation to go through the amendment process. The Constitution is much more resistant to change than simple legislation.

We all agree that current laws infringe upon our rights. If we accept such infringement as legitimate, then we have an ever-shifting line of how much "infringement" is permissible.

If we do not allow any infringement, we're in a much stronger position to beat back an attempt.

If there's political will to repeal the Second Amendment, it'll happen with or without a literal interpretation. Holding to a literal interpretation doesn't create that possibility; it does however secure against encroachment, at least until such time as an unbeatable political supermajority is formed.

ConstitutionCowboy
November 27, 2008, 10:58 AM
Ditto is getting close to where I was hoping to go with this, in particular the part about amendments changing with the political wind.

That's exactly why I want to see the Constitution taken literally, and any variation to go through the amendment process. The Constitution is much more resistant to change than simple legislation.

We all agree that current laws infringe upon our rights. If we accept such infringement as legitimate, then we have an ever-shifting line of how much "infringement" is permissible.

If we do not allow any infringement, we're in a much stronger position to beat back an attempt.

If there's political will to repeal the Second Amendment, it'll happen with or without a literal interpretation. Holding to a literal interpretation doesn't create that possibility; it does however secure against encroachment, at least until such time as an unbeatable political supermajority is formed.

Encore! Encore!

Woody

TEDDY
November 27, 2008, 11:15 AM
as I all ways understood the B of R the first ten were inalienable rights.not able to be repealed or tampered with.
until the 1960s there were few gun laws and those were intended to prohibit blacks and unfavored political persons from protecting themselves.only since the socialists have made inroads to politics has there been such confusion.

Frank Ettin
November 27, 2008, 12:06 PM
The Second Amendment provides that the government shall not "infringe" on the people's right to keep and bear arms. As understood by the Founders, the term "infringe", as it relates to rights, means "to encroach on or upon". This means to invade gradually. Thus, the Second Amendment prohibits the government from interfering with this right, no matter how minimally; no matter how subtly....
That's not the way courts will be applying the Second Amendment, based on existing principles of Constitutional law, and basically, the courts don't care what you think. Enjoy your "dorm room" bill sessions and your alternate universe, but they have nothing to do with what's going to be happening out in the real world.

...That's exactly why I want to see the Constitution taken literally,...
The courts will continue to apply the Constitution in accordance with established principles of Constitution law, with which I doubt that you are familiar of that you understand. Nonetheless, that will be the bases of for future application of the Second Amendment by the courts, and they must be understood so that they may be used by skillful lawyers on our side to attempt to lead the courts toward decisions as favorable as possible in our interests. That is real life.

Your particular literal interpretation of the Constitution exists only in your alternate universe -- not in the real world. The real world will continue to move on its own way without regard to your views here.

...If we do not allow any infringement, we're in a much stronger position to beat back an attempt....
An how do you propose to prevent the courts from going about their business in their ways. If you wish to fight in the courts, which we really must, we must do it on the bases of established legal principles, because they simply will not pay attention to argument not supported by past decisions and established principles. Doing things this way is how we got Heller.

If there's political will to repeal the Second Amendment, it'll happen with or without a literal interpretation....
Indeed, but primarily because no one is going to be paying any real attention to your literal interpretation.

yokel
November 27, 2008, 02:51 PM
Come off it, fiddletown, and please save the reproof.

We're all well aware that this is merely an online discussion site and our personal views expressed here have no bearing whatsoever beyond cyberspace.

Frank Ettin
November 27, 2008, 02:59 PM
...this is merely an online discussion site...
That's true, and I'm going to express my opinion if I'm so inclined.

...our personal views expressed here have no bearing whatsoever beyond cyberspace.
Very true.

ConstitutionCowboy
November 27, 2008, 09:40 PM
We're all well aware that this is merely an online discussion site and our personal views expressed here have no bearing whatsoever beyond cyberspace.

Ah, but our chat is read by far more people than post here. We're doing more good than you might imagine.

Keep up the good work! That goes for everyone.

Woody

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