Conservative Cir. Judges Against RTKBA

[M_Jagger]

The men in the militia were NOT expected to furnish their own arms through the 2A

With respect to the meaning of the Second Amendment, it really doesn't matter if they were, or weren't, obliged to furnish their own arms.

Either way, the Second Amendment still has two parts that don't coincide and in 1789 there was still a rule of legal interpretation applicable to cases where the parts of a legal expression didn't coincide. That rule still was that, "the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means."

The end being sought by the Second Amendment is "the security of a free state." The means to that end is "a well regulated militia." "The right of the people to keep and bear arms" functions in a subordinate capacity as merely an auxiliary means to the end of "the security of a free state."

The applicable rule of construction dictates that we sacrifice the meaning of the word "people" to the end of "the security of a free state." Thus, we are compelled to construe the word "people" to mean "well regulated militia", and understand the second clause of the Amendment to mean, the right of the well regulated militia to keep and bear arms shall not be infringed.

 

[legaleagle_45]

In 1789, the rule of legal interpretation applicable to the case where the parts of a legal expression didn't coincide was that,

That is a correct statement, but first you must establish the predicate foundation... to wit: that the parts do NOT coincide... or in plain english: that the 2 parts are in actual conflict with one another. You have not done so, thus your application of the rule is inappropriate.

The applicable rule of construction dictates that we sacrifice the meaning of the word "people" to the end of "the security of a free state."

ONLY if it is necessary to do so because the the ends would not otherwise be served.

the right of the well regulated militia to keep and bear arms shall not be infringed.

The right of the people to keep and bear arms more adequately protects the well regulated militia than does the right of the militia to keep and bear arms. Further, your proposed right has oft times been "infringed upon" by the USA with the blessings of the the US Supreme Court. Finally, your formulation in itself violates other "rules of construction".

Wanna try again?

 

[buzz_knox]

Wanna try again?

You've got more patience than I have. He has been reduced to making the same unfounded arguments again and again, which has to be a strain on you.

Then again, this has been an opportunity for everyone to see how the legal battle over the RKBA is fought. One side has the facts and law with them, while the other has the ability to "cut and paste" arguments from whoever is funding them.

I suppose that's the reason why pro-RKBA decisions tend to be well thought out, and anti-RKBA decisions require leaps that strain the mind.

 

[mbt2001]

the right of the well regulated militia to keep and bear arms shall not be infringed.

That's a joke right? What kind of idiots would hinder the equipping of the armed forces? "We want to win, but we want to make it look close!"

The end being sought by the Second Amendment is "the security of a free state."

Why isn't the end "The right of the people to keep... shall not be infringed"???

And to your own logic, wouldn't that mean that ALL regulations have to show that they have some bearing on National Security? That somehow the nation will be MORE secure if the regulations are in place...

 

[legaleagle_45]

Proper application of Jagger's rule of consturction:

For example, the preamble declares one object to be, `to provide for the common defense.' No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?[/

1 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 462.

 

[Phil Lee]

M_Jagger says:

No kidding? What does "disarm" mean to you?

If the founders had believed in an God given individual right to keep and use arms for individual defense, they wouldn't have violated it. Duh!

What the founders believed isn't relevant to much of anything, it is what they built in the law. They wanted the people who wanted an independent country to be able to defend themselves and wrote laws accordingly. If there were some people who wished to remain subjects of King George living here, they were put into the same category as slaves and not to be trusted with firearms. Society frequently denies rights to those not adhering to its rules -- some even get locked up and denied the right to vote.

Now, M_Jagger has made much of "rules of construction" and "rules of legal interpretation". Most of it is legal nonsense he is selling in several places. I've found three so far: Posting as Miss You, Posting as Mick Jagger and Posting as Steve Strong

It appears he is trying hard to influence opinions in many venues. But three times nonsense is only more nonsense. To see the nonsense, let's examine Cardinal Rules of Legal Interpretation, By Edward Beal, London, 1908 on P 253 in connection with the Second Amendment:

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 Second Amendment has a preamble (here bolded) and an enacting part (the rest of the Amendment). On page 253 Beal writes:

Preamble
Defined​

A preamble of a statute is a recital of some inconveniences for which a remedy is given.

"There was a time when statutes were made without preambles; and the preamble of a statute is no more than a recital of some inconveniences, which does not exclude any other, for which a remedy is given by the enacting part of the statute." -- 7 Bac. Abr. Statute (I.)2.

Enacting Part and Preamble.​

The preamble may sometimes be usefully looked at as a guide to ascertain the subject-matter, scope and object of the statute.

Where the enacting part is clear and unambiguous, the preamble cannot be resorted to to control, cut down or restrict it.

Where the enacting part is ambiguous, the preamble can be resorted to to explain it.

According to Beal, for the preamble of the 2nd Amendment to affect the meaning of the Amendment, the enacting part would have to be other than clear and unambiguous. The enacting part of this amendment seems pretty clear and unambiguous to me.

Now, before M_Jagger jumps at the date of this work by Beal as not reflecting the rules of 1789, Beal's reference "7 Bac. Abr. Statute (I.)2." refers to Bacon's Abridgment (A New Abridgment of the Law, By Matthew Bacon, London, Brown, Worrall, Schuckburgh, 1762)

So, . . . , the interpretation of the Second Amendment according to the rules of legal interpretation of preambles for English law between 1762 and 1908 when Beal was published are all the same. According to that interpretation, the actual meaning of the Second Amendment is the same as if it was written: The right of the people to keep and bear Arms shall not be infringed.

I believe that the US Supreme Court Heller decision makes the same point about the effect of the preamble, but uses more scholarship to support that point.

 

[M_Jagger]

XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

--Pennsylvania Constitution of 1776.
​

James Wilson believed in the existence of "the great natural right of self preservation" and he believed that right was recognized by the "right to bear arms" provision of the Pennsylvanian Constitution to be a collective right.

However, he also believed the Pennsylvania provision established the right "to assemble people together in order to protect and defend." He said nothing about it establishing a right to bear arms as an individual to protect and defend.

Wilson also said that the provision "while it invests him with the power [to bear arms] enjoins on him the duty, of the commanding officers." In other words, he only has the right to bear arms when he is under the command of a militia officer.

Wilson understood "the right to bear arms" to be one possessed by people assembled together under the command of a militia officer to protect and defend themselves and the state.

Thus, we must conclude that the right "to keep and bear arms" in the Federal Charter belongs only to those people assembled together under the command of a militia officer to protect and defend themselves and the state."

 

[M_Jagger]

Phil Lee
What the founders believed isn't relevant to much of anything, it is what they built in the law.

If you mean that the the words of the Constitution with respect to a particular subject matter aren't supposed to be construed according to what the founders opinions on the subject matter were, I am in full agreement.

They wanted the people who wanted an independent country to be able to defend themselves and wrote laws accordingly. If there were some people who wished to remain subjects of King George living here, they were put into the same category as slaves and not to be trusted with firearms. Society frequently denies rights to those not adhering to its rules -- some even get locked up and denied the right to vote.

I thought you just said that, "what the founders believed [with respect to a particular subject matter] isn't relevant to much of anything, it is what they built in the law."

Now, M_Jagger has made much of "rules of construction" and "rules of legal interpretation".

That's because, in 1789, the rules of legal interpretation were universally accepted as the only way to ascertain the meaning of a constitution.

 

[Birddog1911]

Am I the only one getting a kick out of watching an anti-gun troll try to argue law with an obviously well read attorney?

 

[legaleagle_45]

James Wilson believed in the existence of "the great natural right of self preservation" and he believed that right was recognized by the "right to bear arms" provision of the Pennsylvanian Constitution to be a collective right.

The right of "self preservation" is also known as the right of self-defence. An individual right of each living person, the first law of nature as enjoined by Hobbes and Locke, which can never be bargained away in the social compact... the inalienable right to life... Wilson's comments are made in connection with his lectures on the law and specifically the law of Homicide. He begins by explaining when homicide is "enjoined", which he explains is "justified homicide". The term "enjoined homicide" is a bit more than merely "justified", as we use that term today, in that it is done pursuant to the laws command. Examples of enjoined homicide used by Wilson include not only self defense, but also the act of the executioner when executing a prisoner pursuant to a command of the courts of capital punishment, the actions of a soldier in killing the enemy, and so forth.

As an "enjoined homicide" it is free from all guilt and is not subject to prosecution. Wilson writes "Homicide is enjoined when it is necessary for the defence of one's person or one's house." Wilson then explains that this right is expressed in the Constitution of Pennsylvania. The exact quote and it's context can be found here:

http://deila.dickinson.edu/cdm4/document.php?CISOROOT=/ownwords&CISOPTR=15463&CISOSHOW=15122

If you wish to immerse yourself in the laws of homicide during the era, you can do so by starting on the previous page of the above link and continuing through page 93 of Wilson's treatise.

Now your bastardization of wilsons words actually begins on page 85. In the first paragraph of page 85, Wilson explains that the right of self defense and defense of his house was not only a right at common law, but also a duty. You had a right to defend yourself and also a duty to defend yourself. You had a right to defend your house and also a duty to defend your house... And, in fact the failure to do so was a crime at common law known as "Misprison Of a Felony".

To assert that Wilson was referring to a collective right when he explains that "Homicide is enjoined when it is necessary for the defence of one's person or one's house" is either completely ignorant or intentionally deceptive,

Giving the benefit of the doubt, I will assume that Jagger is merely completely ignorant. ...

Thus, we must conclude that the right

Nope, the only natural conclusion, and giving you the benefit of the doubt, is that you do not have a friggen clue what you are talking about.

Wanna try again?

 

[Phil Lee]

M_Jagger said

If you mean that the the words of the Constitution with respect to a particular subject matter aren't supposed to be construed according to what the founders opinions on the subject matter were, I am in full agreement.

No, I didn't mean that -- why do you try arguing against strawmen -- don't you appreciate that obvious technique isn't fooling anyone?

The founders wrote the Constitution and wrote articles about the meaning and effect of segments of the Constitution. Some beliefs about meaning of Constitutional passages have been attributed to one or more founders by others. However, I'm not aware of any case where any founder wrote that he believed a passage had a certain meaning. When a founder wrote about fundamental law, he usually presented his understanding as to the plain meaning as written or as agreed by the drafters in committee.

The plain language may serve, but these writings by the founders, like legislative intent in modern legal interpretation can help when the plain language isn't clear.

The claim that the Second Amendment's plain language is ambiguous and can be interpreted by "rules of legal construction" to mean some how that the people only have a right to arms when the government gives them arms for service under military discipline is a lie promoted by those desperate to justify stealing liberty from the people.

Still, thanks for the opportunity to educate people about their rights.

 

[M_Jagger]

Phil Lee:
...let's examine Cardinal Rules of Legal Interpretation, By Edward Beal, London, 1908 on P 253

Let's only examine the rules of legal interpretation that were well established in 1789.

 

[langenc]

""They said the gun ruling was a right-wing version ""

No one knows these days where center is!! Whaere is the center. I submit it is the Constitution.

Many think Teddy/Obama/Pelosi/Kerry/Biden are moderate . If so who is LEFT??

The LEFT is made out to be so middle, so now one knows, for sure..

 

[M_Jagger]

Phil Lee:
The founders wrote the Constitution and wrote articles about the meaning and effect of segments of the Constitution.

I don't care, unless you can either establish, 1) that the articles are admissible under the rules of legal interpretation existent at the time the Constitution was made, or, 2) that the lawmakers, as they made the Constitution, assumed that the time honored common law method of legal interpretation was to be suddenly cast aside, in favor of the personal opinions expressed in articles written after the instrument was adopted.

If the supreme law of the land was going to be whatever was contained in articles written after the Constitution was adopted, there would have been no point in making a Constitution?

I note for the record that, there was a rule of construction, in 1789, that "terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science." There might maybe somewhere possibly perhaps exist an article written before the adoption of the Second Amendment by a well respected legal authority that might could maybe possibly provide the meaning of a particular term of art or technical term found in the Amendment.

I don't know of any. But if we found one, it might be admissible.

There was also a rule that "words are always to be understood as having a regard" "as to the subject matter" "for it] is always supposed to be in the eye of the legislator, and all his expressions directed to that end."

In other words, we should have regard for the way the words found in the Second Amendment were used in previous laws and other pre-enactment writings, covering the same "subject matter" as that covered by the Amendment.

For example: We should assume that the lawmakers had their eye upon the way the term "well regulated" had been used in previous laws, other writings or recorded statements made upon the subject of "militia."

For example: If Patrick Henry and James Madison had articulated a precise meaning for the term "well regulated militia" during during their many exchanges at the Virginia Ratification Convention; and then John Randolph, Edmund Randolph, John Marshall, James Monroe and John Blair had all indicated that their understanding of the term was exactly the same, there might be a good case for putting that signification upon the term.

In summary, any articles written or statements made after the Second Amendment was adopted are inadmissible. Articles and statements made before the Amendment was adopted, must be admissible under one the rules of interpretation existent at the time the Amendment was made.

I totally reject the present conventional wisdom that an amateurish, or even the most professional, analysis of history can provide us with the will of the lawmakers at the time they made the Second Amendment.

We should use the rules of legal interpretation to ascertain the meaning of the Second Amendment, because that was the way, the only way, constitutions were interpreted at the time the U. S. Constitution was made.

 

[legaleagle_45]

We should assume that the lawmakers had their eye upon the way the term "well regulated" had been used in previous laws, other writings or recorded statements made upon the subject of "militia"

"Well regulated" was a popular colloquial expression of the era. It's derivation is attributed to the workings of a pendulem clock. To adjust a pendulem clock so that it functioned properly and gave the correct time was accomplished by "regulating" the length of the pendulem by either lengthening it or shortening it... accomplished usually by the manipulation of a screw designed to accomplish that result. Even today some such clocks are given the name "regulator". An old style grandfather clock is an example.

Well regulated in contemporary times of the 2nd amend referred to "properly functioning" and was adopted to apply to all manner of things... such as a "well regulated democracy" used in the Federalist papers. Today, the term is used primarily for clocks and in reference to problems of the digestive tract...constipation and the like.

Anything else you want to know?

 

[Phil Lee]

M_Jagger says

Let's only examine the rules of legal interpretation that were well established in 1789.

Now, I understand you have a reading disorder (or you are deliberately ignoring and distorting what I wrote).

 

[M_Jagger]

Jagger
the right of the well regulated militia to keep and bear arms shall not be infringed.

mbt2001
That's a joke right? What kind of idiots would hinder the equipping of the armed forces? "We want to win, but we want to make it look close!"

The Anti-Federalist were concerned because under the proposed Constitution, and in the words of the great George Mason at the Virginia Ratification Convention, "the militia may be...destroyed by... rendering them useless--by disarming them. Under various pretenses, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them..."

 

[legaleagle_45]

The Anti-Federalist were concerned because under the proposed Constitution, and in the words of the great George Mason at the Virginia Ratification Convention, "the militia may be...destroyed by... rendering them useless--by disarming them. Under various pretenses, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them..."

Correct, and in response to said concern Virginia offered the folloing amendment to the Constitution:

11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same.

Now what is interesting is that on the very same page but under the section of proposed amendments entitled "That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following" there appeared this:

That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state

Now apply your rules of constuction and you will be forced to conclude that the bit about the states be able to arm and train the militia can NOT possibly mean the same as the bit about the right to keep and bear arms.

The latter found its way into the Constitution by virtue of the 2nd, the former was rejected after it was concluded that the state already had the concurrent power to arm and train the militia in the absence of adequate federal support.

Now what is real interesting was that all of those amendments entitled "a declaration or bill of rights" were drafted prior to the convention by the antifederalists and presented as a fait accomplii. Thus you are violating your rules of statutory construction by using the words of Mason after the document was made.

Wanna try again?

 

[Poor East Texan]

All this is well and good (well regulated!) but I shudder at waking up on the 5th to an O Presidency!!!!

 

[M_Jagger]

The founders wrote the Constitution and wrote articles about the meaning and effect of segments of the Constitution.

That's nice. But, it doesn't change the fact that in 1789 it was universally accepted that constitutions were interpreted by applying well established rules of legal interpretation.

However, if you know of an essay where one of the lawmakers actually explained the Second Amendment, I would love to see it. The closest thing I know of to something like that is Saint George Tucker's 1803 statement that the Second Amendment completely removed all room for doubt, or uneasiness upon the subject of whether "each state respectively should have the power to provide for organizing, arming, and disciplining it's own militia, whenever congress should neglect to provide for the same."

Tucker didn't actually say that was what the Amendment meant. He just said the Amendment removed doubt about the issue.

Let's face it, Congress was trying to be ambiguous when it wrote the Second Amendment and it certainly succeeded.

 

[legaleagle_45]

That's nice. But, it doesn't change the fact that in 1789 it was universally accepted that constitutions were interpreted by applying well established rules of legal interpretation.

Thats nice. Which ones are you speaking of? Those written by Blackstone, those written by Bacon, those written by Vattel, those written by Ayliffe, those written by Domat, those written by Rutherforth, those written by Woodes... I can go on (ie Puffendorf, Groitus, etc, etc, etc, etc). The point is there were several treatises on the interpretaion of the law at the time the Constitution was written, each varying in degree and in emphasis. For example, Blackstone placed much more emphasis on looking how the same word was used elsewhere in the same legal instument than did Vattel. See, 1 Blackstone, Commentaries 60. Cf, Vattel, B. 2, ch. 17, §281.

However, if you know of an essay where one of the lawmakers actually explained the Second Amendment, I would love to see it. The closest thing I know of to something like that is Saint George Tucker's 1803 statement that the Second Amendment completely removed all room for doubt, or uneasiness upon the subject of whether "each state respectively should have the power to provide for organizing, arming, and disciplining it's own militia, whenever congress should neglect to provide for the same."

You must be a fan of Saul Cornell... Too bad, since good ole Saul is quite deceptive. The quote from Tucker is employed by Cornell to assert that is what Tucker thought the 2nd Amendment meant. Actually, Tucker was speaking on the militia clauses and the application of the 10th Amendment (he was emphasizing what I told you previously, that the states have concurrent power under the 10th to arm and train the militia in the absence of adequate federal action).

Here is what Tucker said when he was speaking DIRECTLY upon the 2nd Amendment:

The right of the people to keep and bear arms shall not be infringed, this may be considered as the palladium of liberty. The right of self defense is the first law of nature. In most governments it has been the study of rulers to abridge this right with the narrowest limits. Where ever standing armies are kept up & the right of the people to bear arms is by any means or under any colour whatsoever prohibited, liberty, if not already annihilated is in danger of being so. In England the people have been disarmed under the specious pretext of preserving the game. By the alluring idea, the landed aristocracy have been brought to side with the Court in a measure evidently calculated to check the effect of any ferment which the measures of government may produce in the minds of the people.

Let's face it, Congress was trying to be ambiguous when it wrote the Second Amendment and it certainly succeeded.

Let's face it, you do not know what you are talking about.

Wanna try again?

 

[M_Jagger]

More evidence that the militia men were not expected to provide their own arms.

Section 1628 of the Militia Bill of 1792 provided that after a citizen was notified of his enrollment in the militia, the citizen was to be provided with a good musket or fire-lock. The section contains nothing about the citizen being obligated to provide his own good musket or fire-lock

http://lcweb2.loc.gov/cgi-bin/ampage?collId=llsl&fileName=018/llsl018.db&recNum=357
​

 

[legaleagle_45]

More evidence that the militia men were not expected to provide their own arms.

More evidence that you do not know what you are talking about.

Section 1628 of the Militia Bill of 1792 provided that after a citizen was notified of his enrollment in the militia, the citizen was to be provided with a good musket or fire-lock. The section contains nothing about the citizen being obligated to provide his own good musket or fire-lock

Now take a look at your link.. it refers to the 43rd Congress, 1st Session. The 43rd Congress served from 1873-1875.

From the Militia act of 1792:

That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

Wanna try again?

 

[Birddog1911]

Quote:
Let's face it, Congress was trying to be ambiguous when it wrote the Second Amendment and it certainly succeeded.

Legaleagle says it far more eloquently and educated than I, but nothing could be further from the truth than your statement above. Only an anti gun troll would make a comment like that. There is nothing ambiguous about the Bill of Rights, meant as INDIVIDUAL rights, not collective rights. Your individual right to free speech, which you seem to have no problem bantying about, is an individual, not collective right. Though if your cantidate gets in office, that might change. He has already blacklisted media outlets he doesn't like, maybe he will work on individuals next...Hmmm...look at Joe the Plummer.

 

[Phil Lee]

M_Jagger implies (message on October 30th, 2008 07:03 PM) by saying "Let's only examine the rules of legal interpretation that were well established in 1789" the use of Beal for legal interpretation was not appropriate. But Beal cited Bacon's Abridgment dating from 1762 on the topic and M_Jagger dishonestly ignored that information in my message (October 30th, 2008 04:56 PM). That reference makes clear that the same rule of legal interpretation in English law applied before the Constitution was written.

The rules of legal interpretation of preambles for English law between 1762 (Bacon's Abridgment published) and 1908 (Beal's book published) are the same for the Second Amendment and it should be interpreted as if written "The right of the people to keep and bear arms shall not be infringed".

The US Supreme Court (USSC) Heller decision (DISTRICT OF COLUMBIA ET AL. v. HELLER) makes the same point about the effect of the preamble. In the Court's Heller decision. it uses the term "Operative Clause" in place of "enacting part" and "prefactory clause" in place of "preamble" for their Second Amendment analysis. This USSC decision draws the same conclusion as I've indicated here. A specific quote from this USSC decision makes that point:

But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. See F. Dwarris, A General Treatise on Statutes 268–269 (P. Potter ed. 1871) (hereinafter Dwarris); T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 42–45 (2d ed. 1874)3. “ ‘It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’ ” J. Bishop, Commentaries on Written Laws and Their Interpretation §51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165 (K. B. 1802)). Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.4

We should expect the Brady Bunch to advance the dissent by Justice Stevens et al which claims more consequence for the preamble of the Second Amendment and uses that claim to argue that the Second Amendment is more limiting of the rights protected. It appears that M_Jagger is part of the leading edge of these efforts.

May all of these Brady efforts be argued so incompetently as M_Jagger has done.