For you 2A/Heller Philosophers...

[cbrgator]

It's necessary. Law, especially litigation, is adversarial, and if you are going to beat your opponent you must first understand your opponent.

 

[mnrivrat]

For example, your supposition is that only the writers of the document have the right to interpret it.

I fail to see in my suggestions that "only" the writers of the document have the right of interpretation. What I said is that there is additional evidence in the other writings of the people who drafted this document that confirm and make clear their intentions. Is there supporting documentation of the time period, and by the drafters of the Bill of Rights, that lead to a collective right conclusion of the second over that of an idividual right ?

If you assert that the only evidence that is acceptable must come from the preserved writings of a very small number of the writers and or ratifiers, and your opponent rejects that theory of interpretation, how do you persuade them that your theory of interpretation is correct?

Again I fail to see where I deemed the only evidence acceptable would come from the drafters. How do I persuade others to draw the same conclusion as I on this matter ? Evidence perhaps.

One way perhaps is to gather the constitutional scholars and constitutional experts if I may loosely use that word, and attempt to draw conclusion based on whatever evidence can be found. I refer you to the Senate Juditial Committee study of 1982 as one examle. This commisioned study of the second amendment ( 88-618 -0 ) concluded the idividual right to keep and bear arms . Something that at least a portion of the SCOTUS judges seem to think has no merit. That doesn't mean they are stupid , it means they are in conflict with a group of very knowledgable people on the subject. Are supreme court judges infalible? I think not.

 

[cbrgator]

I was actually curious why Scalia didn't refer to that 1982 Senate report. Anybody have an explanation?

 

[sailortoo]

I sure do not want to wade throught the arguments presented by Scalia again, it's just too late, and I have had a really bad day. The concept of "a state of being" as opposed to a political or geographical state, was part of the Scalia argument of a "Free State" being a state of being. I have always read the 2A in that manner, as "Free State" as a political entity in a Federal Amendment is contrary to the overall meaning (the nation, not individual states). Have we become so befuddled that one clear sentence confabulates? I have to wonder if Shakespear wasn't correct - lawyers are people trained to confuse the language!
sailortoo

 

[poco loco]

Not a lawyer at all, but Heller affirmed Parker v D.C.

In determining whether the Second Amendment’s guarantee
is an individual one, or some sort of collective right, the most
important word is the one the drafters chose to describe the
holders of the right—“the people.” That term is found in the
First, Second, Fourth, Ninth, and Tenth Amendments. It has
never been doubted that these provisions were designed to
protect the interests of individuals against government intrusion,
interference, or usurpation. We also note that the Tenth Amendment—“The powers not delegated to the United States
by the Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people”—indicates
that the authors of the Bill of Rights were perfectly capable of
distinguishing between “the people,” on the one hand, and “the
states,” on the other. The natural reading of “the right of the
people” in the Second Amendment would accord with usage
elsewhere in the Bill of Rights.

Pgs 18-19 Parker V. D.C.

http://pacer.cadc.uscourts.gov/docs/common/opinions/200703/04-7041a.pdf

Warning PDF

The whole opinion is interesting but this passage is the kicker imo

 

[RPCVYemen]

I have always read the 2A in that manner, as "Free State" as a political entity in a Federal Amendment is contrary to the overall meaning (the nation, not individual states).

Do you also agree that in other places in the Constitution, the term "State" does in fact refer to the political/geographic entity such as Maryland or New York?

For example, in the following (from Article Four), the word State must mean the political/geographic entity such as Maryland or New York, correct? It cannot mean the condition of being, or some such abstract notion.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.

If that is correct, then according to your thesis, sometimes the word "State" refers to the concrete political/geographic entity, and sometimes to a more abstraction condition.

Assuming that to be true, is there a rule for when it is right to attribute one or the other of the meanings to the word "State"? Is it the case that the word "State' has this abstract meaning only in the 2nd Amendment, and everywhere else has the more concrete meaning of the a political/geographic entity such as Maryland or New York? Does the singular always meant the abstract, where the plural always means the concrete political entities? What is the rule?

Mike

 

[RPCVYemen]

and attempt to draw conclusion based on whatever evidence can be found

Many of the questions on the OP are forcing the reader to consider what is and what is not "evidence" to be used in drawing a conclusion. As I understand it, the question of what is and is not evidence is at the heart of the different theories of Constitutional interpretation.

For example, suppose one theory advocates that the most important evidence is the intention of the drafters and ratifiers. Someone working from that theory amasses a great number of quotes from the drafters and ratifiers specifying a particular interpretation to Judge Scalia. What is his likely response?

You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words."

http://en.wikipedia.org/wiki/Originalism

Scalia doesn't consider that mass of quotes "evidence" at all. So amassing more quotes from drafters and ratifiers. Some justices would consider the intent of the drafters and ratifiers evidence, some would not. Some would consider historical or sociological evidence, some would not.

Mike

 

[RPCVYemen]

I was actually curious why Scalia didn't refer to that 1982 Senate report. Anybody have an explanation?

Have you read the report?

It's been a while, but I don't remember it as being very compelling - but I think most web sites only present the conclusion. Maybe the whole report is more compelling.

The "conclusion" told me what Orin Hatch (if I am recalling it correctly) thought the Second Amendment meant, and I already knew what he thought.

Maybe Scalia doesn't consider Orin Hatch a stellar legal scholar?

Mike

 

[MGshaggy]

I was actually curious why Scalia didn't refer to that 1982 Senate report. Anybody have an explanation?

For the most part, Scalia is not a fan of legislative history. It can be manipulated at the time of the legislation to distort and skew the record in favor of one view or another, and it can often based more upon political factors rather than legitimate concerns about the legislation. My guess is that he views the senate report in the same light as most legislative history; too tainted and easily manipulted by the political process to be reliable and accurate and not binding as legislation since it is not passed with the majorities and formalities necessary for legislation.

 

[mnrivrat]

Scalia doesn't consider that mass of quotes "evidence" at all. So amassing more quotes from drafters and ratifiers. Some justices would consider the intent of the drafters and ratifiers evidence, some would not. Some would consider historical or sociological evidence, some would not.

Then Scalia perhaps is wrong . (or is he god ?)

The "conclusion" told me what Orin Hatch (if I am recalling it correctly) thought the Second Amendment meant, and I already knew what he thought.

I think you need to re-read the juditial report. It is far more compelling , and presents far more evidence than Orin Hatch's opinion.

 

[Flyboy]

What should we make of the fact that throughout most of the 20th century, the predominant understanding of the Second Amendment was that it did not protect individual rights?

What should we make of the fact that throughout most of the eighteenth and nineteenth centuries, the predominant understanding of the entire Constitution was that it did not protect the rights of blacks (see also: Dred Scott v. Sanford).

As an aside, Dred Scott also contains language saying that "if we did treat blacks as people, instead of property, we'd have to let them carry arms." Doesn't that implicitly say that those who are accorded full rights are allowed to own and carry arms?

 

[James T Thomas]

obfuscation

From a Second Amendment and Constitutional Authority Supporter:

All Philosophy aside, I choose to judicially bypass any technical deceit and rely on the historical fact that the opressive British rule that our forefather's of this free nation sought to oppose, that is the disarmament of the populace, housing of Brit. soldiers and informants within our homes, and surpression by similar schemes; the right to bear arms against tyrants; is corroberation enough for the Heller decision and reaffirmation of our God given rights as set forth in the United States Constitution and it's Amendments.

Perhaps the Amendments and Constitution should be first examined and debated as whether it is a philosophy or as it states, the highest law of the land.

 

[RPCVYemen]

Then Scalia perhaps is wrong.

And you would persuade him of the error of his ways how? What argument would you advance to convince him that the important evidence is the intent of the drafters and/or ratifiers?

Mike

 

[mnrivrat]

And you would persuade him of the error of his ways how? What argument would you advance to convince him that the important evidence is the intent of the drafters and/or ratifiers?

Certainly a good question if I was the one who thought I could set him straight (assuming your read on him is correct). If he can't see anything beyond the text on a specific piece of paper, then I doubt he is persuadable on that issue, or on that basis. And yet isn't the supporting documentation, written by the drafters and/or ratifiers ,a matter of text at this point?

If he is not interested in reviewing intent as part of evidence ,and therefore discounts other written documents as being nothing but evidence of intent , thereby ignoring it .That still doesn't make him right , and that is part of my point. Simply because he is not stupid, doesn't make him right. Besides, I doubt he wants to grant me audience to discuss the matter anyway.

Obvously even the justices are divided on issues based on how they individualy perseive what is put before them. Clearly, it seems,one of the reasons that those who submitt them for appointment , pick the persons they do, in an effort to place justices on the bench that agree with their agendas.