"Keep" vs. "Bear"

[legaleagle_45]

Woodci wrote:

There is no comma between keep and bear

<sigh>

The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures

Right to be free from unreasonable searches and seizures... A unitary right or two rights... one that prohibits unreasonable searches and one that prohibits unreasonable seizures? Wanna guess what case law says it is?

the accused shall enjoy the right to a speedy and public trial

A unitary right or one that protects a right to a public trial as well as a speedy trial? Wanna guess what case law says it is?

Notice the lack of commas seperating same.

 

[legaleagle_45]

ara wrote:

And it is my misunderstanding, legaleagle, re: which Congress we addressed. I will have to give more attention to your earlier posts and what the originators supposedly espoused.

Here is the relevant post. It links to a web site which contains all of the debates in the 1st Congress (the 1789 version) relating to the 2nd amendment

http://www.thehighroad.org/showpost.php?p=3663100&postcount=3

ara wrote:

But you still ignore my statement, which is a bedrock issue in this entire thread!

I ignore it because it is a statement of your philosophy. Nothing I could say could ever dissuade you of that view, so there in no sense in trying to do so. I will state this as something that I believe... A quote from Alan Dershowitz:

"Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a safety hazard don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like."

 

[ConstitutionCowboy]

The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures ...

It's the right of the people to be secure in their persons, it's the right of the people to be secure in their houses, it's the right of the people to be secure in their papers, and it's the right of the people to be secure in their effects.

I hear your <sigh> and raise you a <yawn>.

Woody

There is perspective and there is pretense. No amount of bombast or emotion can truthfully equate the two. One does not add validity to the other. Bombast and emotion added to pretense does not equal perspective. Reason, fact, and logic? That's a different matter. That will net you perspective every time. B.E.Wood

 

[legaleagle_45]

the accused shall enjoy the right to a speedy and public trial

I hear your <yawn> and raise you a <zzzzzz>

 

[glummer]

On what grounds do you ignore Mr. Jefferson & Mr. Mason in their use of "bear?" Were the speaking a foreign language?

That to "bear" arms means simply to carry them was clear in a game bill drafted by Thomas Jefferson and proposed by James Madison, draftsman of the second amendment, in the Virginia legislature.[14] The bill would have fined those who hunted deer out of season, and if within a year "[the hunter] shall bear a gun out of his inclosed ground, unless whilst performing military duty," he shall be in violation of his recognizance. The game violator would have to go back to court for "every such bearing of a gun" to be again bound to his good behavior.[15]

Thus, in the minds of Thomas Jefferson and James Madison, to "bear" a gun meant to carry it about in one's hands or on one's person, as for instance a deer hunter would do. "Bearing arms" is not associated with militia duty only, for the language above addresses the "bearing of a gun" by any person when not "performing military duty." Further, while the bill would have restricted the carrying of scatterguns and other long guns for hunting, it would not have prohibited carrying pistols for self-defense. At that time, "one species of fire-arms, the pistol[,] [was] never called a gun."

 

[ara]

I ignore it because it is a statement of your philosophy.

Not hardly. It is a statement of solid fact. Here is the relevant opening of Article V of the Constitution of the United States of America:

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress..."​

What's that mean? It means, as a statement of fact, that whenever Congress moves to make any law or regulation that contravenes so much as one syllable of the Constitution without submitting to the mandates of Article V then they, in fact, are in violation of the very and foundational document they swore to defend and protect. I'm talking about the Congress now, the 110th, which fraudulently attempts to destroy our most fundamental rights by usurpation of false powers.

Again, neither Congress nor the courts have any authority to countermand our freedoms. Period.

I do not give them that right, and it is in my authority to make that statement as an American citizen.

I recognize at this point that my position is irrelevant to the nature of this thread but, again at this point, the current danger presented by an exceptionally rogue Congress is clear and very present, and can result in rendering the nature of this thread (and our freedoms) totally irrelevant in a heartbeat.

This is not by any stretch "opinion."

It is fact.


ara

 

[ConstitutionCowboy]

the accused shall enjoy the right to a speedy and public trial

Well, that's exactly like the right of the people to keep and bear arms, is it not? One right. Our trials shall be both speedy and public. It's about the right, not speedy and public. Its about the right to keep and bear arms. It's not about keep or bear. You cannot have just a speedy trial and just a public trial. Its about the trial being both. You cannot make the distinction between keep arms and bear arms, because it is about arms and our right to them. We cannot keep arms without bearing them, and we cannot bear arms without keeping them.

How we use them is another matter.

Woody

 

[legaleagle_45]

woodci wrote:

Well, that's exactly like the right of the people to keep and bear arms, is it not? One right.

Tell it to SCOTUS:

The right to a speedy trial may be derived from a provision of Magna Carta and it was a right so interpreted by Coke. Klopfer v. North Carolina, 386 U.S. 213, 223-24 (1967).

Dang that Coke!!!

The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice. Beavers v. Haubert, 198 U.S. 77, 87 (1905)

This nation's accepted practice of guaranteeing a public trial
to an accused has its roots in our English common law heritage. In re Oliver, 333 U.S. 257, 266-70 (1948)

Dang that common law heritage!

However, an accused's Sixth Amendment-based request
for closure must meet the same stringent test applied to governmental
requests to close proceedings: there must be ``specific findings . . .
demonstrating that first, there is a substantial probability that the
defendant's right to a fair trial will be prejudiced by publicity that
closure would prevent, and second, reasonable alternatives to closure
cannot adequately protect the defendant's fair trial rights. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14(1986)

What we have is SCOTUS looking at "speedy" seperate from "public", defining each according to seperate criteria, attributing the lineage of same to different historical developments and finding that there can be a violation of one without there being a violation of the other.... If you wish to call that a unitary right with mere explanations as to seperate variations of the unitary right, then I would suggest we do not have a substantive argument, but merely an argument about semantics.

 

[ConstitutionCowboy]

But it's all about how it is written into OUR Constitution and OUR law that is pertinent. The Court may discuss the ins and outs of "Speedy" and "Public" all it wants, but when it comes down to trials in this country, as directed by the Constitution, all trials must be speedy and public. Any trial that was public and not speedy, or that was speedy and not public would be unconstitutional.

Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14(1986) was about the transcript of a preliminary hearing, not a trial.

Woody

This crap will continue until the Court stops allowing itself to be misused as a legislative branch of government, or as an alternative to amending the Constitution. B.E. Wood

 

[legaleagle_45]

woodci wrote:

Any trial that was public and not speedy, or that was speedy and not public would be unconstitutional.

Then we are merely arguing semantics.

 

[ara]

Woodci:

until the Court stops allowing itself to be misused as a legislative branch of government, or as an alternative to amending the Constitution. B.E. Wood

My point exactly. Thank you. These guys should and do know better. Their bitter and unending problem is that I and many millions of other Americans can and do read, and we know better, too.

All this talk about the first Congress is well and good, but the issue is that there a distillation process--a homogenization, if you will--wherein the ideas of many founders were blended and no one idea was likely implemented intact.

But absolutely none of that matters when courts and the Congress illegally and routinely redefine and twist and outright ignore the clear meaning of the documents.

This'll be my last on this topic. I'm moving over to "Activism" where, I believe, my thinking might be more apropos.

Best wishes,


ara

 

[glummer]

Legaleagle

it neither denigrates or emphasizes the declaration as compared to the guarantee or vise versa.

Which has the effect of denigrating the guarantee, since the guarantee is supposed to paramount over the declaration, according to 18th century rules of interpretation (and, for all I know, current rules as well. I don't know if anything has changed since then.)

It embraces both and explains why they are totally compatable with one another... how the personal and individual rights to keep arms and bear arms serve to protect and preserve the well regulated militia.

As does the simpler, conventional ‘gun rights’ explanation.

It does not need to employ the fiction that the well regulated militia is also the unorganized militia provided for in the US Code and thus assert that the word "militia" is the same as the word "people" disregarding and ignoring "well regulated", nor does it leave out any of the people who are not part of the "unorganized militia".

By what authority do you decide it is a ‘fiction?’

On the other hand, it goes beyond the mantra of "militia purpose" …

By the 18th century rules of interpretation, the militia clause has no legal relevance to the issue anyway, and should be ignored, since ‘keep and bear’ in the operative clause has a clear, unambiguous meaning to start with.

That words can have different meanings does not mean that when a word is used it will encompassl all of those different meanings.

But it DOES mean that it COULD encompass other meanings, and any assertion to the contrary must be backed by convincing evidence. You offer copious evidence that ‘bear arms’ has a military meaning (which no one disputes in the first place); you have NOT shown that there is no broader meaning.

 

[ConstitutionCowboy]

Legaleagle 45,

Is it semantics when you present irrelevant information to back up your claim?

Woody

 

[legaleagle_45]

Which has the effect of denigrating the guarantee, since the guarantee is supposed to paramount over the declaration,

Perhaps you misunderstand me... The guarantee is the operative aspect of the 2nd. The declaration establishes an intent for that guarantee. With respect to interpretation of the guarantee we must not ignore the declaration.

As does the simpler, conventional ‘gun rights’ explanation.

Actually, there are several conventional 'gun rights' explanations. Halbrook espouses one which others gun rights supporters quibble with... dealing with the meaning and intent.

By what authority do you decide it is a ‘fiction?’

For the simple reason that if they are equivalent then there would be no need to employ different words in the same paragraph which have identical meanings. That would violate rules of statutory construction.

the militia clause has no legal relevance

Such an assertion also violates a rule of stautory construction. It is there, it must have some meaning, it can not be disregarded.

you have NOT shown that there is no broader meaning.

I have provided evidence that there is no broader meaning. That evidence consists of the original wording and how "bear" was used in the CO clause. The same word used multiple times in a single provision must be read to have the same meaning each time it is employed.

 

[legaleagle_45]

Is it semantics when you present irrelevant information to back up your claim?

Is it irrelevant to examine the meaning of a speedy trial to determine whether there has been a violation of the unitary right to a speedy and public trial?

 

[glummer]

Legaleagle_45 wrote:
With respect to interpretation of the guarantee we must not ignore the declaration.

IANAL, but it is my understanding of the rules of interpretation that we are REQUIRED to ignore the declaration, since there is no ambiguity relating to ‘keep and bear’ in the operative clause.

For the simple reason that if they are equivalent then there would be no need to employ different words in the same paragraph which have identical meanings. That would violate rules of statutory construction.

They are not equivalent; one is a refinement of the other, describing the ideal goal; and under the relevant rules of interpretation, the preface has no statutory significance anyway – the ‘statute’ in question deals with the Right, not the Militia.

Such an assertion also violates a rule of stautory construction. It is there, it must have some meaning, it can not be disregarded.

I am informed, on fairly good authority, that it MUST be disregarded, except in the case of ambiguity in the main clause (not the case here); and even in that case, it cannot itself be the source of ambiguity (which it is under your theory), nor can it DIMINISH or RESTRICT the force of the operative.

The same word used multiple times in a single provision must be read to have the same meaning each time it is employed.

I agree entirely, and applaud you for affirming what seems to be a difficult idea for far too many people; but there is no CO clause in the 2A.

As I said, IANAL, and I could be misinformed in some way about the relevant rules of interpretation. But I am drawing from advice given the AG in 2004, so I assume there is a fairly solid basis for what I have said.

 

[legaleagle_45]

REQUIRED to ignore the declaration, since there is no ambiguity relating to ‘keep and bear’ in the operative clause.

Then I guess our disagreement is whether the terms in the 2nd are ambiguous... How about the term "people". Is it ambiguous? In your view does the term include or exclude those that have previously been convicted of a felony? Does it include 12 year olds? Does it include those determined to be insane?

 

[ArfinGreebly]

Semantics

If I may.

I am not schooled in law. I have not been to university.

My (formal) education ends with 12th grade (high school).

It has been, however, my good fortune to have been the son of one of Alfred Korzybski's students.

A consequence of this is a level of literacy beyond the apparent years of schooling, and an unusually good command of English and its grammar.

I would submit that "only arguing semantics" is the essence of debate on legal matters.

The law, when properly written, is an exercise in the rigor of semantics. Its interpretation really cannot be divorced therefrom.

It's very much "all about the meanings" in the law and its foundations.

While I understand that it is an aspect commonly disdained, it really cannot be ignored.

When constructing an English sentence, one must not only consider the "obvious" meanings of the individual words, but also the aggregated meanings of phrases -- both in their wording and in their positional relation to other phrases.

Failure to do so results in ambiguity. While it's true that much ambiguity stems from laziness or a lack of imagination, I have seen instances where it's more malicious, and intended to create an expanse of grey large enough to park a law practice.

The founders sought clarity. When considering their musings and declarations it is important to preserve the "framework of meaning" contemporary with their writings.

I've watched literally dozens of pages of arguments centered around "well regulated" which, when it was written, was not ambiguous.

As I watch this discussion, I am aware that there is a depth of experience with the law and, equally importantly, with precedent, that far exceeds mine.

Nonetheless, to declare that "semantics" is irrelevant or that it's some minor aspect of the issue is well off the mark.

Meaning is important. Context is important. And contemporary framework is important.

That precedent is also important is not disputed.

My beef is only with the apparent dismissal of semantics as a significant part of interpretation and understanding.

Anyway. Please carry on.

 

[ctdonath]

The "right to participate in a militia" is a curious turn.

Clearly the government, being the obvious default coordinator of the militia, has the power to identify the personnel & tools needed, call them into service, and in doing so not include some.

The problem is the notion that some will not be included, not because they are not needed, but because they are not "wanted".

 

[legaleagle_45]

The problem is the notion that some will not be included, not because they are not needed, but because they are not "wanted".

Very true. Similar to jury duty, which I believe to be analogous. You do not have a right to be included upon any specific jury panel. However, you do have the right not to be excluded from jury service based upon criteria not relevant to your ability to perform the duties required of a juror. Thus, blacks can not be arbitrarily excluded from jury service.

 

[legaleagle_45]

Arfin Greebly wrote:

I am not schooled in law. I have not been to university.

Yet from reading the entirety of your post, I could very easily mistake you for a lawyer... no offense intended. I will only quibble with respect to some minor things.

I would submit that "only arguing semantics" is the essence of debate on legal matters.

It is certainly part of it, but I would not deem it the "essence".

Nonetheless, to declare that "semantics" is irrelevant or that it's some minor aspect of the issue is well off the mark.

To the extent that woodci and I are disagreeing as to whether there is a unitary right or two seperate rights, we are merely arguing something that is irrelevant, since we both would employ the same exact analysis (albiet our analysis may reach different conclusions).

 

[glummer]

Eagle

Then I guess our disagreement is whether the terms in the 2nd are ambiguous... How about the term "people". Is it ambiguous? In your view does the term include or exclude those that have previously been convicted of a felony? Does it include 12 year olds? Does it include those determined to be insane?

Hmmm. I would say it clearly included the late Mr. Miller (and the US did not claim otherwise), and ‘keep & bear’ included his actions (and the US did not claim otherwise), and ‘arms’ as used in the operative clause included his SBS (since the US had to resort to the subordinate clause in its attempt to claim otherwise). Therefore, the Miller decision was not merely wrong, but incompetently bad. The Militia clause analysis that has absorbed us ever since was an irrelevant red herring – it should never have entered the picture at all. The original trial court had it right. Unconstitutional.

Your questions are interesting, and we should have a thread or three discussing them. This thread, I thought, was specific to ‘keep & bear.’ I am not aware of any real-world case of a claim of ambiguity in the terms, and I am hard-pressed to imagine any.
But I could be wrong, of course.

Arfin

My beef is only with the apparent dismissal of semantics as a significant part of interpretation and understanding.

Amen, brother.

 

[legaleagle_45]

I would say it clearly included the late Mr. Miller

Mr. Miller (I believe) was a convicted felon, however, that aspect was not raised or considered by the Court as an allowable exclusion, therefore we can not rely upon the Miller decision for guidance on the question I propose. Are convicted felons "people" for purposes of the 2nd amend?

Perhaps this may be more properly adressed in a new thread, but the context here is not what "people" means in the 2nd, but whether words that have an apparently clear, simple meaning, turn out not to be so clear or so simple.

 

[ctdonath]

May I observe: seems this thread has multiple subjects being argued, with people unaware that what each is arguing about is not what other are addressing - with enough overlapping material to confuse the heck out of things.

 

[ara]

ctdonath:

Huh?

=0 )