Reading the Second Amendment

[The Real Hawkeye]

I haven't addressed whether the Constitution restricts States as well as the Feds. I've been addressing your contention that the people are covered only as amorphous members as their several States, so your citations aren't on point to my issue.

Although, if I may reference Miller quickly before I head out to shop some more, I would note that at no point did the Justices make mention of Miller's individual right to keep and bear a shotgun, it is implicitly taken as a given.

They apparently felt that that particular weapon's suitability for militia use was the only issue; not whether Miller, with no claimed association with his local State organized or unorganized militia as part of his defense, was entitled to a weapon in general. Miller says they can infringe a particular gun within some limits, not the man's right to one in general under any.

That's pretty strong implication that the Supreme's then agreed "militia" covers all individuals, not just signed up members of a formal (or even informal) State or local group. Which is in line with the US Code and historical definitions of unorganized militia.

Good point, CareBear.

 

[hugh damright]

That's pretty strong implication that the Supreme's then agreed "militia" covers all individuals, not just signed up members of a formal (or even informal) State or local group. Which is in line with the US Code and historical definitions of unorganized militia.

I have never meant to suggest that the militia is only those which are in a formal militia. As I said before, I see a State as a body of people, and the militia as that same body of people.

 

[hugh damright]

I want to point something out here .. the reason I want it to be up to Virginians is to PRESERVE my RKBA ... and because that is the Constitution.

I think sometimes it helps to imagine a simplified model of the US, one which consists of only three States. If I remember correctly, California, Kentucky, and Wyoming are the 1st, 25th, and 50th in population, so let's go with them. And let's say we all are lucky enough to be living in Kentucky. As a Kentuckian in this simplified US, who would you place your trust in, what people would you consider to be your bulwark of liberty? Would it be your fellow Kentuckians, your State ... or would you want the US to be the bulwark of liberty? Before you decide, please allow me to point out that in this simplified model, using the real populations, the US would be 85% Californians.

 

[The Real Hawkeye]

I want to point something out here .. the reason I want it to be up to Virginians is to PRESERVE my RKBA ... and because that is the Constitution.

I think sometimes it helps to imagine a simplified model of the US, one which consists of only three States. If I remember correctly, California, Kentucky, and Wyoming are the 1st, 25th, and 50th in population, so let's go with them. And let's say we all are lucky enough to be living in Kentucky. As a Kentuckian in this simplified US, who would you place your trust in, what people would you consider to be your bulwark of liberty? Would it be your fellow Kentuckians, your State ... or would you want the US to be the bulwark of liberty? Before you decide, please allow me to point out that in this simplified model, using the real populations, the US would be 85% Californians.

Great minds think alike, Hugh.

 

[bluto]

I'm late to the party here, but one of hugh's original complaints about the interpretation of the Second Amendment was about removing commas and its effect on the interpretation thereof.

The original version, according to the American Law Division of the Library of Congress, "that was adopted by Congress in 1789 and ratified by the States" contained "only one comma, after the word state[I/] which, by the way, was not uppercase in the original."

The best analysis of the Amendment's meaning according to its syntax (which also addresses the ACLU's interpretation) is short and a must read. It can be found here:

http://webpages.charter.net/mad_prophet/articles/rkba/other/sr000001.html

I browsed this thread and didn't see a reference, but I may have missed it. If so, I apologize:

[QUOTE:]
Reading the Second Amendment

By Sheldon Richman

"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."
--Second Amendment

Is this sentence so hard to understand? Apparently so. Even some of its defenders don’t like how it is worded because it allegedly breeds misunderstanding.

But the Second Amendment of the Bill of Rights is indeed a well-crafted sentence. By that I mean that its syntax permits only one reasonable interpretation of the author’s meaning, namely, that the people’s individual right to be armed ought to be respected and that the resulting armed populace will be secure against tyranny, invasion, and crime. Someone completely ignorant of the eighteenth-century American political debates but familiar with the English language should be able to make out the meaning easily.

My concern is not to demonstrate that what the amendment says is good policy, only that it says what it says. No other fair reading is possible.

The Competing Interpretation

Before proceeding, let’s understand the competing interpretation. As the American Civil Liberties Union of Southern California put it, "The original intent of the Second Amendment was to protect the right of states to maintain militias." Dennis Henigan of Handgun Control, Inc., says the amendment is "about the distribution of military power in a society between the federal government and the states. That's all they [the Framers] were taling about." As he it elsewhere, "The Second Amendment guaranteed the right of the people to be armed as part of a 'well regulated' militia, ensuring that the arming of the state militia not depend on the whim of the central government" [emphasis added].

This interpretation is diametrically opposed to the view that says the amendment affirms the right of private individuals to have firearms. The ACLU, HCI, and others reject this, arguing that the amendment only affirms the right of the states to maintain militias or, today, the National Guard. These competing interpretations can't both be right.

The first problem with the militia interpretation is that the amendment speaks of a right and, or course, the amendment appears in the Bill of Rights. (Powers with respect to the militia are enumerated in Articles I and II of the Constitution.) No other amendment of the original ten speaks of the States having rights. Nowhere, moreover, are rights recognized for government (which in the Framers' view is the servant) but denied to the people (the masters). Henigan and company are in the untenable position of arguing that while the Framers used the term "the people" to mean individuals in the First (the right to assemble), Fourth (the right to be secure in person, houses, papers, and effects), Ninth (unenumerated rights), and Tenth (reserved powers) Amendments, they suddenly used the same term to mean "the States" in the Second. That makes no sense.

More important, the diction and syntax of the amendment contradict Henigan's argument. If the Framers meant to say that States have a right to organized militias or that only people who are members of the militia have a right to guns, why would they say, "the right of the people to keep and bear arms shall not be infringed"? The Framers were intelligent men with a good grasp of the language. As we can see from the Tenth Amendment, they were capable of saying "States" when they meant States and "people" when they meant people. They could have said, "The right of the States to organize and arm militias shall not be infringed," though that would have contradicted Article I, Section 8, which delegated that power to Congress. (Roger Sherman proposed such language, but it was rejected.) Or, they could have written, "The right of members of the state militia to keep and bear arms shall not be infringed," though that would have contradicted Article I, Section 9, which forbids the States to "keep Troops…in time of Peace." They didn't write it that way. They wrote "the people," without qualification. (The Supreme Court said in the 1990 case U.S. v. Verdug-Urquidez that "the people" has the same meaning--individuals--throughout the Bill of Rights.)

But say the gun controllers, what of that opening phrase, "A well regulated militia being necessary to the security of a free state"? Here's where we have to do some syntactical analysis. James Madison's original draft reversed the order of the amendment: "The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country." Perhaps this version makes Madison's thought more clear. His sentence implies that the way to achieve the well-armed and well-regulated militia that is necessary to the security of a free state is to recognize the right of people to own guns. In other words, without individual freedom to own and carry arms, there can be no militia. As to the term "well regulated," it does not refer to government regulation. This can be seen in Federalist 29, where Alexander Hamilton wrote that a militia acquired the degree of perfection which would entitle them to the character of a well regulated militia" by going "through military exercises and evolutions, as often as might be necessary."

What the Syntax Tells Us

How do we know that the "well regulated militia" is defined in terms of an armed populace and not vice versa? The syntax of the sentence tells use. Madison and his colleagues in the House of Representatives chose to put the militia reference into a dependant phrase. They picked the weakest possible construction by using the participle "being" instead of writing, say, "Since a well regulated militia is necessary…" Their syntax keeps the militia idea from stealing the thunder of what is to come later in the sentence. Moreover, the weak form indicates that the need for a militia was offered not as a reason (or condition) for prohibiting infringement of the stated right but rather as the reason for enumerating the right in the Bill of Rights. (It could have been left implicit in the Ninth Amendment, which affirms unenumerated rights.)

All of this indicates the highly dependent and secondary status of the phrase. Dependent on what? The main, independent clause, which emphatically and unequivocally declares that the people's right to have guns "shall not be infringed." (Note: the amendment presupposes the right; it doesn't grant it.)

Let's go at this from another direction. Imagine that a Borkian inkblot covers the word "well regulated militia." Al we have is: "A [inkblot] being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." To make an intelligent guess about the obscured words, we would have to reason from the independent phrase. We would know intuitively that the missing words must be consistent with the people having the right to keep and bear arms. In fact, anything else would be patently ridiculous. Try this: "A well-regulated professional standing arming (or National Guard) being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." That sentence would bewilder any honest reader. He'd ask why such unlike elements were combined into one sentence. It makes no sense. It's a non sequitur.

Imagine the deliberations of the Committee of Eleven, the group of House members to which Madison's proposed bill of rights was referred. Assume that one member says, "We should have an amendment addressing the fact that the way to achieve the well-regulated militia that is necessary to the security of a free state is for the nation government to respect the right of the State to organize and arm militias." "No," replies another member. "The amendment should reflect the fact that the way to achieve the well-regulated militia that is necessary to the security of a free state is for the government to respect the people's right to bear arms." If both members were told to turn their declarative sentences into the imperative form appropriate to a bill of rights, which one would have come up with the language that came the Second Amendment? The question answers itself.

The Committee of Eleven reversed the elements of Madison’s amendment. But that, of course, did not change the meaning, only the emphasis. In fact, the reversal made it a better sentence for the Bill of Rights. As adopted, the amendment begins by quickly putting on record the most important reason for its inclusion into the Bill of Rights but without dwelling on the matter; that’s what the weak principle, "being," accomplishes. The sentence then moves on to the main event: "the right of the people to keep and bear arms." The framers correctly intuited that in a Bill of Rights, the last thing the reader should have ringing in his mind’s ear is the absolute prohibition on infringement of the natural right to own guns.

I am not suggesting that the Framers said explicitly that the militia reference should go into a dependent participial phrase so that future readers would know that it takes it meaning from the independent clause. They didn’t need to do that. To be fluent in English means that one intuits the correct syntax for the occasion and purpose at hand. Much knowledge of a language is tacit. We have to assume that the Framers knew what they were saying.

What Language Experts Say

This analysis is seconded by two professional grammarians and usage experts. In 1991, author J. Neil Schulman submitted the text of the Second Amendment to A. C. Brocki, editorial coordinator of the Office of Instruction of the Lost Angeles Unified School District and a former senior editor for Houghton Mifflin, and Roy Copperud, now deceased, the author of several well-regarded usage books and a member of the American Heritage Dictionary usage panel. Brocki and Copperud told Schulman that the right recognized in the amendment is unconditional and unrestricted as to who possesses it.

Asked if the amendment could be interpreted to mean that only the militia had the right, Brocki replied, "No, I can’t see that." According to Copperud, "The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people." As to the relationship of militias to the people, Schulman paraphrased Brocki as saying, "The sentence means that the people are the militia, and that the people have the right which is mentioned." On this point, Copperud, who was sympathetic to gun control, nevertheless said, "The right to keep and bear arms is asserted as essential for maintaining the militia."

It is also important to realize that, as a matter of logic, the opening phrase does not limit the main clause. As the legal scholar and philosopher Stephen Halbrook had argued, although part one of the amendment implies part two, it does not follow that if part one doesn’t obtain, part two is null and void. The sentence "The earth being flat, the right of the people to avoid ocean travel shall not be infringed" does not imply that if the earth is round, people may be compelled to sail. The Framers would not have implied that a right can properly be infringed; to call something a right is to say no infringement is proper. As another philosopher and legal scholar, Roger Pilon, has written, the amendment implies that the need for a militia is a sufficient but not a necessary condition for forbidding infringement of the right to have firearms. The sentence also tells us that an armed populace is a necessary condition for a well-regulated milita.

Superfluous Commas

A word about the punctuation: most reproductions of the Second Amendment contain a plethora of commas: "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." But according to the American Law Division of the Library of Congress, this is not how the amendment was punctuated in the version adopted by Congress in 1789 and ratified by the States. That version contained only one comma, after the word state which, by the way, was not uppercase in the original, indicating a generic political entity as opposed to the particular States of the Union. If the superfluous commas have confused people about the amendment’s meaning, that cause of confusion is now removed.

One need not resort to historic materials to interpret the Second Amendment, because it is all there in the text. Nevertheless, it is appropriate to point out that history supports, and in no way contradicts, that reading. Gun ownership was ubiquitous in eighteenth-century America, and the Founding Fathers repeatedly acknowledged the importance of an armed citizenry. They also stated over and over that the militia is, as George Mason, the acknowledged father of the Bill of Rights, put it, "the whole people." Madison himself, in Federalist 46, sought to assuage the fears of the American people during the ratification debate by noting that an abusive standing army "would be opposed [by] a militia amounting to near half a million citizens with arms in their hands." That would have comprised the entire free adult male population at the time. There’s no question that at the center of the American people’s tacit ideology was the principle that, ultimately, they could not delegate the right of self-defense to anyone else and thus they were responsible for their own safety.

Perhaps the deterioration of American education is illustrated by the high correlation between the number of years a person has attended school and his inability to understand the words "the right of the people to keep and bear arms shall not be infringed." It is more likely, though, that those who interpret the Second Amendment to preclude an individual right to own guns are driven by their own political agenda. Whichever the case, they do themselves no credit when they tell us that a simple, elegant, sentence means the opposite of what it clearly says.[/QUOTE]

 

[hugh damright]

I was asserting that the Federal Government is empowered to fully guarantee the non-infringement of this right because it is central to the availability of a militia

OK, I'm with you ... but what individual right is central to the availability of miltia? For instance, I would say that if a State banned CCW, banned .25 pocket pistols, and banned bb guns, that it would not impact the militia. If I stretch it as far as it will go without breaking, a State might ban every gun but one model of semi-auto rifle and require people to keep it locked up with the ammo stored separately. Ugly as it is, my point is that the people could still each unlock their one rifle and load it with their separately stored ammo and ... revolt.

In my opinion, the US should not accept a State banning semi-auto rifles, "assault weapons", because it seems clear to me that these are militia type weapons. But instead of the US keeping the States from banning these weapons, the US did it for them. Now that the US ban expired, I see the proper context restored, where if Californians want to ban guns then they ban their own guns, and Virginians are not impacted.

 

[The Real Hawkeye]

OK, I'm with you ... but what individual right is central to the availability of miltia? For instance, I would say that if a State banned CCW, banned .25 pocket pistols, and banned bb guns, that it would not impact the militia. If I stretch it as far as it will go without breaking, a State might ban every gun but one model of semi-auto rifle and require people to keep it locked up with the ammo stored separately. Ugly as it is, my point is that the people could still each unlock their one rifle and load it with their separately stored ammo and ... revolt.

In my opinion, the US should not accept a State banning semi-auto rifles, "assault weapons", because it seems clear to me that these are militia type weapons. But instead of the US keeping the States from banning these weapons, the US did it for them. Now that the US ban expired, I see the proper context restored, where if Californians want to ban guns then they ban their own guns, and Virginians are not impacted.

The Second Amendment does not say only that the right of the people to keep certain arms shall not be infringed. Since there is a nexus between this right guaranteed in the Second Amendment, and the power of Congress to call forth the militia, I think that the Federal empowerment goes all the way to defending the full right as described in the Amendment. Naturally, you and I both know that the Federal Government will not do that. We have enough trouble keeping them from outlawing all our guns. So, like you, I see our best hope being at the State level, where we can have more of a direct influence on our governance, while attempting to hold the Federal Government to its intended limits. It is the nature of Federalism that some States will be more liberal regarding its citizen's rights, and some will be more restrictive, but that is almost completely up the citizens of their States, since the Federal Government was not designed to be a guarantor of the free exercise of individual rights. In fact, the Founders felt that the biggest threat to our continued liberty would come from the Federal Government, which is why they tied it up in the chains of the Constitution and left most internal powers to the States, and from what I have observed, I tend to agree with them.

 

[carebear]

Yep,

If we have to have laws, better they be at the lower levels of governance where we as individuals can more easily control their creation and enforcement (and removal if necessary).

 

[hugh damright]

The original version, according to the American Law Division of the Library of Congress, "that was adopted by Congress in 1789 and ratified by the States" contained "only one comma, after the word state which, by the way, was not uppercase in the original."

Can this be seen online? I found a website where I could search the library of congress, and what I found was yet another version of the Second Amendment, with one comma, but a capital "S" for "State". http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=144

 

[RealGun]

States are too corrupt historically to be entrusted with anyone's rights. The tyranny of the local majority is not to be trusted either. The federal government and its Constitution serves as the higher power to keep the "United" in the US. At least we have an appellate process. That is actually how things work, imperfect process though it might be, despite someone else's little fantasy land description, which serves mainly to justify the Confederacy.

 

[antsi]

I think sometimes it helps to imagine a simplified model of the US, one which consists of only three States. .

I share your concerns and I like your goals here, but I don't think as a practical matter it would work out the way you think. Even if KY had a clearly worded individual RKBA in KY's state constitution, I doubt that would stop the CA-dominated feds from trampling all over it. They don't hesitate to trample all over the US 2nd Ammendment, so why would they balk at passing federal restrictions over the KY state constitution?

These days, it seems the feds can do pretty much anything they want to the states. I'm not saying it should be like that, but it is like that. An example is the Assault Weapons Ban. Many states have very clearly worded RKBA, but that didn't stop the feds from cramming the NFA and AWB down their throats.

As an Indiana resident, I'd love to see my state's legislation trump the feds especially on RKBA. But that's not the way our political dynamics are working these days.

 

[The Real Hawkeye]

I share your concerns and I like your goals here, but I don't think as a practical matter it would work out the way you think. Even if KY had a clearly worded individual RKBA in KY's state constitution, I doubt that would stop the CA-dominated feds from trampling all over it. They don't hesitate to trample all over the US 2nd Ammendment, so why would they balk at passing federal restrictions over the KY state constitution?

These days, it seems the feds can do pretty much anything they want to the states. I'm not saying it should be like that, but it is like that. An example is the Assault Weapons Ban. Many states have very clearly worded RKBA, but that didn't stop the feds from cramming the NFA and AWB down their throats.

As an Indiana resident, I'd love to see my state's legislation trump the feds especially on RKBA. But that's not the way our political dynamics are working these days.

Interesting points. I seem to remember reading a Supreme Court case once which ruled that States were within their just powers to provide their citizens with a greater degree of rights protection than the Federal Government, but not a lessor degree. I believe the case involved Fourth Amendment protections. You have to wonder why this does not seem to apply to firearms rights.

 

[The Real Hawkeye]

States are too corrupt historically to be entrusted with anyone's rights. The tyranny of the local majority is not to be trusted either. The federal government and its Constitution serves as the higher power to keep the "United" in the US. At least we have an appellate process. That is actually how things work, imperfect process though it might be, despite someone else's little fantasy-land description, which serves mainly to justify the Confederacy.

Why so hostile, my friend? You can disagree with someone without invectives.

 

[Art Eatman]

The BOR is a PACKAGE of restraints on the central government, aka the State. It says so in the Preamble.

So, answer me this: How can a package of restraints upon the State at the same time be restraints upon the populace? How?

That notion of any duality of restraint seems to me to be dumber'n dirt. It's an interpretation that's miles outside the personal writings/discussions of meaning by those who were alive and involved at the time of the writing of the BOR.

ALL the Amendments speak to the rights of individuals. I again reference the 1992 Urriquez-Verdugo SCOTUS comments on that subject.

Art

 

[Dex Sinister]

The idea that the Founders, who were extremely cognizent of the principles of the English Glorious Revolution of 1689, somehow failed to regard the right mentioned in the 2nd amendment as an individual right is just a little bit silly.

Oh please...half those guys were slave owners. Please don’t elevate them to some special level of enlightenment on rights and government-forming, because they had neither.

Lord Acton makes the claim that there has been only one revolution in all of history which was fought solely to achieve an idea. The revolution: Ours. The Idea: Freedom.

Now, I am certainly aware that they had flaws. I'm also aware that at that point in history, we seem to have chanced to find a combination of brilliant men who led the US into a system of government of a sort that had never before existed, based on an idea that had never before had the sort of promenence that they gave it.

It sounds as if you are judging the Founders through the lens of modern morality. It's a subtle trap.

The generation that participated in the American revolution was the most free and lightest taxed population in the entire world of their time. And yet, they went to war with the greatest military power in the world over the ideological issue of freedom - and won. Sorry, I have to conclude that they earned a bit of historical respect; even the ones who owned slaves.

It is worth noting that the Right to Bear Arms, contained therein, was considered an individual right possessed by all subjects of the Crown by the English in the 1700's.

and what of that “as allowed by law” at the end?

Yes, what of it? The fact that (as all English rights are, given their nature as exceptions to absolute government power) the right was limited says nothing about the fact that it was individually held by individual Englishmen [who were members of the Protestant religion, and as determined to be suitable to their station].

You appear to have missed the point, which was not directed at you anyway. My point was, the founders of our country were Englishmen, possessing English rights, one of which was to have arms for their defence suitable to their conditions and as allowed by law.

So these Englishmen, possessing this right, start a revolution because they aren't satified with even the minimal and reasonable restraints that they have under the English Crown, and fight a war to get more freedom. Having achieved this, they sit down and write a constitution and a Bill of Rights.

Now: Everybody who really thinks that a bunch of people who just fought a war for greater freedom sat down and wrote an amendment to the Constitution that talked about the individual RTBA that they possessed as Englishmen but that these same people actually meant to protect/reconfirm State's rights raise your hand.

Dex

 

[Dex Sinister]

Which simply takes you into the wilderness of 14th amendment jurisprudence

My intent here is to promote an understanding of, and respect for, free government. The 14th "Amendment" is a reconstruction amendment, intended to reconstruct our free government into something else.

By the way, I certainly don't mind playing the "assume arguendo" game, but may I inquire as to exactly what relevance you think this discussion has to the here & now? Sure, if you wish to argue pre-14th jurisprudence one can do that all week - but you seem to be attempting to draw some relevance to modern day out of your interpretation of the 2nd.

At which point, I think you've departed from your argument assumption such that it is no longer relevant.

Dex

 

[hugh damright]

They don't hesitate to trample all over the US 2nd Amendment, so why would they balk at passing federal restrictions over the KY state constitution?

Although I think the simplified model of the US helps illustrate certain principles, I cannot imagine how the Framers would have formed a Union of three States with Californians being 85% of the population. I assume they would have come up with a different form of government than what we have ... actually I tend to think that they would have just formed the State of California rather than the US in the first place, or else California might have divided into smaller States to make an American Confederacy feasible.

It might seem like the majority will always, in the end, conquer the minority ... but I believe that there is another side to our nature which checks this tendency. I believe that people form a collective for their common good, and that a collective has to be some certain size to provide the best benefit, and I believe that despite generations of reconstruction propaganda, that the natural American instinct, is that we want States. The State is the proper size collective for us here in our situation. Not everyone thinks so, and the people of one particular region tend to have a different instinct ... but I cling to the belief that enough people believe in their State to keep the American instinct alive. I see it here in some of you.

If the States are consolidated into one sovereignty, if we are all one people, then we will not be able to hold onto free government ... Madison said "the obvious tendency and inevitable consequence ... would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy". Jefferson said the same thing. Robert E. Lee said there was no doubt but that the resulting US would be too aggressive in foreign affairs and too despotic with domestic affairs.

At some point, the thing that can ensure the separation of State and federal powers, the thing that can ensure State sovereignty, is what the Declaration of Independence called "the laws of Nature and Nature's God" - the right of one people to be free and independent from another.

 

[hugh damright]

Sure, if you wish to argue pre-14th jurisprudence one can do that all week - but you seem to be attempting to draw some relevance to modern day out of your interpretation of the 2nd.

Under constitutional law, the 2nd Amendment still, today, here and now, does not limit the States. It has not been "incorporated". The incorporation doctrine is real and has modern relevance. There is no point in pretending that it doesn't exist. Besides, the cases I quoted came AFTER the 14th, so they have some relevance in post-14th jurisprudence. US v Cruikshank, Miller v Texas, Presser v Illinois, US v Miller ... they all came after the 14th.

 

[Gordon Fink]

And if all you can do is repeat the tired, pitiful attempt to demonize me by saying that I want to ban guns, then please get off my thread.

I never said you wanted to ban guns, but you seem to want that power reserved for your Virginia. However, your state must still legally abide by the Second Amendment in accordance with Article VI. That said, I fully recognize that neither the federal government nor the government of Virginia abide by that amendment.

~G. Fink

 

[Gordon Fink]

Because the Bill of Rights is a list of things the Federal Government cannot do. That is clear from the historical record. They were concerned that the Federal Government would start usurping powers that belonged to the States and the people, so they placed these limits on the Federal Government, not on the States.…

Then explain away Article VI.

~G. Fink

 

[Dex Sinister]

Sure, if you wish to argue pre-14th jurisprudence one can do that all week - but you seem to be attempting to draw some relevance to modern day out of your interpretation of the 2nd.

Under constitutional law, the 2nd Amendment still, today, here and now, does not limit the States. It has not been "incorporated". The incorporation doctrine is real and has modern relevance. There is no point in pretending that it doesn't exist.

Yes, I know. That wasn't my point. One can't just shift from delicate interpretive analysis to "case law says" whenever one isn't getting one's way.

You appear - or appeared when I first noted that your analytical "conclusions" lead to a "under the 2nd, States can do mostly what they like, unmolested by the federal government"-type conclusion - to be ignoring the fact that as soon as one finishes such an argument, given the existence of the 14th, one must them start anew with a debate of what the correct effect of the 14th amendment would be on "libertarian enforcement" of the 2nd against the states.

You said you wanted to keep the discussion pure, I said okay and didn't press the issue - but you appear to keep coming to here & now conclusions about the meaning of the 2nd. My contention is that you can't have it both ways: Either you have to keep the discussion on a "maybe the founders meant thus-and-such," level - precluding dragging the issue into the here & now, or, you have to continue on and deal with the proper interpretation of the 14th.

The fact that the Supremes have avoided incorporating the 2nd says absolutely nothing about the validity thereof. The Slaughter-House Cases nulifying the 14th's powers against the states were pathetic from a legal philosophy standpoint - right up there in intelligence with Dred Scott. And of course Dred Scott was one of the reasons the 14th was written in the first place. Corfield v. Coryell (the Article 4, Section 2, Priviliges and Immunities case) was a piece of work as well.

The legislative intent of the 14th was, at a minimum, to apply the first 8 amendments against the states. We know specifically that the authors of the 14th intended to protect 2nd amendment rights (at least of blacks in the South) against the States because that was one of the major issues that they debated.

I have nothing particularly against the Incorporation Doctrine, except that it is a prime example of our inability to get past the wonderful fiction that some SC decisions are just plain stupid, but even if we simply go with incorporation, there is no philosophical reason why the 2nd isn't as worthy for inclusion as any of the others that have been re-adopted piecemeal.

And then, there one is again with the Federal government protecting, in libertarian fashion, the citizens of states against state laws.

Besides, the cases I quoted came AFTER the 14th, so they have some relevance in post-14th jurisprudence. US v Cruikshank, Miller v Texas, Presser v Illinois, US v Miller ... they all came after the 14th.

US v Miller is not really a very comfortable decision in terms of gun restrictions, if one actually reads the decision, as opposed to reading later interpretations of it. That is even assuming that one should attempt to draw some valid philosophical conclusion about the doctrines raised in a case where one side was not represented, nor presented any arguments, and where the US Attorney, Clinton R. Barry, indirectly lied to the Supreme Court in presenting his argument.

As you likely recall, Barry argued that "The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia." That was the government's argument - as indeed it had to be, since Miller was not represented and no briefs were filed on Miller's side.

Then Barry argued that the particular shotgun in question, serial number 76230 had never been used in a militia. Which is, of course, hardly the point, given the previous argument. Shotguns in general are of course perfectly appropriate for use in an organized militia, as they've been used in every war in history since their developement.

There are things that are common enough for judges to take judicial notice of [stuff that judges can "take for granted" in a case to avoid needing testimony and proof in court to establish, for non-lawyers] and there are things that are not. The court ruled that the question of whether shotguns were an appropriate militia weapon was not one that it could take judicial notice of.

As a matter of legal philosophy, I don't really put much stock in cases where the government has to obscure the truth in order to win, when the other side isn't even there.

You might also want to remember the district court's decision in Miller was framed as a question of federal police powers:

The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved for the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution...."

That's rather important, from a philosophical viewpoint, since the Supremes have made it rather clear of late that federal police powers are the one thing that they're willing to admit that the federal government doesn't possess.

Miller, taken as written, merely establishes iron-clad protection of all military-type weapons appropriate for use in an organized militia.

US v Cruikshank

Not a comfortable anti-gun-rights case either - from a legal philosophy viewpoint.

First, it's (at least theoretically) a "violation of rights by other citizens, not State action" case: As the Supremes point out, in 1875 there were no federal police powers, so it's a State venue when other citizens do things to you. Somehow I doubt that if a white terror organization murdered 100 blacks today that the federal courts would fail to be involved, however.

Even if one buys the "In 1875 the federal government just couldn't do anything about the murder of 100 blacks, sorry," argument, one is still left with

The right...specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.

Given that this was tried in 1875, two years after the Slaughterhouse cases, the question of the 14th didn't come up - as the Supremes were busy pretending that the 14th didn't exist. But of course that still leaves the rather embarassing "The second amendment declares that [bearing arms for a lawful purpose] shall not be infringed; but this, as has been seen, means no more than that shall not be infringed by Congress."

Oddly enough, if it means no more than "bearing arms for a lawful purpose shall not be infringed by Congress" it still means that "bearing arms for a lawful purpose shall not be infringed by Congress."

Just for fun, if you put them together you get: "The Second Amendment protects...the ownership of military-type weapons appropriate for use in an organized militia, and this shall not be infringed by Congress."

Presser v Illinois

Did you mean this?

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

I thought that was what Hawkeye had been telling you over and over.

Dex

 

[The Real Hawkeye]

Then explain away Article VI.

~G. Fink

Article VI deals with powers constitutionally delegated to the Federal Government. I was speaking of Federal usurpations of power, i.e., the assumption of powers not delegated.

 

[The Real Hawkeye]

Yes, I know. That wasn't my point. One can't just shift from delicate interpretive analysis to "case law says" whenever one isn't getting one's way.

You appear - or appeared when I first noted that your analytical "conclusions" lead to a "under the 2nd, States can do mostly what they like, unmolested by the federal government"-type conclusion - to be ignoring the fact that as soon as one finishes such an argument, given the existence of the 14th, one must them start anew with a debate of what the correct effect of the 14th amendment would be on "libertarian enforcement" of the 2nd against the states.

You said you wanted to keep the discussion pure, I said okay and didn't press the issue - but you appear to keep coming to here & now conclusions about the meaning of the 2nd. My contention is that you can't have it both ways: Either you have to keep the discussion on a "maybe the founders meant thus-and-such," level - precluding dragging the issue into the here & now, or, you have to continue on and deal with the proper interpretation of the 14th.

The fact that the Supremes have avoided incorporating the 2nd says absolutely nothing about the validity thereof. The Slaughter-House Cases nulifying the 14th's powers against the states were pathetic from a legal philosophy standpoint - right up there in intelligence with Dred Scott. And of course Dred Scott was one of the reasons the 14th was written in the first place. Corfield v. Coryell (the Article 4, Section 2, Priviliges and Immunities case) was a piece of work as well.

The legislative intent of the 14th was, at a minimum, to apply the first 8 amendments against the states. We know specifically that the authors of the 14th intended to protect 2nd amendment rights (at least of blacks in the South) against the States because that was one of the major issues that they debated.

I have nothing particularly against the Incorporation Doctrine, except that it is a prime example of our inability to get past the wonderful fiction that some SC decisions are just plain stupid, but even if we simply go with incorporation, there is no philosophical reason why the 2nd isn't as worthy for inclusion as any of the others that have been re-adopted piecemeal.

And then, there one is again with the Federal government protecting, in libertarian fashion, the citizens of states against state laws.


US v Miller is not really a very comfortable decision in terms of gun restrictions, if one actually reads the decision, as opposed to reading later interpretations of it. That is even assuming that one should attempt to draw some valid philosophical conclusion about the doctrines raised in a case where one side was not represented, nor presented any arguments, and where the US Attorney, Clinton R. Barry, indirectly lied to the Supreme Court in presenting his argument.

As you likely recall, Barry argued that "The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia." That was the government's argument - as indeed it had to be, since Miller was not represented and no briefs were filed on Miller's side.

Then Barry argued that the particular shotgun in question, serial number 76230 had never been used in a militia. Which is, of course, hardly the point, given the previous argument. Shotguns in general are of course perfectly appropriate for use in an organized militia, as they've been used in every war in history since their developement.

There are things that are common enough for judges to take judicial notice of [stuff that judges can "take for granted" in a case to avoid needing testimony and proof in court to establish, for non-lawyers] and there are things that are not. The court ruled that the question of whether shotguns were an appropriate militia weapon was not one that it could take judicial notice of.

As a matter of legal philosophy, I don't really put much stock in cases where the government has to obscure the truth in order to win, when the other side isn't even there.

You might also want to remember the district court's decision in Miller was framed as a question of federal police powers:

That's rather important, from a philosophical viewpoint, since the Supremes have made it rather clear of late that federal police powers are the one thing that they're willing to admit that the federal government doesn't possess.

Miller, taken as written, merely establishes iron-clad protection of all military-type weapons appropriate for use in an organized militia.


Not a comfortable anti-gun-rights case either - from a legal philosophy viewpoint.

First, it's (at least theoretically) a "violation of rights by other citizens, not State action" case: As the Supremes point out, in 1875 there were no federal police powers, so it's a State venue when other citizens do things to you. Somehow I doubt that if a white terror organization murdered 100 blacks today that the federal courts would fail to be involved, however.

Even if one buys the "In 1875 the federal government just couldn't do anything about the murder of 100 blacks, sorry," argument, one is still left with

Given that this was tried in 1875, two years after the Slaughterhouse cases, the question of the 14th didn't come up - as the Supremes were busy pretending that the 14th didn't exist. But of course that still leaves the rather embarassing "The second amendment declares that [bearing arms for a lawful purpose] shall not be infringed; but this, as has been seen, means no more than that shall not be infringed by Congress."

Oddly enough, if it means no more than "bearing arms for a lawful purpose shall not be infringed by Congress" it still means that "bearing arms for a lawful purpose shall not be infringed by Congress."

Just for fun, if you put them together you get: "The Second Amendment protects...the ownership of military-type weapons appropriate for use in an organized militia, and this shall not be infringed by Congress."


Did you mean this?


I thought that was what Hawkeye had been telling you over and over.

Dex

Good analysis, Dex. One minor point of possible disagreement, though, regarding the following passage:

Given that this was tried in 1875, two years after the Slaughterhouse cases, the question of the Fourteenth didn't come up - as the Supremes were busy pretending that the 14th didn't exist.

In my considered opinion, the early post-Fourteenth Amendment decisions were actually the only correct decisions the SCOTUS has made regarding the Fourteenth Amendment, and its effects on federalism as envisioned by the Founders. The incorporation doctrine was something that was developed only later, as a pretext for providing the Federal Government with powers not delegated to it, essentially turning federalism on its head, so as to get its way in certain State matters. I am not saying that the Fourteenth Amendment did not delegate new powers to the Federal Government, only that it did not have the legal effect of converting the Bill of Rights into a series of restrictions on the States, enforceable by the Federal Government, which is essentially what incorporation doctrine pretends.

 

[Graystar]

If you look at what might be called the preamble text of the 1689 Bill of Rights, it is easy to see the parallel between both the Declaration, and our Bill of Rights.

If you compare the entire documents side by side, you'll see that there are far, far more differences than similarities. And the similarities that are there are there simply because of similar subject matter. When read and understood, the two documents not only have different messages (which is expected) but different organization and word structure. That the two documents present lists is about all I can see that is similar.

Most germane to this discussion: The idea that the Founders, who were extremely cognizent of the principles of the English Glorious Revolution of 1689, somehow failed to regard the right mentioned in the 2nd amendment as an individual right is just a little bit silly.

I never said they didn't. What I'm saying is that the concern was more practical than based on theoretical considerations of the rights of individuals.

As I recall, previous revision of the amendment made mention of individuals, but those were removed. I wonder why...

 

[Graystar]

Now: Everybody who really thinks that a bunch of people who just fought a war for greater freedom sat down and wrote an amendment to the Constitution that talked about the individual RTBA that they possessed as Englishmen but that these same people actually meant to protect/reconfirm State's rights raise your hand.

I'm not saying that's what they thought, and I'm not saying that's what they didn't think. *My* point is that the considerations given were based far more on practicalities than on aloof theories of rights and freedoms. As you say, they had just fought a war, and they fought that war because they were suffering the very violations against rights and freedoms that are outlined in the Bill of Rights.