To Hell with Heller

[wulfbyte]

Sam Adams and Nobody's Hero, thank you for your eloquent and thoughtful responses. It pleases me to see that there are still those who understand.

Now obviously the Cont. Congress was a rival sovereign to the King, but I think most would agree it had much greater claim to represent and govern than that old German nutcase did.

Cosmoline, if you're talking about who I think you are talking about, wasn't he legally brought to power in 1933? Was our Continental Congress in any way legal? As I recall, members of the Congress were at that time considered traitors and criminals.

 

[gc70]

that old German nutcase

King George III (1738-1820) was the third British monarch of the House of Hanover, and the first of Hanover to be born in Britain and speak English as his first language. Not only was he the King of the United Kingdom, but also the Prince-Elector, and later King, of Hanover. Later in his reign George III suffered from recurrent and, eventually, permanent mental illness.

 

[wulfbyte]

Thank you gc70, I always appreciate when shortcomings in my education are pointed out to me. I must admit though that this is the first time I have heard of King George III being referred to in those terms so it threw me.

Perhaps one of the things I enjoy most about THR threads is the prevalence of reasoned and well thought arguments with supporting citations. There is usually an educational adventure waiting when the research starts.

 

[gc70]

There is usually an educational adventure waiting when the research starts.

Thank my wife for the trivia I have accumulated during forced participation in her family history research.

 

[M_Jagger]

Justice Scalia’s Methodology Of Constitutional Interpretation Is Just An Excuse For His Judicial Activism


In the excerpt below, from the U. S. Supreme Court's opinion in the case of Heller v. D. C, authored by Justice Scalia, the notorious activist announces his intention to follow a rule of constitutional construction which dictates that the words of the Constitution should be understood in the sense they were normally and ordinarily used. However, the first source he consults is an obscure treatise, written seventy five years after the Second Amendment was ratified, which he apparently believes allows him to "rephrase" the Second Amendment.

The Second Amendment provides: “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.” In interpreting this text, we are guided by the
principle that “[t]he Constitution was written to be understood
by the voters; its words and phrases were used in
their normal and ordinary as distinguished from technical
meaning.” United States v. Sprague, 282 U. S. 716, 731
(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).
Normal meaning may of course include an idiomatic
meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the
founding generation.
The two sides in this case have set out very different
interpretations of the Amendment. Petitioners and today’s
dissenting Justices believe that it protects only the
right to possess and carry a firearm in connection with
militia service. See Brief for Petitioners 11–12; post, at 1
(STEVENS, J., dissenting). Respondent argues that it
protects an individual right to possess a firearm unconnected
with service in a militia, and to use that arm for
traditionally lawful purposes, such as self-defense within
the home. See Brief for Respondent 2–4.
The Second Amendment is naturally divided into two
parts: its prefatory clause and its operative clause. The
former does not limit the latter grammatically, but rather
announces a purpose. The Amendment could be rephrased,
“Because a well regulated Militia is necessary to
the security of a free State, the right of the people to keep
and bear Arms shall not be infringed.” See J. Tiffany, A
Treatise on Government and Constitutional Law §585,
p. 394 (1867);​

It appears that Scalia's Second Rule of Constitutional Construction is: If the lawmaker's words met with disapproval, the section of the Constitution being interpreted may be rephrased upon the slightest pretext.

 

[gc70]

...the words of the Constitution should be understood in the sense they were normally and ordinarily used. However, the first source he consults is an obscure treatise, written seventy five years after the Second Amendment was ratified, which he apparently believes allows him to "rephrase" the Second Amendment.

Amazingly, some of the amici briefs in Heller, written 230 years after the ratification of the Second Amendment, contain excellent scholarly information about the historic use of language.

Nothing inconsistent here; move along.

 

[ConstitutionCowboy]

It appears that Scalia's Second Rule of Constitutional Construction is: If the lawmaker's words met with disapproval, the section of the Constitution being interpreted may be rephrased upon the slightest pretext.

Justice Scalia's rephrase of the Second Amendment has altered nothing in the meaning or grammatical structure of the amendment. He used a common technique to clarify a statement.

I'll go back and quote your earlier statement paraphrasing what Justice Scalia also said:

In the excerpt below, from the U. S. Supreme Court's opinion in the case of Heller v. D. C, authored by Justice Scalia, the notorious activist announces his intention to follow a rule of constitutional construction which dictates that the words of the Constitution should be understood in the sense they were normally and ordinarily used. ...

Justice Scalia went further with this concept in support of the "common lingo" the Framers used by referencing a couple of dictionaries contemporary to the framing to nail down the meaning of the words in the Amendment, further clarifying the Framer's intent. I have used one of those same dictionaries myself on this forum to define the very same words Justice Scalia defined(though my edition of Johnson's Dictionary is the first edition(1755) as opposed to Scalia's 1773 edition).

Before addressing the verbs “keep” and “bear,” we interpret
their object: “Arms.” The 18th-century meaning is no
different from the meaning today. The 1773 edition of
Samuel Johnson’s dictionary defined “arms” as “weapons
of offence, or armour of defence.” 1 Dictionary of the
English Language 107 (4th ed.) (hereinafter Johnson).
Timothy Cunningham’s important 1771 legal dictionary
defined “arms” as “any thing that a man wears for his
defence, or takes into his hands, or useth in wrath to cast
at or strike another.” 1 A New and Complete Law Dictionary
(1771); see also N. Webster, American Dictionary
of the English Language (1828) (reprinted 1989) (hereinafter
Webster) (similar).

Emphasis mine.​

I think you can take comfort in that Justice Scalia made no attempt to alter the meaning of the Second Amendment beyond the framer's original intent.

Woody

 

[M_Jagger]

jc70 some of the amici briefs...contain excellent scholarly information about the historic use of language.

Where did they get the silly idea that the lawmakers wrote the Constitution to be interpreted according to the "historic use of language", rather than the "rules of construction", they often mentioned during the time when they were making of the Constitution?

 

[Bartholomew Roberts]

Where did they get the silly idea that the lawmakers wrote the Constitution to be interpreted according to the "historic use of language", rather than the "rules of construction", they often mentioned during the time when they were making of the Constitution.

You kind of have to know the historic use of the language during the time the Constitution was written if you are going to argue about the meaning of the words don't you think?

One of the arguments made by the antis is that the term "bear arms" only applies to military service. In that light, it is very relevant to look at the historic use of the language by the men who wrote the document to show that they used the term "bear arms" much more broadly than that.

 

[M_Jagger]

Cowboy
Justice Scalia's rephrase of the Second Amendment has altered nothing in the meaning or grammatical structure of the amendment. He used a common technique to clarify a statement.

If he can't deal with the text of the Constitution as it was actually written, he needs to resign his seat on the Court, go back to law school and learn about the law of legal interpretation at the time the Constitution was made.

 

[M_Jagger]

Justice Scalia went further with this concept in support of the "common lingo" the Framers used by referencing a couple of dictionaries contemporary to the framing to nail down the meaning of the words in the Amendment, further clarifying the Framer's intent. I have used one of those same dictionaries myself on this forum to define the very same words Justice Scalia defined(though my edition of Johnson's Dictionary is the first edition(1755) as opposed to Scalia's 1773 edition).

What exactly was the "common lingo" rule of construction that the lawmakers would have had "in their eye" as they decided which words to put in the Constitution to express their will?

 

[M_Jagger]

Woody
Justice Scalia made no attempt to alter the meaning of the Second Amendment beyond the framer's original intent.

His methodology of interpretation suggests otherwise.

 

[M_Jagger]

Barth
You kind of have to know the historic use of the language during the time the Constitution was written if you are going to argue about the meaning of the words don't you think?

The only reason you need that knowledge is to be able to understand what the law of legal instrument interpretation was at the time the Constitution was made.

it is very relevant to look at the historic use of the language by the men who wrote the document to show that they used the term "bear arms" much more broadly than that.

Accord to the law at the time the Constitution was made, there were rules of construction that objectively determined what was relevant with respect to the task of ascertaining of the will of the lawmakers who made a constitution.

 

[Bartholomew Roberts]

M Jagger, it looks to me like you are trying to threadjack this topic into an earlier topic of yours that was closed. If you wish to discuss a LEGAL question, please start a new thread. If you wish to discuss politics, then please visit our sister forum APS.

 

[Nobody's_Hero]

I think the problem for most of us is that the lines between "political" and "legal" are not always clear.

Understand, I'm not trying to make this sound like the most recent philosophical breakthrough since existentialism, but I have made an observation that often leaves me perplexed:

When a discussion occurs regarding an average citizen being subjected to the laws put into place by the government, it is clearly “legal.” I think all of us will agree on this point. [These topics include the discussion of legal modifications to firearms, or how to keep from unintentionally violating open/concealed carry laws, for example.]

When a discussion occurs regarding the government being subjected to the laws put into place by the people: SYNTAX ERROR! So, why is this? As I stated above, this particular area of debate is not simply ‘cut and dry.’

For instance:

"Political", in my opinion, involves the discussion of issues that have little or no impact upon the governing of the American public. Such trivial matters do absolutely nothing to promote the cause for the 2nd Amendment (or any rights, for that matter). Usually, these are debates about how much John Edwards spends on a haircut, or electing a woman to office simply for the sake of breaking glass ceilings, or McCain being too old to be president. [These are issues that take the forefront in modern campaigns, and are made to appear drastically consequential, while larger issues - those directly related to upholding the Constitution and the preservation of liberty - are deemed boring, bad for ratings, and in effect, shielded from public consideration. If the latter issues were even touched upon during campaign coverage, Heller would have been decided 9-0, in favor of liberty, long ago.]

I think a discussion about "How much regulation is the government legally (according to the Constitution) allowed to impose upon its citizens?" is vastly different from the former.

So, why do the works get gummed up when discussing whether or not the government is violating our laws?

Well, obviously, the whole issue is very, very tricky - mostly due to the fact that people will inevitably break off into two separate groups (creating the aura of politics) between people who support "reasonable" restrictions (who will also inevitably break off into two groups solely to discuss what is reasonable - a pattern emerges), and people who believe that a freedom regulated is a freedom infringed. Any conflict emerging from differing beliefs between two or more factions of the American public is often regarded as “political.” [‘If it walks like a duck, talks like a duck . . .’]

Yet, the results of this conflict have serious legal repercussions for the average Joe. It is no wonder that an issue revolving around ‘judicial activism’ should pop up in the “Legal” sub-forum from time to time. Indeed, it bears the similar odor of politics. However, whether we chose to admit/realize it or not, legalities are a direct result of what happens every two and four years in November. The issue at hand is not necessarily a matter of ‘left’ or ‘right’ (which is clearly ‘political’ crap); it is about (or at least, should be about) getting to take a look at the very roots of the problem.

One such root is that we have created, unwittingly, a system in which a judicial body – never intended to have even a fraction of the power it has today – lays the foundation for all sorts of laws, city ordinances, resolutions, executive orders, etc., which have an up-close-and-personal impact on our friend, ‘average Joe.’ It is a system praised as being a “check and balance” on other branches, but the justices are nominated by the president and approved by the Senate. Understand, I’m not suggesting that the system, in principle, is broken by any means, but the epicenter of its effectiveness relies immensely on everyone, from the voter to the President, playing his/her part to uphold the Constitution of the United States of America (the ENTIRE thing, not just the parts we like, or they like, or he or she likes).

The Constitution must be upheld at all levels --- All or nothing, take it or leave it --- down to every last period and comma.

Politicians who will unflinchingly support this Constitution to such extremes are few and far between, which, I believe, is precisely the reason we end up with a panel of justices that is a direct reflection of the political wishes of the nominator and the approvers (this is what makes the system appear broken) - not what is a direct reflection of the legal obligations set forth in the U.S. Constitution (this is what is required to make the system function properly).

Apologies for the digression.

 

[DualBerettas]

All one had to do, was listen to the opening arguments to realize that, save MAYBE Scalia, the rest of them knew next to nothing about what "infringed" means or have even read nor understood the Federalist Papers..

DB

 

[ConstitutionCowboy]

Nobody's Hero

I call it the politics of diversion. Pay no attention to the man behind the curtain. As for the burgeoning oligarchy that is the Supreme Court, I wonder where they have obtained such power. The Court has no force available to it to enforce it's edicts. It relies upon voluntary compliance. That, however, seemingly naive, is in reality a whole lot deeper than meets the eye. I do believe it's quid pro quo we are up against. These liberal justices on the Court are not that unknowledgeable of the Constitution and how it's supposed to work. I believe it's a matter of the justices being told something to the effect: "You support these here liberal issues and we'll put you on the Court with this nice big salary." I don't believe it is anything less.

The basis for my belief is how those liberal justices vote/read the Constitution with strict scrutiny when it supports their agenda and how they twist, convolute, bastardize, or simply ignore the Constitution, or lean on foreign law when it doesn't.

Dual Berettas

Make no mistake. They ALL know what "infringed" means. Some just believe or are(in my opinion)under "contract" to ignore it or imply that they answer to a higher power(themselves) to protect us from ourselves.

Whether the forgoing is considered on or off topic, it is most certainly relevant to ANY decision coming out of the Court....Not by the design of our Founding Fathers, but by the bastardizers and mis-representatives in Washington DC.

Woody