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Thread: Second Amendment and Rules of Construction

  1. #1
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    Second Amendment and Rules of Construction

    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."

    --D. C. v. Heller; Authored by Justice Scalia
    What if the words had more than one normal and ordinary meaning? For example, the word "well" had at least eight different meanings at the time the Constitution was made, in the late 1700's. How do we ascertain which, if any, of those eight significations should be put on the word as we find it in the Second Amendment?

    What if the word are technical terms or terms of art? Do we just ignore the meaning given to the word by the learned in each art, trade, and science?

  2. #2
    We read what the framers wrote about it, learn their arguments and the comprimises they made. There is a well established set of precedents about them.

  3. #3
    It clearly states that people who belong to a well regulated militia - such as the National Guard - have the right to bear arms and protect itself from a tyrannical federal government.
    It's a state's rights issue, not an individual rights issues.
    The fact that Scalia and others of his ilk have interpreted it as an individual rights issue simply displays gross bias and a political agenda with pre-conceived notions.
    It's not an interpretation - it's a justification.

  4. #4
    Registered Senior Member Buffalo Roam's Avatar
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    Quote Originally Posted by Jick Magger View Post
    What if the words had more than one normal and ordinary meaning? For example, the word "well" had at least eight different meanings at the time the Constitution was made, in the late 1700's. How do we ascertain which, if any, of those eight significations should be put on the word as we find it in the Second Amendment?

    What if the word are technical terms or terms of art? Do we just ignore the meaning given to the word by the learned in each art, trade, and science?
    Actually you are wrong there are 20 different meanings to the world "Well"

    It Can be used as a adverb, adjective, noun, or as Idioms.

    In the Second Amendment, the well is a adjective, so for it's meaning to make sense it is the 12th definition that is applicable.

    12. satisfactory, pleasing, or good: All is well with us.

  5. #5
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    Quote Originally Posted by one_raven View Post
    It clearly states that people who belong to a well regulated militia - such as the National Guard - have the right to bear arms and protect itself from a tyrannical federal government.
    It's a state's rights issue, not an individual rights issues.
    The fact that Scalia and others of his ilk have interpreted it as an individual rights issue simply displays gross bias and a political agenda with pre-conceived notions.
    It's not an interpretation - it's a justification.
    Then why does it say "...the right of the People to keep and bear arsm shall not be infringed."?

    If it was meant for the militia only it would have only mentioned Millitia and never mentioned the People, which in every other amendment of the Bill of Rights applies to all People inside of the United States of America's Borders. Why would this one amednment be any different form the rest?

    Your argument is completely wrong and will remain as such untill you change it.

  6. #6
    As I said, a justification, not a valid interpretation.
    It very clearly states that this is in support of "A well regulated Militia" - there's no two ways about it, not if you want to be honest, at least.
    You can't take pieces and parts that agree with your personal opinion and disregard the rest.
    When the Ammendment was written, members of the well regulated state Militias kept, owned and maintained their own arms - they were not government owned.

    This was a direct and clear response to the fact that we had to fight a tyrannical government, and preserving the individual states' right to take up arms against the Federal Republic, if they needed to defend themselves.

    It ASTOUNDS me that people actually think this has anything to do with individual freedoms. Scalia knows better and as such should be run out of the Supreme Court.

    I do not support a federal ban on all arms, like some.
    I think, aside from a clear ban on assault weapons, the very different cultures in the states define this clearly as an issue that should be addressed on the state level.

    The right to keep and bear arms, however, does NOT apply consitutionally for those who are not members of a well regulated Militia.

  7. #7
    The point, as is so clearly spelled out in Federalist Papers #46, was to allow the states to control their own Militia force, as opposed to being under the the rule of the Federal Military:

    The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition. The reasonings contained in these papers must have been employed to little purpose indeed, if it could be necessary now to disprove the reality of this danger. That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism. Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it. Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.
    http://www.constitution.org/fed/federa46.htm

    It had NOTHING to do with every day people's rights to carry weapons for personal self defense or any other reason than being a member of a well regulated Militia.

  8. #8
    MY COHERENCE! IT'S GOING AWAYY Betrayer0fHope's Avatar
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    Quote Originally Posted by Buffalo Roam View Post
    Actually you are wrong there are 20 different meanings to the world "Well"

    It Can be used as a adverb, adjective, noun, or as Idioms.

    In the Second Amendment, the well is a adjective, so for it's meaning to make sense it is the 12th definition that is applicable.
    At the time it was written, there were "at least" 8.

  9. #9
    Registered Senior Member Buffalo Roam's Avatar
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    Quote Originally Posted by Betrayer0fHope View Post
    At the time it was written, there were "at least" 8.
    But it still comes down to the Right of the People, not the government, all rights not specifically granted to the Government belong to the People, and the Constitution is very clear on that, so when the Constitution specifically say right of the people, it is talking about the citizens of the United States not the Government.

    Amendment IX - Non-Enumerated Rights (1791)
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
    This Amendment states that all rights not given the Government, stay with the people, as their rights, and that just because a Right is not enumerated by the Bill of Rights does not mean it belongs to the Government to Grant, but that it remains a Right of The People, to exercise, and cannot be "deny or disparage" or in in simple words, the Government cannot deny those Rights to the Citizen, for any reason.

    Amendment X - Rights Reserved to States (1791)
    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.
    Simple enough, all Power Not Granted through the Constitution to the United States Government, remains wih, and are exclusively reserved, for the States, and or the People.

  10. #10
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    Quote Originally Posted by one_raven View Post
    It ASTOUNDS me that people actually think this has anything to do with individual freedoms. Scalia knows better and as such should be run out of the Supreme Court.
    The right to keep and bear arms, however, does NOT apply consitutionally for those who are not members of a well regulated Militia.
    Note that I edited some out for space
    Are you suggesting that the words "the right of the people,,," elsewhere in the constitution also only apply to the militia? or police?
    Most jurists disagree with the second point.

  11. #11
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    Quote Originally Posted by spidergoat View Post
    We read what the framers wrote about it.
    That's what we do today. But, that's probably not what the lawmakers meant for us to do.

    At the time the Constitution was made, there were well established common law rules of construction and there is an abundance of evidence that the lawmakers took for granted that they would be applied to the Constitution.

    What do you know about the common law rules of construction existent at the time the Constitution was made?

  12. #12
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    Quote Originally Posted by one_raven View Post
    It clearly states.
    There's nothing clear about the Second Amendment. It was probably made to be ambiguous and perhaps even to deceive.

  13. #13
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    Quote Originally Posted by TW Scott View Post
    Then why does it say "...the right of the People to keep and bear arms shall not be infringed."?
    To deceive people like you, who don't know the rules of construction.

  14. #14
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    If it was meant for the militia only it would have only mentioned Millitia
    Where's the rule that says a law granting a right to one group can't mention a larger body to which that group belongs, especially if the lawmakers are being devious?

    The People...in every other amendment of the Bill of Rights applies to all People inside of the United States of America's Borders.
    Common sense dictates that we don't just automatically define the same word the same way wherever it occurs in the same instrument. It doesn't follow logically that because a word is used to signify a certain idea in one part of a writing, the same meaning is to be adopted in every other part where it occurs. To do that would require us to assume that the framers weighed only the force of single words and not whole clauses and objects, as practical statesmen.

    In common language, the same word has various meanings and the sense, in which it is used in any sentence, is to be determined by the context. An example of this is the use of the word "establish" in various places in the constitution.

  15. #15
    Quote Originally Posted by snake river rufus View Post
    Are you suggesting that the words "the right of the people,,," elsewhere in the constitution also only apply to the militia? or police?
    Most jurists disagree with the second point.
    I said nothing of the sort, and I don't waste my time breaking down obvious strawmen.

  16. #16
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    Quote Originally Posted by raven
    It clearly states that people who belong to a well regulated militia - such as the National Guard - have the right to bear arms and protect itself from a tyrannical federal government.
    It's a state's rights issue, not an individual rights issues.
    The National Guard is not a militia.

    A militia is composed of ordinary citizens, not professional soldiers, who bring their own weapons or such weapons as are available from amateur sources, and are organized and trained for temporary service in response to an immediate need. It's one step above a posse. It can be organized at any level, including the local bingo parlor or (as in Iraq) the local church or (as in Lebanon) the local township or suburb - it's not necessarily a State level force.

    The right of the people to keep and bear arms is explicitly intended to allow private individuals to keep and bear such arms as would allow them to assemble into a "well-regulated" militia at need, bringing their weaponry from home.

    Whether that covers modern handguns might be in dispute, if long precedent had not grandfathered them in. It certainly includes highpowered semiautomatic rifles, and one could make an argument for assault rifles these days (I would add provisions contingent on the "well-regulated" aspect).

  17. #17
    Quote Originally Posted by iceaura View Post
    The National Guard is not a militia.
    The various states' National Guard forces are most certainly militias.
    The US National Guard is a colection of state militias.

    The state ational guardsmen ARE citizen-soldiers - as opposed to professional soldiers.

    http://en.wikipedia.org/wiki/United_...National_Guard

    http://www.ngb.army.mil/About/default.aspx

    http://www.answers.com/topic/militia-and-national-guard

  18. #18
    Quote Originally Posted by TW Scott View Post
    the People, which in every other amendment of the Bill of Rights applies to all People inside of the United States of America's Borders.
    Except for blacks, women, indians, and non-land owners....

  19. #19
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    Quote Originally Posted by raven
    The various states' National Guard forces are most certainly militias.
    The US National Guard is a colection of state militias.
    Texas has a quasi militia, AFAIK the only US state that does. It is specifically described as such, to distinguish it from the National Guard, which is a professional armed force beholden to the Federal Government, a circumstance viewed with wariness by Texas.

    That isn't a militia, that is fighting in Iraq as we speak, under the command of the Pentagon.

    The point being, that the people keeping and bearing arms so as to be available for a militia should need arise (a frequent occurrence at the time) were not necessarily "members" of any kind of State run enterprise. That is why it is the people who are guaranteed the right of keeping and bearing the arms, and not the States, in that clause of the Constitution. Because militias are organized from the private citizenry, often by non-State entities, in response to need. And those people would need to bring their own weaponry.
    Quote Originally Posted by link
    Obligated militiamen were required to arm and equip themselves,
    Last edited by iceaura; 10-05-08 at 11:24 PM.

  20. #20
    Registered Senior Member Buffalo Roam's Avatar
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    Quote Originally Posted by one_raven View Post
    The various states' National Guard forces are most certainly militias.
    The US National Guard is a colection of state militias.

    The state ational guardsmen ARE citizen-soldiers - as opposed to professional soldiers.

    http://en.wikipedia.org/wiki/United_...National_Guard

    http://www.ngb.army.mil/About/default.aspx

    http://www.answers.com/topic/militia-and-national-guard

    In His commentaries on the Second Amendment, St. George Tucker, (the American Blackstone) a major constitutional theorist, published in Philadelphia in 1803:

    In footnotes 40 and 41, he wrote: "The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government."
    The National Guard is a federally regulated force, as such part of a Standing Army, it is not a Militia, it is armed by the Federal Government, and paid by the Federal Government, so it is a Federal Force, part of the Regular Army.

    And That is not in the definition of a Militia.

    Dictionary.com Unabridged (v 1.1) - Cite This Source - Share This
    mi·li·tia /mɪˈlɪʃə/ Pronunciation Key - Show Spelled Pronunciation[mi-lish-uh] Pronunciation Key - Show IPA Pronunciation
    –noun 1. a body of citizens enrolled for military service, and called out periodically for drill but serving full time only in emergencies.
    2. a body of citizen soldiers as distinguished from professional soldiers.
    3. all able-bodied males considered by law eligible for military service.
    4. a body of citizens organized in a paramilitary group and typically regarding themselves as defenders of individual rights against the presumed interference of the federal government.


    --------------------------------------------------------------------------------

    [Origin: 1580–90; < L mīlitia soldiery, equiv. to mīlit- (s. of mīles) soldier + -ia -ia]

    mi·li·tia (mə-lĭsh'ə) Pronunciation Key
    n.
    1.An army composed of ordinary citizens rather than professional soldiers.

    2.A military force that is not part of a regular army and is subject to call for service in an emergency.

    3.The whole body of physically fit civilians eligible by law for military service.
    -----------------------------------------------------------------------------------


    Online Etymology Dictionary - Cite This Source - Share This
    militia

    1590, "system of military discipline," from L. militia "military service, warfare," from miles "soldier" (see military). Sense of "citizen army" (as distinct from professional soldiers) is first recorded 1696, perhaps from Fr. milice. In U.S. history, "the whole body of men declared by law amenable to military service, without enlistment, whether armed and drilled or not" (1777).
    --------------------------------------------------------------------------------------


    WordNet - Cite This Source - Share This militia

    noun
    1. civilians trained as soldiers but not part of the regular army
    2. the entire body of physically fit civilians eligible by law for military service; "their troops were untrained militia"; "Congress shall have power to provide for calling forth the militia"--United States Constitution
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