Second Amendment and Rules of Construction

[Jick Magger]

Why would this one amendment be any different form the rest?

One possible reason is that the lawmakers were intent upon deception. That would explain why they made the words of the Amendments such that the object of the first clause was "a well regulated militia", but the object of the second what something different, thus creating a problem of construction, which they knew, as experienced lawmakers familiar with the well established common law rules of construction, would be resolved according to the rule of construction which dictates that, where the several parts of a legal expression cannot be made to coincide, the less important should give way to the more important part. The means should be sacrificed to the end, rather than the end to the means.

[Jick Magger]

As I said, a justification, not a valid interpretation.

What fair objective and rational rules and principles of construction does one use to determine what is and isn't a valid interpretation?

[Jick Magger]

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.

Federalist No. 46 couldn't possibly have been meant to explain the meaning of the Second Amendment.

[Jick Magger]

all rights not specifically granted to the Government belong to the People

Go read the Tenth Amendment again. Then report back here, with what it really says.

[Jick Magger]

This Amendment states that all rights not given the Government, stay with the people

The people, under of Section Eight of Article One of the U. S. Constitution, surrendered their right to arm the militia to Congress. Some, such as George Mason, feared that Congress could by simply not exercising that authority, deprive the militia of arms, and then use that as a pretext to justify a standing army.

[Buffalo Roam]

Go read the Tenth Amendment again. Then report back here, with what it really says.

Amendment X

[Powers not delegated, reserved to states and people respectively.]

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.

[Simon Anders]

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.

I would love to agree with you, but I am not sure it is clear.

It could mean that ALL people shall have the right to bear arms because in this situation, where all people have the right to bear arms, the Militia is more viable. It does not say that these people must be current members of some militia, and, in fact, it would be rather odd not to be specific about the relationship between 'the people' who get to have guns and the State would be, if that was the intention.

[Buffalo Roam]

The people, under of Section Eight of Article One of the U. S. Constitution, surrendered their right to arm the militia to Congress. Some, such as George Mason, feared that Congress could by simply not exercising that authority, deprive the militia of arms, and then use that as a pretext to justify a standing army.

In the words of the Men who wrote the Constitution, and spoke the plan language of the time not the Politically inspired spin of Those of Today who would separate The People from their Natural Constitutional Rights.

Thomas Jefferson "took his division of rights into alienable and unalienable from Hutcheson, who made the distinction popular and important", and in the 1776 United States Declaration of Independence, famously condensed this to:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights..."


un·al·ien·a·ble (ŭn-āl'yə-nə-bəl, -ā'lē-ə-) Pronunciation Key
adj. Not to be separated, given away, or taken away; inalienable:

unalienable

adjective
incapable of being repudiated or transferred to another; "endowed by their Creator with certain unalienable rights"

Quotes from The American Ideal of 1776 supporting this Principle.

RIGHTS UNALIENABLE---BECAUSE GOD-GIVEN

And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are the gift of God?

Thomas Jefferson ("Notes on the State of Virginia," 1782)

The Sacred Rights of mankind are not to be rummaged for among old parchments or musty records. They are written, as with a sunbeam, in the whole volume of human nature, by the Hand of the Divinity itself, and can never be erased or obscured by mortal power.

Alexander Hamilton (An essay, "The Farmer Refuted," 1775) (Note: entire passage in capital letters in the original.)

Rights Inviolable by Government or by Others

7. Neither government nor any Individuals--acting singly, or in groups, or in organizations--could possibly possess any "just power" (to use again the significant term of the Declaration) to violate any Individual's God-given, unalienable rights or the supporting rights. No government can abolish or destroy--nor can it rightfully, or constitutionally, violate--Man's God-given rights. Government cannot justly interfere with Man's deserved enjoyment of any of these rights. No public official, nor all such officials combined, could possibly have any such power morally. Government can, to be sure, unjustly and unconstitutionally interfere by force with the deserved enjoyment of Man's unalienable rights. It is, however, completely powerless to abolish or destroy them. It is in defense of these rights of all Individuals, in last analysis, that the self-governing people--acting in accordance with, and in support of, the Constitution--oppose any and all violators, whether public officials or usurpers, or others (par. 9 below).

[Echo3Romeo]

The various states' National Guard forces are most certainly militias.
The US National Guard is a colection of state militias.

This is from a thread we had after the SCOTUS ruling.

The 2nd Amendment applies only to the militia. The Militia Act of 1958 defines the militia as:

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are—

1. the organized militia, which consists of the National Guard and the Naval Militia; and
2. the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

As we can see, the legal definition in the US is commensurate with the common understanding of what a militia is.

[Jick Magger]

The 2nd Amendment applies only to the militia.

What fair objective rational method of interpretation did you use to determine that?

[Jick Magger]

A militia is composed of ordinary citizens, not professional soldiers

That's one correct for you.

who bring their own weapons or such weapons as are available from amateur sources

That's one wrong. It doesn't matter where the arms come from.

and are organized and trained for temporary service in response to an immediate need.

That's two more correct. To constitute a militia, the body of men must be organized as a military force and be trained to arms.

You left out two of the essential elements of a militia. The body of citizen soldiers must be disciplined and it must be controlled by the civil authorities. That's two wrong.

[Jick Magger]

The right of the people to keep and bear arms is explicitly intended...

The Second Amendment is ambiguous and must be interpreted by applying the well established common law rules of construction as prevailed at the time the Constitution was made.

All of the words in the Second Amendment, and in any other part of the Constitution, must be given meaning and, if possible, be given an effect, which is to say that each part of the Amendment must be made to conspire to a common end. If the parts cannot be made to coincide, which is the case with "people" and "well regulated militia", the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.

"Well regulated militia" trumps "people." Thus, we construe the Amendment to mean,

A well regulated militia being necessary for the security of a free state, the right of the well regulated militia to keep and bear arms shall not be infringed, [which means that, even if Congress does not provide arms to the militia as it has the power to do under the Constitution, and the militia somehow obtains arms from a source other than Congress, such as the State government, the militia has a right to keep and bear those arms, even if Congress was not the provider. In other words Congress does not have plenary (exclusive and absolute) power over providing arms for the militia. Thus, Congress cannot disarm the militia, just by neglecting it.]

[FelixC]

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.



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.



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.

BR: not being a historian or English major, I think that the few times I awoke from very boring lectures that the idea of militias comes from the Roman times were each free Roman had a sword ready as they plowed their land
and from English I seem to remember that clauses are separated by commas, independent stand by themselves (they make sense) & dependent need to be understood by context (separately they don't make sense)

if any of these clauses make sense on their own, then its an individual right

"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."

if not, its time all you gun-owners join the military, start getting "well regulated"

[Baron Max]

if any of these clauses make sense on their own, then its an individual right

"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."

if not, ..."

You don't know what commas are, do you? Check it out, you'll have a different view on that particular clause.

Baron Max

[iceaura]

If the parts cannot be made to coincide, which is the case with "people" and "well regulated militia",

There is no discordance between "people" and "militia"- they coincide perfectly. That is what a militia is and was then - ordinary citizens, bringing their own weapons, coming from home. To have a militia at all, people- ordinary citizens-must have weapons to bring from home. That was common knowledge, and is still the ordinary sense.

It is not complicated, or vague, or confused. It was carefully written, and means just what it says.

[Dr Mabuse]

Very few of you appear to know the historical context of the words.

What is taught as "history" today in Universities and High Schools is laughable and moronic.

'Constitutional Scholar' is a punchline to a bad joke in the modern world.

These 'word games' are played by people with an agenda who are separating historical context form the words they are playing games with. The Founding Fathers feared and knew this would happen, as aptly surmised by James Madison:

"Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government." - James Madison

"On every question of construction (of the Constitution) let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." - Thomas Jefferson, (letter to William Johnson, June 12, 1823,

Anyone who knows the history knows how completely foolish the modern day assertions about the Second Amendment are. Unfortunately almost no one knows the history today.

The Founding fathers meant EVERY man shall be armed. They stated this in a thousand ways. Anyone who has read the debate on the floor on the ratification of the Second Amendment has no doubt. Here are just a few wlel known writings of the Founders on the topic.

" Laws that forbid the carrying of arms disarm only those who are neither inclined nor determined to commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." Thomas Jefferson's quoting from On Crimes and Punishment, by criminologist Cesare Beccaria, 1764

"Americans [have] the right and advantage of being armed, unlike the citizens of other countries whose governments are afraid to trust their people with arms." - James Madison

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive." - Noah Webster

"Firearms stand next in importance to the Constitution itself. They are the American people's liberty teeth and keystone under independence. From the hour the Pilgrims landed, to the present day, events, occurrences, and tendencies prove that to insure peace, security and happiness, the rifle and pistol are equally indispensable. The very atmosphere of firearms everywhere restrains evil interference - they deserve a place of honor with all that is good" - George Washington

"The great object is that every man be armed. Everyone who is able may have a gun." - Patrick Henry

"Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American... The unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust in God it will ever remain, in the hands of the people" Tench Coxe, Pennsylvania Gazette, Feb. 20, 1788

"The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both." - William Rawle, A View of the Constitution 125-6 (2nd ed. 1829)

"The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms" - Samuel Adams, (Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, 86-87)

"To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike especially when young, how to use them." - Richard Henry Lee, 1788, Initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights

"The best we can hope for concerning the people at large is that they be properly armed." - Alexander Hamilton, (The Federalist Papers at 184-8)

"We established however some, although not all its [self-government] important principles . The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed" - Thomas Jefferson

[Buffalo Roam]

Very few of you appear to know the historical context of the words.

What is taught as "history" today in Universities and High Schools is laughable and moronic.

'Constitutional Scholar' is a punchline to a bad joke in the modern world.

These 'word games' are played by people with an agenda who are separating historical context form the words they are playing games with. The Founding Fathers feared and knew this would happen, as aptly surmised by James Madison:



Anyone who knows the history knows how completely foolish the modern day assertions about the Second Amendment are. Unfortunately almost no one knows the history today.

The Founding fathers meant EVERY man shall be armed. They stated this in a thousand ways. Anyone who has read the debate on the floor on the ratification of the Second Amendment has no doubt. Here are just a few wlel known writings of the Founders on the topic.

A Beautiful truth, spoken by our Founding Fathers, the Rights of a Free Man, who shall not become a slave to the governing elite.

The Right of the People.

[pjdude1219]

Um to Dr. Mabuse the phrase bear arms in colonial times almost exclusively was used to refer to using weapons in a military context.

Before you praddle on check your facts to at least cover your ass.

[Buffalo Roam]

Um to Dr. Mabuse the phrase bear arms in colonial times almost exclusively was used to refer to using weapons in a military context.

Before you praddle on check your facts to at least cover your ass.

Your the one who needs to check your facts, I have never seen any one so ill informed about anything in my life.

Now provide citation as to your supposition.

These are direct quotes from the Men who wrote the Constitution, and You Presume to interpret their words?

The absolute Gaul, from a boy that is still living at home with his Mama, 24 years old a still hasn't moved out of the House, and he wants to expound on the Greatest Ideas ever Penned in the History of the World, and has the absolute effrontery to Interpret The Words of the Greatest Men in History of the World, and tell us they didn't mean what they said, oh grasshopper your still dancing, and nothing has changed.

You want to tell us what these, The Great Men in History meant to say? Hell you can't even load a spell checker, or even do simple capitalization, and you want us to believe that your can cross minds in debate, with the Men who wrote the Constitution of the United States.

Yes....Tell us What these Men really meant when they penned these words, and the Right of the People, if you dare.......and you will only show your absolute ignorance.


George Washington

Thomas Jefferson's quoting from On Crimes and Punishment, by criminologist Cesare Beccaria, 1764

James Madison

Noah Webster

Patrick Henry

Tench Coxe

Samuel Adams

Richard Henry Lee

Alexander Hamilton

Their words verbatim:

" Laws that forbid the carrying of arms disarm only those who are neither inclined nor determined to commit crimes. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." Thomas Jefferson's quoting from On Crimes and Punishment, by criminologist Cesare Beccaria, 1764

"Americans [have] the right and advantage of being armed, unlike the citizens of other countries whose governments are afraid to trust their people with arms." - James Madison

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive." - Noah Webster

"Firearms stand next in importance to the Constitution itself. They are the American people's liberty teeth and keystone under independence. From the hour the Pilgrims landed, to the present day, events, occurrences, and tendencies prove that to insure peace, security and happiness, the rifle and pistol are equally indispensable. The very atmosphere of firearms everywhere restrains evil interference - they deserve a place of honor with all that is good" - George Washington

"The great object is that every man be armed. Everyone who is able may have a gun." - Patrick Henry

"Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American... The unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust in God it will ever remain, in the hands of the people" Tench Coxe, Pennsylvania Gazette, Feb. 20, 1788

"The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both." - William Rawle, A View of the Constitution 125-6 (2nd ed. 1829)

"The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms" - Samuel Adams, (Debates and Proceedings in the Convention of the Commonwealth of Massachusetts, 86-87)

"To preserve liberty, it is essential that the whole body of people always possess arms, and be taught alike especially when young, how to use them." - Richard Henry Lee, 1788, Initiator of the Declaration of Independence, and member of the first Senate, which passed the Bill of Rights

"The best we can hope for concerning the people at large is that they be properly armed." - Alexander Hamilton, (The Federalist Papers at 184-8)

"We established however some, although not all its [self-government] important principles . The constitutions of most of our States assert, that all power is inherent in the people; that they may exercise it by themselves, in all cases to which they think themselves competent, (as in electing their functionaries executive and legislative, and deciding by a jury of themselves, in all judiciary cases in which any fact is involved,) or they may act by representatives, freely and equally chosen; that it is their right and duty to be at all times armed" - Thomas Jefferson

And You claime to know better then these Great Men of History.

[pjdude1219]

I am not interpreting anything. I am going by the common usage of the phrase during that period. Which is how historical legal documents like the bill of rights are and should be viewed. I am not arrogant enough to think I know what dead people thought. I will leave such idiocy to you. Your post was typical of you: insulting, ignorant, foolish and ignoring of facts.

I have never seen any one so ill informed about anything in my life.

That's a fucking riot coming from you. Still an asshole and still ignorant I see.


http://hnn.us/articles/48302.html
for a citation. I suggest you read if your capable.