Second Amendment and Rules of Construction

Discussion in 'Politics' started by Jick Magger, Oct 5, 2008.

  1. Pandaemoni Valued Senior Member

    Messages:
    3,634
    That was the intent of the Radical Republicans, it is not clear that is how the State ratification conventions read it or Congress as a whole understood it.

    I mean, would your incorporate the Grand Jury Clause against the states? The right to demand juries in civil cases? Do you have any reason to believe its what the framers of the 14th amendment wanted?

    It is not unreasonable to conclude that the majority of those involved in the ratification of the amendment thought the "Privileges or Immunities Clause" and the "Privileges and Immunities Clause" protected similar rights, and the latter set is far more circumscribed than what's in the Bill of Rights.

    I am not saying you are wrong, either, simply that knowing "the" intent of a group consisting of hundreds of people is not realistic. The best you can do is try to suss out the consensus or "average" view, and there is not enough data on what everyone involved thought to really figure even that out (it is generally the people with the most extreme views who feel the greatest need to voice them, so the record of the debates can only be taken as indicative of what the actual speakers thought, not the silent majority).

    Then again, originalism is only one shcool of constitutional interpretation. If we hand our hat on that alone, we might as well over turn Broawn v. Board of Education, as there is no way that the framers of the 14th amendment thought that maintaining "separate" schools for blacks was unconstitutional. The practice of maintaining schools for blacks at all started at about that time, and to my knowledge "integration" was never demanded by anyone involved in the ratification.

    Since I think originalism requires that we reinstate Plessy, and I am happy to not do that, I have to question my dedication to being controlled by the dead hand of the 39th Congress and the related State ratifying conventions.
     
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  3. superstring01 Moderator

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    Individual state intent is irrelevant.

    The principle author of the XIV Amendment was a congressman named John Bingham (from my great state). His expressed intent was to make the Bill of Rights binding to the states (since it applied to the federal government already, there was no concern about that issue).

    The SOLE intent of this amendment was to force states to act appropriately under the Bill of Rights and its acknowledgment was a condition for re-entry into the union.

    Yes. I do. The Radical Republicans were worried more about race issues, but the fact still stands that there are three ways that a constitutional clause must be applied: original intent (what the writers wanted), legal language (what can be gleaned by the wording, no matter what they intended), legal ambiguity (what can be interpreted by the vagueness of the wording, which interpretations may be fleshed out be judicial review or state and federal law). In this instance, the meaning is clear and regardless of intent, the wording was framed in such a way as to carry legal force beyond the original intent.

    In other words: If that wasn't their intent, then they should have selected better words to restrict the intent.

    Regardless, Bingham and his comrades foresaw a future of equality that the amendment would force upon the nation. Not predicting all future variables does not negate the legal force of a law, or its intent.

    The XIV Amendment came about by:
    • Southern states refusing to accept the Civil Rights Act of 1866 and Republican fears that the Congress may have overstepped its authority.
    • The Congress therefore (and I love this part), used its power to define the qualifications of members, which qualifications exempted all southern states who were engaged in the original rebellion from being members.
    • The northern states, free of southern obstruction, passed the Fourteenth Amendment and then made acceptance of the full Constitution a pre-requisite for entry into the Union.

    No, I can. In James E. Bond's (yes, an author named "James Bond") brilliant book "No Easy Walk to Freedom" he shows original writings, transcripts of speeches, debate texts, and other sundry texts from the era that shows that the exact intent of the XIV Amendment was specifically intended to make the Bill of Rights legal and binding in all areas of governance: state and federal alike.

    Agreed. I do believe that it's the original intent to allow the document to be applied using contemporary needs and morals to help flesh out the ambiguities. This is why it survives to this day.

    As I stated, there are three ways to interpret any legal document: original intent, legal language and legal ambiguity. I think that we have to strike a balance between the three. Where the legal language is clear and concise, there is no need to worry about intent or ambiguity ("murdering a human being is a crime"; even if, in the original intent, a woman, child or person of color was not legally considered a human being at the time it was written). Where precise language is found wanting, then we have to consider original intent and contemporary needs based upon the legal ambiguity.

    ~String
     
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  5. iceaura Valued Senior Member

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    The National Guard currently deployed in Iraq is not under State command. Nor is it equipped, transported, and supported in theater by its home state.

    The National Guard is now even subject to conscription by the President at any time, without the consent of the Governors. (John Warner Defense Act, et al, 2006)

    And if it were under State command at all times, that alone would not make it a militia as envisioned and assumed by the writers of the Constitution. Its soldiers are professionally trained, equipped, and paid by the State and Federal Governments, they serve a term of enlistment for which they are compensated in many ways by said governments (http://airshow.mnarmyguard.com/education.html what used to be called "taking the King's shilling", at the time of the writing of the Constitution, and constituted enlistment in an army, not a militia), their ranks and command and fighting structures are set by the Federal and State governments rather than chosen by themselves, and so forth.

    The militias known to the writers of the Constitution consisted of private citizens not subject to the command of the Federal government, organized and trained at various local levels, armed and equipped and commanded by themselves. It is those private citizens - "the people" - who are guaranteed the right to keep and bear arms. The justification is that this is necessary to allow the formation of well regulated militias. Clearly nothing like the National Guard we know today was invisioned as a militia at all, let alone the only one allowed and the sole arena for keeping and bearing arms.
     
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  7. Buffalo Roam Registered Senior Member

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    Yes, you recognize that I have owned you in every debate that we have engaged in, none of your points is supportable from Quote, History, or Rational Definition, so yes you wish to call me a Idiot and a lot of other words that you have used.

    So dance away.
     
  8. one_raven God is a Chinese Whisper Valued Senior Member

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    I actually agree.
    However, given that you agreed that the Second Amendment was about stste's rights, not individual rights, I can't see how you can say that the Fourteenth applies to it.
    The point was to make sure that the states adhered to the individual/human rights issues spelled out and guaranteed to individuals.
     
  9. Pandaemoni Valued Senior Member

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    3,634
    No. It's not, as the states still had to ratify it, and unless they agreed with it it would not be law. Scalia has looked at the evidence of the State's understanding on many occasions. Madison himself called the Constitution "nothing more than the draught of a plan, nothing but a dead letter, until life and validity were breathed into it, by the voice of the people, speaking through the several state conventions."

    Originalism is not "the original author's intent" (as most of these things are produced by committee in any event) it is whether used to mean the original intent of Congress and the states or used to mean the original understanding that a reasonable person from the period would have had.

    It's never *just* what Bingham said, or "what Madison said", those are at most evidence for what the passing body thought as a whole.
    Certainly true, but the understanding of the ratifiers still matters, and in any event the understanding of the NORTHERN ratifiers still mattered, beyond question.

    Meanwhile if you use Bork's "original meaning" formulation, it's not clear that the reasonable man would ever have guessed that privileges and immunities was vastly (VASTLY() different than "privileges or immunities"

    You are arguing there is is an absolute interpretation, but this is a highly debated point. It's only in the last 20 years that anyone has made an effort to resurrect the privileges and immunities clause from obscurity (and legally it is still obscure, as all the incorporation doctrine relies on is due process, not privileges and immunities which was shut down, as legal arguments go, in 1873 in the Slaughterhouse Cases, where the Supreme Court interpreted the clause to cover a narrow range of rights that arise as a result of national citizenship (which at the time was not broad enough to be thought to include everything in the Bill of Rights)).

    He likely should have avoided the word "citizens of the several states" as well, as most of the ones in the Bill of Rights are not limited to citizens as against Congress. Congresses' ability to regulate speech, for example, did not turn on citizenship, and therefore the right to free speech was not really a right of "citizens" so much as "people". It also made the Slaughterhouse Cases much more plausible, in restricting the clause to just the rights of citizens of the United States (and then implying that that was a very limited category of rights...because how many rights turn on federal citizenship?).

    And why did Bingham track the language of the privileges or Immunities clause, knowing (as he should have) that that bundle of rights was nearly non-existent too.

    I think we can debate whether he chose his words well.

    That assumes that the only inquiry is textualist, which legal scholars (even in the 18th and 19th century) disagreed on. Some view the role of the courts in constitutional interpretation to include "gap filling", for example. The debate between legal positivism (which includes textualism and originalism) and legal realism (and more recently, since Dworkin, legal interpretivism) has been around for a while.

    The positivists have been in the ascendancy since Bork, but that's just three decades in a very long game. Before that originalism was not robust (though textualism will always have its place). There is no reason to believe interpretive theories won't come back, and no objective measure by which to declare any of them "wrong."

    I have not read the book you mentioed, so won't comment on it, but have read much about John Bingham and the ratification process, and not everyone in Congress agrees with Bingham. Many felt that granting blacks the rights under the Bill of Rights would lead to anarchy and was Bingham's effort to legislate social equality.

    It's not clear form my reading that either side commanded the majority, only that those making the counterarguments read the amendment much as the Supreme Court did in 1873. It was clear that even amongst Republicans in Congress, Bingham's views on the amendment were not universally accepted. Unfortunately the evidence from the State ratifying conventions is scant (because no one ever though that such debates would be wanted...because they were not thinking like originalists.)
     
    Last edited: Oct 12, 2008
  10. Buffalo Roam Registered Senior Member

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    16,931

    When did he agree to that the Second Amendment was a States Right, the first 10 Amendments are the Bill of Rights, the Peoples Rights, or as stated so plainly and often with the phrase (Right of the People), now please define who the People Are?

    The People are the Citizens, the individual, and as stated:

    [QUOTE[ "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," [/QUOTE]

    The Rights of the People, that such (enumeration in the Constitution) that being the rights of the People, (shall not be construed to deny or disparage others retained by the people), nothing about the State in that sentence, it clearly refers to the People.

    Also Have you noticed that the People are mentioned separately from the State and the Federal Government, the bothersome word People is all through out the Constitution, always identified separately from the State and Federal Government.

    Now why if this Bill Of Rights was meant as to mean the States Rights, are those pesky word's (The Right of the People) always separate from the State?
    and the rest of the statement states (and reserves all powers not granted to the federal government to the citizenry or States)

    Citizenry or State, again Identifying the Citizenry separately from the State, and if you care to notice the People are always given Precedent ahead of the State, in the Bill of Rights, and the Constitution, the States or the Federal Government are never mentioned before the People.

    Now please get around the Definition of People, for it is the People to who these rights belong.
    State:

    1. the condition of a person or thing, as with respect to circumstances or attributes

    8. the territory, or one of the territories, of a government.

    15. of or pertaining to the central civil government or authority
     
  11. one_raven God is a Chinese Whisper Valued Senior Member

    Messages:
    13,433
    Here...
     
  12. Buffalo Roam Registered Senior Member

    Messages:
    16,931
    And exactly were do you see that, that it isn't 't a individual right, or that String support it as a state right.

    One Question can a states bear arms?

    A State may own arms, but then that is a government, and it is not the People, and the State has no way of bearing arms.

    The State is made up of people, and the people make the state, but the State is still not the People.

    Now again why are the Rights of the People, always mentioned before the State.

    Take a look at the Second Amendment;

    In the construction of this Amendment, the People are the Ones who in order to secure a free state must be armed, the People are the guarantors of a Free State, the States cannot defend themselves unless the people are armed, and the People wish to defend the state.

    It would have been better stated this way, it also still make sense stated this way.

    "The right of the people to keep and bear Arms, shall not be infringed, A well regulated Militia, being necessary to the security of a free State"

    In both sentences, it is the People with their right to Keep and Bear Arms, who are the security of a Free State.

    Now lets look at the Preamble of the:

    Constitution of the United States

    We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.​

    We The People, not the States, Not the Government, but the PEOPLE, separate individuals, citizens, are the ones who do this, and have these rights, and responsibilities, not the States, and Not the Federal Government, the PEOPLEand those Right Shall Not be Infringed, by State or Congress.

    Every where the Right of the People, is proclaimed, for it is only the People who can bear arms the State has no ability to bear arms.

    Maine: Every citizen has a right to keep and bear arms and this right shall never be questioned. Art. I, § 16 (enacted 1987, after a collective-rights interpretation of the original provision).
    1819: "Every citizen has a right to keep and bear arms for the common defence; and this right shall never be questioned." Art. I, § 16.

    [Self-defense right protected, State v. Brown, 571 A.2d 816 (Me. 1990).]

    Massachusetts: The people have a right to keep and to bear arms for the common defence. And as, in time of peace, armies are dangerous to liberty, they ought not to be maintained without the consent of the legislature; and the military power shall always be held in an exact subordination to the civil authority, and be governed by it. Pt. 1, art. 17 (enacted 1780).

    [Interpreted as collective right only, Commonwealth v. Davis, 343 N.E.2d 847 (Mass. 1976).]

    New Hampshire: All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state. Pt. 1, art. 2-a (enacted 1982).

    [Self-defense right explicitly protected.]

    North Carolina 1776:

    "That the people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power." Bill of Rights, § XVII.

    Pennsylvania:

    The right of the citizens to bear arms in defence of themselves and the State shall not be questioned. Art. 1, § 21 (enacted 1790, art. IX, § 21).
    1776: That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power. Declaration of Rights, cl. XIII.

    [Self-defense right protected, Sayres v. Commonwealth, 88 Pa. 291 (1879).]

    Rhode Island:

    The right of the people to keep and bear arms shall not be infringed. Art. I, § 22 (enacted 1842).

    [Self-defense right protected, Mosby v. Devine, 851 A.2d 1031, 1043 (R.I. 2004).]

    South Carolina:

    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. As, in times of peace, armies are dangerous to liberty, they shall not be maintained without the consent of the General Assembly. The military power of the State shall always be held in subordination to the civil authority and be governed by it. Art. 1, § 20 (enacted 1895).
    1868: "The people have a right to keep and bear arms for the common defence. As, in times of peace . . . ." Art. I, § 28.

    [Right treated as an individual right, apparently aimed at least partly at self-defense, State v. Johnson, 16 S.C. 187 (1881);

    Vermont:

    That the people have a right to bear arms for the defence of themselves and the State -- and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power. Ch. I, art. 16 (enacted 1777, ch. I, art. 15).

    Virginia:

    That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state, therefore, the right of the people to keep and bear arms shall not be infringed; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power. Art. I, § 13 (enacted 1776 without explicit right to keep and bear arms; "therefore, the right to keep and bear arms shall not be infringed" added in 1971).

    [Self-defense right protected, State v. Rosenthal, 55 A. 610 (Vt. 1903).]

    Delaware:

    A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use. Art. I, § 20 (enacted 1987).

    [Self-defense right explicitly protected.]
     
  13. one_raven God is a Chinese Whisper Valued Senior Member

    Messages:
    13,433
    That has absolutely NOTHING to do with my point what-so-ever.
    This is why I have been ignoring your pointless rants.

    It has nothing to do with states bearing arms, and nothing I have said claims that - if you actually read and take the effort to try and understand what I am saying - and I can't tell if you know that and are being purposely obtuse, or you really don't get it.

    What I am saying - one last time - is that the Second Amendment states that the Federal government can not interfere in the states granting THE PEOPLE

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    the right to bear arms.
    In other words, there can be no Federal law barring the people from carrying personal firearms.
    This does not mean that the states can not outlaw firearms.
    In other words, the federal government CAN NOT infringe upon the rights of the people to bear arms.
    In other words, this is a state's rights issue.

    I'm done.
     
  14. pjdude1219 The biscuit has risen Valued Senior Member

    Messages:
    16,479
    Still suffering from your delusions i see. I have crushed you in every debate we have ever had to to your complete lack of understanding of logic. My points are all supportable.
     
  15. Buffalo Roam Registered Senior Member

    Messages:
    16,931
    :roflmao:

    No you just dance.
     
  16. Buffalo Roam Registered Senior Member

    Messages:
    16,931
    States cannot superced the Constitution, The Right of the People
     
  17. FelixC Registered Senior Member

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    134
    BM: no, I slept through that too, but I have the net as my classroom now,

    I believe that the rules of language are usually very clear in English, & that exceptions are usually noted (like i after e except after c)
    so that the 2nd amendment is about a citizens army (called a militia in those days), that is "well regulated" by the State & well armed

    otherwise what are the People supposed to do with this part of the 2nd?
    "A well regulated Militia, being necessary to the security of a free State"? so what are we supposed to do with that, do you know?

    http://www.libraryonline.com/default.asp?pID=33

    http://www.kentlaw.edu/academics/lrw/grinker/LwtaDependant_Clauses_and_Phrases.htm
     
  18. FelixC Registered Senior Member

    Messages:
    134
    BR: I'll only use 3 examples;
    but colonial states did have militias, that became part of the Continental Army after 1776


    http://en.wikipedia.org/wiki/Militia_(United_States)#Revolutionary_War_.281775-1783.29

    http://en.wikipedia.org/wiki/New_Hampshire_Militia
     
  19. Buffalo Roam Registered Senior Member

    Messages:
    16,931
    Well regulated means trained in arms, and that the Arms met a certain pattern, and had nothing to do with the State, the weapons were owned by the Individuals, they were not issued from State sources, all enlistment in Militias were with that Militia, and not with the State.

    The men were not paid, by the State, or equipped by the State, they elected their own Officers and NCO, and the Officers were not commissioned by the State, it was a elected position that could be rescinded by vote from the Members of that Militia.

    But you still haven't gotten past the part that is the operative clause, The Right of the People to Keep and Bear Arms, not the "State has the right to keep and bear arms", because a state can't bear arms it can only issue arms, and when the State Issues arms, you have a standing army, just as today the Arms of the National Guard are not owned by the people they are owned by the Federal Government.

    So again get us past those simple and plain words, The Right of the People to Keep(Have Possession) and Bear( To carry with them on their person)Arms, shall not be Infringed.(violate or transgress)


    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.

    Simple straight forward statement, nothing difficult to understand, the operative clause, is about the People not the State.

    Now according to Prof. Lund.

    Professor Lund continues:

    Patrick Henry Professor of Constitutional Law and the Second Amendment

    B.A., St. John's College (Annapolis); A.M., Harvard University; M.A., Catholic University; J.D., University of Chicago; Ph.D., Harvard University


    Now as I understand this,


    And from the Alabama Foundation for Moral Law:

    Of most interest, the Foundation discovered that the first and third commas were omitted when the 2nd Amendment was actually printed in the Statutes at Large of the United States indicating:

    . . . that the second comma was grammatically necessary to set off the two major parts of the amendment, while the other commas represented grammatical quirks of the time.
     
    Last edited: Oct 12, 2008
  20. pjdude1219 The biscuit has risen Valued Senior Member

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    16,479
    And once more you make yourself look foolish.
     
  21. TW Scott Minister of Technology Registered Senior Member

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    Are you talking to yourself again? Really, you should talk to your therapist again. Obviously the medication is not helping.
     
  22. pjdude1219 The biscuit has risen Valued Senior Member

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    16,479
    So because I have the audacity to state reality and defend my self I must be on meds. and here I thought you were one of the people here on the right smart enough to be above this petty BS.


    and secondly it is foolish to use phrasings that imply thing directly opposed to reality and the truth. the repeated dancing comments which imply what he wants to believe i am doing(trying to avoid the issue or question) and what i am doing( directly answering or attempting to refute( which I do believe I was and am being successful at)
     
  23. TW Scott Minister of Technology Registered Senior Member

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    4,149
    In this trhead you have continously failed to state any form of reality. And when shown time and time again your major errors you resort to the same lame and disproven argument. It's like watching Dancing with the Stars, except with less talent and grace. And certainly no style.

    You are being far from successful on refutation. In fact the overwhelming evidence is against you. Now of course you could come out this and state that your argument is what you believe. You'd even smell like a rose. But if you continue along your path all you will receive is an embarassing defeat. reality, history, wording, and even the opinion of people much marter than yourself is against you.


    "If a man invades your home to do you harm, it is certainly permissable to kill them with your gun." The Dahli Lama.

    "Take your sword. And he who does not have a sword shall sell their cloak and buy one." Jesus Christ

    "If a populace is unarmed, arm them immediately. This sends a dual message to the people. First that you trust them to defend themselves. Second that you are not afraid of them. If a populace is already armed leave them their weapons." Machavelli

    "Better to be judged by twelve men, than carried by six." Ted Nugent
     

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