Amendment XYZ: Well-nourished children being essential for the productivity

[petronius]

Last edited Mon Jun 8, 2015, 05:50 PM - Edit history (1)

of a modern state, the right of the people to plant and maintain backyard gardens shall not be infringed.

Queries for linguists, grammarians, syntacticians, high school and university English instructors: based on the phrasing of Amendment XYZ above,

1. Is the right to plant and maintain gardens limited to those people who have children, or even to children themselves?
2. Is the right to garden protected only when that garden is being specifically used for the feeding of children?
3. Is the right to garden one which is held by individuals, or is it a right of the modern state (to be exercised through state-administered gardening programs, perhaps)?
4. If a state-run system for the nourishment of children came into being (a really effective school lunch program for example), would the right to backyard gardening then evaporate?
5. Does the right to plant and maintain a backyard garden come into being with Amendment XYZ, or does the phrasing of XYZ acknowledge an existing right and provide one (perhaps of many) reason to prevent infringement on that right?

Poll for entertainment purposes only, it doesn't relate to any of the above discussion prompts...

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[krispos42]

1. ...

[Electric Monk]

2. Inspired by a recent thread in GCRA?

http://www.chicagotribune.com/suburbs/daily-southtown/opinion/ct-sta-mcgrath-gun-rights-st-0607-20150605-story.html

Ask any high school English teacher to parse the Second Amendment, and they will say that it does not prohibit common-sense restrictions on the purchase and possession of guns, in spite of the National Rifle Association's claim to the contrary. The proof lies in the amendment's exact language — "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."

Literally, it means that the American people will retain the right to carry weapons as members of a state militia in order to safeguard their freedom.
====
To prove that this is the only interpretation that makes sense, try using the exact language and sentence structure from the Second Amendment applied to another subject — A democratically elected Congress being necessary for a secure and free State, the right of the People to enact legislation shall not be infringed.

If the introductory phrase is ignored in the same erroneous way it was with the Second Amendment, the above law would mean that every individual, and not Congress, was entitled to make and follow his own laws and to hell with everyone else.

Or this — The Air Force's arsenal of nuclear weapons being necessary to ensure the defense of the United States, the right of the People to build weapons of mass destruction shall not be infringed.

http://www.democraticunderground.com/12629034

[hack89]

3. Turns out it is not so straight forward

To begin with, so long as the Second Amendment seems strikingly unusual -- so long as it appears to be the only provision with a justification clause -- people will naturally wonder whether this oddity is some sort of signal: Perhaps, for instance, the Framers were themselves so hesitant about the right that they intentionally tried to limit its force; in any event, they must have been telling us something, or else why would they have written the Amendment so strangely?

The state provisions show that the Second Amendment is just one of many constitutional provisions that happen to be structured this way, and that the federal Bill of Rights is just one of many that contain only one or a few justification clauses. I have seen no evidence of a correlation between the presence of a justification clause and the provision's perceived importance.

These state provisions also remind us that early constitutions were political documents as well as legal ones. They were meant to capture people's allegiance, both in order to get the provision approved, and to persuade future generations to adhere to it. In this context, setting forth the justifications for a provision makes perfect rhetorical sense. This observation doesn't dispose of the question of what legal significance should be given to the clauses once they are enacted, but it does counsel against viewing the presence of the clauses as something deeply portentous.

http://www2.law.ucla.edu/volokh/common.htm

[Nuclear Unicorn]

4. "Ask any high school English teacher..."

I call shenanigans on that one. I'll wager the author didn't ask just any English teacher because I'm certain there are plenty of English teachers who disagree with the author. If any English teachers were asked they were probably screened to agree with the author.

But I doubt any were.

Even then, the commentary does nothing to refute the fact that people must have access to arms in order to be armed in the event they are called to militia duty.

Which can happen as federal law allows for it.

Nor does the article circumvent the fact many state constitutions explicitly declare an individual right to keep and bear arms.

[blueridge3210]

5. What are these "common sense regulations"

that are referred to so often?

[hack89]

6. Why not ask a legal scholar? A historian?

Why an english teacher proficient with modern grammar vice a style of grammar used 230 years ago?

[Shamash]

7. There's also two other things

1) The term "the people" is used elsewhere, in amendments written at the same time. I have seen no argument that a different meaning was intended for different uses. After all, it could have been written "A well regulated Militia, being necessary to the security of a free State, the right of state militias to keep Arms for the use of their members, shall not be infringed.", and we would have no confusion on the matter. They chose to use "the people", and "the people" in all other instances refers to individuals.

2) The post in GCRA either through ignorance or deliberate omission, did not mention that the term "militia" as intended at the time of the 2nd Amendment, is itself defined in the Constitution. The definition in 1792 would be:

"That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia."

As a historical note, the number of guns in government arsenals (state and federal) in 1792 was not sufficient to arm every potential militia member in the United States. If called to serve, militia members (i.e. everyone) would have had to bring their personal weapons. In fact, this is also part of the Militia Act of 1792:

"That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball;"

It is worth noting that there is nothing in this Act about reimbursing the person for the cost of the weapon, so it is unambiguously a privately-owned weapon. Clearly, the militia is everyone deemed suitable for fighting (in a white-dominated patriarchal society, anyway). Which means that under a "militia" interpretation, the 2nd Amendment would mean "everyone in the country able to fight is automatically a militia member and has the right to a military-grade weapon (because the government does not have enough of them to hand them out)". Not only to bear arms, but to keep arms.

(there is also an interesting tidbit in the Act saying that the weapon a person buys for militia purposes is exempt from bankruptcy hearings and other debts. So you could lose everything else you own, but the courts and creditors could not touch your military-grade rifle and ammo...)

Now, I fully understand that this is a couple hundred years old and things change. Fortunately, if you don't like the 2nd Amendment, the Constitution has a handy-dandy built-in method for getting rid of it. So, when you get enough support, go for it. Straightforwardly and honestly. In the meantime, controllers should quit embarrassing themselves like they're a bunch of RWN's who think they've found a loophole in Roe v. Wade that will let them ban abortion without overturning the ruling.

[Duckhunter935]

12. to bad they will not let that in "bansalot"

I am curious on what will be said in response. I do not even think the HOST will be back to make a comment.

[DonP]

8. David McGrath again! What a maroon

This same weasel wrote an Op Ed in March, declaring that in spite of any laws passed, he would never allow concealed guns in his classroom.

Of course he never explained how he'd know who was armed if it was concealed, maybe it's that Gun Chi thing that grabbers seem to believe in?

http://www.chicagotribune.com/news/opinion/commentary/ct-concealed-carry-college-campuses-students-perspec-0324-jm-20150323-story.html

Sound familiar anybody?

He "accurately" writes about drafting the 2nd amendment in the middle of a war. Ummm, who were we at war with in 1791?

I'm guessing he's another Everytown paid or freelance spokesperson and should have all the credibility that calls for.

Or ... he may just be a dumb as a stump "Calculuz" teacher with time on his hands now.

[Shamash]

9. Careful, you'll make him so mad he'll get banned from a -third- online forum...

[DonP]

10. Worth noting - 1 Op Ed versus 375 negative comments in the Tribune

That's for each of his Op Eds.

Not a lot of support for more gun control anywhere, except in the mind of a handful of true believers.

[jimmy the one]

14. militia acts

shamash: The term "the people" is used elsewhere, in amendments written at the same time... They chose to use "the people", and "the people" in all other instances refers to individuals.

Use of the people as individuals comports fine with the militia interpretation, as individual people had the right to bear arms within militia & the individual right/duty to join militia. Duty as a right is what they wanted to convey. Individual rkba term used today is not to be confused with the individual right of the original 2ndA, which was attached to militia.

shamash: As a historical note, the number of guns in govt arsenals (state and federal) in 1792 was not sufficient to arm every potential militia member in the United States. If called to serve, militia members (i.e. everyone) would have had to bring their personal weapons.

There were no federal armories in 1792 to produce firearms - the national gunstock was largely leftover French & Belgian musquettes from the rev-war perhaps 150,000, & some fraction of the 60,000 british muskets from the French/indian war of 1756-63. Since springfield didn't start producing firearms until 1795, new militia members were encouraged (by mandating it) to bring their own firearms, but of course they couldn't bring what they didn't have, & only about 25% of militia members had a firearm they could spare, if that. In Dearborn's 1803 firearm census, only 45% of militia members had firearms, ~half+ of that supplied by fed or state armories.

shamash: It is worth noting that there is nothing in this Act about reimbursing the person for the cost of the weapon, so it is unambiguously a privately-owned weapon.

Unless it was issued by a state or federal armory, which was what occurred most of the time prior to ~1800. The requirement to bring a firearm to militia service was simply a ploy to get people to bring in any firearm they could, rather than leave it at home. As well as to prompt firearm purchases when possible (making tench coxe a happy man).

Clearly, the militia is everyone deemed suitable for fighting (in a white-dominated patriarchal society, anyway). Which means that under a "militia" interpretation, the 2nd Amendment would mean "everyone in the country able to fight is automatically a militia member and has the right to a military-grade weapon (because the government does not have enough of them to hand them out)". Not only to bear arms, but to keep arms.

Since there wasn't a real big objective distinction between 'military firearms' & civilian firearms, as there is today due evolution, you strain reasoning that musketry would apply as a military grade weapon (obviously trying to link it with today's sophisticated firearms). The bayonet would moreso have been applied to military hardware, than a musket or rifle itself.

sham: (there is also an interesting tidbit in the Act saying that the weapon a person buys for militia purposes is exempt from bankruptcy hearings and other debts. So you could lose everything else you own, but the courts and creditors could not touch your military-grade rifle and ammo...)

Right, so one could still perform militia duty to your country - preventing the scofflaw militia member from claiming the govt had taken away the firearm so he couldn't serve (tho they scofflawed anyway).
The militia act of 1792 was enabled approx. 6 months after the 2ndA was written dec 1791, so it's perfectly sequitur to believe the 2ndA defined what was needed for the security of a free state, while the militia act described it in detail.

[Duckhunter935]

13. does he teach calculuz?

[gejohnston]

11. Ever read Jane Austen?

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/04/13/jane-austen-and-the-second-amendment/