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Sun Sep 30, 2012, 10:05 PM

Who gets free speech?

A well informed population being necessary to the function of a democratic republic, the right of the people to free speech shall not be infringed.

The above sentence has the same construction as the 2nd Amendment.

Who gets free speech - "the people" or "a well informed population"?

38 replies, 8662 views

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Arrow 38 replies Author Time Post
Reply Who gets free speech? (Original post)
needledriver Sep 2012 OP
Eleanors38 Oct 2012 #1
COLGATE4 Oct 2012 #2
petronius Oct 2012 #3
COLGATE4 Oct 2012 #4
needledriver Oct 2012 #5
AnotherMcIntosh Oct 2012 #26
TPaine7 Oct 2012 #6
petronius Oct 2012 #8
discntnt_irny_srcsm Oct 2012 #10
COLGATE4 Oct 2012 #18
discntnt_irny_srcsm Oct 2012 #19
COLGATE4 Oct 2012 #23
discntnt_irny_srcsm Oct 2012 #27
COLGATE4 Oct 2012 #30
discntnt_irny_srcsm Oct 2012 #31
discntnt_irny_srcsm Oct 2012 #37
COLGATE4 Oct 2012 #38
TPaine7 Oct 2012 #21
COLGATE4 Oct 2012 #24
TPaine7 Oct 2012 #32
AtheistCrusader Oct 2012 #11
COLGATE4 Oct 2012 #12
AtheistCrusader Oct 2012 #14
COLGATE4 Oct 2012 #16
AtheistCrusader Oct 2012 #34
TPaine7 Oct 2012 #33
discntnt_irny_srcsm Oct 2012 #9
COLGATE4 Oct 2012 #13
discntnt_irny_srcsm Oct 2012 #15
COLGATE4 Oct 2012 #17
discntnt_irny_srcsm Oct 2012 #20
COLGATE4 Oct 2012 #25
discntnt_irny_srcsm Oct 2012 #28
hack89 Oct 2012 #29
TPaine7 Oct 2012 #22
4th law of robotics Oct 2012 #7
TPaine7 Oct 2012 #35
Oneka Oct 2012 #36

Response to needledriver (Original post)

Mon Oct 1, 2012, 09:40 AM

1. Are you trying to end discussion of da militia clause in one swift blow? Tsk-tsk.nt

 

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Response to needledriver (Original post)

Mon Oct 1, 2012, 10:03 AM

2. Not comparable.

That would mean that the only purpose of free speech is to have a well-informed population, which is probably why that part of the First Amendment isn't written that way.

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Response to COLGATE4 (Reply #2)

Mon Oct 1, 2012, 10:25 AM

3. Does it reasonably follow from the structure of 2A that the only purpose of RKBA

is to protect the ability to form militias? I wouldn't say so - explicitly giving one reason for anything doesn't imply that that's the only reason...

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Response to petronius (Reply #3)

Mon Oct 1, 2012, 01:28 PM

4. Not a question of whether it "reasonably

follows" or not. It's plainly what the 2A text says. And, in legal statuatory interpretation an exclusive purpose governs the entire clause. Expressio unius est exclusio alterius ("the express mention of one thing excludes all others." Otherwise it would read something along the lines of "A well regulated militia being necessary, among other things for the purpose of....". But it doesn't. And since it's the only Amendment which has this prefatory clause, the purpose of the expressly stated prefatory clause governing the sense of the amendment must be respected.

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Response to COLGATE4 (Reply #4)

Mon Oct 1, 2012, 09:00 PM

5. The Supreme Court disagrees with you:

In the Heller decision, The Supreme Court held:

(1) The Second Amendment 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. Pp. 2–53.

(a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2–22.

(b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 22–28.

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Response to needledriver (Reply #5)


Response to COLGATE4 (Reply #4)

Tue Oct 2, 2012, 10:16 AM

6. And yet that has never been the way the Second Amendment has been interpreted (by the Supreme Court)

 

Last edited Tue Oct 2, 2012, 11:01 AM - Edit history (1)

The Supreme Court, the very first time it mentioned the Second Amendment, called it a right "of person" and said that individual, private citizens could travel freely in every state and carry guns wherever they went.

Your interpretation makes an unwarranted leap. Even taken at face value, excluding all other reasons does not mean what you are applying it to mean. Accepting, for the sake of discussion, that the need for a militia is the only reason the right to arms is explicitly protected, it does not follow that the right only exists for militia service.

Let's look at a similar construction:

"The liberty of the press is essential to the security of freedom in a state it ought not, therefore, to be restricted in this commonwealth." Mass. Const. pt. I, art. XVI (1780)


Applying the rule--"the express mention of one thing excludes all others"--as you did above, we would conclude that liberty of the press only existed for "the security of freedom in a state" and that any publication that did not serve that purpose was unprotected.

Another serious issue is ignoring the meaning of the word "right." As the Court has said multiple times, the RKBA existed before the Constitution and is not dependent on the Constitution for its existence. The American legal philosophy is that people with rights exist, then governments are instituted for the purpose of securing those rights.

By calling the "right to keep and bear arms" a right, the founders said, quite clearly, that the people's right to keep and bear arms is one of those things that government exists to secure. The popular argument that the right only exists so that citizens may secure the state is turning the entire system on its head.

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Response to COLGATE4 (Reply #4)

Tue Oct 2, 2012, 08:09 PM

8. Interesting, thanks. I'll have to do some more reading... (nt)

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Response to COLGATE4 (Reply #4)

Tue Oct 2, 2012, 10:14 PM

10. The purpose and scope...

...of the Bill of Rights with the explicit language of the 9th and 10th Amendments contradicts the idea that Expressio unius est exclusio alterius could reasonably be applied to a single article within the Bill of Rights. More correctly applying the In pari materia canon most correctly highlights the meaning of 2A by characterizing it as sharing the nature of the other rights protected in the Bill.

In his dissent in Heller, Justice Stevens builds a position on that "i)t cannot be presumed that any clause in the constitution is intended to be without effect." Marbury v. Madison, 1 Cranch 137, 174 (1803) Justice Stevens' interpretation of actual meaning of the prefatory clause partially hinges upon his assertion that the majority opinion ascribes the RKBA as possessed by "law-abiding, responsible citizens,". While this may be the effect of the application of the 2A in concert with other legislation concurrent with and subsequent to the Bill of Rights, this effect is not at all correctly inferred as because of the 2A alone. We have today laws passed excluding certain people, notably felons, from firearm ownership. It is this effective limitation to which the majority decision refers as we enforce the law today.

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Response to discntnt_irny_srcsm (Reply #10)

Wed Oct 3, 2012, 09:58 AM

18. In pari materia is used to try and resolve an

ambiguity in a statute by looking at similar statutes. There is nothing ambiguous about the 2A. And looking to the other amendments for guidance only brings us back to the fact that the 2A is the only one of the Bill of Rights which is conditioned upon a certain specific activity.

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Response to COLGATE4 (Reply #18)

Wed Oct 3, 2012, 10:13 AM

19. In pari materia

"There is nothing ambiguous about the 2A."
Not in my opinion either but our opinions differ, thus the ambiguity.

"...conditioned upon..."
Which is the ambiguous point of contention.


There is no doubt that the BoR exists to protect individuals and their rights from governmental tyranny.


"On every question of construction, 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." - T Jefferson

http://www.democraticunderground.com/117275839

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Response to discntnt_irny_srcsm (Reply #19)

Wed Oct 3, 2012, 05:24 PM

23. Just because opinions differ does not

mean that there is an ambiguity in the language. Please point out to me where the exact, specific language of 2A is ambiguous.

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Response to COLGATE4 (Reply #23)

Wed Oct 3, 2012, 06:22 PM

27. I don't answer questions twice.

It's just not that much to read, 27 words.
Your interpretation is wrong and rather than accept even the possibility of your error, you pursue only more faulty reasoning.

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Response to discntnt_irny_srcsm (Reply #27)

Wed Oct 3, 2012, 10:53 PM

30. Hard to point out ambiguity when there isn't any.

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Response to COLGATE4 (Reply #30)

Thu Oct 4, 2012, 08:14 AM

31. Near impossible to overcome a prejudice n/t

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Response to COLGATE4 (Reply #30)

Mon Oct 8, 2012, 02:59 PM

37. In considering your opinion...

...I wanted to give a precise answer.

The nature of ambiguity is that a concept is open to more than one interpretation or has a double meaning. I submit that you must accept that the 2A has some degree of ambiguity as long as two differing opinions of the right expressed exist in society.

I further do not see a basis for the "need to prove ambiguity" before one applies In pari materia.

However, have a nice day.

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Response to discntnt_irny_srcsm (Reply #37)

Tue Oct 9, 2012, 07:42 AM

38. The entire purpose of applying

in pari materia is to resolve an ambiguity.

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Response to COLGATE4 (Reply #18)

Wed Oct 3, 2012, 12:43 PM

21. Your whole argument is based on a misreading of the Second Amendment.

 

COLGATE4 (3,837 posts)
4. Not a question of whether it "reasonably

follows" or not. It's plainly what the 2A text says. And, in legal statuatory interpretation an exclusive purpose governs the entire clause. Expressio unius est exclusio alterius ("the express mention of one thing excludes all others." Otherwise it would read something along the lines of "A well regulated militia being necessary, among other things for the purpose of....". But it doesn't. And since it's the only Amendment which has this prefatory clause, the purpose of the expressly stated prefatory clause governing the sense of the amendment must be respected.


Your argument would be logically consistent and at least plausible if the Second Amendment read:

A well regulated Militia, being necessary to the security of a free State, the people shall henceforth have the right to keep and bear Arms.


That is a right being created by the state to meet its needs (ignoring, for the sake of discussion, the incompatibility of such a thing with the founder's philosophy). In such a case, the well regulated Militia would be the reason--the only reason, applying the rule you cite as you apply it--that the right existed.

Unfortunately for your argument, the Second Amendment actually says something very different:

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.

http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html


Accepting your rule of interpretation at face value--while respecting what the words actually say--we would interpret thus:

Because and only 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.


This says several things--but not what you apparently believe it says:

1. The right of the people to keep and bear arms exists
2. A well regulated Militia is necessary to the security of a free State
3. Because, and only 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.

The necessity of a militia is not the reason the right exists. The militia (or the need for a militia) does not define the right. The militia is simply the reason the right--whatever the pre-existing right is--shall not be infringed.

Similarly, using your method of interpretation but applying it to the actual English:

The liberty of the press is essential to the security of freedom in a state it ought not, therefore, to be restricted in this commonwealth. Mass. Const. pt. I, art. XVI (1780)


1. Liberty of the press exists
2. That liberty is essential to the security of freedom in a state
3. Because, and only because the liberty of the press is essential to the security of freedom in a state, the liberty of the press ought not... to be restricted in this commonwealth.

The security of freedom in a state was not the reason the liberty of the press existed. The security of freedom in a state did not define the liberty of the press. The security of freedom in a state was simply the reason the liberty of the press--whatever the pre-existing liberty of the press was--should not have been restricted in the commonwealth.

To maintain that the liberty of the press was "conditioned" on it serving "the security of freedom in a state" would be a preposterous reading, or rather misreading, of the Massachusetts constitution.

Similarly, the rule you cite does not actually support the conclusion you reach regarding the Second Amendment. In order to force it to do so, you have to violate the plain meaning of the English language.

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Response to TPaine7 (Reply #21)

Wed Oct 3, 2012, 05:31 PM

24. You can try and run through semantic circles

to make the plain language of the 2A say something that it doesn't. But either there is an overarching reason why only the 2dA of all the Bill of Rights contains specific, prefatory language or the language is simply accidental or surplussage. I'd be interested in seeing any cite to precedent which holds that this language is surplussage and should therefore be accorded no meaning in interpreting the meaning of the 2A.

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Response to COLGATE4 (Reply #24)

Thu Oct 4, 2012, 09:47 PM

32. You have it exactly backwards.

 

You are the only one here trying to make the Second Amendment say something that it doesn't. According to you (post 4) the text of the Second Amendment "plainly... says" that "the only purpose of RKBA is to protect the ability to form militias" (read in the context of your reply to post 3).

To support that contention, you quote a rule of legal interpretation and then apply it. But there are several things wrong with your reasoning.

1) Your logic says (as I showed in posts 21 and 22) that per the Massachusetts Constitution, the only purpose of liberty of the press was to have the security of freedom in a state.
2) The Supreme Court has never taken your position. It contradicted it the first time it spoke on the matter (1), many times through history and the last times it spoke on it.
3) The Framers of the Fourteenth Amendment clearly set out to protect the personal, individual right against the states, as opposed to only having it protected against the federal government. (2) But everything they did was predicated on the well know fact that the right applied to individuals who were acting on their own behalf in their own personal interests. They made that overwhelmingly explicit.
4) Imminent scholars, many of whom--like Laurence Tribe--once championed the militia argument, have abandoned it. Not only is it an illiterate reading of the English (and I mean to insult the reading, not you personally), it flies in the face of history. It is not that these scholars love the idea of a constitutionally armed populace, many hate it. But they know how they would look to any one who actually understands the legal history, the grammar, and the logic of the amendment.

Now I do not say this to to be offensive--I am just stating a fact--but clearly you misunderstand either the rule or its application. Your logic leads to a nonsense conclusion in a clearly analogous constitutional statement (see my post 22). Your argument is simply wrong.

But either there is an overarching reason why only the 2dA of all the Bill of Rights contains specific, prefatory language or the language is simply accidental or surplussage.


There is overwhelming evidence against your logic, but you still have this apparent argument, "apparent" being the key word.

Yes, there is a reason why only the Second Amendment has prefatory language. It is the only one the author chose to write that way. But, contrary to common belief, there was nothing "special" about prefatory clauses in that time. Any one who doubts that should read professor Volokh's article. This is from the conclusion:

My modest discovery is that the Second Amendment belongs to a large family of similarly structured constitutional provisions: They command a certain thing while at the same time explaining their reasons. Because some of the provisions appeal to liberals and some to conservatives, they offer a natural test suite for any proposed interpretation of the Second Amendment. If the interpretive method makes sense with all the provisions, that's a point in its favor. But if it reaches the result that some may favor for the Second Amendment only by reaching patently unsound results for the other provisions, we should suspect that the method is flawed.

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


Eugene Volokh is a Professor of Law at UCLA and the former clerk to Justice Sandra Day O'Connor. I would think he knows a thing or two about interpreting law, but that isn't why you should accept his reasoning. No, I accept his conclusion because he backs it up with cases, with numerous citations. And your interpretive method, however sound it may be in the proper context, reaches patently unsound results when applied to another constitution of the era.

Now to some this may all seem overly technical, so at the risk of being accused of engaging in semantics, I will give a more easily accessible example:

Mr. Jones dies. At the reading of his will, his children hear the following:

.....

To my son Michael, I leave the sculptures, the paintings, and my AT&T stock.

To my daughter Claire, I leave the beach house, the silverware and my business.

Since Joan is the only one with small children, I leave her the minivan and the country estate near her children's school.

To my son John, I leave the main house the remainder of my estate.

...


Is there a reason why only what is left to Joan is explained by a preparatory clause? Yes, of course there is--that's the way her father chose to write it! Apparently, he wanted to explain himself.

Is it surplussage, to be accorded no meaning? Absolutely not! It means what it says--exactly and only what it says. We shouldn't make up meanings for it, in order to respect Mr. Jone's overarching intent--intent that he didn't state. We should allow it to mean what it says.

The will does not mean that the only purpose for the minivan is to carry children; no, it means that Joan's need to carry children and their things is the reason the vehicle was left to her. But the minivan being hers, she can put it to any legal purpose she chooses. It takes no special knowledge of history of law to understand that.

Similarly, the right to bear arms can be put to any lawful purpose--as the Court has said. (3)

........................................................................

(1) For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.


These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government;...

Cited here: http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=118&topic_id=300206&mesg_id=300331


(2)“{The Fourteenth Amendment's} first clause, . . . relates to the privileges and immunities of citizens of the United States . . . . To these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—to these should be added the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as the freedom of speech and of the press; the right of people peaceably to assemble and petition the Government for a redress of grievances, a right appertaining to each and all of the people; the right to keep and bear arms. . . .

The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.”—Senator Jacob Howard introducing the Fourteenth Amendment to the Senate, quoted by Yale Professor Amar. Akhil Reed Amar, The Bill of Rights, Creation and Reconstruction (Harrisonburg, VA: R.R. Donnelley & Sons Company, 1998), 185-6 (emphases supplied).

(Cited in the link above)


(3) The right there specified <in the Second Amendment> is that of "bearing arms for a lawful purpose." This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.

(Cited in same link as (1) above)

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Response to COLGATE4 (Reply #4)

Tue Oct 2, 2012, 10:19 PM

11. It's called a Whereas.

Try this one on for size instead:

"A well-read electorate being necessary to the security of a free state, the right of the people to keep and read books shall not be infringed."

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Response to AtheistCrusader (Reply #11)

Tue Oct 2, 2012, 10:59 PM

12. Well, for starters -

a) that's not how the First Amendment reads and
b) It's not called ' a Whereas'.
But aside from that, your point is???

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Response to COLGATE4 (Reply #12)

Tue Oct 2, 2012, 11:31 PM

14. I didn't say the first amendment.

Did you mean the second?

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.

A well-read electorate, being necessary to the security of a free state, the right of the people to keep and read books shall not be infringed.

They read precisely the same. You understand the context of 'regulated' don't you? In that time the common usage reflected 'equipped' or 'working'. There were requirements in state laws about the amount of ammo, powder, and a working weapon a household must have on hand.

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Response to AtheistCrusader (Reply #14)

Wed Oct 3, 2012, 09:12 AM

16. I was referring to the hypothetical language you

used to illustrate your point, which was applicable to the First Amendment.

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Response to COLGATE4 (Reply #16)

Fri Oct 5, 2012, 11:46 AM

34. It's a substitution.

One concept for another. To help illustrate the sentence diagram and place it in perspective.

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Response to AtheistCrusader (Reply #11)

Thu Oct 4, 2012, 10:39 PM

33. The prefatory clause is quite similar to the current use of whereas, as you say.

 

Of course, COLGATE4 understands that.

But rather than engage the point you were making, or even nitpick and then engage the actual point, some folks like to hide behind technicalities:

It's not called ' a Whereas'.




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Response to COLGATE4 (Reply #2)

Tue Oct 2, 2012, 08:20 PM

9. According to...

...the 9th and 10th Amendments, the RKBA is not established or limited by the 2nd Amendment.

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Response to discntnt_irny_srcsm (Reply #9)

Tue Oct 2, 2012, 11:00 PM

13. Where do you get that from the language of

the 9th or 10th Amendments? Exact language, please.

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Response to COLGATE4 (Reply #13)

Wed Oct 3, 2012, 08:45 AM

15. The exact language:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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.

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Response to COLGATE4 (Reply #13)

Wed Oct 3, 2012, 09:14 AM

17. Where do you get the idea that RKBA is

a non-enumerated right retained by the people? It's clearly enumerated in the Second Amendment.

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Response to COLGATE4 (Reply #17)

Wed Oct 3, 2012, 10:16 AM

20. Your claim...

...is that the 2A protects the right to maintain and arm a militia. If that is the case then the RKBA of individuals would be a non-enumerated right.

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Response to discntnt_irny_srcsm (Reply #20)

Wed Oct 3, 2012, 05:33 PM

25. You are assuming that such a non-enumerated

right actually exists. Where do you find support for that?

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Response to COLGATE4 (Reply #25)

Wed Oct 3, 2012, 06:50 PM

28. From history...

...found in common law to the recent Supreme Court rulings that speak of the right to keep and bear arms. From where would you infer that your right to freely express yourself on the internet is derived? That right is not in the Bill of Rights.

How anyone can accept that people with a right to life and right to self-defense are restricted to using their bare hands in that defense is just unbelievable.

You continually attack the stance I take but offer nothing in proof of your claims. IMHO, a fact finder finds facts that help him form an opinion. A fault finder finds faults that help him defend his prejudices. You don't like guns. I get it.

Pull out your prejudices and play with them like dolls or marbles. Show them around to the others and claim yours are better.

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Response to COLGATE4 (Reply #25)

Wed Oct 3, 2012, 08:30 PM

29. British Common Law for starters - the Bill of Rights from 1689

no royal interference in the freedom of the people to have arms for their own defence as suitable to their class and as allowed by law (simultaneously restoring rights previously taken from Protestants by James II)


http://en.wikipedia.org/wiki/Bill_of_Rights_1689

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Response to COLGATE4 (Reply #2)

Wed Oct 3, 2012, 01:16 PM

22. Actually it is quite comparable. In fact, a very close analogue exists from that timeframe.

 

The liberty of the press is essential to the security of freedom in a state it ought not, therefore, to be restricted in this commonwealth. Mass. Const. pt. I, art. XVI (1780)


That most emphatically does not mean that the only purpose of liberty of the press is to have the security of freedom in a state.

See post 21 for more details.

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Response to needledriver (Original post)

Tue Oct 2, 2012, 10:26 AM

7. I think it's obvious

 

a disciplined and small group of white male landowners aggregated in to monopolistic groups under the direct command of the federal government.

Duh.

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Response to needledriver (Original post)

Sat Oct 6, 2012, 07:32 PM

35. Well needledriver, I think there is nothing left of the "Militia" arguments made in this thread.

 

The "it's not comparable" claim in post 2 has been demolished with an analogous constitutional statement from the same era. The semantic argument of posts 2 and 4 has been demolished by simply letting the English speak for itself--with the same principle of English interpretation being shown to work perfectly in the analogous constitutional statement from the era and in a comparable sentence in modern English.

Many other logical, historical and scholarly arguments have been presented.

Any one who reads through this thread can see that there is nothing left of the Militia arguments that have been made.

What will be interesting to see will be if the same person whose arguments have been demolished will make the same arguments in an attempt to deceive others who haven't seen them reduced to rubble.

I've seen it over and over again. Folks who have carefully avoided the strongest arguments and who have stubbornly clung to their preconceived notions in the face of the strongest possible evidence will not only fail to admit it when it's in their faces, but will brazenly repeat the same nonsense in an attempt to take in people who haven't seen the evidence.

Time will tell, I guess.

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