December 28, 2012

The Early Supreme Court and the Guys who Wrote the Fourteenth Amendment Disagreed with You

While it is true that the emphasis on individual self-defense was later, the right itself was ALWAYS an individual right. The very first time the Supreme Court mentioned the Second Amendment it called it a right "of person." The idea that this is a personal right is not some modern invention, it was well understood from the beginning:

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;...

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=60&invol=393

The Framers of the Fourteenth Amendment enshrined in the Constitution their clear, uncompromising understanding that the right was individual:

“{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).

The Fourteenth Amendment is part of the Constitution, a more important part, I would argue, than the Second. It cannot be ignored. And the language of the Fourteenth Amendment, read in historical context, clearly shows that the Second Amendment is a personal, individual right that is enforceable against the states.

December 28, 2012

Right Wing Extremist LaPierre's Lunatic Plan for Police in Schools Debunked

Philadelphia Mayor Michael Nutter on Wednesday slammed the National Rifle Association's proposal to put an armed guard {police officers} in every school in the wake of the Newtown, Conn., school shooting, calling it a "completely dumbass idea."

"I guess, you know, out of last week's bizarre press statement -- it wasn't a press conference -- I guess Mr. [Wayne] LaPierre would then say firefighters need to have armed guards go with them," Nutter said on MSNBC's "Andrea Mitchell Reports." I think it just shows that was a completely dumbass idea from the start with the announcement last week," he said.

Nutter was referring to the briefing held Friday by LaPierre, the NRA's vice president, in which he called for armed guards at every school in the wake of the Newtown tragedy. "The only thing that stops a bad guy with a gun is a good guy with a gun," LaPierre said.

http://www.huffingtonpost.com/2012/12/26/michael-nutter-nra_n_2366214.html?ncid=edlinkusaolp00000003

NRA Press Conference: Wayne LaPierre Calls For Armed Police Officers At Every School: http://www.huffingtonpost.com/2012/12/21/nra-press-conference_n_2346382.html

I have seen the light; I now agree with Nutter and most of the people on DU. It's a "completely dumbass idea" to have police in schools to stop a mass shooting. That just brings more guns and violence into the situation.

To be consistent, however, we must admit that calling police into a situation with an active school shooter is not much better. After all, it's the same thing, just a little later. Why would it be OK to have more guns and violence on the scene 5 to 10 minutes later? If dialing 911 causes the same negative effect with just a few minutes delay, obviously that's wrong too.

I don't want to speak ill of the dead, but charging the shooter was violent. So the admin and teachers at the school took two bad, violent actions--they called in more violence and guns to the area and they personally attacked the shooter.

It's understandable to make mistakes under extreme pressure, but with training and indoctrination everyone should do better.

If there is an active shooter in a school, teachers and administrators should try to help students escape, but under no circumstances should they resort to violence of any kind. And calling police after the shooting starts is little better than having one on site. Police simply add more guns and violence to an already bad situation. The principal should have an emergency button in her office to shut down all the phones and jam cell phones to prevent this natural mistake that teachers and students alike are prone to make.

Actually, come to think of it, why should anyone dial 911 regarding gunshots? If you're in a mall and there's an active shooter, doesn't calling the police simply add more guns and violence to the situation? Isn't that the lunatic, right wing position of the fool at the head of the NRA?!

The only thing that stops a bad guy with a gun is a good guy with a gun.

We have to get beyond such right wing, cowboy thinking. No one should ever call the police to an active shooting or gun crime.

I feel so much better, now that I've seen the light.

December 23, 2012

Do you support the Brady Campaign's Idea of “Reasonable,” “Common Sense,” “Sensible” Gun Control?

As discussed here ( http://www.democraticunderground.com/10022033393 ), there is a lot of talk by good and decent people about “reasonable,” “common sense,” “sensible” gun control. The Brady Campaign, powerful politicians, leaders and anti-gun scholars have also used these terms, but they haven’t always meant what you might think.

I can’t tell you exactly what the Brady Campaign and their fellow travelers mean by these terms, but I can get close.

As the Parker case (the case that became the Heller case) was working its way through the courts, I went to the Brady Campaign website to see how the District of Columbia was rated.

The Brady Campaign maintained a grading system somewhat like the NRA’s. DC had a higher rating than any state in the union. DC’s grade was in the “B” range; if I recall correctly, the exact grade was a “B- “.

In other words, the District’s gun control, though not flawless enough to get an “A” was close.

And what was close to perfect? Here are descriptions of the laws, as outlined in an open letter I wrote to Obama at the time (these laws were overturned by Heller):

D.C. Code § 7-2502 says that no one can possess or control a firearm unless they have a valid registration certificate for the firearm. Registration certificates are available for rifles and shotguns, but D.C. Code § 7- 2502.02(a) forbids issuing a registration certificate for any pistol that was not registered to the current registrant in the District prior to September 24, 1976.

D.C. Code § 7-2507.02 requires that registrants keep all firearms in their possession “unloaded and disassembled or bound by a trigger lock or similar device.” The only exceptions are for guns kept at a place of business and guns being used for lawful recreational purposes within the district.

It is illegal to move a lawfully registered pistol on your own property. D.C. Code § 22-3204, an old law, once made an exception for people moving a gun within their own home or business or on their own land. The new law, D.C. Code § 22-4504, forbids any carrying of a handgun, even in your own house or business or on your own land.

“{W}ith very rare exceptions licenses to carry pistols have not been issued in the District of Columbia for many years and are virtually unobtainable.” Bsharah v. United States, 646 A.2d 993, 996 n.12 (D.C. 1994).
Quoted at http://www.scotusblog.com/movabletype/archives/Parker_cross_petition.pdf app. 18, no 32.

“BTW, the issue in Heller is not the trigger lock requirement per se. It's that the there is no exception allowing the gun to be unlocked in a self-defense emergency; in the 1977 case of McIntosh v. Washington, the D.C. Court of Appeals upheld the home self-defense ban against challenges that it violated equal protection and the common law right of self-defense. The McIntosh court agreed with D.C's lawyers and recognized the statute as an absolute ban on home self-defense with any firearm; this was held to be rational because of the number of fatal gun accidents was (according to the McIntosh court) larger than the number justiable self-defense homicides with guns.”—David Kopel, Polls on handgun bans, March 16, 2008. http://volokh.com/archives/archive_2008_03_16-2008_03_22.shtml .

Of course, people can always call the police. Here is some DC legal history on that:

Illustrative of this {police} failure is the case of Warren v.District of Columbia, 444 A.2d 1 (D.C. 1981.) In the late winter of 1975, three women (Warren, Taliaferro and Douglas, plus Douglas‟s four-year-old daughter) were asleep in a rooming house on Lamont Street, NW in the District. In the early morning hours, two burglars entered the property and raped Douglas. Warren and Taliaferro heard Douglas‟ screams and called the MPD at 6:23 a.m. to report a burglary in progress. They were assured police were on the way. At 6:26 a.m., three cruisers were dispatched to the rooming house on a “priority 2” call. One officer knocked on the door while other officers remained in their cruisers. Receiving no response at the door, the officers left. Warren and Taliaferro watched in horror from the roof of their building before crawling back into their room, where they continued to hear Douglas‟ screams. They called the MPD again at 6:42 a.m. and asked for immediate assistance. Again, they were told assistance was on the way. The dispatcher never dispatched additional police, unbeknownst to the two who yelled reassurance to Douglas and were, as a result, discovered by the burglars. All three women were then abducted at knifepoint and held prisoner for 14 additional hours, while being beaten, robbed, raped and directed to perform sex acts on each other.

All three women subsequently brought a tort action against the MPD for its failure to respond and protect them from the assaults. All three had their cases dismissed. Amicus Brief of Buckeye Firearms Foundation http://www.scotusblog.com/wp/wpcontent/
uploads/2008/02/07-290_amicus_buckeye.pdf , 37-8.

Let's summarize the legal reality in DC, the “best in the nation” gun control regime that got a “B-” rating from the Brady Campaign:

You were legally required to pay for police protection, but the police had no obligation to protect you.

It was a crime in the District of Columbia to have a gun in your home that could actually shoot bullets. Guns were OK, as long as they were useless. In order to ensure their uselessness, they had to be kept unloaded. In order to be doubly sure, they had to be kept disassembled or bound by a trigger lock. Making a gun useful by assembling (or unlocking) and loading it was a crime. The excuse that you were trying to protect your family—or repel a rapist or avoid death—would not do.

These were the laws regarding long guns—rifles and shotguns. The situation with handguns was even worse.

You could not possess a handgun that you did not register before Sept 1976. Even if you had a registered handgun, you needed a special permit to move it from room to room in your own house. Permits were impossible to get. And of course your registered handgun had to remain useless at all times. (You could load guns kept at your place of business.)

Basically, if your family was being killed, raped, tortured, or kidnapped in your own house, you were forbidden by law to load a weapon to defend them (or yourself). You were, however, allowed to load a gun to protect your money and goods at your place of business.

If that earned a good grade from the Brady Campaign, what would earn a perfect score?

When I hear terms like “reasonable” “common sense” and “sensible” coming out of the mouths of the Brady Campaign and the like, I know what they really mean. And now, so do you.

If Heller had gone the other way, this is the type of gun control that the Brady Campaign (and the politician and leaders who supported them) wanted to move this country towards. It valued defense of money and property over family and self and criminalized defense of self and family with a gun in one's home.

What do you think?

December 19, 2012

What I Fear, What Made Me Drag my Feet on Gun Control: Brady-Style Gun Control

Why have I been so strongly opposed to gun control?

First I would like to be clear that some commonly cited reasons are low on my list.

Contrary to popular belief, the Second Amendment was intended to protect against government abuse. But that is a minor reason for me personally. Talk of armed revolution is unwarranted. Americans don’t have any excuse to dream of armed revolution when we can’t even be bothered to use EASY, peaceful methods to make our government stop reading our e-mails and listening to our phone conversations. We apparently have no problem with government feeling us up and looking at our naked bodies at airports; how can we pretend to be revolutionaries?

People who don’t value their rights enough to pressure their Senators and President don’t start revolutions. So if anybody starts fighting the government, they will be a ragtag group of outliers, not America. Only after America fully exhausts her peaceful power should she even consider armed action.

My personal safety is not a huge concern, either. I am fortunate to live and conduct most of my business in a low crime area. I don’t live in terror of a home invasion or mugging, though I know crime is possible anywhere.

No, these are not my motivators. My concern is primarily for others. As a person who has know folks who were victimized by crime, and has been privileged to listen to intense intimate accounts of brutal savagery perpetrated on innocent victims (including a close relative), I want to live in a country that does not deny people the right—and the means, without which the right is meaningless—to defend themselves.

Now there is a lot of talk by good and decent people about “reasonable,” “common sense,” “sensible” gun control. The Brady Campaign, powerful politicians, leaders and anti-gun scholars have also used these terms, but they haven’t always meant what you might think.

I can’t tell you exactly what the Brady Campaign and their fellow travelers mean (meant), but I can get close.

As the Parker case (the case that became the Heller case) was working its way through the courts, I went to the Brady Campaign website to see how the District of Columbia was rated.

The Brady Campaign maintained a grading system somewhat like the NRA’s. DC had a higher rating than any state in the union. DC’s grade was in the “B” range; if I recall correctly, the exact grade was a “B- “.

In other words, the District’s gun control, though not flawless enough to get an “A” was close.

And what was close to perfect? Here are descriptions of the laws, as outlined in an open letter I wrote to Obama at the time (these laws were overturned by Heller):

D.C. Code § 7-2502 says that no one can possess or control a firearm unless they have a valid registration certificate for the firearm. Registration certificates are available for rifles and shotguns, but D.C. Code § 7- 2502.02(a) forbids issuing a registration certificate for any pistol that was not registered to the current registrant in the District prior to September 24, 1976.

D.C. Code § 7-2507.02 requires that registrants keep all firearms in their possession “unloaded and disassembled or bound by a trigger lock or similar device.” The only exceptions are for guns kept at a place of business and guns being used for lawful recreational purposes within the district.

It is illegal to move a lawfully registered pistol on your own property. D.C. Code § 22-3204, an old law, once made an exception for people moving a gun within their own home or business or on their own land. The new law, D.C. Code § 22-4504, forbids any carrying of a handgun, even in your own house or business or on your own land.

“{W}ith very rare exceptions licenses to carry pistols have not been issued in the District of Columbia for many years and are virtually unobtainable.” Bsharah v. United States, 646 A.2d 993, 996 n.12 (D.C. 1994).
Quoted at http://www.scotusblog.com/movabletype/archives/Parker_cross_petition.pdf app. 18, no 32.

“BTW, the issue in Heller is not the trigger lock requirement per se. It's that the there is no exception allowing the gun to be unlocked in a self-defense emergency; in the 1977 case of McIntosh v. Washington, the D.C. Court of Appeals upheld the home self-defense ban against challenges that it violated equal protection and the common law right of self-defense. The McIntosh court agreed with D.C's lawyers and recognized the statute as an absolute ban on home self-defense with any firearm; this was held to be rational because of the number of fatal gun accidents was (according to the McIntosh court) larger than the number justiable self-defense homicides with guns.”—David Kopel, Polls on handgun bans, March 16, 2008. http://volokh.com/archives/archive_2008_03_16-2008_03_22.shtml .

Of course, people can always call the police. Here is some DC legal history on that:

Illustrative of this {police} failure is the case of Warren v.District of Columbia, 444 A.2d 1 (D.C. 1981.) In the late winter of 1975, three women (Warren, Taliaferro and Douglas, plus Douglas‟s four-year-old daughter) were asleep in a rooming house on Lamont Street, NW in the District. In the early morning hours, two burglars entered the property and raped Douglas. Warren and Taliaferro heard Douglas‟ screams and called the MPD at 6:23 a.m. to report a burglary in progress. They were assured police were on the way. At 6:26 a.m., three cruisers were dispatched to the rooming house on a “priority 2” call. One officer knocked on the door while other officers remained in their cruisers. Receiving no response at the door, the officers left. Warren and Taliaferro watched in horror from the roof of their building before crawling back into their room, where they continued to hear Douglas‟ screams. They called the MPD again at 6:42 a.m. and asked for immediate assistance. Again, they were told assistance was on the way. The dispatcher never dispatched additional police, unbeknownst to the two who yelled reassurance to Douglas and were, as a result, discovered by the burglars. All three women were then abducted at knifepoint and held prisoner for 14 additional hours, while being beaten, robbed, raped and directed to perform sex acts on each other.

All three women subsequently brought a tort action against the MPD for its failure to respond and protect them from the assaults. All three had their cases dismissed. Amicus Brief of Buckeye Firearms Foundation http://www.scotusblog.com/wp/wpcontent/
uploads/2008/02/07-290_amicus_buckeye.pdf , 37-8.

Let's summarize the legal reality in DC, the “best in the nation” gun control regime that got a “B-” rating from the Brady Campaign:

You were legally required to pay for police protection, but the police had no obligation to protect you.

It was a crime in the District of Columbia to have a gun in your home that could actually shoot bullets. Guns were OK, as long as they were useless. In order to ensure their uselessness, they had to be kept unloaded. In order to be doubly sure, they had to be kept disassembled or bound by a trigger lock. Making a gun useful by assembling (or unlocking) and loading it was a crime. The excuse that you were trying to protect your family—or repel a rapist or avoid death—would not do.

These were the laws regarding long guns—rifles and shotguns. The situation with handguns was even worse.

You could not possess a handgun that you did not register before Sept 1976. Even if you had a registered handgun, you needed a special permit to move it from room to room in your own house. Permits were impossible to get. And of course your registered handgun had to remain useless at all times. (You could load guns kept at your place of business.)

Basically, if your family was being killed, raped, tortured, or kidnapped in your own house, you were forbidden by law to load a weapon to defend them (or yourself). You were, however, allowed to load a gun to protect your money and goods at your place of business.

If that earned a good grade from the Brady Campaign, what would earn a perfect score?

When I hear terms like “reasonable” “common sense” and “sensible” coming out of the mouths of the Brady Campaign, I know what they really mean. And while I think the odds of them getting what they want in toto are slim, they got close to “perfection” with the District of Columbia. I don’t want any Americans to be ruled by laws approved by the Brady Campaign and their fellow travelers.

There are things that can be done to keep unfit people from getting guns, things most people would gladly accept. But I don't trust the anti-gun leadership. I laid out the reason for extreme caution long ago:

It would be stupid to attempt to negotiate in “good faith” regarding the regulation of your rights, when the person across the table refuses to admit the existence of those rights.
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=118&topic_id=170607&mesg_id=172751

December 12, 2012

What will happen when or if Illinois (and especially Chicago) are forced to allow shall issue CCW?

Now is the time to go on the record:

December 3, 2012

Are the rules regarding gun related posts supposed to be enforced uniformly?

The Statement of Purpose of the General Discussion Forum:

Discuss politics, issues, and current events. No posts about... guns,... or sports unless there is really big news. No conspiracy theories. No whining about DU.

I don't understand how this post ( http://www.democraticunderground.com/10021917923 ) qualifies, unless it is considered "really big news." I have a hard time believing that a commentator taking the position of our President--there is a constitutional right to bear arms--and using halftime to praise lifesaving efforts with a gun and extoll gun rights would be considered "really big news" and allowed to remain in GD, never mind make it to The Left Column.

So my question is simple. Are the rules even supposed to be enforced evenly, or are they just pleasant fictions? If they are pleasant fictions, why not revise them to say the truth--"pro gun posts will be relegated to the gun forum; anti-gun posts will selectively be allowed in GD"?

November 28, 2012

Top Romney Adviser Brags About Losing Poor, Minority Voters To Obama

Source: Yahoo

Mitt Romney can take some solace in his devastating loss on Nov. 6: at least he won the voters who really count.

That's the thesis anyway of top adviser Stuart Stevens, who penned an op-ed in the Washington Post on Wednesday arguing that by winning wealthier and whiter voters, Romney secured the moral victory over Obama.

"On Nov. 6, Mitt Romney carried the majority of every economic group except those with less than $50,000 a year in household income," Stevens wrote. "That means he carried the majority of middle-class voters. While John McCain lost white voters under 30 by 10 points, Romney won those voters by seven points, a 17-point shift."

According to Stevens, "The Republican Party has problems, but as we go forward, let's remember that any party that captures the majority of the middle class must be doing something right." As a result, "Republican ideals -- Mitt Romney -- carried the day."

Read more: http://news.yahoo.com/top-romney-adviser-brags-losing-poor-minority-voters-180955828--politics.html

On the day before the loser has lunch with our President--a President who is one of us non-whites who don't count, any more than those making under $50,000 per year.

Stay classy, Romney campaign!

October 15, 2012

November 7th - "both Romney and Obama have plans to dramatically remake... American Government"

This is not the story you have heard about the budget. You have probably heard a terrifying tale of dysfunction and impending doom, with the catchphrase “the fiscal cliff” used by budget wonks to describe all the automatic changes scheduled for January 1. It’s a story of disaster that could arrive by accident and must be prevented at all costs. Every aspect of this narrative is inaccurate.

The term “fiscal cliff” has leached into the broader political lexicon, though few people understand what it means, and many of them invoke it to mean its precise opposite. Among Republicans, especially, “fiscal cliff” has come to signify their Obama-era fears of a Greece-style debt crisis. Pete Peterson, an investor and longtime fiscal hawk, has devoted more than a half-billion dollars to lobby for a bipartisan debt-reduction agreement, funding a vast network of centrist anti-deficit activists, like the Concord Coalition, the Committee for a Responsible Federal Budget, and an organization called “the Campaign to Fix the Debt,” all of which have pounded a national drumbeat warning against the perils of the fiscal cliff. “Rhetoric won’t fix the debt, action will,” warns a statement by Fix the Debt. A “solution to the nation’s fiscal crisis,” scolded the Washington Post editorial page, which closely echoes the views of the Peterson network, “can be implemented only if Republicans and Democrats hold hands and jump together.”

This is all utterly wrong. Bipartisan agreement is not necessary to fix the debt. Nothing is necessary to fix the debt. It is as if the network of activists, wonks, business leaders, and Beltway elder statesmen who have devoted themselves to building cross-party support for a deficit deal have grown more attached to the means of bipartisanship than to the ends for which it was intended. The budget deficit is a legislatively solved problem. It is, indeed, an oversolved problem. In the absence of any agreement between the president and Congress, the deficit will shrink to less than one percent of the economy by 2018, and remain below that level through 2022. The budget deficit declines so sharply and so drastically, and in ways that neither party is entirely comfortable with, that the task for Washington is to pull back on deficit reduction.

...

But here is a case where a bad metaphor has caused everybody to think about the matter in exactly the wrong way. When you walk off a cliff, the first step is your last. There is no such thing as falling halfway down a cliff. But the “fiscal cliff” is not a cliff at all. The economic damage is cumulative. It is the opposite of the debt ceiling, when the doomsday clock ticked down to a moment of sudden calamity. A full year of inaction would do a lot of damage, but a week, a month, or even a couple of months would not. The president would have enough control over the mechanics of the budget to delay the effects of higher taxes and spending cuts in order to cushion the blow to the economy. Even if the tax hikes and spending cuts go into effect, any deal that gets signed later could be retroactive. Meanwhile, the Federal Reserve could also take emergency action to keep the recovery afloat.

http://nymag.com/news/politics/elections-2012/obama-romney-economic-plans-2012-10/
(The quote is from page 5.)

This is a very interesting read, and if the author has things right, Obama has a very serious ace up his sleeve, a card that will lead to an Obama II that richly deserves the respect of all and the fear of obstructionist Republicans.

I hope the re-elected Obama is prepared to run roughshod over obstructionism and make the most of his power!

October 5, 2012

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)

October 3, 2012

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.&quot

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.

TPaine7