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Member since: Sat Apr 12, 2008, 03:28 PM
Number of posts: 4,286

Journal Archives

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.

(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!

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.


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)

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.


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.

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

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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