Who gets free speech?

[TPaine7]

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.&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.