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In the discussion thread: Who gets free speech? [View all]

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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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
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COLGATE4 Oct 2012 #23
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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
LineLineLineLineLineLineLineLineNew Reply You have it exactly backwards.
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
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COLGATE4 Oct 2012 #13
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COLGATE4 Oct 2012 #17
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COLGATE4 Oct 2012 #25
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hack89 Oct 2012 #29
TPaine7 Oct 2012 #22
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