Gun Control & RKBA
In reply to the discussion: Who gets free speech? [View all]TPaine7
(4,286 posts)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.
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:
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)
........................................................................
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
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)
(Cited in same link as (1) above)