Posted on 07/07/2008 10:11:04 PM PDT by neverdem
Whatever side of the Second Amendment controversy you may be on, the clear winner in District of Columbia v. Heller (striking down a Washington, D.C., ban on hand guns) was intentionalism, the thesis that a text means what its author or authors intend.
The text in dispute is 27 words long, and it is cited in the opening pages of each of the three opinions: “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.” None of the words in this sentence is esoteric and the syntax is straightforward; but if textual simplicity were sufficient to determine meaning, there would be no reason for 157 pages of close legal and linguistic argument.
What are the justices arguing about? A lot – the meaning of words, the significance of documents contemporary to the framing of the amendment, debates at constitutional conventions, regulations adopted or not adopted by various states, the Court’s own precedents – but basically the argument is about what the framers had in mind. As Justice Antonin Scalia, writing for the majority, observes, “The two sides in the case have set out very different interpretations of the amendment.” But the two sides do not proceed from different theories of interpretation. Both agree that the task is to read the amendment in the light of the purpose the framers would have had in writing it. They disagree about what that purpose was, and the materials they cite are meant to establish a purpose so firmly that in the light of it the words of the amendment will have one and only one obvious meaning.
For Scalia, that meaning is that Americans have “an individual right to possess a firearm unconnected with...”
(Excerpt) Read more at fish.blogs.nytimes.com ...
What they had in mind was an armed society, ready to keep any attempted elected tyrant in check.
Someone refresh my memory, what was the Boston Tea Party over? something like a 3% tax on tea!
I imagine if the founders came back today, I can see them feverishly sweating in those heavy wool outfits loading their muskets and finding strong trees and good rope.
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
Oh my God. The framers actually wrote what they meant? And the meant what they wrote?
No wonder there are folks today that are scratching their heads. I mean, there are people that stumble over the meaning of “is” in a sentence.
And I quote: “when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
There it is. The Declaration of Independence says it; and the 2nd Amendment gives us the ability to do it. It's as simple as that.
The notion that the Second Amendment grants rights to the states is so full of holes any first year law student could see through it. First, the U.S. Constitution does not give rights to the states, but only to the federal government; it speaks to the organization of the federal government only. And so there is no mistake about its intent, it goes on to provide that any power not granted to the federal government is EXPRESSLY reserved to the states. Specifically, the Bill of Rights is intended to protect INDIVIDUALS from the authority of the FEDERAL government. Period. Only in the last 60 years or so has the SCOTUS decided that those protections should extend from the Bill of Rights to protect INDIVIDUAL rights from action by the STATE governments. That part is new and strictly judge made. But nowhere, now or before, has any part of the Constitution granted rights to the states.
I have to laugh every time one of these articles talks about the “framers” of the constitution. Due to women’s lib, the term “founding fathers” was said to be demeaning to women, even though every single one of the so-called “framers” was a man. So, due to political correctness, “founding fathers” is out, “framers” is in.
I think the founding fathers did a great job with the language of the constitution. The 2nd amendment is written in plain language, as are all the amemdments. It shouldn’t really take court decisions to confirm for us what the plain language means. It is the linguistic contortionsists who stretch the constitution to mean things that were not intended.
Thank goodness. How else should one interpret a text?
Stay away from college literature classes these days. They're teaching something they call post-modernism and one of the central tenants is that "the author is dead and we cannot know his/her intent." Even if the author is still alive. Because the author who he was at the time of writing is different than the person they are today. Or some nonsense like that.
Unquestionably the reference here is to the Tenth Amendment to the Constitution, reproduced in BOLD below:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Note that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states, or, and this is most important, to the PEOPLE. The above poster would have us understand that the states are granted near limitless power over the people within their various domains. This is a view that has some merit in that it recognizes that the federal government enjoys only the powers granted to it by the Constitution, and nowhere does the Constitution explicitly grant the federal government any power to regulate the internal conduct of the various states. The conduct of the states and the relationships of the various state governments to their citizens is set out in the various state Constitutions, which often mirror the federal Constitution, but which also vary from it in some significant ways. Nevertheless, is quite clear that rights naturally attaching to the people cannot be Constitutionally infringed upon by the aggrandizement of power at either the federal or the state levels, or the gurantees of liberty are rendered moot.
I want to amend my previous post to point out that Amendments 13, 14, and 15, at a minimum do indeed explicitly include an element of control over the internal behavior of States toward their citizens.
Not really. Rights not explicitly protected by the Constitution of the U.S. fell under the purview of states to protect or not. If a right was not adequately protected by a state, one could (1) seek to replace any officials who would abridge it, (2) seek to amend the state constitution to protect it, or (3) if all else fails, move. Giving federal judges the authority to decide what rights should be protected is far more dangerous than leaving the responsibility to the states.
A fifty caliber lead ball will help you get a bear off your cabin porch and, when combined with others, put down an insurrection (see aftermath of OJ trial), and possibly end an invasion (as long as you're not out-numbered).
By recognizing an individual's right to empower themself with a weapon, further guarantees would be un-necessary in safeguarding individual liberty's destiny.
Some feel with today's militarized police that such empowerment is no longer necessary. These mini-standing armies are no less a threat to liberty than their bigger cousins and the complacency that they generate is as dangerous as opening that cabin door and becoming a mauling victim, rape victim, murder victim, etc. by failing to accept responsibility for yourself and heeding the wisdom of the founders.
The road to Heller was paved with original intentions...
I read that passage here on Free Republic every time I pulled up the 'latest comments' page last week, the week of July 4th. With their 'Declaration of Independence', the founders announced their decision to go to war (using guns, of course) to get rid of the British government and institute a new government. With the second amendment they wanted to ensure that future generations were guaranteed the same opportunity, should the need ever arise.
I'm no Supreme Court justice but this seems very obvious to me.
Self defense, gun collecting, hunting, and target shooting have nothing to do with the second amendment.
Well done! :-)
The same exact words: (minus two comas)
'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.'
The missing comas, when added, add just enough confusion to give license to the reader who is unhappy with the intent of the writer.
Who added these two commas?
In other words, we have a serious problem of indiscipline and violence in our cities, so the answer is to reduce the individual rights of all Americans..
When will there be any serious discussion on actually reducing the culture of crime in our inner cities without tap dancing around it? Our political leaders and the media seem to think that it's just an accident of nature that the murder rates in our major cities are so high and that reducing the rights to self-defence of all citizens will change things.
Idiocy.
The author also writes OpEd columns for the NY Times, so I thought the editorial sidebar was OK for his commentary. It doesn't mean I agree with the author. With Heller's only 5 - 4 majority, the Second Amendment still seems precarious.
Maybe only God knows.
What a bunch of crap. If you want to know what the founders and writers intended about individual right to own guns, read their own words:
“A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government.” — George Washington
“Let your gun be your companion on all your walks.” — Thomas Jefferson
“The Constitution shall never be construed... to prevent the people of the United States who are peaceable citizens from keeping their own arms.” — Samuel Adams
“The great object is that every man be armed. Everyone who is able may have a gun.” — Patrick Henry
“Firearms stand next in importance to the Constitution itself. They are the people’s liberty teeth keystone... the rifle and the pistol are equally indispensable... more than 99% of them by their silence indicate that they are in safe and sane hands. The very atmosphere of firearms everywhere restrains evil interference. When firearms go, all goes, we need them every hour.” — George Washington, address to 1st session of Congress
As stated other places and on this blog, the distressing thing is that four justices couldn’t/wouldn’t go to these words for intent.
I also found it interesting that the State of Montana ran advertisements that they entered the Union based on certain understandings and one of those was that their state Constitution with a strong 2nd amendment right would be respected. I think that some of the upper Montana politicians stated that if the Supreme Court overturned their 2nd amendment rights they would seek to leave the union.
That could have been a heck of an interesting pickle for the court had it made the wrong decision.
My favorite is the claim that the Second Amendment is defunct because there is no way that the arms of the people could overwhelm the U.S military.
What the posters of such nonsense miss is that the enemy of the people would not be the U.S. military, but the government.
When the British colonists refused to be taxed without representation, they didn't attack the British army, they attacked a ship carrying tea. When government agents attempted to furnish tax stamps to be placed on all official documents, the British colonists attacked the purveyors of the tax stamps, not the British army.
Similarly, when the day comes that a significant number of Americans decide that the government has become tyrannical, they will not be attacking the U.S. Army. They will be attacking the bureaucrats and politicians who have brought the situation about. For this purpose one need not have every weapon available to the Army.
“I thought that the decision was interesting in that it referenced many state constitutions who provide for individual rights to keep and bear arms.”
Some states are very serious about this, and would reject federal agents and agencies trying to impose a national mandate. I think the talk about succession is just rhetoric. I also think sheriffs would run out of town any federal agents trying to enforce federal bans.
I’ve read all the constitutions of the states in regard to 2nd Amendment; there are several good papers available on this subject. Most states had a guns clause. Many of them back in the early 1800’s even precluded concealed carry. Many were very broad. Many evolved over the years by amendment.
The common theme back in the days was that individual ownership was a given for everybody. Trying to limit guns to militias is a relatively modern attempt by liberals to follow the European model of citizen control.
The four justices ignoring such clear intent by our founders shows why they are lawyers (and politicians) and not rocket scientists.
I disagree. You have done a good job of explaining why our Founders would be so eager to explicitly forbid infringement of the right.
But I believe you are mistaken in suggesting that the pre-existing right did not include all other lawful uses.
Both gun-collecting and target-shooting are preparations that increase the effectiveness of a Militia should one need to be organized.
Self-defense and hunting are both related to the right to life. Hunting is less necessary than during our Founding and for most people the same end is accomplished by exercise of the right to purchase or barter for food.
You would not claim that people don't have a right which pre-existed the Constitution to purchase or barter for food, would you?
Many of our Founders were adamantly against any attempt to enumerate the rights of the people. Their wisdom is complemented by the wisdom of those who explicitly protected the right to keep and bear arms. Without the Second Amendment there would be many states in which the people would have been disarmed completely. Those states would be campaigning for federal laws to complete the disarmament of all the people.
I did not make that suggestion. I merely said that those lawful uses were not the impetus behind enumerating that right.
Many of our Founders were adamantly against any attempt to enumerate the rights of the people.
Yes, because they predicted precisely the goofball situation we have today where liberal activist judges use creative "interpretation" to take those "enumerated rights" and limit them! The reason some of the founders prevailed and added the "Bill of Rights" to the Constitution was because they wanted to emphasize to Congress that they better not even think about messing with those rights.
I always found it interesting as well that the founders considered the right to keep and bear arms the second most important right, right after freedom of speech and religious expression.
“Second Amendment controversy”..? There aint no controversy! Rules is rules! Now go out and buy more ammo!
Very true. But I fear - desperately fear - that they will need to have every weapon available to Blackwater. For which reason, I hope and pray that the Army will stand alongside the Constitution and the People, for they will be badly needed.
The BOR as submitted contained 12 Amendments with what is now the 2nd listed as 4th. The first was never adopted (IMO it should be) and the second was adopted in 1992 as the 27th, so it was due to this paring away that the 4th became the 2nd.
“The missing comas, when added, add just enough confusion to give license to the reader who is unhappy with the intent of the writer.
Who added these two commas?”
The fact that governments oftentimes become oppressive and tyrannical is an expression of just why we have that pre-exisitng right regardless of what governments may say as they evolve into juggernauts that feed on the substance and freedom of the governed.
As Geo. Washington states: “They are the people's liberty teeth, the rifle and pistol are indispensable...”
Just how opressive and unreasonable (before being thrown off) is to be determined by the governed-as the government will not, of its own accord, destroy or limit itself....
Every purpose of arms is protected-collecting, target practice, hunting self-defense etc.
Also protected by association is the means of using the firearms-one cannot have a firearm but no ammunition or other requisite accessories. Banning ammunition is in fact banning firearms.
We need to keep the association close so the anti-/statist cannot by any perversion of logic or method of dissociation, control the use of arms by control of ammunition or holsters or sights or tools etc.
God Bless & MOLON LABE
There would have been a mass-exodus of firearms owners going to Montana, had the Supreme Court ruled the wrong way.
Montana probably would have become one of the most populous states in a week.
Whose side do you think Blackwater will be on?
What you did say was, "Self defense, [etc.] ... have nothing to do with the second amendment. "
Though I agree that the chief impetus for enumerating the right was to preserve the power of the people to resist tyranny, the Second Amendment protects the pre-existing right, in its entirety, and not just those aspects of the right that Congress decides are related to that chief purpose.
We can probably aqree that there is much that is encompassed in "freedom of speech" that would seem valueless to our Founders. But the First Amendment is more about keeping the government out of deciding such issues, than in narrowing the scope of the freedom.
It would be a grave mistake to read "freedom of speech" so as to remove the stricture, "Congress shall make no law ...". I see nothing in "shall not be infringed" that is any less prohibitive.
At the time, commas were applied very casually, more as indications that the author was breathing than as markers of semantic structure. There are several official copies of the BoR from the time, and they use varying numbers of commas.
In 1789, private citizens could own cannons on their ships. I for one would like to have a howitzer on my SUV.
Given that a man with a handgun stopped a rampaging bulldozer recently in Jerusalem, you'd think they'd start to reconsider that notion, wouldn't you? Sure, fighter jets and tanks are hard targets, but their operators are just as permeable as anyone else.
I wonder if there may also have been a desire to avoid having anyone read special meaning into the finer details of capitalization (one of the factors behind printing ballots in allcaps). Perhaps not, but if a word like "People" were capitalized in some places but not others it could cause confusion.
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