Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

Literal interpretation of Constitution not practical
Ventura County Star (California) ^ | 10/01/06 | Scott Harris

Posted on 10/02/2006 12:46:10 PM PDT by kiriath_jearim

Brilliant and thoughtful men wrote the U.S. Constitution. They understood the challenges of creating a document that dealt with specific issues of the time and unforeseen issues in the future. They developed a means of modifying the Constitution to reflect change (amendments) and predicted the necessity for these changes.

If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates.

— George Washington, first president of the United States and Founding Father

We have used the amendment process as it was intended to right grievous wrongs, none more important than in granting voting rights to blacks (15th Amendment, 1870) and to women (19th Amendment, 1920).

This is why it is particularly painful and frustrating to watch both the left and the right pervert our first two amendments to their own political and ideological needs.

Bill of Rights, Amendment I:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Leaving the discussion of freedom of speech for another essay, let us focus on "establishment of religion." Activist judges, in conjunction with atheists and secularists, have used a letter written in 1802 by Founding Father Thomas Jefferson to the Danbury Baptist Association, which included the phrase "building a wall of separation between church and state" to support their effort to eliminate God from the public sector.

No rational person believes this was the intention of the Founding Fathers. Their goal was to prevent, understandably and correctly, the establishment of a state religion, not to deny our Judeo-Christian heritage.

Religion ... [is] the basis and foundation of government ... before any man can be considered as a member of civil society, he must be considered as a subject of the Governor of the Universe.

— James Madison, fourth president of the United States and Founding Father

It is a perversion of the Constitution, the First Amendment and the intentions of the Founding Fathers to attempt the removal of God and religion from the public sector. It is ridiculous and intellectually dishonest to think the Founding Fathers would have eliminated "under God" from the Pledge of Allegiance, stripped Christmas decorations from the front lawns of government buildings, eliminated Christmas parties at schools, or insisted that Easter breaks be called spring breaks.

However, the right is no less guilty for the way it distorts the Second Amendment.

Bill of Rights, Amendment II:

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.

We hear the term "right to keep and bear arms" from the right as frequently as we hear "separation of church and state" from the left. They are equally wrong. The Founding Fathers did not have the luxury of, or the desire for, a standing army, so a well-regulated militia was necessary for the security of our young country. This is clearly and obviously no longer true, which severely impacts the relevance of the Second Amendment and is never mentioned by the pro-gun right.

Rational people can discuss how to balance our Judeo-Christian heritage with our need to avoid a modern version of Henry VIII's Church of England. Eliminating God and religion from our public and private lives is as dangerous as fostering a state religion.

The same people can discuss gun control and reach a reasonable conclusion. It is no more logical to ban all handguns and hunting rifles than it is to justify private ownership of an Uzi or fight reasonable efforts to license guns and monitor their purchase.

Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.

— James Madison, fourth president of the United States and Founding Father

In the end, a literal interpretation of the Constitution and its amendments is not practical or desirable. Common sense and leadership must take precedence over party politics and ideological bickering.

Can one generation bind another and all others in succession forever? I think not. The Creator has made the earth for the living, not the dead.

— Thomas Jefferson, third president of the United States and Founding Father

Let us, the living, work together to find common ground that makes sense for all Americans. It will require listening, compromise and a willingness to sometimes subvert our personal desires to the public good — a lesson we should have learned from our Founding Fathers.

— Scott Harris, of Thousand Oaks, is president of California: The Alpha State. E-mail: scott@alphastate.org. His blog can be seen at AlphaState.com, where his radio show can also be heard.


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; Government; US: California
KEYWORDS: banglist
Navigation: use the links below to view more comments.
first 1-5051-52 next last

1 posted on 10/02/2006 12:46:10 PM PDT by kiriath_jearim
[ Post Reply | Private Reply | View Replies]

To: kiriath_jearim

If we follow Mr. Harris's logic, technically we should not allow press freedoms for the electronic news media because "freedom of the press" referred to the print media available in the late 18th-century. Therefore, freedom of the press should be allowed only to those publications that are created by letters carved onto wood blocks which are then coated with ink and pressed onto paper.


2 posted on 10/02/2006 12:48:19 PM PDT by kiriath_jearim
[ Post Reply | Private Reply | To 1 | View Replies]

To: kiriath_jearim

literal interpretations ARE not practical - when you're trying to weasel your way around it!


3 posted on 10/02/2006 12:49:29 PM PDT by camle (keep your mind open and somebody will fill it full of something for you)
[ Post Reply | Private Reply | To 1 | View Replies]

To: kiriath_jearim
We hear the term "right to keep and bear arms" from the right as frequently as we hear "separation of church and state" from the left.

"right to keep and bear arms" is in the Constitution. "Separation of church and state" is not.

If we no longer need the 2nd Amendment, as the writer points out, amend the Constitution!
4 posted on 10/02/2006 12:50:10 PM PDT by sittnick (There is no salvation in politics.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: kiriath_jearim

Does away with the NYT.


5 posted on 10/02/2006 12:50:35 PM PDT by K-oneTexas (I'm not a judge and there ain't enough of me to be a jury. (Zell Miller, A National Party No More))
[ Post Reply | Private Reply | To 2 | View Replies]

To: kiriath_jearim
the right of the people to keep and bear Arms, shall not be infringed.

The authors of the Constitution knew what they were talking about. If they meant the "right of the state" or the "right of the militia" to keep and bear arms they would have said so. The language clearly states that the people have that right.

6 posted on 10/02/2006 12:52:49 PM PDT by KarlInOhio (Dems - Your conduct is an invitation to the enemy, yet few of you have heart enough to join them.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: kiriath_jearim
"This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be Supreme Law of the land; and the Judges in every state shall be bound thereby, any thing in the Constitution or Laws of any state to the contrary notwithstanding."

--United States Constitution, Article VI

We gettin' rid of that one too?

7 posted on 10/02/2006 12:57:38 PM PDT by Gordongekko909 (Mark 5:9)
[ Post Reply | Private Reply | To 1 | View Replies]

To: kiriath_jearim
Actually, by the time of the American Revolution, something called movable type had been invented. Credit for this generally goes to a fella named Gutenberg, who invented it in the 1440's.

That said, if there's something wrong with a literal interpretation of the words of the Constitution, then it can be fixed. Its called an Amendment. Also, If you have problems with the literal interpretation of the Constitution, the Founding Fathers left a exhaustive body of correspondence detailing EXACTLY what they meant - called the Federalist Papers.

As for the Second Amendment, both the Federalist Papers and the personal statements and quotes of the founding father leave no doubts as to which side of the issue they come down on (individual right).
8 posted on 10/02/2006 1:00:05 PM PDT by Little Ray (If you want to be a martyr, we want to martyr you.)
[ Post Reply | Private Reply | To 2 | View Replies]

To: kiriath_jearim
See Robert Borks, The Tempting of America
9 posted on 10/02/2006 1:01:34 PM PDT by Question_Assumptions
[ Post Reply | Private Reply | To 1 | View Replies]

To: KarlInOhio
Exactly!

And there is further proof of this intention in the language of the Tenth Amendment which clearly demonstrates that rights rest in the people (and the States) and the Federal Government only holds those powers specifically DELGAED to it.

Tenth Amendment - Reserved Powers

"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."
10 posted on 10/02/2006 1:04:21 PM PDT by BenLurkin ("The entire remedy is with the people." - W. H. Harrison)
[ Post Reply | Private Reply | To 6 | View Replies]

To: kiriath_jearim
In the end, a literal interpretation of the Constitution and its amendments is not practical or desirable. Common sense and leadership must take precedence over party politics and ideological bickering.

The very purpose and existence of the Constitution is to ensure the laws of the land are to be followed literally. Changing such laws with out following the procedure to do so becomes a slippery slope resulting in an infinite number of interpretations. In the end there will be no Constitution. Our founding Fathers recognized circumstances may arise they could not foresee and would be necessary to amend the Constitution but must be done in a specific manner. That is the purpose of Article V. If you want to change the Constitution then do so in accordance with Article V.
11 posted on 10/02/2006 1:14:37 PM PDT by Man50D (Fair Tax , you earn it , you keep it!)
[ Post Reply | Private Reply | To 1 | View Replies]

To: kiriath_jearim
Literal interpretation of Constitution not practical

Else how could lawyers work their solemn and sophistical magic?

Definitely not 'practical', LOL!

12 posted on 10/02/2006 1:40:26 PM PDT by headsonpikes (Genocide is the highest sacrament of socialism.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: KarlInOhio
The wording of the second amendment, which explains it's primary purpose, makes a lot more sense if you read early drafts of the Bill of Rights. For example, Madison's First Amendment originally only dealt with free speech and said, "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable." Madisons right to peaceably assemble originally read, "The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances." George Mason's versions are even more descriptive, though further from what we wound up with.

See this page for the text of various drafts of the Bill of Rights.

13 posted on 10/02/2006 1:41:09 PM PDT by Question_Assumptions
[ Post Reply | Private Reply | To 6 | View Replies]

To: kiriath_jearim
In the end, a literal interpretation of the Constitution and its amendments is not practical or desirable.

sure...and let's make the 10 commandments the 10 suggestions...
14 posted on 10/02/2006 1:42:13 PM PDT by stylin19a ("Klaatu Barada Nikto")
[ Post Reply | Private Reply | To 1 | View Replies]

To: kiriath_jearim

Literal interpretation of Constitution not conducive to liberalism.


15 posted on 10/02/2006 1:42:54 PM PDT by Skooz (Chastity prays for me, piety sings...Modesty hides my thighs in her wings...)
[ Post Reply | Private Reply | To 1 | View Replies]

To: kiriath_jearim
Literal interpretation of Constitution not practical

The Constitution was indeed written by Brilliant and thoughtful men. These brilliant and thoughtful men wrote the Constitution in clear concise English grammar. This allowed the least among us to understand the meaning of the words. All written law is for the expressed purpose of a literal interpretation long after it is written.

The Constitution is not a “flexible” document. The amendment process allows the Constitution to forever reflect who we are and what we are and eliminated any necessity to re-interpret its meanings.

It does give me pause when I consider who these people are who reject the amendment process in favor of their own re-interpretation of the words. If the nation wants a separation of church and state or want the individual to no longer have the right to own a means of self-defense then amend the Constitution. Why do these people fear the words of the Constitution? These people scare me and I may not tolerate them much longer.

16 posted on 10/02/2006 1:45:56 PM PDT by MosesKnows
[ Post Reply | Private Reply | To 1 | View Replies]

To: kiriath_jearim
"Literal interpretation" is a tricky phrase. There's always going to be some degree of "interpretation" involved in applying a document to new circumstances. Shouldn't that interpretation be as close to the actual words used as possible, though?

When you read "Congress shall make no law" do you really want to go through contortions to come up with a theory allowing Congress to make those laws?

17 posted on 10/02/2006 1:52:39 PM PDT by x
[ Post Reply | Private Reply | To 1 | View Replies]

To: kiriath_jearim

Please see tagline.


18 posted on 10/02/2006 1:54:31 PM PDT by Constitution Day (Please do not emanate into the penumbra.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: x
Shouldn't that interpretation be as close to the actual words used as possible, though?

Bingo!

The most important words in the Constitution are, "We, the People." It's not written for "We, the lawyers," nor, "We, the landed gentry of Virginia," nor, "We, the elected or unelected bureaucrats of government."

The Constitution is a contract between, "We, the People" and the federal government. We, the People have the right - if we would claim it - to interpret the Constitution where the nature of society has changed in ways that were not envisioned at the time of ratification. For example, if you asked a cross-section of the people whether "the press" as defined in the First Amendment referred to modern electronic media, there would be clear consensus that it does.

However, asking that same cross-section of "We, the People" whether the clear words of the Constitution on something like, "Congress shall make no law," now mean that Congress can make any law it desires, you'd also get a clear consensus that it does not.

And the opinion of the landed gentry of Virginia from a couple of hundred years ago on what they intended for the words to mean should have no more impact than the opinion of you or me or any other of "We, the People" on what the words actually say. Every time we refer to someone other than the people ourselves for authority, we justify those who claim their own opinions (See Ruth Bader Ginsburg, et. al.) are the final authority.

So, the interpretation should indeed be, "as close to the actual words used as possible."
19 posted on 10/02/2006 2:17:36 PM PDT by Gorjus
[ Post Reply | Private Reply | To 17 | View Replies]

To: Little Ray
Actually, by the time of the American Revolution, something called movable type had been invented. Credit for this generally goes to a fella named Gutenberg, who invented it in the 1440's.

Had the practice of using movable types to form solid lead plates yet come into common use? Although someone with a quantity of type and some frames could set up pages far more quickly than a person would be able to engrave them, I think it was the production of printing plates from lead type that really made books affordable. Prior to that, one had to print all of the copies of a page that one would ever want fairly soon after setting it up (type was too expensive and scarce to simply leave pages set indefinitely in case they needed to be reprinted).

20 posted on 10/02/2006 3:19:32 PM PDT by supercat (Sony delenda est.)
[ Post Reply | Private Reply | To 8 | View Replies]

To: kiriath_jearim

One of the historical contexts for the second amendment was that the common practice of monarchs and tyrants was to confiscate private firearms any time they were about to start cracking down on the population. The founding fathers knew this, had lived through this and wanted it made clear that this would not be allowed in the new nation.

I remember having a western civ class years ago and reading about various revolutions and uprisings. Every time it seemed that the governments first action was to outlaw and confiscate weapons from individuals. It doesn't take a genius to figure out why, nor why the founding fathers would want the second amendment just the way it is.


21 posted on 10/02/2006 3:58:27 PM PDT by azemt (Where are we going, and why are we in this basket?)
[ Post Reply | Private Reply | To 1 | View Replies]

To: kiriath_jearim
"...to justify private ownership of an Uzi..."

My ownership of it is all the justification I need,
if anyone disagrees, let them come forward and remove it.
The same goes for cannon or crew served weapons,
now if I break my neighbors windows or kill his cow,
let the civil court sit in judgment, but till such a
time as an injury occurs, let all go in peace.
22 posted on 10/02/2006 4:41:12 PM PDT by tet68 ( " We would not die in that man's company, that fears his fellowship to die with us...." Henry V.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: kiriath_jearim

Just another pseudo-intellectual toff seeking to get his nuts off telling everyone else what to think and how to think it. Worthless bum fodder.


23 posted on 10/02/2006 5:29:09 PM PDT by Jack Hammer
[ Post Reply | Private Reply | To 1 | View Replies]

To: supercat

No. I don't think that didn't come into practice until much later.


24 posted on 10/03/2006 5:49:59 AM PDT by Little Ray (If you want to be a martyr, we want to martyr you.)
[ Post Reply | Private Reply | To 20 | View Replies]

To: kiriath_jearim

"They are equally wrong. The Founding Fathers did not have the luxury of, or the desire for, a standing army, so a well-regulated militia was necessary for the security of our young country. This is clearly and obviously no longer true, which severely impacts the relevance of the Second Amendment and is never mentioned by the pro-gun right."

Uhhh, no. Seeing as Scott Harris likes to use quotes of founding fathers, I will provide in kind:

"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

"A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise, and independence to the mind. Games played with the ball and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be the constant companion of your walks." - Thomas Jefferson

"No free men shall be debarred the use of arms." - Thomas Jefferson

"Laws that forbid the carrying of arms...disarm only those who are neither inclined nor determined to commit crimes. ... Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man." -- Thomas Jefferson quotes Cesare Beccaria in Commonplace Book

"The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against the tyranny in government." - Thomas Jefferson

"The advantage of being armed, which the Americans possess over the people of almost every other nation...forms a barrier against the enterprises of ambition, more insurmountable than any...." -- James Madison in Federalist No. 48

"A government that does not trust it's law abiding citizens to keep and bear arms is itself unworthy of trust." - James Madison

Note that they all refer to citizens, not members of militia.


25 posted on 10/03/2006 6:22:35 AM PDT by looscnnn ("Olestra (Olean) applications causes memory leaks" PC Confusious)
[ Post Reply | Private Reply | To 1 | View Replies]

To: looscnnn

"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

This is exactly right. This sentiment clearly states that the father of our country believed that the people should be sufficiently armed and trained enough to keep themselves free from all abusers, even their own government. This means the people are meant to have access to, not only the same weaponry available to the government, but sufficient quantities of said weaponry to guarantee their independence.

Machine guns and explosive ordinance should be as acquirable as hand and long guns. Weaponry beyond that would most likely be too expensive, but there still should be no restriction on it either. It is already a crime to kill a person outside of self defense, so what difference does it make if the killing is done with a machine gun, grenade, or F/A-18? If everybody has the same weaponry, equality and deterrence are maintained. Assign the death penalty for murder and remove the appeals process.

How is it that the right to kill children in the womb can be "found" in the Constitution, but "the right of the people to keep and bear arms shall not be infringed" cannot be located?


26 posted on 10/03/2006 8:02:50 AM PDT by Outership
[ Post Reply | Private Reply | To 25 | View Replies]

To: kiriath_jearim
Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.

Commerce Clause bump.

27 posted on 10/03/2006 8:08:19 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: kiriath_jearim

What he really means is that he doesn't like the second amendment, but since there are to many voting gun lovers to get an amendment to the constitution passed eliminating it, he will just argue that the second amendment is not practical.

In other words, he would rather subvert the constitution then follow it.


28 posted on 10/03/2006 8:14:04 AM PDT by flipper999
[ Post Reply | Private Reply | To 1 | View Replies]

To: Gorjus
And the opinion of the landed gentry of Virginia from a couple of hundred years ago on what they intended for the words to mean should have no more impact than the opinion of you or me or any other of "We, the People" on what the words actually say. Every time we refer to someone other than the people ourselves for authority, we justify those who claim their own opinions (See Ruth Bader Ginsburg, et. al.) are the final authority.

This much I disagree with. The "landed gentry" you refer to are the authors and signators of the Constitution. The Constitution created and transferred power to the federal government from the States. Those powers were fixed at the time that transfer was made, and it is not within our pervue to modify them by simply re-defining the words.

29 posted on 10/03/2006 8:21:14 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
[ Post Reply | Private Reply | To 19 | View Replies]

To: Outership

Unfortunately there are some, including here on FR, that see the word militia and their minds glaze over. They seem to ignore the remaining part of the 2nd Amendment.


30 posted on 10/03/2006 9:23:32 AM PDT by looscnnn ("Olestra (Olean) applications causes memory leaks" PC Confusious)
[ Post Reply | Private Reply | To 26 | View Replies]

To: tacticalogic
it is not within our pervue to modify them by simply re-defining the words.

I have no intention of 're-defining the words.' Just the opposite. The words are what they are, and even the opinion of James Madison cannot 're-define' those words.

And the most important words are, "We, the People."

If someone found a long-lost letter from James Madison to George Washington saying that the word 'right' as written in the Constitution only applied to those working for the federal government, would that make it so - in your mind? Or would the intrinsic meaning of the word 'right' and of the 'people' and so on be more important than the opinion of a single man, no matter who that man was?

In matters of actual opinion, I would very much be guided by the prevailing opinion at the time the Constitution - or, through our history, the various amendments - were ratified. But in matters of plain language, the ultimate arbiter must be, "We, the People."
31 posted on 10/03/2006 10:08:17 AM PDT by Gorjus
[ Post Reply | Private Reply | To 29 | View Replies]

To: Gorjus
In matters of actual opinion, I would very much be guided by the prevailing opinion at the time the Constitution - or, through our history, the various amendments - were ratified. But in matters of plain language, the ultimate arbiter must be, "We, the People."

Can I get your opinion of what you thing the logical consequence of the following are:

Document 19

James Madison to Joseph C. Cabell
13 Feb. 1829Letters 4:14--15

For a like reason, I made no reference to the "power to regulate commerce among the several States." I always foresaw that difficulties might be started in relation to that power which could not be fully explained without recurring to views of it, which, however just, might give birth to specious though unsound objections. Being in the same terms with the power over foreign commerce, the same extent, if taken literally, would belong to it. Yet it is very certain that it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged.

32 posted on 10/03/2006 10:16:44 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
[ Post Reply | Private Reply | To 31 | View Replies]

To: looscnnn

"Unfortunately there are some, including here on FR, that see the word militia and their minds glaze over. They seem to ignore the remaining part of the 2nd Amendment."

You are right and it is unfortunate. It is as if people think that the authors of the Constitution had no idea that governments will form a military. Of course the authors assumed that federal and state governments would form a military, so claiming that the word "militia" in the 2nd Amendment referred to a military branch under the command of a government, and the words "free state" referred to a state government, is simply nonsense.

Why would the authors need to verbalize in an amendment that *the people* can form a military branch in service of their state *government*? Are they saying that the state government is somehow incorruptible, and its only the federal government we need to arm against? Why would the same authors who took great pains to make sure that power was in the hands of the people first and the government second stop at state governments when handing out the single most important power? Of course they would hand it directly to the people, else, the people would never really have any power at all. Brave men just got done using firearms to free themselves from an oppressive government, why would anyone think they would make an obvious mistake that would lead to just another oppressive government. In this case, a state government who is in bed with a federal government. The authors were not stupid.

The "well regulated militia" the 2nd Amendment is referring to is a well trained, well armed *peoples* militia that can be used against *any* abuser, whether of government authority or not. To read the 2nd Amendment in any other way renders it meaningless.

Enemies of freedom are using confusion to try to remove this precious right of the people. If people really can't understand the 2nd Amendment as written, I am all for an Amendment to the 2nd Amendment. Let's clean up the language once and for all by changing it to: "The right of the people to keep and bear any and all weaponry, in any quantity, in any location, shall not be infringed, regulated, monitored, or legislated in any way. This means you."


33 posted on 10/03/2006 11:21:23 AM PDT by Outership
[ Post Reply | Private Reply | To 30 | View Replies]

To: tacticalogic
It's a fair question, but I don't have a good answer. In short, I really have no opinion on the logical consequences of that paragraph, beyond the basic one already expressed that although I respect James Madison's wisdom, his opinion has no more authority over the actual text of the Constitution than any other citizen's.

Perhaps there is another way to look at it: Article 1 Section 8 states that Congress shall have the power, "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." That clearly establishes that the Congress has the 'literal' power to regulate commerce among the several states. Conversely, that does not give the Congress the power to regulate commerce within a state.

So, the words do establish that the power to regulate power among the several states is 'being in the same terms with the power over foreign commerce,' and if Madison is trying to draw a distinction, I don't see it.

Why that provision was added (because it 'grew out of abuse of the power by the importing States in taxing the non-importing . .') is historically interesting but not relevant. The provision in the Constitution establishes a power. That is the key issue.

The exerpt from Madison's letter may be too brief for me to capture the context, because I can't tell if Madison is trying to say that Congress doesn't really have the power to regulate commerce among the several States, or whether he is trying to make the point that although the reason for including it is different, it still has that power. Regardless, the words that matter are not from his letter, but from the Constitution.

At least, that is the position that I advocate.

By the way, I've seen plenty of evidence that Madison was not entirely satisfied with the form of the Constitution as finally ratified, and I understand and find logical his argument that including the Bill of Rights was a mistake because it implies those rights only exist if they are enumerated rather than by virtue of not being explicitly addressed by the Constitution and therefore automatically excluded from the federal government authority. Nontheless, I'm glad the Bill of Rights was included, because logic does not automatically hold sway over politicians lusting for power. I think we'd have been in much worse shape if the Bill of Rights was not explicitly included - though I fully admit that many of the enumerated rights are flagrantly violated all the time.
34 posted on 10/03/2006 11:39:59 AM PDT by Gorjus
[ Post Reply | Private Reply | To 32 | View Replies]

To: Outership

Not just that, but there are some that believe that the 2nd amendment means a collective right and that the states provide the individual right. See http://www.freerepublic.com/focus/f-news/1707016/posts?page=438#438 for one such person. Problem with that theory is that some states do not have clauses for RKBA in their state Constitutions (which would mean that there is no right) and some (like SC) have thier RKBA clause worded exactly like the 2nd Amendment (which would mean that the state's constititution provides for a collective right). I have provided quotes from founding fathers stating that the right is an individual right, but he just ignores them and keeps stating about court decisions (the same ones that found a right to have abortions) found that it was a collective right. This from a self professed gun owner.


35 posted on 10/03/2006 11:49:45 AM PDT by looscnnn ("Olestra (Olean) applications causes memory leaks" PC Confusious)
[ Post Reply | Private Reply | To 33 | View Replies]

To: Gorjus
It's a fair question, but I don't have a good answer. In short, I really have no opinion on the logical consequences of that paragraph, beyond the basic one already expressed that although I respect James Madison's wisdom, his opinion has no more authority over the actual text of the Constitution than any other citizen's.

That strikes me as saying that the person who wrote a particular document is no more authoritative as to it's meaning and intent than anyone else. I find that a wholly unsupportable conclusion.

36 posted on 10/03/2006 11:55:52 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
[ Post Reply | Private Reply | To 34 | View Replies]

To: KarlInOhio

Well, it works both ways. The purpose of private arms is to make possible the raising a militia in time of need. In ancient Athens, it was the responsibility of the citizen to prove his own arms, which he did according to his means. People in the city without means were put behind the ora of a war galley. One thing is clear to me: No government has the right to disarm the people, although it has the right to put down insurrection.


37 posted on 10/03/2006 11:56:51 AM PDT by RobbyS ( CHIRHO)
[ Post Reply | Private Reply | To 6 | View Replies]

To: Gorjus
Why that provision was added (because it 'grew out of abuse of the power by the importing States in taxing the non-importing . .') is historically interesting but not relevant. The provision in the Constitution establishes a power. That is the key issue.

"Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government. "

— James Madison, fourth president of the United States and Founding Father

It seems you are advocating that we do precisely that.

38 posted on 10/03/2006 11:58:55 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
[ Post Reply | Private Reply | To 34 | View Replies]

To: kiriath_jearim
Bad 2nd Amendment history. This from the official U.S. Army history:

The militia issue was also central to the shaping of the Second Amendment to the Constitution: the right to keep and bear arms. If the founding fathers recognized the centrality of freedom of speech, the press, and assembly, they also made clear those freedoms would only remain secure if the people could keep and bear arms as an ultimate check on the power of the government. The Second Amendment has been much politicized since its adoption as part of the Bill of Rights, but there is no question that the architects of our government believed that the people in arms, the militia,were the final guarantors of our freedom. Any subsequent reinterpretations of that amendment must start with the fact that our leaders, fresh from their experiences in the Revolutionary War, relied on the militia as the centerpiece of our national military establishment. The concept of the militia and the right to bear arms are inextricably joined.

In other words, the militia is not just a national guard, but "the people in arms" as "the final guarantor" of our freedoms. Plus, the Constitution elsewhere grants Congress the right to raise a standing army, which, although small, existed at the adoption of the Constitution, along with a Department of War (the Army) to run it.

The Framers understood the 2nd Amendment as at the same time an individual and a group right.

39 posted on 10/03/2006 12:16:07 PM PDT by colorado tanker
[ Post Reply | Private Reply | To 1 | View Replies]

To: looscnnn

The poster you're referring to appears to believe that the States have been given the power to decide which weapons qualify as suitable for militia use. He is basing this on a Supreme Court decision. He most likely lives in a state who's gun laws and government officials are agreeable to him. He probably figures that if you don't like your state's gun laws and government officials, you should move. Fair enough.

The first problem I see is that the judicial fiat in question is unconstitutional, and just the sort of thing that the militia was put in place to counter. The second problem I see is that nothing in his thesis is preventing his state, and every other state, from becoming a state who's gun laws and government officials are disagreeable to him, and everyone else. Once this happens, there is nowhere to move to.

The authors of the Constitution, men who have referred to politicians as always evil each and every time, weren't naive enough to believe that state government would always be behind the people, and only federal government can be corrupted. Since the signing of the Constitution, politicians have been trying to take power away from the people and transfer it to themselves. They have twisted the words of the 2nd Amendment by adding things, like an act defining a militia, after the fact. Soon, they will move on to twisting the definition of a free state. So if a state isn't free, then a militia isn't necessary, right? What constitutes a free state? A judge will just have to tell us, right?

This kind of slavery to judicial rule is what enables courts to legislate away our freedom. Nobody puts judges in their place when they cross the line. The judge in the above referenced decision just wanted to do society a favor and put away an obvious criminal. Unfortunately, he misused his power in order to do so and ultimately caused a crack in the Constitution. The same thing happened in that contraception decision. With the benefit of hind-sight we now see the horrible error that's been made, and it is now up to us to correct it through the NRA and other organizations.

That silly 'it's not a weapon fit for a militia' argument is just an old gun-grabbers trick. Nobody should decide what weapons we can keep and bear, because it is only a matter of time before the decision becomes *no* weapon. The inevitable 'tactical nuke' argument that gets dragged out when this is said has no merit. The cost alone to build or obtain such a weapon is in the domain of only a handful of citizens. Citizens who are so rich and powerful that, if they really wanted to, could get a nuke regardless of laws.


40 posted on 10/03/2006 3:08:24 PM PDT by Outership (You want my gun? Here, take the bullet. *Blam*)
[ Post Reply | Private Reply | To 35 | View Replies]

To: looscnnn

The other outcome of that Supreme Court decision was that a "militia" was defined using language that suggested that it was really a national guard arm of the military, instead of the peoples' militia it was intended to be. This one small group of unelected judges single handedly overturned years worth of 2nd Amendment Supreme Court precedents, all to put one lousy criminal behind bars. Ever since that decision, gun-grabbers have used it to transfer the people's power to the government. During the time period of that decision, nobody seriously thought that the 2nd Amendment referred to a government militia, and the decision was never thought to seriously overturn previous precedents. Just like the contraceptive ruling though, it put a crack in the Constitution that the enemies of freedom have been able to exploit ever since.

Future FReepers may be referring to the eminent domain ruling in a similar way we refer to the rulings above. The right to own property may someday be regulated by the government due to exploiting that unconstitutional ruling. Hindsight has made us smarter now then we were then, but we still can't seem to prevent this sort of thing from happening.


41 posted on 10/03/2006 3:59:35 PM PDT by Outership (You want my gun? Here, take the bullet. *Blam*)
[ Post Reply | Private Reply | To 35 | View Replies]

To: Outership
The poster you're referring to appears to believe that the States have been given the power to decide which weapons qualify as suitable for militia use. He is basing this on a Supreme Court decision.

In U.S. v. Miller, the federal government won the chance to bring Miller/Layton to trial. Had they in fact used that opportunity to do so, the question of whether a sawed-off shotgun was suitable for use in a militia could have been put to the jury. For some reason, however, the federal government decided it didn't want to put that matter before a jury (it could have done so in Layton's case). Indeed, I can think of no other instance where the federal government has gone to the Supreme Court seeking authority to prosecute someone, and then offered a plea bargain, for 'time served', immediately after winning.

42 posted on 10/03/2006 4:56:06 PM PDT by supercat (Sony delenda est.)
[ Post Reply | Private Reply | To 40 | View Replies]

To: tacticalogic
I find that a wholly unsupportable conclusion.

Obviously, you're entitled to your own opinion and conclusions. I find it unsupportable that someone should undermine the plain language of a Constitution written for "We, the People" by saying the actual written words are less authoritative than the opinion of an individual.
43 posted on 10/04/2006 8:20:37 AM PDT by Gorjus
[ Post Reply | Private Reply | To 36 | View Replies]

To: Gorjus
Obviously, you're entitled to your own opinion and conclusions. I find it unsupportable that someone should undermine the plain language of a Constitution written for "We, the People" by saying the actual written words are less authoritative than the opinion of an individual.

I think that's a disingenuous mischaracterization. I think it's more like saying the author is the most authoritative source to determine the specific meanings of the words used.

Pure textualism disregards the historical context and intent of the authors. Without this, any of the possible meanings can be attributed to any of the words, and interpretation becomes a game of searching for a particular combinatation of meanings that will produce a desired result.

44 posted on 10/04/2006 8:37:35 AM PDT by tacticalogic ("Oh bother!" said Pooh, as he chambered his last round.)
[ Post Reply | Private Reply | To 43 | View Replies]

To: tet68
The same goes for cannon or crew served weapons

Make no doubt about it that I am a very strong advocate for the 2nd Amendment but assertions like this support the liberal. What if I am your neighbor and I am distilling saran gas, breeding a biological disease, growing anthrax or building a suitcase atomic bomb? One might argue that I am within my right until I use this weapon (arms) but where is your act of redress after I use such weapons?

45 posted on 10/04/2006 8:58:05 AM PDT by Paine's Ghost
[ Post Reply | Private Reply | To 22 | View Replies]

To: kiriath_jearim
A well regulated Militia, being necessary to the security of a free State

I have read the Federalist papers and noted several references of the colonialists being free of the not shackled to the yoke of tyranny due to their personal arms. The thinking behind the 2nd Amendment is lucidly clear and had nothing to do with hunting bear, target practice, shooting burglars or even plugging someone found in your bed with your wife. The 2nd Amendment is there to permit the people to defend and overthrow the greatest potential danger on the planet, then and now - a government.

Now imagine you are one of the founders and are trying to come up with a "bill of rights". You have just written a constitution and created a country. There is already a lot of doubt about the survivability of this new republic. Don't you think that adding an Amendment that states, "If this government becomes tyrannical, the people will always be armed and are obliged to rise up and overthrow such government" would be expressing tremendous doubt in an intentionally wobbly three-legged institution?

46 posted on 10/04/2006 9:44:21 AM PDT by Paine's Ghost
[ Post Reply | Private Reply | To 1 | View Replies]

To: Paine's Ghost

"What if I am your neighbor and I am distilling saran gas, breeding a biological disease, growing anthrax or building a suitcase atomic bomb?"

You would have to be extremely wealthy, and your house would have to be a high-tech fully equipped laboratory, in order for you to build even just one of these weapons. If you do have such resources, no law is going to stop you from building such a weapon anyway.

"One might argue that I am within my right until I use this weapon (arms) but where is your act of redress after I use such weapons?"

After you use your weapon on him, he will be dead, just as if you shot him. You can't kill everybody though, so there will be somebody left to arrest you.


47 posted on 10/04/2006 2:33:03 PM PDT by Outership (You want my gun? Here, take the bullet. *Blam*)
[ Post Reply | Private Reply | To 45 | View Replies]

To: tacticalogic

"Pure textualism disregards the historical context and intent of the authors. Without this, any of the possible meanings can be attributed to any of the words, and interpretation becomes a game of searching for a particular combinatation of meanings that will produce a desired result."

This is exactly right and 100% correct. Lawyers make a job of finding the way to twist word meanings until the outcome desired by their client is produced. We as the jury need to be able to understand the spirit behind the law, for words alone can mean anything.

Just think about how much the meaning of the word militia has changed in the last 200 years. If Webster's wanted to destroy the 2nd Amendment, all they would have to do is put in the dictionary: Militia- A government run group of armed men.

Words change, meanings change; some words or definitions aren't even used anymore. With a "pure textualism" approach we will be under the authority of unelected language professors and the changing whim of a living language.


48 posted on 10/04/2006 2:49:01 PM PDT by Outership (You want my gun? Here, take the bullet. *Blam*)
[ Post Reply | Private Reply | To 44 | View Replies]

To: Outership

How do you fell about taking out Iran's nuclear capability before they have a chance to use them?


49 posted on 10/04/2006 2:54:53 PM PDT by Paine's Ghost
[ Post Reply | Private Reply | To 47 | View Replies]

To: Paine's Ghost

"How do you fell about taking out Iran's nuclear capability before they have a chance to use them?"

Iran is not to be confused with a law abiding American citizen who is exercising his 2nd Amendment rights. Iran is a part of the Nation of Islam, our mortal enemy.

Whether they have nuclear arms or not, they are a threat and need to be broken, just as Iraq and Afghanistan needed to be. Iran has said what they will do with their bomb, and it isn't self defense. They plan to destroy Israel who is not just our ally, but our holy land as well.


50 posted on 10/09/2006 4:58:45 AM PDT by Outership (You want my gun? Here, take the bullet. *Blam*)
[ Post Reply | Private Reply | To 49 | View Replies]


Navigation: use the links below to view more comments.
first 1-5051-52 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson