HomeLatest ThreadsGreatest ThreadsForums & GroupsMy SubscriptionsMy Posts
DU Home » Latest Threads » Forums & Groups » Topics » Justice & Public Safety » Gun Control & RKBA (Group) » The Case for Gun Control ... » Reply #177

Response to samsingh (Reply #107)

Sat Aug 11, 2012, 01:28 AM

177. Very good question. I've addressed this before.

 

32. "...discarding the first part of the amendment..."

It is not discarding the first part of the Second Amendment to  interpret it the way the Supreme Court and the Framers of the Fourteenth Amendment did.

In fact, people in the Founder's time would have found the way many honest people interpret it today strange indeed. Preambles and purpose clauses do not limit the scope of a law unless the operative portion is unclear. Since "the right of the people to keep and bear arms" is clear, the purpose clause does not limit its meaning.

The way laws, consitutions and even contracts are interpreted hasn't changed since the Constitution was writen, it's just that writing in that way is much less common today. However, consider a simple analogy.

A father's last will and testament is read. One of the paragraphs reads as follows:

Since competence in accounting is necessary to the management of an accounting firm and Susan is the only one of my children who is a certified public accountant, I leave my company to her provided that she must take a salary of no more than $150,000 per annum adjusted for inflation and share the profits equally with her siblings.


The purpose clause—"Since competence in accounting is necessary to the management of an accounting firm and Susan is the only one of my children who is a certified public accountant—contains not a shred of direction.

A court would interpret this exactly as if it read: "I leave my company to {Susan} provided that she must take a salary of no more than $150,000 per annum adjusted for inflation and share the profits equally with her siblings." The court would not be ignoring the first part, it would be reading it exactly as it was written. It would be enforcing every instruction that the first clause contained; it is not the court's problem that the first clause contained no instruction whatsoever. If the clause contains no instruction, one cannot be created by the court and injected to avoid "ignoring" the clause.

Now let's say that Susan's brother Jim went to school and got his CPA. Let's say he went to a better school than the one Susan attended and got better grades. Let's say he then wanted to take over the company, or at least to share control with her.

He could argue that the first part of the sentence—the purpose clause—is no longer true. He would be right. He could also argue that since the first part is no longer right—Susan is no longer the only one of his father's children who is a CPA—the operative clause is no longer binding. But that logic would not work in court.

The purpose clause cannot overule or change the scope of a clear directive.

http://www.democraticunderground.com/117255387#post32



38. It was quite common at the time to have purpose clauses or preambles.

In the case of the Second Amendment and many other laws of the time, the purpose clause was given to communicate the purpose of the enactment. That is the same reason for the first clause in the paragraph in the will. It is also the reason for the Preamble to the Constituition.

However, it would be illegitimate for the president to claim that the Preamble's "provide for the common defense" snippet overrode the clear directive that he can serve no more than two terms, and that in order for the nation to have clear and consistent leadership through these trying times, he must continue as Commander in Chief—for the common defense. That would (hopefully) get laughed out of court—the preamble cannot override a clear directive in the body.

The purpose clause of the Second Amendment sounds strange to us today, but we still have something similiar (and I would argue much more superfluous). Here's a made up example of how some laws still read:

Wheareas the great state of Nevada has always been at the forefront of championing human rights, and Whereas the people of Nevada have seen fit to entrust this body with the sacred duty of protecting the bond between mother and child, and whereas it has been shown that breastfeeding is beneficial to children's mental, emotional and social development, be it hereby enacted that

1) All restaraunts in the state of Nevada having greater than 2,500 sf of dining area shall provide no fewer than three (3) private booths suitable for mothers to breasfeed their children...


Why would the legislature take the time to inform us that the state of Nevada is great? I guess because it sounds good. But it is not enforceable in court. It is very clear where the enforceable part begins.

The bottom line: the signers wanted to tell us why they were enacting the Second Amendment, it was customary in those days, and we have analogous clauses even today, though we word them differently.

http://www.democraticunderground.com/117255387#post38

Reply to this post

Back to OP Alert abuse Link to post in-thread

Always highlight: 10 newest replies | Replies posted after I mark a forum
Replies to this discussion thread
Arrow 183 replies Author Time Post
samsingh Aug 2012 OP
COLGATE4 Aug 2012 #1
samsingh Aug 2012 #3
Equate Aug 2012 #18
samsingh Aug 2012 #20
Equate Aug 2012 #28
samsingh Aug 2012 #31
Equate Aug 2012 #41
GreenStormCloud Aug 2012 #42
samsingh Aug 2012 #54
Equate Aug 2012 #64
samsingh Aug 2012 #96
gejohnston Aug 2012 #100
samsingh Aug 2012 #104
oneshooter Aug 2012 #110
discntnt_irny_srcsm Aug 2012 #111
samsingh Aug 2012 #116
gejohnston Aug 2012 #128
gejohnston Aug 2012 #120
samsingh Aug 2012 #121
gejohnston Aug 2012 #134
samsingh Aug 2012 #131
gejohnston Aug 2012 #136
samsingh Aug 2012 #149
rDigital Aug 2012 #175
Tuesday Afternoon Aug 2012 #179
GreenStormCloud Aug 2012 #81
samsingh Aug 2012 #97
samsingh Aug 2012 #99
GreenStormCloud Aug 2012 #113
samsingh Aug 2012 #124
samsingh Aug 2012 #150
GreenStormCloud Aug 2012 #152
samsingh Aug 2012 #153
GreenStormCloud Aug 2012 #162
PavePusher Aug 2012 #88
samsingh Aug 2012 #98
gejohnston Aug 2012 #102
discntnt_irny_srcsm Aug 2012 #106
samsingh Aug 2012 #107
discntnt_irny_srcsm Aug 2012 #109
samsingh Aug 2012 #115
discntnt_irny_srcsm Aug 2012 #117
samsingh Aug 2012 #123
discntnt_irny_srcsm Aug 2012 #126
samsingh Aug 2012 #127
discntnt_irny_srcsm Aug 2012 #132
samsingh Aug 2012 #133
discntnt_irny_srcsm Aug 2012 #135
Jenoch Aug 2012 #140
samsingh Aug 2012 #146
Jenoch Aug 2012 #182
samsingh Aug 2012 #183
discntnt_irny_srcsm Aug 2012 #142
samsingh Aug 2012 #147
discntnt_irny_srcsm Aug 2012 #159
discntnt_irny_srcsm Aug 2012 #178
GreenStormCloud Aug 2012 #151
GreenStormCloud Aug 2012 #139
samsingh Aug 2012 #154
GreenStormCloud Aug 2012 #163
pipoman Aug 2012 #176
LineLineLineLineLineLineLineLineLineLineNew Reply Very good question. I've addressed this before.
TPaine7 Aug 2012 #177
gejohnston Aug 2012 #29
PavePusher Aug 2012 #87
samsingh Aug 2012 #125
TPaine7 Aug 2012 #22
COLGATE4 Aug 2012 #155
TPaine7 Aug 2012 #160
bongbong Aug 2012 #2
samsingh Aug 2012 #129
TPaine7 Aug 2012 #4
samsingh Aug 2012 #6
TPaine7 Aug 2012 #12
samsingh Aug 2012 #16
TPaine7 Aug 2012 #25
samsingh Aug 2012 #30
TPaine7 Aug 2012 #55
samsingh Aug 2012 #130
TPaine7 Aug 2012 #14
samsingh Aug 2012 #19
TPaine7 Aug 2012 #50
samsingh Aug 2012 #53
bongbong Aug 2012 #62
TPaine7 Aug 2012 #70
discntnt_irny_srcsm Aug 2012 #75
samsingh Aug 2012 #101
gejohnston Aug 2012 #103
samsingh Aug 2012 #105
gejohnston Aug 2012 #137
bongbong Aug 2012 #158
gejohnston Aug 2012 #166
bongbong Aug 2012 #167
TPaine7 Aug 2012 #165
Adrahil Aug 2012 #180
DanTex Aug 2012 #36
TPaine7 Aug 2012 #79
gejohnston Aug 2012 #5
samsingh Aug 2012 #7
gejohnston Aug 2012 #11
samsingh Aug 2012 #13
gejohnston Aug 2012 #23
Bonhomme Richard Aug 2012 #8
samsingh Aug 2012 #9
gejohnston Aug 2012 #17
samsingh Aug 2012 #27
Bonhomme Richard Aug 2012 #33
GreenStormCloud Aug 2012 #37
Bonhomme Richard Aug 2012 #44
GreenStormCloud Aug 2012 #48
gejohnston Aug 2012 #43
Trunk Monkey Aug 2012 #92
Bonhomme Richard Aug 2012 #32
GreenStormCloud Aug 2012 #40
gejohnston Aug 2012 #67
Missycim Aug 2012 #144
Bonhomme Richard Aug 2012 #156
Missycim Aug 2012 #157
GreenStormCloud Aug 2012 #164
Atypical Liberal Aug 2012 #47
samsingh Aug 2012 #51
Atypical Liberal Aug 2012 #118
samsingh Aug 2012 #122
Atypical Liberal Aug 2012 #145
Bonhomme Richard Aug 2012 #72
gejohnston Aug 2012 #77
Bonhomme Richard Aug 2012 #78
aikoaiko Aug 2012 #82
Bonhomme Richard Aug 2012 #89
Equate Aug 2012 #93
Bonhomme Richard Aug 2012 #108
aikoaiko Aug 2012 #95
Missycim Aug 2012 #143
Equate Aug 2012 #10
aikoaiko Aug 2012 #15
samsingh Aug 2012 #21
Equate Aug 2012 #34
DanTex Aug 2012 #45
Equate Aug 2012 #46
DanTex Aug 2012 #49
Equate Aug 2012 #61
bongbong Aug 2012 #65
discntnt_irny_srcsm Aug 2012 #66
bongbong Aug 2012 #168
discntnt_irny_srcsm Aug 2012 #170
bongbong Aug 2012 #172
discntnt_irny_srcsm Aug 2012 #173
bongbong Aug 2012 #174
Equate Aug 2012 #69
bongbong Aug 2012 #90
GreenStormCloud Aug 2012 #52
DanTex Aug 2012 #63
GreenStormCloud Aug 2012 #83
GreenStormCloud Aug 2012 #24
samsingh Aug 2012 #26
GreenStormCloud Aug 2012 #35
samsingh Aug 2012 #56
TPaine7 Aug 2012 #74
GreenStormCloud Aug 2012 #84
rDigital Aug 2012 #38
samsingh Aug 2012 #58
discntnt_irny_srcsm Aug 2012 #60
Equate Aug 2012 #39
samsingh Aug 2012 #59
Equate Aug 2012 #68
discntnt_irny_srcsm Aug 2012 #71
Equate Aug 2012 #73
discntnt_irny_srcsm Aug 2012 #76
russ1943 Aug 2012 #161
AnotherMcIntosh Aug 2012 #171
GreenStormCloud Aug 2012 #85
discntnt_irny_srcsm Aug 2012 #57
liberallibral Aug 2012 #80
bongbong Aug 2012 #91
samsingh Aug 2012 #119
AnotherMcIntosh Aug 2012 #86
samsingh Aug 2012 #112
AnotherMcIntosh Aug 2012 #138
ileus Aug 2012 #94
samsingh Aug 2012 #114
xxenderwigginxx Aug 2012 #141
samsingh Aug 2012 #148
Adrahil Aug 2012 #181
AnotherMcIntosh Aug 2012 #169
Please login to view edit histories.