December 19, 2011

In order to preserve the well regulated militia, the Second Amendment forbad the government

from infringing on the right of the PEOPLE.

Here's what I said in post 60:

What is actually obsolete is your characterization of the debate. The Second Amendment was intended to keep the government from infringing on the rights of ordinary people to keep and bear arms. The stated reason was the necessity of a militia. But, as I have explained to you before, it is—and was at the time—a cannon of legal interpretation that the preamble to a law or statute is not a limit on the exercise of the right protected in cases like the Second Amendment (in cases where the statement of the right is clear and unambiguous). In other words, the right of the people to keep and bear arms is not only protected when it served militia interests.

I fully understand the stated purpose of the Second Amendment. It is you who is woefullly ignorant of preambles or purpose clauses and what role they play.

For example, from your hero Scalia: "It is therefore entirely sensible that the Second Amendment’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia." (And BTW, the 14th amendment was written some 80 or so years after the BOR, something to keep in mind when trying to use the 14th to draw inferences about the intent of the 2nd -- I guess they forgot to tell you that in gunner academy).

Scalia was right--the purpose was to prevent the elimination of the militia. The directive, however, was to not infringe the right of the PEOPLE to keep and bear arms. Too subtle for you, I guess. I'll break it down. The effect of a law is defined by the directive, not by the preamble or purpose clause. This was well established, and there are numerous examples from the period to support that fact.

As for your silly "gunner academy" crack, you do realize that the people who dismiss the Fourteenth (and Thirteenth) Amendment are skinheads, KKK members and "the South will rise again" types, don't you? Like you, they don't recognise the Fourteenth Amendment as an authoritative, integral part of the Constitution, a Constitution that must be considered as a whole. The "gunner academy" views I put forth, on the other hand, are supported by actual history, by the Constitution and by eminent scholars across the political spectrum.

If you wish to actually learn instead of searching for a plausible excuse to dismiss reality, look up Eugene Volokh's The Commonplace Second Amendment and research the way preambles are (and were) used in interpretation of statutes, laws, contracts or any legal document.

You are correct that the Fourteenth Amendment was written long after the the Second. So what? You do realise that Miller, which was cited as authority by both sides in Heller, was written much later still? What you fail to grasp is that the most authoritative source on the Constitution is the Constitution. (I would have thought even you would grasp that without having it spelled out.)

Another point that you can't seem to grasp is that the people who wrote the Fourteenth Amendment didn't need to contort the historical record to support a discredited theory and defend their policy preferences—like the Heller minority did. They were WRITING the Constitution. If they wanted to put something new in, they could simply do so. In fact they did when they needed to. But when it came to the Second Amendment (as well as the other first eight Amendments) they relied on the existing text. They had a clean sheet of paper and didn't use it because it wasn't necessary in their judgement.

Yet another point you miss is that even if they misunderstood what the Second Amendment originally meant, they are still right on what the Second Amendment means NOW. They are correct by definition.

You see, it was not the Framers of the Fourteenth Amendment but the United States of America that ratified the Fourteenth Amendment and enshrined into the Constitution the fact that the Second Amendment protects a personal, individual right to keep and bear arms for all citizens including black people. That makes it the supreme law of the land. You, along with the KKK, skinheads, neo nazis and the like may not like that fact, but the vast majority of Americans are OK with the Fourteenth Amendment.

As for American exceptionalism, what do you mean by that term? European countries forbid mockery of religion, forbid Holocaust denial, require religious instruction in school, and use tax revenues to fund state churches. I regard each of these as an infringement on personal rights.

It is true that a European might laugh at me for my views on free speech and freedom of religion, just like she might laugh at my views on the RKBA. I could hardly care less. I actually care more about your ideas on the RKBA, if you can believe that.

If that is what you mean by exceptionalism, then I am an exceptionalist. What of it?

Anyway, as you are clearly not interested in any of the facts I've brought forth (calling me a Scalia fan seems to be your key argument), I bid you goodbye.

(I wasn't writing primarily for you in the first place. There are other people reading this thread who might have actually been decieved by your right of the states to have armed militias theory. If they are honest, I gave them enough to avoid the trap; if they are not, they are still free to believe you.)

December 19, 2011

You either know better or you should

Well, 2A was in fact intended to prevent the...

...federal government from disarming militias.

The actual fact of the matter is that the Second Amendment was written to prevent the government from infringing "the right of the PEOPLE to keep and bear arms." Not the right of the Militia. You really cannot rewrite the Second Amendment to meet your policy preferences.

The one thing that is actually obsolete here, as I pointed out, is the question of standing armies versus militias (Red Dawn fantasies notwithstanding). My last post was actually more about the philosophical side of the issue -- whether there is any basis for considering gun ownership to be a civil right, as opposed to whether Scaliaphiles are able to find plausible legal cover for their right-wing political views. Centuries ago, issues regarding standing armies and militias may have legitimately justified considering RKBA and an armed citizenry as civil rights issues. But, the issues surrounding guns today are more mundane -- public safety versus self-defense, hunting, etc. -- so elevating gun ownership to the level of a civil right alongside things like free speech is a bit silly.

You need not go back to the founding to see that the Second Amendment is a personal right. The Supreme Court has spoken often on that point, as has the Unites States of America. Neither has ever taken the collective position.

The very first time the Supreme Court addressed the right to keep and bear arms, it made crystal clear that it was a right "of person." It also said that citizens had the right ("privileges" and "immunities" ) of traveling freely in every state and of carrying arms wherever they went. The Court ranked the RKBA with the right to speak freely on political subjects, the right to free association and the like. That was not controversial. Nor is it "silly," your historical and legal naivete notwithstanding. And please note that they did not "elevate" the RKBA; it was already classed with those rights by the "silly" Constitution.

What was controversial was the Chief Justice's lying and maintaining that people of African descent were not citizens at the founding and never could be citizens--lying in the face of abundant evidence to the contrary. That started a War.

After the Civil war, the Abolitionist Senators (right wing Scalia followers, no doubt) undertook to overrule the Supreme Court. Using the Courts own words, they wrote that

Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

backed up by this:

Section 5.
The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Now I know this is too subtle for people devoted to anti-gun mythology at any cost. So I'll break it down. Section 1 says that states cannot deny citizens their "privileges" and "immunities"--which include the first Eight Amendments. Section 5 says that Congress is empowered to use force to keep the states from making or enforcing laws that abridge the rights of citizens to keep and bear arms.

Now I know that those devoted to anti-gun mythology will still not be persuaded. After all, this is just the word of TPaine7. What of the guys who actually wrote the Fourteenth Amendment? Are they at least worthy of consideration?

Here is how the Fourteenth Amendment was introduced on the floor of the Senate:

“{The Fourteenth Amendment's} first clause, {which} I regard as very important . . . 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. . . .

…{T}hese guarantees . . . stand simply as a bill of rights in the Constitution … {and} States are not restrained from violating the principles embraced in them …. 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).

According to the authors of the Fourteenth Amendment, the "great object" of Section 1 (backed up by section 5) was to force the States to respect the "personal rights" protected by the first eight Amendments, explicitly including the right protected by the Second Amendment--the right to keep and bear arms. How's that for a "creative legal theory"?

If the right is a right of the states--the right to maintain armed militias--how can states possibly be forced to respect their own rights? That is a position that only gun control diehards could find tenable.

The fact that the Fourteenth Amendment was written to protect the individual right to keep and bear arms was no secret. The floor speech was published--either as a gloss or in its entirety--in the leading papers of the day. It was debated throughout the country. Both the Abolitionists and the racists agreed that the Amendment would have that effect. The evidence is overwhelming to any minimally open mind.

Knowing full well what they were doing, the United States of America ratified the Fourteenth Amendment. That is, they enshrined in the Constitution their understanding that the Second Amendment protects an individual right to keep and bear arms--a right that far from protecting a right of states to have armed militias actually protects a personal, individual right that is enforceable against the states. AGAINST THE STATES.

It is true that Heller did not address the Fourteenth Amendment, and so the minority was able to sidestep this history. That is a technicality, based on a legal stratagem by the party bringing the case against DC. It does not affect my argument in the slightest. I still maintain that the Fourteenth Amendment and the Framers of the Fourteenth Amendment are both greater authorities on the meaning of the Second Amendment than the Heller minority.

Alan Dershowitz was right:

"Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a public safety hazard don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like."

http://en.wikipedia.org/wiki/Alan_Dershowitz#cite_ref-52

While some are merely ignorant, many know better or have had a chance to learn, and have stubbornly clung to their mythology. These are worse than foolish; they are dishonest. They are fully deserving of the contempt in which they are held--to a greater and greater extent--by the American people.