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Response to DanTex (Reply #75)

Mon Dec 19, 2011, 04:25 PM

81. 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.)

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