Month: August 2005

I love it. I just love it. (by Alex)

The irony of your last post is just delicious. You seriously just made my day. Thank you Kevin, that was truly a gift.

In the effort to highlight your complete inability to actually process what I wrote (versus what you want me to have said to fulfill your stereotype) you inadvertently illustrate precisely the type of shoddy wordplay that has filled this debate so far.

To wit:

“The question I asked (though I see now I should have been more explicit) was “What did the law mean?” (All words of one syllable!) Surely you can understand this concept?”

Yet the question you actually asked was “What did the Second Amendment mean when it was ratified, and does it matter today?” (emphasis added)

Funny how, in your attempt to belittle me, you commit the very flaw of omission I think most steadfast, “my way or the highway” 2^nd amendment proponents tend to do. You don’t even restate your own words accurately. What happened to the “when it was ratified” portion of your question? Guess those were just meaningless words too- just like the first half of the 2^nd amendment. I just love it! You can’t even get your OWN words straight, but somehow I am at fault for your inaccuracy. From a person who emphasizes “words have meaning” so much, one would think it would be at least possible for you to try and seek clarity in your own words before you go out and misrepresent the words of others (such as myself).

The question you didn’t ask (although you now claim to… and who is supposed to be the “revisionist” here?) was “What did the law mean?” By leaving off the “when it was ratified”, it becomes a more general question- and the fact that some interpretation is required becomes more apparent. In your attempt to forcefully make your point, again you proceed to concede this very fact by saying “They made actual decisions on actual court cases. They studied the contemporary documents and law texts, and cited them as legally valid. Certainly their personal opinions entered into the question, but the fact remains that they interpreted the law.” (Original Emphasis)

Yes, they interpreted the law. They put together what they “thought” the law meant, using historical information, case law, germane writings, and their own intellectual process to translate those words into what they surmised they meant in a particular context. Just as you have interpreted the 2^nd in one way, I have in another. Yet you continue to argue that there is some objective meaning out there, left to be discovered like a scientific theory. So you say they interpreted the law, yet somehow this interpretation is clinical and void of any processing of ideas in their own mind- just an objective standard. And you throw in the “Certainly their personal opinions entered into the question” to further justify my original point. That we don’t KNOW, precisely what the law meant at the time it was ratified. You can surmise, infer, and create your own interpretation of what the law meant at that time, but you do not know for sure. I’d say that point should be painfully obvious, especially since you made it for me with your words, but somehow I doubt it will get through.

So let’s put it aside and move forward. You then make a long winded effort to try to divorce a writer’s intent from the meaning of the words written. Implying that there is some kind of immutable objective truth in a word that doesn’t require you to know the author’s intent. Aside from being preposterous on the very face of it, there are easy examples to show the fallacy of this thought.

One that pops readily to mind is from a British film in the 80’s (which is based on a true story about 1950’s England and the case that changed British opinion of the death penalty). Two teens are cornered by police, one has a gun. The other utters “let him have it”. The one with the gun shoots the officer. The question then becomes was the meaning of “let him have it” to say “I am urging you to shoot the officer right now” or “hand over the gun to the officer”. Can you possibly discern the meaning of those four words with trying to decide the intention? Is there some “objective” meaning in the words? Obviously not. You accuse me of “mental gymnastics” yet what you do goes far beyond that- perhaps mental origami. To believe this nitwit philosophy you must think that there is a meaning to all words that renders a 100% agreed upon definition to any phrase, regardless of the author’s intent. You honestly believe that? How can the intent of words be completely removed from the authors intent? At that point you are only substituting your opinion for the point of view of the author, which still leaves a subjective measure- you just replace one for the other.

Before you accuse me of now arguing for “original intent”, I am not. I am merely saying that this “original meaning” concept of some objective agreed upon meaning that exists wholly independent of intent is hopelessly flawed thinking. I think the intent and “meaning” of the law (whatever that is) are intertwined, and, as I have said repeatedly, that all plays a part of applying the law, but not the only part.

Then you say that words never change their meanings in terms of “the law”. I gave and example of how the legal concept of “freedom of speech” had changed as it had to be applied to situations and in contexts not available to the creation and definition of the law at the time it was created. (trying to keep with your absurd argument that original intent can somehow be distinct from some objective definition- yes that is still wrong, but I will try to make the point using some “objective” definition as a starting point). Is a campaign contribution – “freedom of speech”? Some say yes, others say no. Either way, you are now looking at an expanded, more refined definition of that term. One that either says “No, the meaning cannot include that because of these reasons…” or instead lays out a case for inclusion based on other facts. Now the term “freedom of speech” will be refined, and in that way changed, from what it “originally meant”. Not having to consider this at the time of creation, the law in this particular case is somewhat vague as the freedom of speech cannot override someone’s 14^th amendment rights (as illustrated by the fact that even those in favor of equating money with speech concede that you can’t bribe a judge since that violates due process). The fact that there is such a vigorous debate over this case shows that there is difficulty in agreeing on this legal concept, and that an expansion of the definition is required. Taken further, you get into whether or not internet blogs can count as campaign contributions. The line blurs even further (and much more dangerously in my opinion). And if you think that some unchanging, objective “meaning” of this legal concept will clear it all up, you are seriously certifiable.

Interpretation will settle it. Whether that be from what you think the law “just means”, original intent, extrapolation of previous case law, or any other method you choose- you must infer a meaning in this case to apply to complex situations that beg for clarification, which may be used later to justify a whole new interpretation in the future, when circumstances we cannot even conceive of now present themselves. And so it goes. And so it has always been. But I guess none of that matters, right? All that counts is finding this “objective meaning” that exists out there (and oddly enough always falls in line exactly with your line of thinking- like the song says “We argue all night long about a god we’ve never seen, but never fails to side with me”)

So, getting back to the 2^nd, it is possible to interpret the first part of the sentence as a modifier and come up with “insofar as we must have a well regulated militia to keep us free, people cannot be stopped from owning and bearing arms”. Clearly this is decidedly different from a “everybody gets guns” definition. By putting the “A well regulated militia, being necessary” part first, it implies that the other part supports that context. So you need an armed populace BECAUSE that is necessary for a well regulated militia, and that militia is needed for the preservation of peace. So it is the militia, and not the right to bear arms, in this view that is seen as primary.

Now I fully understand you don’t interpret it that way, which is fine. But to imply that because you’ve come up with your own interpretation, your line of thought is somehow “objectively correct” and any other interpretations are just plain stupid is exactly the kind of lazy argument I have been railing on here. The “heavy mental lifting” is the ability to take in differing points of view, weigh the evidence, and draw out some conclusions based on your ability to actually think about something, rather than recite some pat answer or quote as an end to all debate.

So, looking at your argument which has several fronts, here are some responses.

“The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible.”

(I know that is a third party quotation and not your direct words on the subject, but they seem to be on point for spelling out this idea) I agree self defense is paramount. But what happens when your right to self defense threatens my right to existence? Say you had a system of protecting your home that vaporized any unauthorized party on your property. It’s clearly marked, and well advertised that if a stranger ventures on the property (which they have no legal right to do- so all you are doing is exercising your rights under the law) they will be annihilated. In a sense, this hypothetical shield is the ultimate in self defense. But what happens when a child that can’t read chases a ball onto the property and goes up in smoke? Just a price to pay for exercising your right to self defense?

Clearly a right to make a mistake (venturing on private property improperly without permission) and survive it should outweigh your right to complete self defense. And I can’t see any government that wouldn’t ban such a system because, although it fell 100% within your right to self defense, it also encroached on the right of others not to die, simply for making an honest mistake. In other words, your right to self defense, as with every other right, has a practical limit. So, while I think that this right is critical, it doesn’t supersede other rights.

Your quote from William Rawle shows that, I think, we may have similar views on militias. I think there is profound wisdom in having a standing civilian force used to enforce law in times of uprising within the country, and an armed force for fighting external armies. I agree that using a standard armed force on your own people is the first step on the road to tyranny, and having “Joe the dentist” and “Maggie the schoolteacher” called up to protect the State during times of conflict, when the nation must police itself against itself, will result in a force less prone to tyranny as they have not been trained to drive out the desire to ever question any order given (as military professionals have been- which is necessary given the need to rely on any soldier to carry out the often grisly orders inherent in war). It isn’t a foolproof safeguard, but the chance of Maggie the schoolteacher firing on peaceful demonstrators for instance, even when given the order, should be somewhat less than a trained military professional in the armed forces (who understandably has been trained not to debate orders since that can get everyone killed).

But the idea that the militia simply means “every armed citizen” and nothing more (as opposed to something like the National Guard) seems to dismissive of the “well regulated” portion of the sentence. That implies training, practicing etc. In your quote he says: “That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country.”

How can you read that and say “yes, but that just means anybody with a gun”? Wouldn’t it apply that the “militia” should have some formal training? How else do they get “well regulated”? So where is the training part of your argument? How does that part of the 2^nd just wash away? Now if you wanted to argue that the National Guard no longer fits the bill, given the fact that they are stationed overseas in such numbers as to limit their ability to serve as a militia today here in the states, I would be inclined to agree. But that leads to a whole separate line of questioning (what is a modern militia? What training do they need to be well regulated? How would they called up? Who would “direct” them?) Again, this entire concept seems absent from your argument.

So, based on what you have brought up, I am more convinced now that your position doesn’t address enough points to be nearly as airtight as you come across. Explain how a “well regulated militia”, poses no modifying effect to the 2^nd. Explain how a right to self defense for one, can create conditions that cause someone else to lose their own life caught in a crossfire, and yet this is “just”. Why is it that the 2^nd is the only one with no limits, and no context of interfering with other rights? Answer those questions and we have a debate.

As for my tone in these writings, I just love that it is “too superior” in your view. This entire blog is written to demean, make fun of, belittle and generally harass those who don’t agree with you. I don’t say that it shouldn’t be- I love a good sarcastic argument- even if it is completely wrong. Hey, more power to ya. But to turn around and be shocked and amazed when someone treats you in kind is just hypocritical and silly. So yeah, I fed the red meat crowd with a nice cocky, “up yours” attitude that I knew would get under their/your skin. And I know you’d paint me as a liberal, even though I am an independent that leans libertarian in a lot of respects. And the fact that it actually worked on you just pleases me to no end.

I cannot begin to describe how much your last post made me laugh. It really made my day. Thanks for that.

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Occasionally my faith in atheism is shaken. This is one of those times.

You could not be a more perfect opponent in this debate had an omnipotent deity answered my prayers. Your smug, insulting, intellectually superior posing (if it weren’t so amusing) would offend anyone “on the fence” to the point that any message you might possibly have is washed out in its glare. I’ll admit to being a bit condescending myself on occasion (OK, my wife says “a lot” and “often”), but you’ve elevated it to the level of art. You’re not just a stereotypical superior liberal intellect stooping to educate the unwashed ignorant imbecile lumpenproletariat, you’re the bleeding archetype. Bravo, sir, for what is a virtuoso performance, and it’s on my stage! I’m archiving all of this for posterity.

Let me see… You admit:

Ok, so it seems that some (maybe just a few) now at least acknowledge the possibility that perhaps the question I answered wasn’t the one they wanted to debate…

No, the question you answered was not the question I asked. Remember, I started out my response with “I’m not letting ANYBODY duck a question that easily”? But kept “hounding on the ‘we don’t know’ answer” you gave because you were paying out the rope so fast that I just had to see what happened when it finally pulled up taut. You belittle both me and the commenters for being so dense, misunderstanding the obvious brilliance of your words:

…allow me to clear up a few points that seems(sic) hopelessly above the heads of those writing…

Let me sort that out for you, since you are hopelessly incapable of doing it yourself.

Allow me to illustrate this in a way so simply(sic) that even you might see it.

And you berate me, who invited you to begin this debate by asking this simple question; “What did the Second Amendment mean when it was ratified, and does it matter today?” for failing to ask the RIGHT question:

…you are not even answering the question you originally asked (or you didn’t ask the right question in the beginning).

Said question, apparently being:

Either ask the right question (what do I think the original intent was) or admit your flawed logic…

Note, you didn’t answer that question either until your third response, accurately (for once) entitled: “To answer the question NEVER asked.” How good of you to admit that.

So, at the risk of being redundant, let me make sure I understand the conclusions reached by your overweening intellect:

(1) You didn’t answer the question I asked.

(2) You admit the answer you did give initially also didn’t answer the question I didn’t ask.

(3) I was wrong because I let you get away with not answering the question I did ask.

(4) I was wrong for not asking the question I should have asked.

(5) You finally answered the question I should have asked (but didn’t).

(6) You’ve yet to answer the question I actually asked.

And

(7) All of this is somehow my fault.

Then you have the testicular fortitude to claim that what you’re doing is “heavy mental lifting.” Obviously you’ve mistakenly entered the wrong stadium. What you’re doing isn’t mental weight-lifting, it’s mental gymnastics. You really should be more careful. I would hate for you to sprain a frontal-lobe in the floor exercise of leaping around dodging my questions, or dislocate your corpus callosum on the rickety uneven parallel bars of flawed analogy.

Now, to change gears just a bit, I’ll admit that I totally mischaracterized you. Mea culpa, mea culpa, mea maxima culpa. You are neither under the age of 30 nor were you educated in California. It never occurred to me that you might have been born and raised inside the D.C. Beltway – the only area in the nation where the only industry is government, where the only tool of government is lawmaking, and where the cliché that “when the only tool you have is a hammer, every problem looks like a nail” is made manifest. Especially since D.C. is the city where all handguns have been banned since 1976 (when you were seven years old), all long guns are required to be stored disassembled, and the city has subsequently on several occasions earned the title of “murder capital of the U.S.,” most recently in 2002. Alexandria, Virginia (your home town?) – with considerably more lax gun laws – in 2002 had less than half the national average rate of homicide and other violent crime. Check the comparison stats for D.C. Shocking, those.

Nope, never saw that one coming!

So, you have a bachelor’s degree from one pretty liberal school, and a Master’s in business from an even more liberal school. Congratulations. In reading your replies I was immediately reminded of two jokes (stereotypes archetypes tend to lend themselves to humor.) The first:

A man is flying in a hot air balloon and realizes he is lost. He reduces height and spots a man down below. He lowers the balloon further and shouts: “Excuse me, can you tell me where I am?”

The man below says: “Yes, you’re in a hot air balloon, about 30 feet above this field, drifting roughly North-Northwest at about five miles per hour.”

“You must be an engineer” says the balloonist.

“I am,” replies the man. “How did you know?”

“Well,” says the balloonist, “everything you have told me is technically correct, but doesn’t help me at all.”

The man below says “You must be in management.”

“I am,” replies the balloonist, “but how did you know?”

“Well,” says the man, “you don’t know where you are, or where you’re going, but you expect me to be able to help. You’re in the same position you were in before we met, but now it’s my fault.”

The second:

A shepherd was tending his flock in a remote pasture when suddenly a dust cloud approached at high speed, out of which emerged a shiny silver BMW. The driver, a young man in an Armani suit, Ferragamo shoes, the latest Polarized sunglasses and a tightly knotted power tie poked his head out the window and asked the shepherd, “Hey! If I can tell you how many sheep you have in your flock, will you give me one?”

The shepherd looked at the man, then glanced at his peacefully grazing flock and answered, “Sure.”

The driver threw the car into park, plugged a satellite phone into his laptop, checked his GPS coordinates and punched them in to a program that hacked into a Russian spy satellite and initiated a remote millimeter radar, optical wavelength, and infrared body-heat scan of the area. He downloaded the images into a custom analysis program that ran a complicated algorithm on the available data. While the computer was occupied, he sent some e-mail via his Blackberry and, after a few minutes, nodded solemnly at the responses. Finally, the little laser printer in his glove compartment spat out a 150 page double-sided full-color glossy bound report. He turned to the shepherd, waving the sheaf of paper, and pronounced “You have exactly 1,586 sheep.”

“That’s right. One of my sheep is yours,” said the shepherd.

He watched the young man select an animal and bundle it into his car. Then the shepherd said: “If I can tell you exactly what your business is, will you give me back my animal?”

Pleased to meet a fellow sportsman, the young man replied “You’re on!”

“You are a consultant,” said the shepherd without hesitation.

“That’s impressive,” said the young man. “How did you guess?”

“It wasn’t a guess,” replied the shepherd. “You drive into my field uninvited, ask me to pay you for information I already know, answer a question I haven’t asked, and you know nothing about my business. Now give me my back my dog.”

It would be the height of irony if your livelihood was earned as a consultant. No, wait! A managing consultant!

You said:

I place a tremendous stock in words. In fact, my livelihood depends on them.

If you weren’t aware, I’m an engineer. If I misunderstand a specification, misinterpret a regulation, fail to communicate clearly, or make a mistake in a calculation, people can be hurt or killed, property can be damaged or destroyed, or at a minimum large amounts of production can be lost. Words are crucial to me. So are rules. More is at stake than my mere livelihood.

Since you acknowledge that we’ve strayed far off track, let’s try to get back on it. My original question, as I mentioned above, was:

What did the Second Amendment mean when it was ratified, and does it matter today?

Read that again, carefully. I assumed, with your prodigious mental powers, that’d you’d be able to comprehend such a simple sentence and actually address it. However, you misunderstood the question to be “What was the intent of the Founders?” You could have just as easily misunderstood it to be “What do you think was the intent of the Founders?” but you did not. Instead, you blamed me for not asking that question, while misunderstanding the question I did ask.

You state that while getting your MBA, you took some Law courses as well; “…I also snuck in a few Law School classes for good measure.” That’s good. Perhaps one of the courses you took was American Constitutional Law? The question I asked (though I see now I should have been more explicit) was “What did the law mean?” (All words of one syllable!) Surely you can understand this concept? The Second Amendment is a law – not a guideline, not a suggestion, not a mere bit of obiter dictum, but a LAW – and it’s embedded in the document that provides the underpinnings of every law in the United States. Determining the meaning of this law is not an exercise of personal opinion. It is not an exercise requiring a séance to contact the spirits of the dead. It’s an exercise in jurisprudence. I tried to steer you back to the idea in the opening paragraphs of my reply, but no, you twisted and tumbled, leapt and twirled away, hurling insults and instead mounted the bars and flipped bad analogies at me.

As I said, “…it was the job of the JUDICIARY to determine what the words meant – and they certainly didn’t say ‘Nobody knows.'” They made actual decisions on actual court cases. They studied the contemporary documents and law texts, and cited them as legally valid. Certainly their personal opinions entered into the question, but the fact remains that they interpreted the law. This is not an archeological dig. This is well documented history of a most explicit type: LEGAL history. I even pointed you at an excellent source, Cramer’s For Defense of Themselves and the State, but you disregarded that, too. We can argue the merit of these decisions, certainly, but you’ve disregarded them completely.

I was trying to determine if you understood the judicial history of the Second Amendment. It seem apparent that you do not, that you don’t care to, and that you consider that history irrelevant. You say:

I do believe that there is a basis, and underpinning of the law, that is formed by the constitution.

But then you turn around and say:

…the same words can have different meanings over the course of time.

Not. In. Law.

You must have missed that course.

Granted, it often (and recently, at an accelerating pace) works that way, but that is not how the law is supposed to work. As always with the slow students, we repeat the lesson until it is absorbed:

Rule of Law: The rule of law implies that government authority may only be exercised in accordance with written laws, which were adopted through an established procedure. The principle is intended to be a safeguard against arbitrary rulings in individual cases.

Stare decisis: The principal that the precedent decisions are to be followed by the courts. To abide or adhere to decided cases. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle.

What we’re discussing here isn’t (although I’m just as guilty of using the phrasing as you) “original intent,” it’s “original meaning.” That’s original legal meaning. It’s all kind of tangled up in the word “originalism,” but Professor Randy Barnett explains the difference well in his book Restoring the Lost Constitution: The Presumption of Liberty. What follows is a rather long excerpt, but it’s important to the point and I’d appreciate it if you read the whole thing before blowing it off:

The received wisdom among law professors is that originalism in any form is dead, having been defeated in intellectual combat sometime in the 1980’s. According to this story, Edwin Meese and Robert Bork proposed that the Constitution be interpreted according to the original intentions of its framers. Their view was trounced by many academic critics, perhaps most notably by Paul Brest in his widely cited article, “The Misconceived Quest for Original Understanding” and by H. Jefferson Powell in his article, “The Original Understanding of Original Intent.”

Perhaps you’ve read them?

Taken together, these (and other) articles represent a two-pronged attack on originalism that was perceived at the time as devastating: as a method of constitutional interpretation, originalism was both unworkable and itself contrary to the original intentions of the founders.

The next paragraph essentially details the arguments you make – as someone said, we’ve heard all this before. You’re hardly original (no pun intended.)

Then there’s this:

Even those who get beyond the Brest and Powell criticisms still encounter two additional and seemingly insurmountable obstacles to originalism. If constitutions are based on popular sovereignty or consent, the framers and ratifiers of the U.S. Constitution represented only white males, not the people, and therefore could not legitimately bind those who were not parties. And even were the Constitution somehow binding when adopted, it was adopted by long-dead men who cannot rule us from the grave.

Moreover, a generation that countenanced slaveholders has not the moral legitimacy to rule us form the grave or from anywhere else.

Any of this sound familiar?

Because their intentions were racist and sexist, we are far from bound by them; we ought to loudly denounce and reject them. According to this view, not only was the Constitution not a product of consent, it was a product of original sin.

If ever a theory had a stake driven through its heart, it seems to be originalism. But despite the onslaught of criticism, the effort to discern the original meaning of constitutional terms continues unabated. Indeed, by some accounts it may be the dominant method actually used by constitutional scholars – even by those who disclaim originalism. As Jack Rakove observed after listing those constitutional scholars who have offered originalist arguments, “[b]ut in truth, the turn to originalism seems so general that citation is almost beside the point.” And this movement has cut across ideological lines. “In recent years, the originalist premise has also been manifested in the emerging strain of broad originalism in liberal and progressive constitutional theory.”

Though it is possible to characterize this intellectual movement as a shift, not to originalism, but to “textualism,” this distinction is hard to maintain. Once the importance of text or “writtenness” is conceded, some version of originalism becomes much harder to resist. [T]he reasons why text is important are the same reasons that support some modest version of originalism and shift the burden of persuasion to anyone proposing to replace reliance on the text by some other method of interpretation.

—

Perhaps most important of all, however, is that originalism has itself changed – from original intention to original meaning. No longer do originalists claim to be seeking the subjective intentions of the framers. Now both Robert Bork and Antonin Scalia, no less than Ronald Dworkin and Bruce Ackerman, seek the original meaning of the text.

…Justice Scalia has written:

We look for a sort of “objectified” intent – the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of corpus juris…. Government by unexpressed intent is… tyrannical. It is the law that governs, not the intent of the lawgiver.

Whereas “original intent” originalism seeks the intentions or will of the lawmakers or ratifiers, “original meaning” originalism seeks the public or objective meaning that a reasonable listener would place on the words used in the constitutional provision at the time of its enactment.

—

This shift to original public meaning obviates some, but not all, of the most telling practical objections to originalism and can be very disappointing for critics of originalism – and especially for historians – when they read original meaning analysis. They expect to see a richly detailed legislative history only to find references to dictionaries, common contemporary meanings, an analysis of how particular words and phrases are used elsewhere in the document, or in other foundational documents and cases, and logical inferences from the structure and general purposes of the text. Nowadays, those presenting evidence of the true “subjective” intentions of the framers are often nonoriginalists seeking to rebut a particular “objective” original meaning offered by an originalist.

Now, here’s a critical part:

Moreover, while some originalists still search for how the relevant generation of ratifiers expected or intended their textual handiwork would be applied to specific cases, original meaning originalists need not concern themselves with this, except as circumstantial evidence of what the more technical words and phrases in the text might have meant to a reasonable listener. This aspect of original meaning originalism is captured by Ronald Dworkin’s useful distinction between “semantic originalism” and “expectations originalism.” “This is the crucial distinction between what some officials intended to say in enacting the language they used, and what they intended – or expected, or hoped – would be the consequence of their saying it.” For example, when a statute is interpreted, there is a difference “between the question of what a legislature intended to say in the laws it enacted, which judges applying those laws must answer, and the question of what the various legislators as individuals expected or hoped the consequences of those laws would be, which is a very different matter.”

This is best exemplified currently by the now sunsetted 1994 “Assault Weapons Ban” that wasn’t. The gun control groups wanted the law interpreted to outlaw the manufacture of evil black rifles, but what the law actually did was limit certain features. The gun control organizations complained bitterly about manufacturers using “loopholes” to circumvent the law, but what the manufacturers did, in fact, was comply with the letter of the law. The intent of the legislators is immaterial. WHAT IS WRITTEN, and what those words mean when written is what matters.

Similarly, when the Bill of Rights is interpreted, ” ‘semantic’ originalism …insists that the rights-granting clauses be read to say what those who made them intended to say”; whereas ” ‘expectation’ originalism …holds that these clauses should be understood to have the consequences that those who made them expected them to have.” Dworkin concludes:

[I]f we read the abstract clauses of the Bill of Rights [and other rights-granting clauses such as the Fourteenth Amendment] as they were written – if we read them to say what their authors intended them to say rather than to deliver the consequences they expected them to have – then judges must treat these clauses as enacting abstract moral principles and must therefore exercise moral judgment in deciding what they really require. That does not mean ignoring precedent or textual or historical inquiry or morphing the Constitution. It means, on the contrary, enforcing it in accordance with its text, in the only way that this can be done.

Dworkin, like most on the Left, mischaracterizes the Bill of Rights as “granting” rather than guaranteeing rights that exist outside the Constitution, but that’s par for the course. But we’re not through yet!

Perhaps the shift to original meaning originalism should not have come as a surprise. For when one rereads Brest and Powell with the distinction between “original intent” and “original meaning” in mind, on finds that both critiques left considerable room for originalism to survive and flourish. True, Brest berated strict textualism along with strict intentionalism, though his criticisms here are more limited and less persuasive. But he left the door open, however reluctantly, to what he terms “moderate intentionalism” – in a passage that also reflects the closeness between textualism and originalism.

A moderate textualist takes account of the open-textured quality of language and reads the language of provisions in their social and linguistic context. A moderate intentionalist applies a provision consistent with the adopters’ intent at a relatively high level of generality, consistent with what is sometimes called the “purpose of the provision.” Where the strict intentionalist tries to determine the adopters’ actual subjective purposes, the moderate intentionalist attempts to understand what the adopters’ purposes might plausibly have been, an aim far more readily achieved than a precise understanding of the adopters’ intentions.

—

Brest rejects moderate originalism, not because it is incoherent or impossible to achieve, but because it will not support many modern constitutional doctrines that Brest thinks are essential to the Constitution’s efficacy and legitimacy.

This is the reason that many scholars oppose originalism. Not because it cannot be done, but because the original meaning of the text can be ascertained and they find this meaning to be inadequate or objectionable. They reject the meaning of the Constitution as enacted and wish to substitute another meaning that they contend is superior.

Thus do you wish to reject the meaning of the Second Amendment and wish to substitute another that you contend is superior.

So, let’s take a minute or two to consider the corpus juris of the Second Amendment. (This is what’s known as “evidence” as opposed to “opinion.”) I asked a bit earlier if one of the courses you took was American Constitutional Law. One of the things often discussed in that course is St. George Tucker’s multi-volume set Blackstone’s Commentaries, the early 19^th Century review of American law. Tucker became a professor of law at William and Mary in 1800, and was appointed as a Justice of the Supreme Court of Virginia in 1803, the year his book was published. In 1813 he became a U.S. District Court judge. Tucker’s book, also called American Blackstone, was the textbook for American Constitutional Law classes in its day. Tucker has this to say about the Second Amendment:

This may be considered as the true palladium of liberty. . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

Note, nowhere in that paragraph is the word “militia.” Note also that Tucker emphasizes that, although England supposedly has a right to arms, that right is essentially negated by other legislation – the implication being that our law, not so limited, cannot be perverted in a similar manner.

Tucker named his book Blackstone’s Commentaries because he was paying homage to the great English jurist William Blackstone’s Commentaries on the Laws of England, published over the period of 1765-69. Blackstone had this to say concerning “the right of self defense” under the title “The Absolute Rights of Individuals:”

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

You’ll note that Blackstone does not mention the word “militia” either. So English law (from which we get most of ours) gives at least lip-service to the right to arms, and our Second Amendment does more than that. There’s more.

William Rawle, appointed U.S. Attorney for Pennsylvania by George Washington, in his book A View of the Constitution in 1829 wrote:

In the second article, it is declared that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before regular forces can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.

The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.

The prohibition is general. No clause of the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both…

This right ought not, however, in any government, to be abused to the disturbance of the peace.

Now, I’ve provided you a couple of pieces of evidence concerning what the law meant. Let’s see how it got applied.

First “the right to arms.” From For Defense of Themselves and the State:

The first state supreme court decision on the meaning of “the right to bear arms” did not occur until more than thirty years after the Second Amendment’s adoption – a long enough time for a younger generation of legislators to come into office with no direct knowledge of the Revolution, but a short enough time that a number of the Framers were still alive.

Kentucky had passed a law that prohibited the carrying of concealed arms, including “a pocket-pistol, dirk, large knife, or sword in a sword-cane unless when traveling on a journey.” In Bliss v. Commonwealth (1822), a man named Bliss was charged with concealing a sword in a cane, and was convicted in a jury trial. Bliss appealed his conviction, arguing that the law violated a state constitutional provision “that the right of the citizen to bear arms in defense of themselves and the state shall not be questioned.” While the law in question did not completely ban the carrying of arms – only the concealed carry of arms, “unless while traveling” – the Kentucky Supreme Court held:

That the provisions of the act in question do not import an entire destruction of the right of citizens to bear arms in defense of themselves and the state, will not be controverted by the court; for though the citizens are forbid wearing weapons, concealed in the manner described in the act, they may, nevertheless, bear arms in any other admissible form. But to be in conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form; it is the right to bear arms in defense of the citizens and the state, that is secured by the constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the constitution. If, therefore, the act in question imposes any restraint on the right, immaterial what appellation may be given to the act, whether it be an act regulating the manner of bearing arms, or any other, the consequence, in reference to the constitution, is precisely the same, and its collision with that instrument equally obvious. And can there be entertained a reasonable doubt but the provisions of the act import a restraint on the right of the citizens to bear arms? The court apprehends not. The right existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms… For, in principle, there is no difference between a law prohibiting the wearing of concealed arms, and a law forbidding the wearing of such as are exposed; and if the former be unconstitutional, the latter must be so likewise.

So, there’s the initial jurisprudence, at least for the state of Kentucky, on what the “right to arms” meant there.

Now that I’ve explained to you in words of one syllable what the question actually was, and shown you how to cite actual evidence as opposed to flawed analogy, do you think you can take another run at the question I actually asked? Because my fingers are tired from all this typing, and I’ve got a lot of work to do around the house this weekend.

Next Post in the series.
Previous Post in the series.

Anyway, damn straight I’m serious.

Alex, as I said before, I’m not sure how old you are but you are most definitely a product of the modern leftist education system. I’m guessing a year of birth of 1975 or later. If older, a product of California’s so-called school system.

Your last post is what I refer to as a “target-rich environment,” but I have to say this up front: I no longer have any expectation of actually changing your mind. I accept that what you believe is what you believe, and damn any logic, evidence, or rhetoric to change that. Though I said in my last post that my purpose was “to get you to understand why we need that allegiance, and why disregard of it is the most grave error we can make,” I want you to understand that, though I’d certainly like to shatter your firmly held illusions, your last post made it apparent that this is nearly an impossibility. The purpose now is to illustrate to others the widely divergent views you and I have in the brightest light possible so that those who have not been so indoctrinated or so educated can make up their minds which one of us is more in the right.

Let’s begin.

You’re still defending the “We don’t know” comment, and while I admire the dogged determination therein, you’re still desperately wrong.

This goes back, apparently, to the problem you have with understanding the purpose of LAW. I asked you in my last post:

I have to ask, upon what will you build a new edifice? If we cannot know what the Founders meant when they wrote and ratified the Constitution, if their words are meaningless to us now, why should the words you wish to replace them with have any more meaning?

I noticed you didn’t address that question. Seeing as that is the heart of this debate (not Jefferson and slavery), I find that omission interesting. (Fear not! Verbose as I tend to be, I’ll get to Jefferson et al. too.)

Wikipedia defines “rule of law” thus:

The rule of law implies that government authority may only be exercised in accordance with written laws, which were adopted through an established procedure. The principle is intended to be a safeguard against arbitrary rulings in individual cases.

Yet you insist that we can’t know what written laws meant when written! Doesn’t this render written law – all of it – meaningless? Or only the law written (and ratified) by people now dead? (Since we can’t ask them.)

Sorry, Alex, but that thinking is incredibly flawed. Under that “logic” the rule of law has no meaning. Stare decisis (defined: the doctrine that a trial court is bound by appellate court decisions (precedents) on a legal question which is raised in the lower court. Reliance on such precedents is required of trial courts until such time as an appellate court changes the rule, for the trial court cannot ignore the precedent [even when the trial judge believes it is ‘bad law’]) is tossed out the window, and what you’ve done is render our nation not a republic, not a democracy, but a nearly chaotic anarchy of robed oligarchs who sit on law benches determining what the law means today. As Lewis Carrol put it in Through the Looking Glass:

“When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.”

“The question is,” said Alice, “whether you can make words mean so many different things.”

“The question is,” said Humpty Dumpty, “which is to be master – that’s all.”

Absolutely right. It’s all about power, and who holds it. Note that the rule of law does not restrain the individual, but the government. It prevents the government from stepping out of bounds – a point you seem oblivious to. I’ll come back to that later as well. (Just an aside: When I get going, I really get going. This is why I wanted to debate here on the blog as opposed to in Ian Hamet’s comments. If you haven’t figured it out yet, this is going to take a while, so I suggest you pour yourself a beverage or three, get yourself a snack, and get comfortable.)

For a system that started off with just the Ten Commandments, you discard those innumerable law schools and their vast law libraries most cavalierly. And then you depend on government (in your own words) “to try and iron out modern problems?” With what? Again, I ask: Upon what will you build your new edifice? If you were arguing from the Anarchist position I could understand, but you’re not – you’re advocating government, and thus law, as solution while stripping it of any validity.

Can you not see this dichotomy? Will you now address this question?

You used your avoidance of this question to blast right over my explanation of how we determine the meaning of the Second Amendment (and the rest of the Constitution). As one of the commenters to your piece put it so succinctly:

If one can’t read a paper, and gain information from it about what the author means, when they expressly state what they mean in that text, then there is no arguement(sic). Litterally(sic). The fact that you are using text, to be read, to show other people what you think and mean, is the only demostration(sic) needed to falsify your statement.

(Thank you, Rand.) The men who voted to ratify the Constitution and the Bill of Rights voted on the words written in those documents – not some vague collective “single intent” of the “hundreds of people attending the state ratifying conventions.” THOSE SPECIFIC WORDS. And those words have meaning to anyone who can read. The people who read and interpret those words for implementation as law, as I pointed out, are judges by and large, but they are also interpreted by members of the other two branches of government established by that very document that you claim “Nobody knows” the meaning of.

It is sophistry like yours that allows people to wrench any meaning they’d like into what is in reality a very simple document. It is sophistry being taught wholesale these days. Congratulations. You’re an excellent example of type. Too bad you’re not more rare.

Let us now consider Jefferson, slavery, et al. You wrote:

(Y)ou really do a huge disservice to both Jefferson and yourself in your next diatribe. Allow me to sort out what you have tangled up. Despite your attempt to say I know nothing of our founding fathers (or of Jefferson specifically) it is you who misses the underlying point. Here is a man who fully KNOWS the travesty of slavery (all the quotes and links you provide fully illustrate this) and yet still allows it when forming the basis of this land. It is one thing to use the “well, it is easy to see in retrospect but given the customs and culture of the time…” excuse, but you provide example after example that he knew full well that allowing this was an abomination, contrary to every belief he held to most sacred to heart.

So he “cops out” because the “political reality” is just too tough? Because the “Economic conditions” wouldn’t allow it? Man, if that is your idea of how to support the ideal you believe in the most, something you would die for, I don’t want to see how you’d treat ideas you are only moderately in favor of.

Interesting choice of words there: “the ideal you believe in the most, something you would die for…” If I recall correctly, when Jefferson wrote and then signed the Declaration of Independence he signed his name to a document that essentially meant his death if the thirteen colonies lost their rebellion, did he not? He then served as one of the principals in that very revolution, taking his life in his hands as a highly visible member of Virginia’s House of Delegates, then later as governor of Virginia (chased out of Richmond in January, 1781 when the British invaded). I submit to you, sir, that the ideal he most believed in, the one he was willing to die for was not the ending of slavery, but the establishment of the Republic. THAT is what he risked his life for. THAT is what he wrote most passionately about. It was the destruction of this Republic that he feared the practice of slavery would cause, because slavery was so obviously wrong, and so thoroughly entrenched.

Your triumphant waving of the Sally Hemmings flag illustrates more than anything your indoctrination in the leftist mindset: “He fucked a slave! He’s no better than a monster!” Yes, those old rich dead white men who founded this nation were all just evil Europeans best discarded in the trash heap of history like the documents they wrote.

…to say his mind was impervious to anything but the noblest of ideas is to ascribe to him a perfection that he (nor anyone else) would ever attain.

We can safely ignore them. They were nothing special. Nothing worth revering, nothing worth admiring.

I don’t want to come off as a Jefferson basher…

Too late, sir. Too late. Ink’s dry.

Let me expound for a moment on the question of slavery at the time of ratification of the Constitution. The Southern states, at that time almost wholly reliant on agriculture, depended on slave labor. You can hate it, but you must admit that fact. ANY attempt to outlaw slavery would have resulted in NO UNION of the thirteen colonies, and as Benjamin Franklin noted after the signing of the Declaration, “We must all hang together, or assuredly we shall all hang separately.” (By the way, Franklin was an womanizer and adulterer, just so you don’t think I’m attributing imperviousness to anything but the noblest of ideas and ascribing to him a perfection that he (nor anyone else) would ever attain.)

Everyone involved in the writing and ratification of the Constitution understood that if the thirteen colonies were not politically united, they would rapidly collapse into squabbling and be picked off by England or Spain or even France one by one. UNION was the key. Slavery would, they ALL knew, come back to raise its ugly head – but that was a problem they were willing to put off until later. So yes, that was political reality. You don’t have to like it. Most of them didn’t. They knew delaying the problem would make it that much tougher. You want a recital of those quotes? But your sneering at that decision doesn’t render it any less necessary. That decision enabled the establishment of the nation you now call home; good and bad, warts and all. Anything else and you’d be living in a completely different world today, and not a better one.

You seem to think I consider the Founders as statues of unimpeachable alabaster perfection. Hardly. They were as imperfect as any group of men anywhere – but what they did is astonishing, historically unequalled, and it irritates me to no end how their ideas, their actions, their accomplishments are denigrated and rejected today because of their mere humanity. It is not I that holds Jefferson up to some unattainable moral perfection, it’s you. You know all about Sally Hemmings, (admitting that it might not even have been Jefferson who fathered her child) but how much of Jefferson’s writings have you actually read? He was a radical sonofabitch, even by today’s standards. Read the writings of Thomas Paine. He was a real loser in life prior to the revolution, and died in poverty in 1809, but his words… John Hancock resigned from the Continental Congress in a snit over not being chosen commander of the Continental Army (and a good thing he wasn’t, too.) He was vainglorious and flamboyant. John Adams and Ben Franklin didn’t get along well. Adams disapproved of Franklin’s habits. When elected vice-president, Adams called the position “the most insignificant office that ever the invention of man contrived or his imagination conceived.” Not exactly “worthless as a pitcher of warm spit,” but close.

But because these men chose union over the abolition of slavery, we’re free to dismiss the Founding of this nation as immoral, illegitimate, and unworthy of admiration?

Fuck that.

Now, on to:

(M)y allegiance lies to my country first, above any document (even the constituion[sic]). And those that would have it backwards (exalting any document above the good of the nation) ultimately do more harm than good in the long run, as they fail to see the big picture.

Pot? Meet kettle.

The Constitution, sir, IS your country. It is the document that brought that country into existence, established the system of government under which we live, and regulates our day-to-day activity (far too much, these days). In short, it DEFINES our country. No wonder the Left wants to destroy it so badly. It is the contract under which we all live, a contract you denigrate and disparage as old and unknowable. It is those like you, who do not exalt that document who do more harm than good in the long run. As famously leftist law professor Alan Dershowitz so beautifully put it:

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.

I’ve got a cartoon up on my office wall. It shows a donkey in a hardhat swinging an axe at a tree from the left, an elephant in a hardhat swinging an axe at the same tree from the right. The donkey is labeled “War on Guns.” The elephant is labeled “War on Drugs.” The tree is labeled “Bill of Rights.” The attack on the Constitution and the Bill of Rights is unending, and from all sides. I see it. I hate it. You apparently mindlessly applaud it.

Yes, I could be simple minded and just believe that all the answers to our complex legal challenges today lie in getting inside the heads of men from 200 years ago. Or I could believe that their intent is one factor in figuring out how to apply the law, but not the ONLY factor.

I addressed that, in detail. You blew it off. If the Constitution needs to be changed, we can change it, and we have – but you advocate ignoring it because it was written by corrupt old white men 200 years ago. Let’s address your question,

Murder is wrong, absolutely- all the time, right?

There are laws against it, certainly. There’s also something called “the right to trial by jury,” Article III, Section 2, Clause 3 of the Constitution, the Fifth Amendment to the Constitution, and the Sixth Amendment of the Constitution. There is also the concept of Jury Nullification – a concept fully understood by the Founders, since one of the most famous instances of it occurred in 1735 in the trial of John Peter Zenger who was accused of sedition for publishing libelous pamphlets against the governor of New York. Against a stacked bench of judges, a jury of his peers refused to find him guilty.

Of course, Robert Blake got off too, but nothing’s perfect. I guess the jury decided that Bonnie Lee Bakely needed killin’.

And we have that annoying little “double jeopardy” clause, too. (Fifth Amendment to the Constitution, again.) It’s too bad that “nobody knows” what the Founders meant when they wrote those amendments, isn’t it? I guess we can chuck the Fourth, Fifth, and Sixth Amendments out when we conclude that they just aren’t up-to-date enough to deal with the “history, progress, case law, advances and changes society has undertaken since.” I understand that England has dropped the requirement for unanimous jury decisions in murder trials, and is trying to do away with jury trials completely for some crimes. They’re also trying to get rid of double-jeopardy protection. It seems that with their skyrocketing crime problems they’re having too hard a time getting convictions. Gee, let’s try that here! After all, the Constitution doesn’t mean anything.

So now let’s talk about the right to arms, since that’s the topic we actually began with. You wrote:

I could struggle to balance a law written when arms were muskets against the rights of some mother in Cabrini Green who puts her kids to bed in the bathtub because that is the most bullet proof place in the apartment.

Er, Cabrini Green is in Chicago, isn’t it? (Or, more precisely, wasn’t it?) Chicago outlaws all handguns. Illinois restricts the ownership of firearms to holders of a state-issued “Firearm Owners ID” card. An FOID is required to purchase ammunition in that state. And still you say that a mother had to put her children in a bathtub to protect them against random gunfire?

Gun control really works, doesn’t it? (Not to mention the idea of public housing as a panacea for the disadvantaged.) What law, I must ask, would have protected that woman and her children? A complete gun ban? Who would that have disarmed? Certainly not the hoodlums running around downtown Chicago blasting away. My recommendation to that mother would have been “move to Richmond, VA, where people are allowed to own guns. It’s much safer.” Sorry, Alex, but your example illustrates the illogic you’ve been steeped in. Guns aren’t the problem, and treating them like they are isn’t just useless, it’s counterproductive.

You also wrote:

I could say, what are the principles that make the Second important enough to include in the bill of rights, and how do we balance those principles with the others? What is the reality of the law as it has evolved, through case law, regarding guns, crime, carrying arms, and the registration of weapons? Or, like you, I could just say “it means whatever they wanted it to, and that’s it- no more thinking on my part.”

Sorry, but I never said “it means whatever they wanted it to, and that’s it- no more thinking on my part.” That’s more your schtick – “We don’t know what it means, so we can make it mean whatever we want without thinking about WHY they wrote it.” I’ve thought about it extensively, and read what the Founders, later legislators, and judges wrote about it. I can say with some certainty that you have not. If you’d like an excellent book to read on the topic (somewhat dry, but it’s very, very thorough) I strongly recommend For Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms by Clayton E. Cramer. It exhaustively covers the case law concerning the right to arms that has arisen since the ratification of the Bill of Rights, in conjunction with the statutes that have been passed in that same time period. Very interesting. Cramer makes a very strong case both in this book and in his Supreme Court of Rhode Island-cited Kansas Journal of Law and Public Policy paper “The Racist Roots of Gun Control” that the “case law, regarding guns, crime, carrying arms, and the registration of weapons” has been historically about denying the right to arms to blacks and other minorities while preserving it for whites, in violation of the intent of the Second Amendment. It is only recently that these restrictions have been widened to attack the rights of everybody else – in violation of the intent of the Second Amendment. “Public Safety” you know.

Now let’s discuss U.S. v. Miller, since you so helpfully brought it up. Yes indeed the Miller decision does state:

In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

What you neglect to mention (ignorance?) is that neither Jack Miller nor his compatriot Frank Layton was a member of an organized militia at the time of their arrest, nor were they planning on joining one. The court studied this question, as a matter of fact, spending the next several paragraphs of the decision discussing the militia in extensive detail. You fail to note also that the decision states, in plain English (though I suppose since it was written in 1939 and those Justices are now dead we can’t really know what they meant) that their conclusion was made in the absence of any evidence. This was because neither Miller nor Layton had any representation before the Supreme Court. Only the U.S. was represented there.

However, had Miller & Layton been represented, it would have been quite simple to demonstrate that short-barreled shotguns have been used extensively in warfare, including during the Revolutionary, Civil, and First World Wars. But since no representation was present the Court was unable (not to mention, under Roosevelt, unwilling) to find in their favor. I suppose that had Miller and Layton possessed a 1917 Browning Automatic Rifle – also restricted under the 1934 National Firearms Act, and at the time part of the standard equipment of the United States Army and most National Guard units – the Court could have similarly dodged the bullet (pun intended) of having to judicially “find” that the Second Amendment did indeed guarantee the right to keep and bear that instrument, since no evidence of such would have been presented.

Miller isn’t that great a case for your side, Alex. Taken to its logical conclusion the Second Amendment protects the right to keep and bear only weapons suitable for warfare, like automatic rifles.

Let me quote to you a recent dissent by a member of the Ninth Circuit Court of Appeals, where they’ve decided that the Second Amendment doesn’t really mean anything:

I respectfully dissent from our order denying rehearing en banc. In so doing, I am expressing agreement with my colleague Judge Gould’s special concurrence in Nordyke v. King, and with the Fifth Circuit’s opinion in United States v. Emerson, both taking the position that the Second Amendment secures an individual, and not collective, right to keep and bear arms.

The panel opinion holds that the Second Amendment “imposes no limitation on California’s [or any other state’s] ability to enact legislation regulating or prohibiting the possession or use of firearms” and “does not confer an individual right to own or possess arms.” The panel opinion erases the Second Amendment from our Constitution as effectively as it can, by holding that no individual even has standing to challenge any law restricting firearm possession or use. This means that an individual cannot even get a case into court to raise the question. The panel’s theory is that “the Second Amendment affords only a collective right,” an odd deviation from the individualist philosophy of our Founders. The panel strikes a novel blow in favor of states’ rights, opining that “the amendment was not adopted to afford rights to individuals with respect to private gun ownership or possession,” but was instead “adopted to ensure that effective state militias would be maintained, thus preserving the people’s right to bear arms.” It is not clear from the opinion whom the states would sue or what such a suit would claim were they to try to enforce this right. The panel’s protection of what it calls the “people’s right to bear arms” protects that “right” in the same fictional sense as the “people’s” rights are protected in a “people’s democratic republic.”

Our circuit law regarding the Second Amendment squarely conflicts with that of the Fifth Circuit. It is inconsistent with decisions of the Supreme Court that have construed the Second Amendment and phrases within it. Our circuit has effectively repealed the Second Amendment without the democratic protection of the amendment process, which Article V requires.

The panel decision purports to undertake historical analysis. Historical context has its uses in understanding the context and purposes of any law, constitutional or legislative, but like legislative history, the use of history is subject to abuse. Where the historical scholarship is partial and tendentious, relying on it becomes like relying on legislative history: “entering a crowded cocktail party and looking over the heads of the guests for one’s friends.”

Much of the panel decision purports to be an attempt to figure out what the word “militia” means in the Second Amendment. But the panel’s failure to cite the contemporaneous implementing statute defining the term demonstrates the tendentiousness of its analysis. The statute defining the militia, which in substance provides that the “militia” consists of all adult male citizens without regard to whether they are in any state or federal military service, has been subsequently altered to expand its coverage, but the federal militia statute remains in effect. Besides overlooking the statute, the panel somehow failed to notice that the United States Supreme Court, in United States v. Miller, held that the term “militia” in the Second Amendment meant, and means, “all males physically capable of acting in concert for the common defense.” We are an inferior court, bound by this holding of the Supreme Court.

The panel opinion swims against a rising tide of legal scholarship to the contrary, relying heavily on a single law review article that claims “keep and bear” means the same thing as “bear,” which itself means only to carry arms as part of a military unit.”

About twenty percent of the American population, those who live in the Ninth Circuit, have lost one of the ten amendments in the Bill of Rights. And, the methodology used to take away the right threatens the rest of the Constitution. The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, “the people,” as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to “the people,” including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment’s protection of the right of “the people” to be secure against unreasonable searches and seizures, or the right of “the people” to freedom of assembly, but times and personnel change, so that this right and all the other rights of “the people” are jeopardized by planting this weed in our Constitutional garden. – Silveira v. Lockyer, Kleinfeld, dissenting

There’s also this one from that same case:

The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller’s weapon – a sawed-off shotgun – was reasonably susceptible to militia use. We are bound not only by the outcome of Miller but also by its rationale. If Miller’s claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller‘s test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision. – Silveira v. Lockyer, Kozinski, dissenting

A literal interpretation of the Second Amendment that understands U.S. Code, Title 10, Subtitle A, Part I, Chapter 13, § 311.

Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are —

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

That last part means “you and me.” Yessir, we’re members of the militia, assuming we’re able-bodies males of at least 17 years of age and not over 45. I guess under the “the reality of the law as it has evolved” that would also now have to include women, and people over the age of 45, wouldn’t it? Otherwise we could claim age and sex discrimination.

The Constitution and the Bill of Rights are a single LEGAL DOCUMENT designed to restrain the power of government, because the Founders understood that power corrupts and attracts the corrupt. They designed a system that severely restricted the power of government, and made changes to the founding document difficult to ensure that changes would not be made lightly. And STILL many of them didn’t believe that enough, and insisted on tacking on an explicit list of things that the government was not supposed to touch.

But touch them it has, because of people who believe what they have taught you. Touched first with a feather, now with a jackhammer. (Kelo v. New London, anyone?) And you’re championing each crack, each chip, each hammerblow because you see government as a benign solution to “modern problems,” and I see it as the cause of most of them.

Your turn. Take your time. I’m not going anywhere.

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