What Next for Scared Conservatives?

[Dardedar]

Darrel, I've never "signed on" to the Con in any way, shape, or form.

DAR
I don't care. Because your "signing onto it" or not, or attempting to intreprete that is or that has no effect whatsoever.

The discussion is about what the 2nd A means.

DAR
What matters in the end, in the real world, according to the rules, is what the Supreme courts says it means. It certainly seems appropriate to point out that there is a complex legally binding precess in place, which just happens to come down unanimously against your position. BANG goes the gavel. They didn't give you a gavel did they Hogeye?

Simply saying "the Supes say so" or "the Con says so" is no different than saying "the pope says so" or "the Bible says so."

DAR
Of course it is. What the pope says only matters to people who sign on to the optional Catholic game. For those who don't there is no prescribed group assigned to have binding Bible interpretation powers (unless you sign onto a few other games in town). Not so with the constitution. Whether you acknowlege this personally or "sign on" matters not one whit.

Your inability to answer a straight question, even when I specifically draw attention to it and ask you not to duck is getting beyond tedious. I never duck questions. You do it all the time, as a matter of course. I going to start drawing attention to this.

***
QUESTION from above:

DAR
The system of having lifetime appointed judges, nominated by one branch and affirmed by another branch, for the purpose of creating an independent judiciary, seems fair. It's not perfect, but what would you purpose in place of it? Do answer that question, don't duck it. What do you have that is better? By what system could the founders have had set up so that "Hogeye of Ozarkia" could have been chosen to correctly interpret the words of their constitution?

D.

[Savonarola]

I think Madison's intent is important. We agree on that. Where we disagree is: I take Madison's intent at face value - what he wrote.

But your explanation for why he (they) wrote what he (they) wrote ("ambiguously") has serious flaws. I explained these flaws, but you handwaved them away. Nevertheless, in my previous post I provided more evidence contrary to your position, but you responded not to it. Instead, you're still harping on the grammar of the militia phrase, which is in no way foundation for the argumentation that questions your "explanations" for the wording.

When combined with the context of militia, which at the time referred to citizens who supplied their own weapons, the meaning is obvious: militiamen need to have their own weapons.

I agree that this is a probable intent of Madison and others.

I contend that this is the intent of Madison and others. The SCOTUS agrees with me, too.

Why you insist on taking Madison's (Congress's) intent "at face value" is curious: Why not look for more information? Why not try to justify your viewpoint with more than an appeal to direct wording? Why not come up with explanations that aren't illogical?

[Hogeye]

Why not look for more information?

I have. In all the information you and I have looked at, there is nothing even hinting that Madison didn't mean what he said about the people's right to bear arms.

Why not try to justify your viewpoint with more than an appeal to direct wording?

Because the direct wording is undisputable and there in black and white. When I speculated about why the wording of the 2ndA was obscure, you took it as an argument (even the "cornerstone" argument!), and got off on irrelevant tangents. I would not want to give you any more 'red herrings' by speculating again. I thank you for making me see that such speculation is irrelevant. The only phrase I'm concerned with is "the right of the People to keep and bear arms shall not be infringed" and whether the preceeding phrase strictly qualifies it.

I don't particularly care about other intents of the 2nd; I agree with you that another intent was to make a non-rights-related policy statement that "militiamen need to have their own weapons."

[Savonarola]

In all the information you and I have looked at, there is nothing even hinting that Madison didn't mean what he said about the people's right to bear arms.

Quite the contrary, I'd say. You seem to think that the intent was universal optional armament despite the information.

When I speculated about why the wording of the 2ndA was obscure, you took it as an argument (even the "cornerstone" argument!), and got off on irrelevant tangents.

Your attempt at explaining why the militia phrase was included failed. Because you have no satisfactory explanation, you appeal to grammar instead of intent.

[GOPRazorback]

Maybe we should listen to the founders when we start talking about what they wrote.

George Mason, perhaps the greatest of Virginia statesmen, and certainly the staunchest defender of liberty, reported that "when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually." He went on to say, "I ask, who are the militia? They consist now of the whole people, except a few public officers."

This clearly states that the 'militia' in question wass in fact the whole of the people. Back in the 18th century, there was no 'National Guard' or 'Reserve' The militia was in fact everyone.

Just remember, without the second ammendment, we are all a short step away from tyrany and I don't thing many, if any, would want that!

[Doug]

This clearly states that the 'militia' in question wass in fact the whole of the people. Back in the 18th century, there was no 'National Guard' or 'Reserve' The militia was in fact everyone.

DOUG
From a website:
The 1990 case of Perpich v. DoD is the most recent United States Supreme Court case on the militia. The Court stated at 110 S. Ct. 2426: "[T]he traditional understanding of the militia [is] as a part-time, non-professional fighting force." The Court then quotes from the 1879 case of Dunne v. People, 94 Ill. 12, where the Illinois Supreme Court stated:

"Lexicographers and others define the militia, and the common understanding is, to be 'a body of armed citizens, trained to military duty, who may be called out in certain cases, but may not be kept on service like standing armies, in time of peace.' That is the case as to the ACTIVE [emphasis added] militia of this state. The men comprising it come from the body of the militia, and when not engaged at stated periods in drilling and other exercises, they return to their usual avocations, as is usual with militia, and are subject to call when the public exigencies demand it."
Here.

So the militia is a part-time, nonprofessional fighting force. Like the National Guard.

Just remember, without the second ammendment, we are all a short step away from tyrany and I don't thing many, if any, would want that!

DOUG
I don't see any reason to believe that your statement is true ever since the U.S. won independence from England.

The closest we've been to tyranny is George W. Bush, and he's working toward that goal every day. I don't think militias will stop him.

[Dardedar]

Just remember, without the second ammendment, we are all a short step away from tyrany and I don't thing many, if any, would want that!

DAR
Then I suppose that all of our peer countries most be well over the tipping point of tranny, since they all (I bet without exception) have much stricter gun control laws (esp. handguns) than we do. Our lack of gun control doesn't protect us from tranny, but it does get us results like this:

"According to the CDC, the rate of firearm deaths
among children under age 15 is almost 12 times higher
in the United States than in 25 other industrialized
countries combined. American children are 16 times
more likely to be murdered with a gun, 11 times more
likely to commit suicide with a gun, and nine times
more likely to die in a firearm accident than children
in these other countries."

--Centers for Disease Control and Prevention. Rates of
homicide, suicide, and firearm-related deaths among
children in 26 industrialized countries. MMWR Morb
Mortal Wkly Rep. 1997; 46 :101 –105

http://www.med.umich.edu/1libr/yourchild/guns.htm#edn3

D.

[Hogeye]

I think I'm ready to sum up. The issue is how to interpret the 2nd amendment, which is:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

I argued that it should be interpreted straightforwardly, in the standard manner for English sentences using a nominative absolute phrase:

A well regulated Militia is necessary to the security of a free State and the right of the people to keep and bear Arms shall not be infringed.

Basically there are two ideas conjoined, the first idea expressing a motivation for the second. This, I argue, was Madison's intent. This is the 2nd taken at face value, the Occams Razor simplest interpretation, taking what Madison wrote to be exactly what he meant.

Sav argues that it should be interpreted in a non-standard manner, with the first phrase a necessary condition for the second phrase:

Only if a well regulated Militia is necessary to the security of a free State, then the right of the people to keep and bear Arms shall not be infringed.

In this interpretation, if a militia is not necessary, then there is no right to bear arms. Sav's argument for this interpretation is ... well, he never really gives a reason, just the bald statement "I think the first clause is explanatory indeed, which renders it "restrictive" in this context."

First, he tried (and failed) to create a sentence where the nominative absolute phrase was a necessary condition. I pointed out that, even if he concocted such a phrase, that wouldn't prove that the 2nd Amendment was similarly exceptional.

Then he argued that "the Founders were not grammarians", so we should not interpret the 2nd A with standard English usage. First of all, this does not follow; secondly, even if it did follow, that wouldn't prove that the 2nd should be interpreted in his particular non-standard manner.

Then Sav argues that, because the other Bill of Rights amendments were worded more precisely, the 2nd A should be interpreted in his particular non-standard manner. Again, that does not follow.

At this point I made what was in retrospect a mistake: I offered speculation on why Madison worded the 2nd A so imprecisely. I hypothesized that Madison may have added the strong militia statement to the rights statement to "sweeten the pot" politically, i.e. he hoped that with both the RTBA people and the strong militia people on board, the 2nd had a better chance of passing. I think this is a plausible explanation. It was a mistake, because it allowed Sav to divert the discussion from the meaning of the 2nd amendment to a critique of my speculation about the reason for Madison's imprecise wording. All this is a red herring - irrelevant.

Back on issue, Sav argued that "it's unreasonable to think that the Second Amendment follows" standard English convention regarding nominative absolutes, because of "the lack of these phrases among the remainder of the Bill of Rights." Again, this doesn't follow, and even if it did it does not support his necessary condition interpretation. The convention in question is: nominative absolute phrases are explanatory, not qualificatory.

The rest of the debate was reruns:
Sav takes an earlier version of the 2nd A Madison wrote, with the same nominative absolute, and makes another unsupported claim "it is abundantly clear" that it is a necessary condition for the right to bear arms.

Sav repeats his non sequitur that, since other amendments are worded better, his necessary condition interpretation must be right.

When all is said and done, the interpretation of the 2nd amendment seems to hinge on the nature of nominative absolute phrases in English. Virtually all English professors, English teachers, and internet sources (google "nominative absolute") say that such a phrase is explanatory and not qualificatory (a necessary condition) with respect to the main phrase. If a non-standard meaning is claimed for such a phrase, the burden of proof that a non-standard meaning applies is on the claimant. Sav has not provided proof that a non-standard meaning was intended by Madison, nor that the 2nd should be interpreted in his particular non-standard manner.

[Dardedar]

When all is said and done, the interpretation of the 2nd amendment seems to hinge on...

DAR
What the Supreme Court says it means.

All admit that it is vague and poorly worded. There needs to be some group assigned to make a final, subjective and perhaps less than perfect decision. Fortunately such a system is set in place.
This is unlike the Bible (your analogy) where people are free to interpret on their own (guided by Holy Spirit) and we have 30,000 sects/divisions on what it says/means.

Incidentally, I am a foreigner, a handgun owner and am in perfect agreement with the interpretation of this phrase as provided by the unanimous decision of the Supreme Court.

D.

[Barbara Fitzpatrick]

"Explanatory" would be the reason for understanding the 2nd amendment as people can have guns because a militia is necessary for freedom. As to the militia itself, Article I, section 8 includes in the listed powers of Congress:

"To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"

which, while it doesn't specifically state males, and males of a certain age group, you know darn good and well that females were not included. Note that Congress paid for the arming of the militia. That combined with the 2nd amendment, which allowed them to take the guns/army rifles home for personal use (hunting), was the lure to get people to join the militia. (According to a friend whose father was in active service in the AR militia/National Guard during the change, the militia became the National Guard in 1916 when the various state militias left their states to go into Mexico after Pancho Villa.)

[Hogeye]

"Explanatory" would be the reason for understanding the 2nd amendment as people can have guns because a militia is necessary for freedom.

The big question is whether it is qualificatory, i.e. whether the militia phrase is a necessary condition. I submit that you interpret it that way because of bias, rather than through your normally competent understanding of English usage. I suspect that if you made analogous constructions without the emotional assertions, you would opt for a non-qualificatory interpretation nearly every time. Compare with other examples of sentences with nominative absolute phrases.

Darrel, we've been through that appealing to authority fallacy already. A valid contract cannot be unilaterally interpreted by one of the parties to the contract. The states may nullify; people may nullify. The Supreme Court is merely the official extremely biased interpretation of the rulers. The State may be able to brutally enforce its interpretation by a bloody war (the War of Northern Aggression), but that is not a valid argument. It is argumentum ad baculum - appeal to force.

[Dardedar]

The states may nullify; people may nullify.

DAR
They can? Is there a proper legal procedure to follow or can they just chat about it in a blog and that counts?
Monkeys may fly out of my ass; monkeys may fly out of the ass of one of my goats. But there isn't much point in speculating about it until it actually has the potential to happen.

The Supreme Court is merely the official extremely biased interpretation of the rulers.

DAR
But they are appointed through an extensive process of representative government. It's not like they were just randomly selected residents from Bangalore or something.

D.

[Hogeye]

Hogeye> The states may nullify; people may nullify.

Darrel> They can?

Yes. The most famous was the nullification of the Alien and Sedition Acts, by the Virginia Resolutions (written by James Madison) and the Kentucky Resolutions (written by Thomas Jefferson.) The Alien and Sedition Acts were the 1798 rendition of the PATRIOT Act. In 1861 some states went even farther and seceeded - the ultimate form of nullification.

Hogeye> The Supreme Court is merely the official extremely biased interpretation of the rulers.

Darrel> But they are appointed through an extensive process of representative government.

The fact remains. How they were appointed is irrelevant to the fact.

[Savonarola]

Okay then, I'll take this opportunity to give my closing statements.

Basically there are two ideas conjoined, the first idea expressing a motivation for the second.

Hogeye's appeal to English convention means that he thinks the authors chose to state a "fact" that has no place in the Amendment and no effect on anything whatsoever*. As one can see from reading the Bill of Rights, this is extremely atypical. Certainly, they were capable of writing rather straightforward assertions of rights, but they chose to include additional wording in this case. It is neither illogical nor biased to explore why this "ambiguous" phrase exists. Given the meaning of militia and the authors' rearrangements of clauses, previous writings, and previous influences, it is clear that the militia phrase explains the motivation, not merely a motivation.

* Hogeye's "explanation" for the existence of this phrase is that it swayed voters. How it would sway voters, as it has absolutely no legal effect, is curious. He seems to think that most people were rather indifferent, and that the militia phrase was persuading; this is inconsistent with the existence of other "publicly approved" documents outlining the "right to bear arms" without appealing at all to the idea of a militia. Also inconsistent is utter lack of mention of a universal "right to bear arms" in the single most influential document on the creation of the Bill of Rights, Mason's Virginia Declaration of Rights.


Here's a point that Hogeye continually ignores: Regardless of the "qualificatory" or not status of the militia phrase, the argument from intent is stronger than his appeal to grammar. That is, even if one grants that the militia phrase is not strictly qualificatory, the intent of the authors as explained above trumps grammar. Nearly all of the above points are useful in the argument from intent, and Hogeye fails to apply them in this context. In fact, Hogeye largely ignores the implications of the argumentation regarding intent in favor of merely arguing that they don't explicitly show intended violation of grammatical convention.

It was a mistake, because it allowed Sav to divert the discussion from the meaning of the 2nd amendment to a critique of my speculation about the reason for Madison's imprecise wording.

Hogeye was unable to provide a coherent harmonization of the wording and the intent that he insists the authors had. Hogeye's answer to the question of what the militia phrase means seems to be, "I don't know, therefore we shouldn't try to find out." I find this laughable, as does the judicial branch.

[Savonarola]

Hogeye> The states may nullify; people may nullify.

Darrel> They can?

Yes.

Not legally.

[Dardedar]

Ha.

[GOPRazorback]

From the Cornel Law School website.

TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311 Prev | Next

§ 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.

the second ammendment was put in place so that the people, if oppressed by thier new govrnment could replace it.

Then we hear from Thomas Jefferson

"No Free man shall ever be debarred the use of arms." (Thomas Jefferson, Proposal Virginia Constitution, 1 T. Jefferson Papers, 334,[C.J.Boyd, Ed., 1950])

George Mason

"...to disarm the people - that was the best and most effectual way to enslave them." (George Mason, 3 Elliot, Debates at 380)

And James Madison

"Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms." (James Madison, The Federalist Papers #46 at 243-244)

And Alexander Hamitlon

"The best we can hope for concerning the people at large is that they be properly armed." (Alexander Hamilton, The Federalist Papers at 184-8)

So...it wasn't meant to be an uindividual right? Your logig seems to be missing.

Edited by Savonarola, 20060731 2035: Disabled unintended smiley

[Doug]

From the Cornel Law School website.

TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311 Prev | Next

§ 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.

DOUG
Remember, the Illinois Supreme Court stated:

"Lexicographers and others define the militia, and the common understanding is, to be 'a body of armed citizens, trained to military duty, who may be called out in certain cases, but may not be kept on service like standing armies, in time of peace.'

The Boy Scouts used to be a proto-militia. But some person with a gun at home is not necessarily "trained to military duty, who may be called out in certain cases."

GOPR wrote:

the second ammendment was put in place so that the people, if oppressed by thier new govrnment could replace it.

DOUG
Yes. But no rational person sees that as a legitimate reason to bear arms these days. Only idiots think that if they don't like the U.S. government, that a bunch of rednecks with shotguns and revolvers can take on the U.S. military and win. That's pretty stupid, wouldn't you agree? I think they've watched "Red Dawn" too many times. Or maybe "First Blood."

Then we hear from Thomas Jefferson...

George Mason...

And James Madison...

And Alexander Hamitlon...

So...it wasn't meant to be an uindividual right? Your logig seems to be missing.

DOUG
I disagree with the legal theory of constitutional interpretation called originalism. On originalism, the constitution should be interpreted according to the perceived intent of the framers. I think that is a poor way to interpret law, especially given that the framers intended that Blacks would count only as 3/5 human. And slavery was intended to be legal. And they intended to exclude women from voting.

We are now wiser than that.

We need to interpret the Constitution with an eye toward what is best for the country, not through 19th century eyes. Given the number of murders in the U.S., curbing the number of guns is in the vital interest of the United States.

[Hogeye]

Welcome GOPR. Thanks for joining in.

Debate tip: Try not to overstate or exaggerate your assertions. Try to make your point with the weakest assertion necessary to the task. For example,

The second ammendment was put in place so that the people, if oppressed by their new government could replace it.

This is overstating what Jefferson, Madison, Hamilton, and Mason said in those quotes. They didn't say that an armed citizenry could replace or defeat or conquer an oppressive government. They said that armed people could resist. So Doug got an easy point with his reply

But no rational person sees that as a legitimate reason to bear arms these days. Only idiots think that if they don't like the U.S. government, that a bunch of rednecks with shotguns and revolvers can take on the U.S. military and win.

If you, GOPR, had simply used the word "resist" rather than "replace," Doug's reply wouldn't have worked at all, since (to paraphrase), no rational person, after looking at Vietnam, Afghanistan, Iraq, Palestine, etc. would deny that guerrilla (asymmetric) warfare can resist even vastly superior firepower. Only idiots think that if they don't like a government, that resistance is futile. As in Vietnam (and the American Revolution to some degree), the guerrillas can lose nearly every battle yet win the war.

Doug's point - that armed citizens with shotguns can't defeat the mighty US military - comes up a lot in discussion about the RTBA. Usually it's a strawman. In this case, you handed Doug the strawman on a silver platter, giving him a slam-dunk. (Triple mixed metaphor!)


Question for Doug: I agree with what you say about originalism. But would you really throw out all original intent, and replace it by vulgar utilitarianism? ("We need to interpret the Constitution with an eye toward what is best for the country," you wrote.) I can't believe you really mean that.

If I were a constitutionalist, I would replace it with what I guess you could call principled originalism. I wouldn't ignore all the original intent; I would try to discern the intended principles, but throw out the cultural and historical compromises to e.g. slavery, white male supremacy, and so on. For example, the principle of consent of the governed is clearly intended originally, so we can apply this principle more perfectly if we let blacks and women become full citizens. Another example: Freedom of communication was originally intended; we can apply it in modern times by expanding it from speech and press to radio, TV, internet, and so on.

Given the number of murders in the U.S., curbing the number of guns is in the vital interest of the United States.

That's not so clear. Maybe more gun ownership by non-criminals would curb murder better. Switzerland is the most gun-crazy country in the world, yet it has a very low crime rate.

[Dardedar]

Switzerland is the most gun-crazy country in the world, yet has a very low crime rate.

DAR
Not handguns. Same with Canada. As I remember, they own guns/rifles at about the same rate as the US, but they have much stricter control of the guns and almost no handguns and a tiny fraction of the gun crime and death.

Found this too:

It's true that Swiss soldiers are required to keep their assault rifles at home. How big is the Swiss Army? 400,000 (source). There are about 3 million Swiss households (source). 400,000/3,000,000= 0.133. Therefore, there is a military assault rifle in about 13% of Swiss homes. Switzerland also has rather strict gun control laws. In Switzerland a permit is required in order to purchase a weapon (The permit shows that you are at least 18 and don't have a criminal record). A permit is also required to carrry a weapon. Such a permit is mostly issued to people who work in security-type occupations. To obtain this permit, you have to demonstrate that you need to carry a weapon and that you know how to handle a gun safely and have knowledge of the law regarding firearms use(source). Soldiers in the Swiss Army are required to store their military weapons at home under lock and key and to undergo regular training. Strict gun laws in Switzerland minimize the dangers of gun ownership.
***

Found a whole bunch of 2nd Amendment cases here:

http://www.guninformation.org/cases.html

This little page has some interesting comments regarding scholars and the 2nd:

http://www.guninformation.org/scholars.html

Interesting what the American Bar Association says about this.

All these people are wrong and nine random high school grads from Bangalore are going to get to the bottom of it?