What Next for Scared Conservatives?

[Doug]

Senate rejects flag desecration amendment By LAURIE KELLMAN, Associated Press Writer 6/27/06

WASHINGTON - A constitutional amendment to ban flag desecration died in a Senate cliffhanger Tuesday, a single vote short of the support needed to send it to the states for ratification and four months before voters elect a new Congress.

The 66-34 tally in favor of the amendment was one less than the two-thirds required. The House surpassed that threshold last year, 286-130.

Read the rest here.

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AND NOW:

House GOP to focus on abortion, guns By DAVID ESPO, AP Special Correspondent

WASHINGTON - House Republicans intend to hold votes this summer and fall touching on abortion, guns, religion and other priority issues for social conservatives, part of an attempt to improve the party's prospects in the midterm elections.

See here.

[Barbara Fitzpatrick]

All of these "values" issues are political setups - the Rs want to "energize" their base by bringing up all these "trigger" votes, so they can use them in campaigns later this year. (You know, "Don't vote for the Ds, they voted to desecrate the flag" kind of thing.) Wish there was a significant monetary penalty (out of their personal salaries) for this kind of behavior.

[Hogeye]

Excellent. The flag desecration party is cancelled.

They still have gay marriage and abortion as hot-button social issues.

The right to bear arms issue has always seemed strange to me; it's one of the few cases where the "conservatives" support individual rights but the "liberals" don't. Logically (from my libertarian perspective) the anti-gun-control and anti-cannabis-control people should be allies. Cf: The Hypocrite.

[Barbara Fitzpatrick]

That's because the 2nd Amendment guarantee is within the confines of the state-armed and trained militia (as in Switzerland), not along the lines of anybody who wants to feel "big" can go out and buy a missile launcher. Militia is defined in the Constitution itself, so there's not a lot of wiggle room as to what the 2nd Amendment was talking about.

Anti-cannabis or other drug laws are not covered in the Constitution, except by a real stretch, under "general welfare" - and even then, since most drugs have SOME beneficial components, the drug laws are pushing it. I'd perfer to see labels with "treatment" uses and dosages, plus warnings on all of them - and only sold in "package stores" to people over 21 - card everybody, including your great grandmother - and tax the heck out of the "recreational" ones.

[Hogeye]

Most libertarians argue on an individual/human rights level rather than a legalistic (Constitutional) level. Rights are more fundamental; the Con is only an imperfect attempt at a formal legal statement of rights. The right of self-defense supercedes all decreed law.

That said, I'll get off on the legalistic tangent: I must say that you have a very restrictive interpretation of the Second Amendment. When you claim that the right to bear arms is only "within the confines of the state-armed and trained militia," you are interpreting the leading subordinate clause as somehow restrictive rather than explanatory. But that is not how the English language works. The sense of the second amendment is: here is one (of perhaps many) good reason for the assertion, then the assertion: The right of the people to keep and bear Arms shall not be infringed.

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.

So the semantic question of what a militia is is irrelevant. The 2ndA clearly says that bearing arms is a right of the people just like e.g. freedom of speech in the first amendment.

Of course, the right of self-defense was controversial even back in revolutionary days. Certainly Hamilton and the strong central government types preferred central control over people and guns, while the more libertarian elements did not. The framers of the Con were mainly big govt guys, with their own ulterior motives. (Most were either land speculators wanting legalization of their land companies and large tracts, or wealthy holders of war script they wanted to cash in at face value.) Thus the poor, tortured language of the 2ndA. Be glad that the first A wasn't: Oration skills being necessary for a free State, the right to free speech shall not be infringed. No doubt we'd have people today arguing that, with literacy and newspapers, oration is outdated and free speech is no longer a right.

[Savonarola]

When you claim that the right to bear arms is only "within the confines of the state-armed and trained militia," you are interpreting the leading subordinate clause as somehow restrictive rather than explanatory. But that is not how the English language works.

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.

Frankly, I think the first clause is explanatory indeed, which renders it "restrictive" in this context: The right of the people to keep and bear arms shall not be infringed, as armed citizens (i.e. militia) are necessary to the security of a free state.
If we were to presume that the security of this "free state" is no longer dependent upon an armed militia, then the reason for that "right" is null and void.

"If I jump off of a tall cliff with no hangliding/parachuting/padding/etc apparatus, I will fall to my death," does not mean "I will fall to my death." It means that I will fall to my death given that I jump off of a tall cliff with no way to soften my impact with the ground.

[Dardedar]

The Supreme Court interprets the constitution. Here is a little summary of how they have interpreted it here. From an ACLU site:

***
ACLU POLICY
"The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment [as set forth in the 1939 case, U.S. v. Miller] that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms." --Policy #47

ARGUMENTS, FACTS, QUOTES

"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."
The Second Amendment to the Constitution

"Since the Second Amendment. . . applies only to the right of the State to
maintain a militia and not to the individual's right to bear arms, there
can be no serious claim to any express constitutional right to possess a firearm."

U.S. v. Warin (6th Circuit, 1976)

Unless the Constitution protects the individual's right to own all kinds of arms, there is no principled way to oppose reasonable restrictions on handguns, Uzis or semi-automatic rifles.

If indeed the Second Amendment provides an absolute, constitutional protection for the right to bear arms in order to preserve the power of the people to resist government tyranny, then it must allow individuals to possess bazookas, torpedoes, SCUD missiles and even nuclear warheads, for they, like handguns, rifles and M-16s, are arms. Moreover, it is hard to imagine any serious resistance to the military without such arms. Yet few, if any, would argue that the Second Amendment gives individuals the unlimited right to own any weapons they please. But as soon as we allow governmental regulation of any weapons, we have broken the dam of Constitutional protection. Once that dam is broken, we are not talking about whether the government can constitutionally restrict arms, but rather what constitutes a reasonable restriction.

The 1939 case U.S. v. Miller is the only modern case in which the Supreme Court has addressed this issue. A unanimous Court ruled that the Second Amendment must be interpreted as intending to guarantee the states' rights to maintain and train a militia. "In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than 18 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," the Court said.

In subsequent years, the Court has refused to address the issue. It routinely denies cert. to almost all Second Amendment cases. In 1983, for example, it let stand a 7th Circuit decision upholding an ordinance in Morton Grove, Illinois, which banned possession of handguns within its borders. The case, Quilici v. Morton Grove 695 F.2d 261 (7th Cir. 1982), cert. denied 464 U.S. 863 (1983), is considered by many to be the most important modern gun control case.
***

http://www.aclu.org/police/gen/14523res20020304.html

[Guest]

And I would truly have no problem whatsoever with the Swiss system (except its gender restrictions) - everyone from 18-50 is in the Guard, has an army rifle and a uniform in the closet because everyone serves - except unfortunately, Bushco would send them all off to armegeddon.

[Hogeye]

If I jump off of a tall cliff with no hangliding/parachuting/padding/etc apparatus, I will fall to my death..."

This is not a good analogy to the 2ndA, since the word "if" makes it a conditional. The second amendment's main clause is "the right of the People to keep and bear arms shall not be infringed." There is nothing whatsoever indicating that the subordinate clause is restrictive; on the contrary, in the English language the default is that it is not a qualifying necessary condition, but simply explanatory.

Darrel, many people and organizations interpret the US Con. State legislatures interpret it, and have nullified some laws, and seceeded over other laws, in American history. The Supreme Court of the US is the last place to look for any objective interpretation, since it violates the fundamental principle of any judiciary - judging one's own case. The US Supreme Court is an organ of the US central state, the judges appointed by the central state, and obviously in the long run interprets the Con in favor of the central state. Cf: John Calhoun's "Disquisition on Government."

The bottom line is the fundamental natural right of self-defense. Sacred scripture like the US Con is at best a failed attempt at codifying that right, at worst a perverse Orwellian subterfuge.

[Savonarola]

This is not a good analogy to the 2ndA, since the word "if" makes it a conditional.

Okay then, let's play semantics.

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.

Gasoline being necessary to power a vehicle, you shall not be able to drive any vehicle with no gasoline.
This is, I admit, a strange example, but the wording is similar to that of the Second Amendment. As we can see, because it is not the case that the first clause is true, the second clause does not hold.

Perhaps another example?

Smallpox being both dangerous and prevalent, the requirement that children receive smallpox vaccinations shall not be rescinded.
This makes sense when smallpox is indeed both dangerous and prevalent, but when smallpox is all but eradicated, this requirement is all but ridiculous.

[Hogeye]

In the first example, "you shall not be able to drive any vehicle with no gasoline" is false regardless of the truth of the explanatory clause. Thus, the explanatory clause has no effect on the truth value of the main clause.

In the second example, again the subordinate clause has no effect on the truth value of the main clause. Even were smallpox not prevalent, one might want to continue prevention. Even if it were not particularly dangerous, like measles, one might want to continue preventative measures.

Even if one of your examples "worked", i.e. showed it was possible to form an English sentence with a strictly qualificatory clause without using a conditional like "if", that would not even come close to showing that the 2nd A is one of such exceptional sentences. Face it: the subordinate clause in the 2nd A is simply an explanation - one reason why individuals have a right to bear arms.

Good thing the first amendment wasn't phrased like this: Literacy being necessary to the security of a free State, the right of the people to keep and own books shall not be infringed. If it had, you'd probably be arguing for central govt censorship and govt ownership of presses and copiers!

[Savonarola]

In the first example, "you shall not be able to drive any vehicle with no gasoline" is false regardless of the truth of the explanatory clause. Thus, the explanatory clause has no effect on the truth value of the main clause.

If the "explanatory clause" of the first example is true, then it is necessarily true that the second clause follows. It is precisely because the first clause is not true that the second clause doesn't hold.

In the second example, again the subordinate clause has no effect on the truth value of the main clause. Even were smallpox not prevalent, one might want to continue prevention. Even if it were not particularly dangerous, like measles, one might want to continue preventative measures.

But what would be the reason for continuing prevention? Smallpox has been, for all intents and purposes, eradicated. The rationale has been nullified, so the proclamation is outdated and therefore void.

Good thing the first amendment wasn't phrased like this: Literacy being necessary to the security of a free State, the right of the people to keep and own books shall not be infringed. If it had, you'd probably be arguing for central govt censorship and govt ownership of presses and copiers!

Yes, it's a good thing. But since it wasn't, we really don't have to worry about it.
As someone who likes pointing out fallacies, perhaps you should give your last paragraph a quick review...

[Hogeye]

Gasoline being necessary to power a vehicle, you shall not be able to drive any vehicle with no gasoline.
Since I can ride a bicycle, the main clause is false. The "gasoline is necessary" part is unnecessary and has no effect on the truth value of the main clause.

But what would be the reason for continuing prevention?

Already answered: Even were smallpox not prevalent, one might want to continue prevention. Even if it were not particularly dangerous, like measles, one might want to continue preventative measures.

My last paragraph was speculation, not an argument, so it cannot have a fallacy. The point was to make you realize that your oddball interpretation of subjunctive clauses is motivated not by knowledge of proper English, but by your belief that it's okay for the State to abrogate the right of self-defense (for the common good of course!) I sincerely doubt you would be arguing against freedom of speech on that basis. But if this were an argument, it would be argumentum ad hominem - circumstantial, i.e. the fallacy of claiming the proposition about clauses is false because the arguer doesn't believe it himself but only promotes it because of ulterior motives (antipathy for the right of self-defense.)

[Savonarola]

Since I can ride a bicycle, the main clause is false.

For the issue at hand (the Second Amendment), we are trying to determine whether the main clause is true based on given information. Therefore, declaring the example main clause either universally true or universally false is appealing a conclusion you do not have for the purposes of comparison. At the most, all you have done is shown that my example is imperfect.

Inevitably, though, your argument relying upon the "rules of English" is vacuous; the Founders were not grammarians, as clearly evidenced by their writings, and appealing to a phantom convention that we don't know they followed carries no weight.

One of my favorite sayings is, "Listen to what I mean, regardless of what I say." We should look at the intent of the declaration. In the evolution of the Second Amendment, every version referred to the militia being necessary for the security of a free state. Were the Founders incapable of omitting explanation? Of course not; rather than appealing to literacy or oration skills, the Founders came out and said it:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

No qualifiers, no explanation, just boom: there it is. Not even something generic like, "These things being necessary for a free republic..." In fact, we see the lack of "explanatory clauses" like that we see in the Second Amendment throughout the remainder of the Bill of Rights. The Founders did not intend for "the right to keep and bear arms" to mean that any schmo could have guns for the hell of it; they meant: "To allow for the important purpose of maintaining a free state via militia action when necessary, citizens shall not be prevented from keeping and bearing arms."

[Barbara Fitzpatrick]

And in fact the federal government provided funding for the arming of those militias - cheap, mass-produced rifles were not available until after the Civil War and prior to that "Johnny" got his gun by joining the militia (again, you can see the similarity to the Swiss national defense system in this). The fed also approved the training manuals//procedures and provided funding to pay the officers (who were chosen or appointed at the state level). The 18th and 19th century "Johnny" did not have a handgun, those were only issued to officers (having been created for officers to use against their own men in cases of mutiny) and "Johnny" could be arrested and tried for mutiny if found in possession of a handgun (a rule rescinded relatively early in the U.S., though still in effect in the British Navy into the 1960s). "Johnny" sure as heck didn't have a canon or any other "ordinance" weaponry, the likes of which the NRA apparently thinks any "schmo" should have the right to buy for the hell of it (or more likely to arm foreign or home-grown terrorist "cells" or "militias").

[Hogeye]

For the issue at hand (the Second Amendment), we are trying to determine whether the main clause is true based on given information.

I think the main clause is true based on the right of self-defense. On to the legalistic trivia: The issue we have been discussing is whether the main clause stands on its own, with or without the subordinate clause, or whether the main clause is conditioned upon the subordinate clause.

In the English language, both now and back then, subordinate clauses are generally not qualificatory conditions on the main clause. You have been trying to show that there exist English sentences with qualificatory subordinate clauses, but even if you find one that does not in any way imply that the 2nd Amendment is of that highly unusual type. It seems to me that the burden of proof is on you to show that Madison et. al. intended the phrase in the rare non-standard qualificatory sense rather than in the standard sense.

You are right, Sav, that the right to bear arms was controversial even in the Founder's day. Some ("anti-federalists") saw the right to bear arms as self defense, especially against a tyranical government. Others ("federalists") wanted the central government to have a standing army capable of defeating any opposition to its rule. That is why it is so poorly worded - it's a wishy-washy compromise wording. Madison's original text was this:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

He's apparently trying to appease both factions. Note, Barbara, it's a "right of the people," not a "right" of government to regulate people. In English general usage, the phrase "a well armed and well regulated militia being the best security of a free country" is flowery but petty elaboration, and in no way restricts the "right of the people."

[Savonarola]

It seems to me that the burden of proof is on you to show that Madison et. al. intended the phrase in the rare non-standard qualificatory sense rather than in the standard sense.

It seems to me that there was a large section in my previous post that discussed intent, to which you didn't give much of a response.

(Did anyone else notice that Madison's original wording doesn't follow English rules, let alone convention?)

[Barbara Fitzpatrick]

Actually, Madison's original text seems to set up the Swiss system, but permits those with religous scruples to avoid military service (see the 1st Amendment). The Federalists were just as afraid of takeover by military coup as the Republican Democrats (later shortened to Democrats, that Hogeye called Anti-federalists). They wanted state militias made up of local units and not a national standing army - and they paid for the arming and training of those militias, remembering not too fondly the soldiers of the war of 1776-1781, who showed up with boar spears and pitch forks to fight trained soldiers and mercenaries. Arming the army in the midst of war is not particularly efficient and they didn't want to have to go through THAT again. Being a small and not-everywhere accepted nation, with "British-owned" Canada to the north, French and Spanish "owned" territory to the west and south, and Indians everywhere, the potential for NEEDING those military units was very high indeed. So they ordered, organized, and armed what they needed and made sure that a later president, backed by a national army, couldn't disband them.

[Hogeye]

It seems to me that there was a large section in my previous post that discussed intent, to which you didn't give much of a response.

My response was: "The right to bear arms was controversial even in the Founder's day. Some ("anti-federalists") saw the right to bear arms as self defense, especially against a tyranical government. Others ("federalists") wanted the central government to have a standing army capable of defeating any opposition to its rule. That is why it is so poorly worded - it's a wishy-washy compromise wording." To elaborate: The politicians who decided on the wording of the Bill of Rights phrased the 2ndA ambiguously on purpose. The 1st amendment was phrased more straigtforwardly since is was relatively non-controversial. The intent of the 2ndA as written was to please all sides by stating two different claims: 1) That there is an individual ("people's") right to own and bear arms, and 2) that a well regulated militia is necessary to the security of a free State. There is no indication that claim (1) is dependent on claim (2). I know of no writings by the proponents of claim (2) that it was to be interpreted to deny the right to bear arms. On the contrary, when they were trying to sell the Bill of Rights to the states, they specifically said otherwise:

Nor were the antifederalists, to whom we owe credit for a Bill of Rights, alone on this account. Federalist arguments also provide a source of support for an individual rights view. Their arguments in favor of the proposed Constitution also relied heavily upon universal armament. The proposed Constitution had been heavily criticized for its failure to ban or even limit standing armies. Unable to deny this omission, the Constitution's supporters frequently argued to the people that the universal armament of Americans made such limitations unnecessary. A pamphlet written by Noah Webster, aimed at swaying Pennsylvania toward ratification, observed.

"Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States." 37

In the Massachusetts convention, Sedgewick echoed the same thought, rhetorically asking an oppressive army could be formed or "if raised, whether they could subdue a Nation of freemen, who know how to prize liberty, and who have arms in their hands?" 38 In Federalist Paper 46, Madison, later author of the Second Amendment, mentioned "The advantage of being armed, which the Americans possess over the people of all other countries" and that "notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms." - The Right to Keep and Bear Arms REPORT of the SUBCOMMITTEE ON THE CONSTITUTION

[Savonarola]

The intent of the 2ndA as written was to please all sides by stating two different claims: 1) That there is an individual ("people's") right to own and bear arms, and 2) that a well regulated militia is necessary to the security of a free State.

If "the intent of the 2ndA" was to please all sides, then the intent was not to ensure a permanent right to bear arms.

I suspect that this is not what you intended to express; however, it demonstrates that you have indeed not addressed the issue of intent. Or perhaps this is what you intended to say and you admit that the Second Amendment was not actually intended to guarantee the right to bear arms. Your choice.

More substantively, however...
If [2] is a separate claim, it would have no effect on anything whatsoever. That is, if [2] adds nothing legal to the Amendment, and if [1] alone reflects the true intent, why is [2] there? Your interpretation is equal to that of "Citzens shall have the right to bear arms, and hey, by the way, militias are necessary, and stuff." This is like saying, "Freedom of expression shall not be restricted; after all, Benjamin Franklin likes writing." But, as has been pointed out, that is not the wording of the First Amendment; the Second Amendment and only the Second Amendment contains such an "explanatory clause."
... And your explanation for this is that "the issue was controversial"? How does including this phrase make the proposed amendment less controversial if the phrase has no effect?

Person 1: "We should have freedom of expression."
Person 2: "I dunno.. are you sure?"
Person 1: "Well... Ol' Ben likes to write."
Person 2: "Really?"
Person 3: "Yeah, he loves it. In fact, we should put it in the Amendment."
Person 1: "Fine by me. 'We should have freedom of expression because Benjamin Franklin likes to write.'"
Person 2: "Oh, well in that case, I approve!"

Get real. Just as Ben Franklin wouldn't be required to continue to like to write because it is written in an official document that he enjoys writing, no document can mandate whether a militia is necessary to the security of a free state. You seem to be indirectly arguing either that legislatures were full of dupes or that the authors were perpetrating fraud.

On the contrary, when they were trying to sell the Bill of Rights to the states, they specifically said otherwise: [snip]

See here for the full context, and don't miss the short foreword introducing the quote. In any case, though, unless Webster played a significant role in the drafting of the Second Amendment, citing his opinion does not speak to intent.

Speaking of context, we can tell merely from the quotations provided in your citation that Madison's words have been taken out of context. Still, neither actually explain the intent of the Second Amendment.