D.C handgun ban violates 2nd amendment

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wintergreen48
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#26 Post by wintergreen48 » Thu Jun 26, 2008 10:30 am

TheCalvinator24 wrote:
PlacentiaSoccerMom wrote:I personally think that the framers were trying to protect the security of the state rather than protecting individual rights to bear arms.
I happen to think it was intended as an individual right, but I can accept your position if by "state" you mean "the several states" and not the "national state."

There's just something about the language "the right of the people to keep and bear Arms, shall not be infringed" that tells me that the right rests in people, not in governments.
Well said.

There is a really interesting irony here, from the Constitutional standpoint.

When you get right down to it, the purpose of the Constitution was to list, specifically and precisely, the very limited powers that the federal government could exercise, the presumption being that any powers NOT specifically given to the federal government were retained by the individual states and/or the individual people of the states. At the time that the Constitution was first ratified, there were concerns that the 'federalists' would take on lots of power in the central government, which would be oppressive to the states and to the individual people of the states, and so, the Bill of Rights were proposed to be added to the Constitution, and they came in as the first Eight Amendments. A counter argument was raised that, well, if we start listing all these individual rights, those darn 'federalists' will start to argue that 'if it isn't in the Bill of Rights, then it is not a right, and the federal government can do what it wants,' and so, the 9th and 10th Amendments were proposed, which specifically provide that the individual states and the individual people of the states retain all those undelegated powers, and specifically, the fact that something is not included as a specific 'right' may NOT be taken as proof or evidence that it does not exist as a right.

All of which goes to show that the right to bear arms, etc., is not 'given' by the Constitution, but simply considered to be so important and vital that it is expressly 'recognized' by the Constitution.

But that's not the irony.

The underlying presumption of the Constitution is that it does not, in any way, limit the powers of the individual states except to the extent that the Constitution itself expressly delegates some governmental power to the federal government (for example, the coining power, or the power to wage war)-- in other words, anything 'governmental' that can be done, the states have the power to do it, subject to the very few express limitation sin the US Constitution, and subject to any limitations that a state may have in its own constitution. So, to the extent that you would read the 1st Amendment as prohibiting 'the government' from restricting someone's free speech rights, that actually only applies to the federal government, not the state government (but most state constitutions actually have some provision that specifically provides for that same limitation on the power of the state government). Similarly, to the extent that the 2nd Amendment guarantees the right to bear arms, it is really only applicable to the federal government: as per the quote above concerning the Stuarts disarming local people who were 'threats' to them, the framers of the Constitution were concerned about the possibility of the federal government disarming the people of the individual states, making them subject to oppression by a potentially oppressive central government, and so, they put the 2nd Amendment in there to make sure that there was NO QUESTION that the federal government could not impinge on the right to bear arms; the reference to the 'militia' simply reinforced that this limitation on governmental power applied to the federal government.

But the irony... the 14th Amendment provides generally for 'equal protection of the laws,' and the most, well, liberal interpretation of it was that it 'expanded' the protections of the first eight amendments so as to limit the powers of the states: this is why a state may not impose cruel or unusual punishment, because under this interpretation of the 14th Amendment, the protections of the 8th Amendment are deemed to apply to the states. Same with the 'search and seizure' requirements of the 4th Amendment, the right to counsel in criminal counsels, etc. The only exception to all that is that the Constitution provides that a person is entitled to a jury trial for any matter in which the amount involved is more than $25, and that would wreak chaos at the state level (the federal government gets around it by simply prohibiting people from filing suit in 'economic' cases that involve less than $50,000, at least, I think it is now $50,000; the states cannot do that, it would essentially keep everyone out of court, not a bad thing in many cases, but a very bad thing in others, where the amount involved would be <$50,000).

DC is not a state, and that was an issue in the school desegregation (and other civil rights) cases-- technically, the 14th Amendment does not really apply in DC in most respects. At the time of Brown v. Board of Education, the Warren Court finagled some stuff under the 5th Amendment and others, which provide for limitations on the power of the federal government, and they just held that this was the source of their authority to do what they did in DC.

Anyway, the only reason that the Supreme Court today can hold that the 2nd Amendment applies to the states and prevents them (and DC) from imposing a gun ban on private citizens is that earlier generations of the Court succeeded in setting the precedent that the first eight amendments serve to limit the powers of the states. Thus, the irony is that the conservative justices who formed the majority in the Court decision that today holds that the state governments (and DC) must keep their hands off our guns are in fact relying upon a 'liberal' interpretation of the Constitution (that state governments are subject to limits on their power), completing contradicting the usual conservative argument that the states are free to do what they want, while the liberal justices who would have supported the gun bans are, in effect, repudiating the central thesis behind virtually all of their decisions over the past 50 years, which holds that the state governments are subordinated to federal rules/requirements.

What a world...

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#27 Post by themanintheseersuckersuit » Thu Jun 26, 2008 10:31 am

a1mamacat wrote:
Bob Juch wrote: Look at all the school shootings that could have been minimised if someone else had a gun.
or, conversely, if NO ONE had a gun!

I do not understand the rabid mentality of it being a right to possess a lethal weapon.
When we get to the point when no one has a gun, that would make sense. But you mean no one other that the government has a gun.
Suitguy is not bitter.

feels he represents the many educated and rational onlookers who believe that the hysterical denouncement of lay scepticism is both unwarranted and counter-productive

The problem, then, is that such calls do not address an opposition audience so much as they signal virtue. They talk past those who need convincing. They ignore actual facts and counterargument. And they are irreparably smug.

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#28 Post by BackInTex » Thu Jun 26, 2008 10:33 am

nitrah55 wrote: Scalia has constructed a convoluted argument that reduces to, "Let's ignore the first clause in the sentence."

So I would take it that Scalia would see no difference in the meaning of these two sentences:

"I'm hungry, so I'll order a pizza."

"I want to rob the delivery guy, so, I'll order a pizza."
There is a huge difference in the first half, but absolutely no difference in the second half. Same with the 2nd amendment.

What the founders have said is that you have a right to order pizza, no matter what the purpose is.
..what country can preserve it’s liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? let them take arms.
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#29 Post by nitrah55 » Thu Jun 26, 2008 10:44 am

themanintheseersuckersuit wrote:
nitrah55 wrote:
TheCalvinator24 wrote:Am reading the opinion, and so far, it seems spot on.
But, also nowhere else in the Constitution is a right granted with a introductory clause, as in, "A well-regulated militia, being necessary to the security of a free state..."

Scalia has constructed a convoluted argument that reduces to, "Let's ignore the first clause in the sentence."

So I would take it that Scalia would see no difference in the meaning of these two sentences:

"I'm hungry, so I'll order a pizza."

"I want to rob the delivery guy, so, I'll order a pizza."
It is therefore entirely sensible that the Second Amendment’s
prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution.
So, this is the argument:

1. Having a militia is important, but it's not as important as self defense or hunting.

2. When writing an introductory clause to a clause granting a right in a constitution, a less important rationale for that right should be cited, rather than a more important rationale.

Therefore: A well-regulated militia, etc.

Premise 2 flies in the face of common sense, English composition, and, I would think, the drafters' of the Constitution inclination, everywhere else in the Constitution, to keep the rights granted as broad as possible.

The Constitution nowhere else gives a reason for granting a right; why in this case give a reason, unless the reason is the reason?
I am about 25% sure of this.

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#30 Post by TheCalvinator24 » Thu Jun 26, 2008 10:52 am

nitrah55 wrote:
TheCalvinator24 wrote:Am reading the opinion, and so far, it seems spot on.
Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right.
But, also nowhere else in the Constitution is a right granted with a introductory clause, as in, "A well-regulated militia, being necessary to the security of a free state..."

Scalia has constructed a convoluted argument that reduces to, "Let's ignore the first clause in the sentence."

So I would take it that Scalia would see no difference in the meaning of these two sentences:

"I'm hungry, so I'll order a pizza."

"I want to rob the delivery guy, so, I'll order a pizza."
Have you read the opinion?

Scalia points out that there is a significant difference between a prefatory clause and an operative clause. It's part of the reason that the Preamble to the Constitution is not considered when interpreting the text of the Constitution.
It is our choices that show what we truly are, far more than our abilities. —Albus Dumbledore

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#31 Post by TheCalvinator24 » Thu Jun 26, 2008 10:55 am

nitrah55 wrote:Scalia's conclusion is, in its way, as ephemeral as Roe v. Wade.
To compare this to Roe is ridiculous. There is unquestionably a right to keep and bear arms in the Constitution. Interpreting that right might lead us to different conclusions, but the right is there in the plain text.

Roe created a right out of thin air.
It is our choices that show what we truly are, far more than our abilities. —Albus Dumbledore

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#32 Post by TheCalvinator24 » Thu Jun 26, 2008 11:00 am

nitrah55 wrote:
themanintheseersuckersuit wrote:
nitrah55 wrote: But, also nowhere else in the Constitution is a right granted with a introductory clause, as in, "A well-regulated militia, being necessary to the security of a free state..."

Scalia has constructed a convoluted argument that reduces to, "Let's ignore the first clause in the sentence."

So I would take it that Scalia would see no difference in the meaning of these two sentences:

"I'm hungry, so I'll order a pizza."

"I want to rob the delivery guy, so, I'll order a pizza."
It is therefore entirely sensible that the Second Amendment’s
prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution.
So, this is the argument:

1. Having a militia is important, but it's not as important as self defense or hunting.

2. When writing an introductory clause to a clause granting a right in a constitution, a less important rationale for that right should be cited, rather than a more important rationale.

Therefore: A well-regulated militia, etc.

Premise 2 flies in the face of common sense, English composition, and, I would think, the drafters' of the Constitution inclination, everywhere else in the Constitution, to keep the rights granted as broad as possible.

The Constitution nowhere else gives a reason for granting a right; why in this case give a reason, unless the reason is the reason?
What was the meaning of the word "militia" at the time of the writing of the Second Amendment?
It is our choices that show what we truly are, far more than our abilities. —Albus Dumbledore

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#33 Post by TheCalvinator24 » Thu Jun 26, 2008 11:04 am

wintergreen48 wrote:
TheCalvinator24 wrote:
PlacentiaSoccerMom wrote:I personally think that the framers were trying to protect the security of the state rather than protecting individual rights to bear arms.
I happen to think it was intended as an individual right, but I can accept your position if by "state" you mean "the several states" and not the "national state."

There's just something about the language "the right of the people to keep and bear Arms, shall not be infringed" that tells me that the right rests in people, not in governments.
Well said.

There is a really interesting irony here, from the Constitutional standpoint.

When you get right down to it, the purpose of the Constitution was to list, specifically and precisely, the very limited powers that the federal government could exercise, the presumption being that any powers NOT specifically given to the federal government were retained by the individual states and/or the individual people of the states. At the time that the Constitution was first ratified, there were concerns that the 'federalists' would take on lots of power in the central government, which would be oppressive to the states and to the individual people of the states, and so, the Bill of Rights were proposed to be added to the Constitution, and they came in as the first Eight Amendments. A counter argument was raised that, well, if we start listing all these individual rights, those darn 'federalists' will start to argue that 'if it isn't in the Bill of Rights, then it is not a right, and the federal government can do what it wants,' and so, the 9th and 10th Amendments were proposed, which specifically provide that the individual states and the individual people of the states retain all those undelegated powers, and specifically, the fact that something is not included as a specific 'right' may NOT be taken as proof or evidence that it does not exist as a right.

All of which goes to show that the right to bear arms, etc., is not 'given' by the Constitution, but simply considered to be so important and vital that it is expressly 'recognized' by the Constitution.

But that's not the irony.

The underlying presumption of the Constitution is that it does not, in any way, limit the powers of the individual states except to the extent that the Constitution itself expressly delegates some governmental power to the federal government (for example, the coining power, or the power to wage war)-- in other words, anything 'governmental' that can be done, the states have the power to do it, subject to the very few express limitation sin the US Constitution, and subject to any limitations that a state may have in its own constitution. So, to the extent that you would read the 1st Amendment as prohibiting 'the government' from restricting someone's free speech rights, that actually only applies to the federal government, not the state government (but most state constitutions actually have some provision that specifically provides for that same limitation on the power of the state government). Similarly, to the extent that the 2nd Amendment guarantees the right to bear arms, it is really only applicable to the federal government: as per the quote above concerning the Stuarts disarming local people who were 'threats' to them, the framers of the Constitution were concerned about the possibility of the federal government disarming the people of the individual states, making them subject to oppression by a potentially oppressive central government, and so, they put the 2nd Amendment in there to make sure that there was NO QUESTION that the federal government could not impinge on the right to bear arms; the reference to the 'militia' simply reinforced that this limitation on governmental power applied to the federal government.

But the irony... the 14th Amendment provides generally for 'equal protection of the laws,' and the most, well, liberal interpretation of it was that it 'expanded' the protections of the first eight amendments so as to limit the powers of the states: this is why a state may not impose cruel or unusual punishment, because under this interpretation of the 14th Amendment, the protections of the 8th Amendment are deemed to apply to the states. Same with the 'search and seizure' requirements of the 4th Amendment, the right to counsel in criminal counsels, etc. The only exception to all that is that the Constitution provides that a person is entitled to a jury trial for any matter in which the amount involved is more than $25, and that would wreak chaos at the state level (the federal government gets around it by simply prohibiting people from filing suit in 'economic' cases that involve less than $50,000, at least, I think it is now $50,000; the states cannot do that, it would essentially keep everyone out of court, not a bad thing in many cases, but a very bad thing in others, where the amount involved would be <$50,000).

DC is not a state, and that was an issue in the school desegregation (and other civil rights) cases-- technically, the 14th Amendment does not really apply in DC in most respects. At the time of Brown v. Board of Education, the Warren Court finagled some stuff under the 5th Amendment and others, which provide for limitations on the power of the federal government, and they just held that this was the source of their authority to do what they did in DC.

Anyway, the only reason that the Supreme Court today can hold that the 2nd Amendment applies to the states and prevents them (and DC) from imposing a gun ban on private citizens is that earlier generations of the Court succeeded in setting the precedent that the first eight amendments serve to limit the powers of the states. Thus, the irony is that the conservative justices who formed the majority in the Court decision that today holds that the state governments (and DC) must keep their hands off our guns are in fact relying upon a 'liberal' interpretation of the Constitution (that state governments are subject to limits on their power), completing contradicting the usual conservative argument that the states are free to do what they want, while the liberal justices who would have supported the gun bans are, in effect, repudiating the central thesis behind virtually all of their decisions over the past 50 years, which holds that the state governments are subordinated to federal rules/requirements.

What a world...
So true. If the doctrine of Incorporation is valid under the 14th, then today's opinion is squarely on Constitutional ground. If that Doctrine is invalid (and although I think it flies directly against the original intent of the Constitution, it clearly flows logically from the 14th), then today's opinion was overbroad (the Court would still have authority over D.C. under the 2nd without relying on the 14th because the D.C. government is actually nothing more than an extension of the Federal Govt).
It is our choices that show what we truly are, far more than our abilities. —Albus Dumbledore

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#34 Post by silverscreenselect » Thu Jun 26, 2008 11:15 am

Bob Juch wrote: The problem with banning guns is if you do so, then only the cops and bad guys will have them. If a bad guy shows up and there are no cops around (the usual case), then there's a problem. Look at all the school shootings that could have been minimised if someone else had a gun.
While that's true, I'd rather take my chances with the "bad guys" then with drunks, morons, people who don't safeguard their guns from kids, depressed people, clumsy people, people who let their anger get the best of them, etc. etc. etc. These people almost never buy guns with the express intent of using them to commit crimes, but one way or another the result is deadly.

And while a tragedy like the Va Tech shooting might have been prevented with the right person having a gun in the right place at the right time, the prospect of letting thousands of video game addicts, testerone junkies and substance challenged idiots loose on college campuses day after day in the hope that one of them might be in the right position to stop a crime is like opening the levees in the hope that somewhere the flood will put out a fire.

And I say this from the position of twice being far too upclose and personal a witness to what guns can do. I was robbed at gunpoint. I survived with the loss of my wallet. I'll even assume the guys obtained their guns to commit crimes with them. The fact is I survived with no permanent damage. If I had a gun, I might have been able to prevent the loss of my wallet, but I just as easily could have gotten myself killed.

Last year, I watched the cops haul away the body of one of my neighbors who had been shot to death. The guys who shot him didn't buy guns to commit crimes, but rather to protect themselves in case someone got in their face. My neightbor apparently got in their face following an argument over a car stereo fueled by too much liquor. A minor argument turns into the loss of a husband and father thanks to too many guns being out there.

It's no surprise how the Supreme Court decided this one. But our Founding Fathers were concerned about the ability of towns and villages hundreds of miles away from anything resembling an army to protect themselves from attacks by British, Spanish or Indians, rather than protecting the "right" to turn apartment parking lots and college campuses into 21st century Dodge City.

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#35 Post by TheCalvinator24 » Thu Jun 26, 2008 11:19 am

It is our choices that show what we truly are, far more than our abilities. —Albus Dumbledore

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#36 Post by nitrah55 » Thu Jun 26, 2008 11:24 am

TheCalvinator24 wrote:
nitrah55 wrote:
TheCalvinator24 wrote:Am reading the opinion, and so far, it seems spot on.
But, also nowhere else in the Constitution is a right granted with a introductory clause, as in, "A well-regulated militia, being necessary to the security of a free state..."

Scalia has constructed a convoluted argument that reduces to, "Let's ignore the first clause in the sentence."

So I would take it that Scalia would see no difference in the meaning of these two sentences:

"I'm hungry, so I'll order a pizza."

"I want to rob the delivery guy, so, I'll order a pizza."
Have you read the opinion?

Scalia points out that there is a significant difference between a prefatory clause and an operative clause. It's part of the reason that the Preamble to the Constitution is not considered when interpreting the text of the Constitution.
I agree, there is a significant difference. The issue is whether "A well-regulated militia etc." is a prefatory clause or an operative clause.

If it's a prefatory clause, it is lousy drafting. The drafters of the Constitution were not lousy drafters. That's why I think it's an operative clause.
I am about 25% sure of this.

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#37 Post by TheCalvinator24 » Thu Jun 26, 2008 11:27 am

nitrah55 wrote:
TheCalvinator24 wrote:
nitrah55 wrote: But, also nowhere else in the Constitution is a right granted with a introductory clause, as in, "A well-regulated militia, being necessary to the security of a free state..."

Scalia has constructed a convoluted argument that reduces to, "Let's ignore the first clause in the sentence."

So I would take it that Scalia would see no difference in the meaning of these two sentences:

"I'm hungry, so I'll order a pizza."

"I want to rob the delivery guy, so, I'll order a pizza."
Have you read the opinion?

Scalia points out that there is a significant difference between a prefatory clause and an operative clause. It's part of the reason that the Preamble to the Constitution is not considered when interpreting the text of the Constitution.
I agree, there is a significant difference. The issue is whether "A well-regulated militia etc." is a prefatory clause or an operative clause.

If it's a prefatory clause, it is lousy drafting. The drafters of the Constitution were not lousy drafters. That's why I think it's an operative clause.
What was the definition of "militia" at the time of the drafting?
It is our choices that show what we truly are, far more than our abilities. —Albus Dumbledore

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#38 Post by nitrah55 » Thu Jun 26, 2008 11:28 am

TheCalvinator24 wrote:
nitrah55 wrote:Scalia's conclusion is, in its way, as ephemeral as Roe v. Wade.
To compare this to Roe is ridiculous. There is unquestionably a right to keep and bear arms in the Constitution. Interpreting that right might lead us to different conclusions, but the right is there in the plain text.

Roe created a right out of thin air.
This is why I think they're at least similar:

Roe took the concept of "privacy" (commendable, but nowhere mentioned in the Constitution) and gave it Constitutional protection.

This decision takes "self-defense" and "hunting" (commendable, but nowhere mentioned in the Constitution) and gives them Constitutional protection.
I am about 25% sure of this.

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#39 Post by TheCalvinator24 » Thu Jun 26, 2008 11:35 am

nitrah55 wrote:
TheCalvinator24 wrote:
nitrah55 wrote:Scalia's conclusion is, in its way, as ephemeral as Roe v. Wade.
To compare this to Roe is ridiculous. There is unquestionably a right to keep and bear arms in the Constitution. Interpreting that right might lead us to different conclusions, but the right is there in the plain text.

Roe created a right out of thin air.
This is why I think they're at least similar:

Roe took the concept of "privacy" (commendable, but nowhere mentioned in the Constitution) and gave it Constitutional protection.

This decision takes "self-defense" and "hunting" (commendable, but nowhere mentioned in the Constitution) and gives them Constitutional protection.
No, it doesn't. It merely mentions them as lawful purposes to which a gun may be put. The holding is that D.C. may not ban the possession of a firearm that may be put to a lawful purpose.

And the comparison to Roe really falls flat. It's not going to convince anyone who opposes Roe to also oppose this ruling.
It is our choices that show what we truly are, far more than our abilities. —Albus Dumbledore

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#40 Post by nitrah55 » Thu Jun 26, 2008 11:37 am

TheCalvinator24 wrote:
nitrah55 wrote:
TheCalvinator24 wrote: Have you read the opinion?

Scalia points out that there is a significant difference between a prefatory clause and an operative clause. It's part of the reason that the Preamble to the Constitution is not considered when interpreting the text of the Constitution.
I agree, there is a significant difference. The issue is whether "A well-regulated militia etc." is a prefatory clause or an operative clause.

If it's a prefatory clause, it is lousy drafting. The drafters of the Constitution were not lousy drafters. That's why I think it's an operative clause.
What was the definition of "militia" at the time of the drafting?
I'm sure you know this better than I do, so I answer with some trepidation.

"Militia" at the time was regular guys who, when some emergency arose, would grab their guns and defend the locality. They were not uniformed soldiers in the employ of the state.

"Militia" means something different today- the National Guard, say.

The first question is, was the 2nd A. intended to protect the right to bear arms or guarantee there was a state militia? At the time, those two questions were one question. (People bearing arms = militia) That is not the case anymore.

The second question is, who cares? If you parse the 2nd A. with a prefatory clause, not an operative clause, it doesn't matter what the prefatory clause is, so the meaning of militia doesn't matter..
I am about 25% sure of this.

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#41 Post by gsabc » Thu Jun 26, 2008 11:40 am

TheCalvinator24 wrote:What was the definition of "militia" at the time of the drafting?
Since you keep asking, I presume you can tell us the answer. I can't find a clear, unequivocal definition.
I just ordered chicken and an egg from Amazon. I'll let you know.

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#42 Post by themanintheseersuckersuit » Thu Jun 26, 2008 11:44 am

gsabc wrote:
TheCalvinator24 wrote:What was the definition of "militia" at the time of the drafting?
Since you keep asking, I presume you can tell us the answer. I can't find a clear, unequivocal definition.
Cal is trying to sucker you into reading the opinion, Scalia spends a lot of time on that subject. Essentially the militia was the class of Armed Citizens, as opposed to a arm of the government.
Suitguy is not bitter.

feels he represents the many educated and rational onlookers who believe that the hysterical denouncement of lay scepticism is both unwarranted and counter-productive

The problem, then, is that such calls do not address an opposition audience so much as they signal virtue. They talk past those who need convincing. They ignore actual facts and counterargument. And they are irreparably smug.

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#43 Post by TheCalvinator24 » Thu Jun 26, 2008 11:45 am

nitrah55 wrote:If it's a prefatory clause, it is lousy drafting. The drafters of the Constitution were not lousy drafters. That's why I think it's an operative clause.
Why would it be lousy drafting for it to be a prefatory clause?
It is our choices that show what we truly are, far more than our abilities. —Albus Dumbledore

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#44 Post by TheCalvinator24 » Thu Jun 26, 2008 11:48 am

nitrah55 wrote:
TheCalvinator24 wrote:
nitrah55 wrote: I agree, there is a significant difference. The issue is whether "A well-regulated militia etc." is a prefatory clause or an operative clause.

If it's a prefatory clause, it is lousy drafting. The drafters of the Constitution were not lousy drafters. That's why I think it's an operative clause.
What was the definition of "militia" at the time of the drafting?
I'm sure you know this better than I do, so I answer with some trepidation.

"Militia" at the time was regular guys who, when some emergency arose, would grab their guns and defend the locality. They were not uniformed soldiers in the employ of the state.

"Militia" means something different today- the National Guard, say.

The first question is, was the 2nd A. intended to protect the right to bear arms or guarantee there was a state militia? At the time, those two questions were one question. (People bearing arms = militia) That is not the case anymore.

The second question is, who cares? If you parse the 2nd A. with a prefatory clause, not an operative clause, it doesn't matter what the prefatory clause is, so the meaning of militia doesn't matter..
It would matter what the prefatory clause is because the operative clause could not be read to be contradictory to the prefatory clause.

And because the term "militia" meant all able-bodied men capable of fighting in defence of their state, there is no contradiction between the use of Militia in the prefatory and the reading of the right as an individual right.
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#45 Post by MarleysGh0st » Thu Jun 26, 2008 12:31 pm

What was the definition of "well-regulated" at the time of the drafting?

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#46 Post by Bill Clinton » Thu Jun 26, 2008 12:35 pm

What was the meaning of "is" at the time of the drafting?
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#47 Post by Al Gore » Thu Jun 26, 2008 12:38 pm

Bill Clinton wrote:What was the meaning of "is" at the time of the drafting?

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#48 Post by PlacentiaSoccerMom » Thu Jun 26, 2008 12:48 pm

Al Gore wrote:
Bill Clinton wrote:What was the meaning of "is" at the time of the drafting?

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#49 Post by Bob Juch » Thu Jun 26, 2008 12:50 pm

I don't know who said it, but I totally agree:

"The purpose of the second amendment is to protect the rights in the first."
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#50 Post by nitrah55 » Thu Jun 26, 2008 12:53 pm

TheCalvinator24 wrote:
nitrah55 wrote:
TheCalvinator24 wrote: What was the definition of "militia" at the time of the drafting?
I'm sure you know this better than I do, so I answer with some trepidation.

"Militia" at the time was regular guys who, when some emergency arose, would grab their guns and defend the locality. They were not uniformed soldiers in the employ of the state.

"Militia" means something different today- the National Guard, say.

The first question is, was the 2nd A. intended to protect the right to bear arms or guarantee there was a state militia? At the time, those two questions were one question. (People bearing arms = militia) That is not the case anymore.

The second question is, who cares? If you parse the 2nd A. with a prefatory clause, not an operative clause, it doesn't matter what the prefatory clause is, so the meaning of militia doesn't matter..
It would matter what the prefatory clause is because the operative clause could not be read to be contradictory to the prefatory clause.

And because the term "militia" meant all able-bodied men capable of fighting in defence of their state, there is no contradiction between the use of Militia in the prefatory and the reading of the right as an individual right.
The board jammed up, so this is the second time I'm typing this. Bear with me.

Militias in the 1700s were individuals bearing arms. That's why the prefatory clause couldn't contradict the operative clause at the time of the drafting of the Constitution.

Nowadays militias are something other than that- like the National Guard- at least some of the time.

It is possible to have a state militia without private individuals bearing arms. The stated goal of the prefatory clause can be met without the action of the operative clause, that is, we can have a state militia without the right to bear arms.

So, now, can we assume that the right to bear arms was granted simply to allow individuals to bear arms, even though the stated purpose was to maintain a militia?

And I call it an assumption because both the language and the circumstances have changed since the 1700s.

Scalia acknowledges this in his parsing of the word "arms," to refute the argument that what's being allowed by the Constitution are only whatever were "arms" in the 1700's, just muskets, say.

Trouble is, if you apply that argument to "arms," then you'd had better be prepared to apply it to "militia," and if you do that, you're back where you started.
I am about 25% sure of this.

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