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Interpreting the Second Amendment
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subego
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Jan 24, 2016, 07:22 PM
 
I may have flipped on this one.

Most of the debate (which we have records of) from the time centered around a "conscientious objector" clause, ultimately struck from the amendment. Said debate centered around how it should be removed as it could be used to dismantle the militia.

One Congressman provided the following as one reason for why dismantling the militia would be bad:

"This will lead to a violation in another article of the constitution, which secures to the people the right of keeping arms, as in this case you must have recourse to a standing army."

Unless I'm missing something, it's being unambiguously stated here the right to keep arms is understood to be dependent on the existence of the militia.

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Cap'n Tightpants
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Jan 24, 2016, 08:24 PM
 
That congressman is just wrong, it happens. This is what happens when you have enumerated rights, it lets the feds stand in a position of power regarding anything and everything. Paraphrasing A. Hamilton, (from a perspective of individual freedoms) the establishment of the BoR will, hands down, prove to be the worst decision in this country's history.

If a state wants to dissolve its militia, fine, that's their right. It's stupid, but oh well. Militias need not be state-organized, anyway. (See: The Green Mountain Boys)
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Jan 24, 2016, 08:40 PM
 
I know this is a 26 minute long video, but Justicar is a historian, Constitutional scholar (and a damned fine theoretical mathematician), and he has the 2A locked down. Watch it, he crushes the "Fudders" (Those who assert: "Guns are for hunting wabbits. Huhuhuhu.")

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subego  (op)
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Jan 25, 2016, 02:11 AM
 
Originally Posted by Cap'n Tightpants View Post
That congressman is just wrong, it happens. This is what happens when you have enumerated rights, it lets the feds stand in a position of power regarding anything and everything. Paraphrasing A. Hamilton, (from a perspective of individual freedoms) the establishment of the BoR will, hands down, prove to be the worst decision in this country's history.

If a state wants to dissolve its militia, fine, that's their right. It's stupid, but oh well. Militias need not be state-organized, anyway. (See: The Green Mountain Boys)
I'm not seeing how Hamilton's argument applies here. The reason it's being questioned whether the Second Amendment has a militia requirement is because words to that effect were put in the amendment. If that's too narrow an enumeration, they had the option of removing the clause. They didn't, so we're stuck interpreting it.

The problem here is the amendment is written with a nominative absolute. With this construction, the absolute can relate to the clause which follows in three different ways. It can be causal (because), conditional (if) or temporal (while).

IOW, all three of the following are correct:

1) Because the militia is necessary...RBA shall not be infringed.
2) If the militia is necessary... RBA shall not be infringed.
3) While the militia is necessary... RBA shall not be infringed.

Justicar, Scalia, and myself in the past tense, ascribe to the first interpretation. The problem with this is the above quote I provided. When it comes to the text we have available from congressional debate, that quote is the only one which definitively implies a single construction. All others (and I mean all... I've read and reread them numerous times now) are unclear. They could be causal, but aren't definitely so.

That means I'm stuck. I'm a strict constructionist, and I have one definitive piece of data. I can't in good conscience interpret it in any other way unless I get data which counters it.

As for what militias qualify, aren't we to presume it's the ones mentioned in Article I, Section 8? Ones the government are allowed to take over.
     
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Jan 25, 2016, 04:40 AM
 
Does your interpretation of the clause change if it has two, three or four commas? Because it was apparently written in at least two and possibly three different ways on the proposals sent out to the states. Makes me wonder if all the people who voted for it understood the sentence the same way.
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Paco500
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Jan 25, 2016, 05:54 AM
 
I am not a fan of gun laws in the States, if I could wave a magic wand and change things to the UK, Australian, etc, etc model I would.

However, I don't really see how this matters. It's an interesting topic for discussion, but in the end, the Constitution means whatever the Supreme Court says it does. And for now, they have always interpreted it as 'A'.

I am throughly convinced the rigidity of the US Constitution, while it is in large part responsible for the rise of the US, it will ultimately be it's downfall. Strict constructionists can pretend that it is a prefect document, basically divinely inspired, and that it will be forever perfect. The reality is it was written by flawed men over 200 years ago in a very different world.

Now I hear you say- 'But they thought of that! We can amend it!' I don't believe that is possible anymore in such a divided nation. There is such hatred and distrust in the political landscape- and it is only getting worse. I can't imagine any issue worthy of a constitutional amendment that could possibly garner enough support to pass the requirements to be enacted.

So what we will be left with is the Supreme Court performing legal gymnastics of interpretation and successive governments on both sides simply ignoring until it is meaningless on all but a few issues.

Sadly, I think those will amount to procedural in nature (when and how elections take place, eligibility for office, etc), and, even more sadly, the right to own and bear arms.

If people got half as upset about the trashing of the rest of the bill of rights (those that are ACTUALLY necessary for a free and decent society) as they did about their precious penis extensions, we might not be doomed.

DISCLAMER FOR THOSE FOLLOWING ALONG AT HOME:

1. I am a US Citizen living abroad in the UK. Yes, I am entitled to have an opinion on these issues.
2. I am also a gun owner- shotgun used (almost exclusively) by my son for clay pigeon shooting.
3. No, I don't think enacting UK style gun laws in the US would magically fix the problems overnight.
4. No, regardless of nonsense you may have read on this board, illegal guns are not rampant and easily available on the streets of the UK.
     
subego  (op)
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Jan 25, 2016, 11:59 AM
 
TBH, that's kind of a threadcrap.

To me, the value of strict constructionism isn't an outgrowth of the document being holy, it's a method of dealing with the fact the document is flawed.

The reason I care about the correct interpretation is because I dislike being wrong. If the constitution doesn't say we have an unqualified RKBA, and it is instead a spurious construction of the court, I want to know that.
     
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Jan 25, 2016, 02:17 PM
 
Originally Posted by subego View Post
I'm not seeing how Hamilton's argument applies here. The reason it's being questioned whether the Second Amendment has a militia requirement is because words to that effect were put in the amendment. If that's too narrow an enumeration, they had the option of removing the clause. They didn't, so we're stuck interpreting it.
It's not a militia requirement, it's an explanation for why the right to keep and bear arms shall not be infringed. "Because militias are important, the right for citizens to own and carry guns is inalienable". It's already been interpreted, time and again, there are papers written ex post facto by the founding fathers themselves on the issue (Federalist Paper #29) and there's USSC precedent set as well. The only people still doubting this are the equivalent of "Birthers", looking for ways to manipulate or distort the Constitution's established intent. People own firearms in case there's a need for the population to form a militia, for when it comes time to depose a corrupt gov't. They knew that every gov't, since the beginning of time, has eventually turned against its citizenry, and they insured that Americans could be prepared. Many states go even further, guaranteeing within their own constitutions the right to keep and bear arms for defense of self, family, property, and even other citizens. This has also proven, by precedence, to be a valid reason.

The only way to change any of this is via a counter Amendment, there's a process in place to do this, and if there's enough support it could be carried out. (Though there is some doubt as to whether the first 10 Amendments can be limited in any way.) Though I imagine the schism it would cause would likely split the Union, as we know it today. "Picking" at it, as if there was some credible doubt regarding its recognized function, is absurd.
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OAW
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Jan 25, 2016, 03:25 PM
 
Personally I've always found the focus of 2nd Amendment debates to be misplaced. Typically it is on this ...

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.
But IMO it should be on this ...

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.
For me it's not about what does or does not constitute a "militia". Or what purpose a militia does or does not serve. Instead, it's about what constitutes "infringement" in the context of a militia being "well regulated". With that in mind there is a very strong case to be made that people have a right to have firearms ... but that right has inherent limits since it was mentioned only in the context of a "well regulated" militia. IOW, "shall not be infringed" is NOT absolute. Which then begs the question .... what constitutes actual "infringement"?

OAW
     
subego  (op)
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Jan 25, 2016, 04:36 PM
 
Originally Posted by Cap'n Tightpants View Post
It's not a militia requirement, it's an explanation for why the right to keep and bear arms shall not be infringed. "Because militias are important, the right for citizens to own and carry guns is inalienable". It's already been interpreted, time and again, there are papers written ex post facto by the founding fathers themselves on the issue (Federalist Paper #29) and there's USSC precedent set as well. The only people still doubting this are the equivalent of "Birthers", looking for ways to manipulate or distort the Constitution's established intent. People own firearms in case there's a need for the population to form a militia, for when it comes time to depose a corrupt gov't. They knew that every gov't, since the beginning of time, has eventually turned against its citizenry, and they insured that Americans could be prepared. Many states go even further, guaranteeing within their own constitutions the right to keep and bear arms for defense of self, family, property, and even other citizens. This has also proven, by precedence, to be a valid reason.

The only way to change any of this is via a counter Amendment, there's a process in place to do this, and if there's enough support it could be carried out. (Though there is some doubt as to whether the first 10 Amendments can be limited in any way.) Though I imagine the schism it would cause would likely split the Union, as we know it today. "Picking" at it, as if there was some credible doubt regarding its recognized function, is absurd.
You mistake my intent. As noted, the Heller decision makes this academic. It would be too late for me to erode the right, even if I were philosophically inclined to do so... which I'm not.

I didn't find anything in Federalist #29 about the Second Amendment. It seems to exclusively decry federal control of the militia.

I'm familiar with the interpretation you, Justicar, and Scalia are using. I agreed with it up until a few days ago, and to be clear, I'm not claiming that's a grammatically incorrect reading of the amendment, I'm saying it isn't the only one. The same sentence could be used regardless of whether the intent was to justify or limit.

This goes back to the Federalist paper you offered. Even if it did discuss the Second Amendment, unless the author was in that first congress, their opinion is irrelevant... and then even if they were, from a legislative standpoint, the question isn't what any given congressman wanted, it's what they had the votes to pass, something often very different from what they wanted (see: conscientious objector clause which got tabled by the senate).
     
Paco500
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Jan 25, 2016, 04:45 PM
 
Originally Posted by subego View Post
TBH, that's kind of a threadcrap.
Ouch.
Originally Posted by subego View Post
To me, the value of strict constructionism isn't an outgrowth of the document being holy, it's a method of dealing with the fact the document is flawed.
My opinion, although I get the distinct impression you don't find it valuable, it that the document is flawed precisely because it was written by flawed human beings. Is there truly value in trying to interpret the strict intent of men from the late 18th century? The amendments to the constitution that moved our county forward were those that clearly went against the wishes and intent of the founders. For all of their good and progressive ideas, these were, for example, largely slave-holding men who didn't think women should have the vote. Perhaps one of the best ideas they had in writing it was the ambiguity. I'd like to think they were prescient enough to realise a document designed to guide a nation for centuries could not be cemented to the ideas of the past.

While the intent of the framers is interesting, 200+ years of the world moving on should mean that any interpretation takes in to account the world as it is and not just as it was.

The framers were no more holy than the document.

Originally Posted by subego View Post
The reason I care about the correct interpretation is because I dislike being wrong. If the constitution doesn't say we have an unqualified RKBA, and it is instead a spurious construction of the court, I want to know that.
Fair enough, but again, if we lived strictly by the intent of the framers, our country would suck.
     
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Jan 25, 2016, 04:50 PM
 
"Well Regulated" doesn't mean what you think it means. At the time it simply would have meant suitably armed, not "government controlled" (since the whole point of said militia would be to repel enemies both foreign and domestic). That's another important factor that's been addressed by the Federalist Papers and court precedence. "Shall not be infringed" is NOT absolute? What?! It literally means, "You will not infringe" upon it.





(Unless, you know, you ask nicely or really, really need to... then I guess it's okay?)
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subego  (op)
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Jan 25, 2016, 05:06 PM
 
Originally Posted by Paco500 View Post
Ouch.
My opinion, although I get the distinct impression you don't find it valuable, it that the document is flawed precisely because it was written by flawed human beings. Is there truly value in trying to interpret the strict intent of men from the late 18th century? The amendments to the constitution that moved our county forward were those that clearly went against the wishes and intent of the founders. For all of their good and progressive ideas, these were, for example, largely slave-holding men who didn't think women should have the vote. Perhaps one of the best ideas they had in writing it was the ambiguity. I'd like to think they were prescient enough to realise a document designed to guide a nation for centuries could not be cemented to the ideas of the past.

While the intent of the framers is interesting, 200+ years of the world moving on should mean that any interpretation takes in to account the world as it is and not just as it was.

The framers were no more holy than the document.

Fair enough, but again, if we lived strictly by the intent of the framers, our country would suck.
I'm totally interested in your opinion. I'm even interested in the opinions in the post I took a shot at. I just think while they would make their own good discussion, they didn't really carry forward the discussion here, which is kinda about grammar.

Again, I'm proposing the same sentence used in the Second Amendment can mean two wildly divergent things. When faced with this situation, is there a better method of reconciling the disparity than looking to the intent of the authors?
     
subego  (op)
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Jan 25, 2016, 05:12 PM
 
Originally Posted by OAW View Post
Personally I've always found the focus of 2nd Amendment debates to be misplaced. Typically it is on this ...



But IMO it should be on this ...



For me it's not about what does or does not constitute a "militia". Or what purpose a militia does or does not serve. Instead, it's about what constitutes "infringement" in the context of a militia being "well regulated". With that in mind there is a very strong case to be made that people have a right to have firearms ... but that right has inherent limits since it was mentioned only in the context of a "well regulated" militia. IOW, "shall not be infringed" is NOT absolute. Which then begs the question .... what constitutes actual "infringement"?

OAW
I'm putting the bold on "being necessary". It's not (we have a standing army for that) so we get nothing.

Or would get nothing prior to Heller.
     
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Jan 25, 2016, 05:18 PM
 
Originally Posted by subego View Post
You mistake my intent. As noted, the Heller decision makes this academic. It would be too late for me to erode the right, even if I were philosophically inclined to do so... which I'm not.

I didn't find anything in Federalist #29 about the Second Amendment. It seems to exclusively decry federal control of the militia.

I'm familiar with the interpretation you, Justicar, and Scalia are using. I agreed with it up until a few days ago, and to be clear, I'm not claiming that's a grammatically incorrect reading of the amendment, I'm saying it isn't the only one. The same sentence could be used regardless of whether the intent was to justify or limit.

This goes back to the Federalist paper you offered. Even if it did discuss the Second Amendment, unless the author was in that first congress, their opinion is irrelevant... and then even if they were, from a legislative standpoint, the question isn't what any given congressman wanted, it's what they had the votes to pass, something often very different from what they wanted (see: conscientious objector clause which got tabled by the senate).
You can't separate militias from the 2nd Amendment, they're intrinsically linked. People have the inalienable right to form well-armed militias, and because of that they have the inalienable right to keep and bear arms, so they can form them when they want. Furthermore, a militia doesn't have to be gov't sanctioned in any way, the only stipulation is that armed people are in it. Now, I'd like for them all to be well trained (who wouldn't?), but that isn't stipulated.

Indeed, it is academic, and the only way it can (theoretically) be changed is via the Amendment process, though there's a great deal of doubt as to whether any Amendment can limit the Bill of Rights, since they're established only as limitations on the federal gov't's powers, NOT the people. Why is that? Because the gov't doesn't grant those rights, as has been established, the Bill of Rights is recognition of what is inalienable, and we as Americans have those from birth, no matter what the gov't tries to say or do.
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The Final Dakar
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Jan 25, 2016, 06:46 PM
 
Originally Posted by subego View Post
I may have flipped on this one.
Could clarify what this means? You think only militias may carry them?


Originally Posted by subego View Post
. I'm a strict constructionist, and I have one definitive piece of data. I can't in good conscience interpret it in any other way unless I get data which counters it.
I'll start a new thread for this if you consider it a derail, but my understanding about constructionists is that the Constitution only give the rights it clearly enumerates. As such, how can the Founding Fathers clearly couldn't grant rights to weapons that didn't exist at the time? You don't know if they would have felt the same way about M-16s or Rockets or Nukes.

(I bring this up because I've been reading about the fight for equal rights for women and Scalia is pretty adamant that the 14th doesn't cover them because it doesn't specifically mention women)
     
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Jan 25, 2016, 11:13 PM
 
Originally Posted by The Final Dakar View Post
Could clarify what this means? You think only militias may carry them?
I'm reading the amendment as this:

While (or "as long as") a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

The people have the right as long as the militia is necessary to the security of a free state. When and if the militia is no longer necessary for this purpose, the right no longer exists.

The security of our free state isn't maintained by a militia, it's maintained by a standing army, hence, no more right.
     
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Jan 25, 2016, 11:28 PM
 
Originally Posted by Cap'n Tightpants View Post
You can't separate militias from the 2nd Amendment, they're intrinsically linked. People have the inalienable right to form well-armed militias, and because of that they have the inalienable right to keep and bear arms, so they can form them when they want. Furthermore, a militia doesn't have to be gov't sanctioned in any way, the only stipulation is that armed people are in it. Now, I'd like for them all to be well trained (who wouldn't?), but that isn't stipulated.
What you say above is if the nominative absolute in the first clause of the sentence is causal. If the nominative absolute is temporal, this isn't what the sentence means.

I'm not claiming it's the temporal because I like it, or it fits my agenda. I feel I've made it very clear I'm pro gun rights. I prefer the causal reading.

The problem is, when you look at what was said by the congressmen who debated the amendment, the only construction which gets definitively used is the temporal.

Is there anything from the debates in congress which definitively indicates the causal construction is what's meant? If so, I'll back off and apologize for wasting everyone's time.

All I'm asking for here is one sentence.
     
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Jan 26, 2016, 02:30 AM
 
Originally Posted by The Final Dakar View Post
(I bring this up because I've been reading about the fight for equal rights for women and Scalia is pretty adamant that the 14th doesn't cover them because it doesn't specifically mention women)
My understanding is Scalia isn't using a strict constructionist argument against sex discrimination being covered in the 14th Amendment, he's using an originalist argument.

The relevant section of the 14th uses the words "person(s)" and "people". From a strict constructionist point of view, the text unambiguously applies to men and women. Now, one could argue whether sex discrimination, unless committed by government, is depriving someone of due process of law, but that's a different thing altogether.

Scalia (again, IIUC) is saying the 14th doesn't cover sex discrimination because the people who wrote it didn't intend for it to do so. This is an originalist argument as it focuses on intent. A strict constructionist argument is going to focus on the text.

To be fair to Scalia, the 14th Amendment is one of the more schizophrenic little pieces of our holy document. It guarantees due process of law for "the people", and then immediately doubles down on the disenfranchisement of women. He's not totally pulling this out of his ass.
     
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Jan 26, 2016, 05:19 AM
 
Originally Posted by The Final Dakar View Post
I'll start a new thread for this if you consider it a derail, but my understanding about constructionists is that the Constitution only give the rights it clearly enumerates. As such, how can the Founding Fathers clearly couldn't grant rights to weapons that didn't exist at the time? You don't know if they would have felt the same way about M-16s or Rockets or Nukes.
Basically, the whole point of being a strict constructionist is you get to avoid this question. I'm going to rely on the text as much as possible, only resorting to other methods if that's insufficient.

When it comes to defining "arms", at most I have to make sure the Founding Fathers and myself are using the same definition. Upon acquainting the Founding Fathers with a nuke, I have only two questions for them:

1) Would you consider this nuke to be an arm?
2) Where's your God now?

Assuming they're all on the same page that a nuke is an arm (as I assume you and I are), that's all I need. Everyone back in the box.

Of course, "arms" isn't the only word in the sentence. By the time you're done with it, I think that's gets clipped down significantly. You don't really "bear" a nuke for example.
     
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Jan 26, 2016, 01:35 PM
 
Originally Posted by subego View Post
What you say above is if the nominative absolute in the first clause of the sentence is causal. If the nominative absolute is temporal, this isn't what the sentence means.

I'm not claiming it's the temporal because I like it, or it fits my agenda. I feel I've made it very clear I'm pro gun rights. I prefer the causal reading.

The problem is, when you look at what was said by the congressmen who debated the amendment, the only construction which gets definitively used is the temporal.

Is there anything from the debates in congress which definitively indicates the causal construction is what's meant? If so, I'll back off and apologize for wasting everyone's time.

All I'm asking for here is one sentence.
As I said, that congressman is wrong, it happens. There is no temporal element to it.

You seem to get stuck on the minutia surrounding a subject sometimes. Not an insult, or even a real criticism, just an observation.
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Jan 26, 2016, 01:42 PM
 
One point I want to reiterate. The Bill of Rights is established as limitations of the State, stipulating what it absolutely can't do to the People. They aren't limitations upon the People, or even an establishment of rights, they're a recognition of what rights we intrinsically hold.
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Jan 26, 2016, 01:50 PM
 
Originally Posted by Cap'n Tightpants View Post
As I said, that congressman is wrong, it happens. There is no temporal element to it.

You seem to get stuck on the minutia surrounding a subject sometimes. Not an insult, or even a real criticism, just an observation.
I probably have aspies.

We'll be forced to agree to disagree until I can be provided more conclusive counter-evidence.
     
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Jan 26, 2016, 02:11 PM
 
Originally Posted by Cap'n Tightpants View Post
One point I want to reiterate. The Bill of Rights is established as limitations of the State, stipulating what it absolutely can't do to the People. They aren't limitations upon the People, or even an establishment of rights, they're a recognitionof what rights we intrinsically hold.
Regardless of which interpretation we use, the Second Amendment is clearly unique.

If we use my interpretation, as you say, the amendment provides for limitations upon the people, while all the others in the Bill of Rights do not.

If we use your interpretation, half the amendment has no legal purpose, something which does not happen with any other amendment in the Bill of Rights.

To put it another way, challenging my interpretation on the basis of it being unique, but then replacing it with something unique?

This round sounds like a draw to me.
     
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Jan 26, 2016, 02:15 PM
 
Originally Posted by subego View Post
If we use your interpretation, half the amendment has no legal purpose, something which does not happen with any other amendment in the Bill of Rights.
How does it not have a legal purpose? Just because you feel that a militia has no place in American life right now doesn't mean that they won't be a necessity at a later date.
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subego  (op)
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Jan 26, 2016, 02:29 PM
 
Originally Posted by Cap'n Tightpants View Post
How does it not have a legal purpose? Just because you feel that a militia has no place in American life right now doesn't mean that they won't be a necessity at a later date.
What legal protections does the first clause of the amendment give us? If we were to remove it entirely, what protections would we lose?

Are not these answers "none" and "none"?
     
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Jan 26, 2016, 02:45 PM
 
Originally Posted by subego View Post
What legal protections does the first clause of the amendment give us? If we were to remove it entirely, what protections would we lose?

Are not these answers "none" and "none"?
Isn't the reason the first clause is defunct is because the newly formed government reversed its stance on standing armies because the ideal was impractical? So I don't see how you hold that against the amendment as it wasn't written with that twist in mind.
     
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Jan 26, 2016, 02:53 PM
 
Originally Posted by The Final Dakar View Post
Isn't the reason the first clause is defunct is because the newly formed government reversed its stance on standing armies because the ideal was impractical? So I don't see how you hold that against the amendment as it wasn't written with that twist in mind.
You lost me.

In Heller, Scalia declared the nominative absolute from the first clause to be causal.

IOW, he "rewrote" the amendment thusly:

Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Unless I misunderstand, this makes the first clause purely one of commentary. It's an explanation for why we have the right given in the second clause. You get rid of it, what the amendment legally accomplishes remains unchanged.

A similar example would be how it was originally mentioned freedom of the press is the "bulwark of liberty". This is commentary. You remove it, the legal protections of freedom of the press remain unchanged.
     
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Jan 26, 2016, 03:43 PM
 
And, FWIW, that's how I always read the amendment when I considered the first clause to be causal.

Because X is necessary to Y, Z shall not be infringed.

You remove X and Y, the Z clause is unchanged. The Z clause has a command (do not infringe upon Z), the X and Y clause does not.

If it doesn't contain a command, and doesn't alter what follows, what is being legally accomplished with the X and Y clause?
     
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Jan 26, 2016, 03:56 PM
 
Originally Posted by subego View Post
You lost me.

In Heller, Scalia declared the nominative absolute from the first clause to be causal.

IOW, he "rewrote" the amendment thusly:

Because a well regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Unless I misunderstand, this makes the first clause purely one of commentary. It's an explanation for why we have the right given in the second clause. You get rid of it, what the amendment legally accomplishes remains unchanged.

A similar example would be how it was originally mentioned freedom of the press is the "bulwark of liberty". This is commentary. You remove it, the legal protections of freedom of the press remain unchanged.
Ah, I misunderstood why you thought the clause was decorative. I see what you're saying, but here's something you should be wary about: I think I agree with Scalia. That usually doesn't happen.
     
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Jan 26, 2016, 05:28 PM
 
Originally Posted by subego View Post
My understanding is Scalia isn't using a strict constructionist argument against sex discrimination being covered in the 14th Amendment, he's using an originalist argument.

The relevant section of the 14th uses the words "person(s)" and "people". From a strict constructionist point of view, the text unambiguously applies to men and women. Now, one could argue whether sex discrimination, unless committed by government, is depriving someone of due process of law, but that's a different thing altogether.

Scalia (again, IIUC) is saying the 14th doesn't cover sex discrimination because the people who wrote it didn't intend for it to do so. This is an originalist argument as it focuses on intent. A strict constructionist argument is going to focus on the text.

To be fair to Scalia, the 14th Amendment is one of the more schizophrenic little pieces of our holy document. It guarantees due process of law for "the people", and then immediately doubles down on the disenfranchisement of women. He's not totally pulling this out of his ass.
Thanks for the explanation. How does he decide whether to apply a constructionist or originalist argument?
     
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Jan 26, 2016, 05:30 PM
 
Originally Posted by subego View Post
Basically, the whole point of being a strict constructionist is you get to avoid this question. I'm going to rely on the text as much as possible, only resorting to other methods if that's insufficient.

When it comes to defining "arms", at most I have to make sure the Founding Fathers and myself are using the same definition. Upon acquainting the Founding Fathers with a nuke, I have only two questions for them:

1) Would you consider this nuke to be an arm?
2) Where's your God now?

Assuming they're all on the same page that a nuke is an arm (as I assume you and I are), that's all I need. Everyone back in the box.

Of course, "arms" isn't the only word in the sentence. By the time you're done with it, I think that's gets clipped down significantly. You don't really "bear" a nuke for example.
In a rush, but I think my interpretation falls inline with Scalia's Originalist argument, right? Since you can't know if the FF meant modern armament.
     
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Jan 26, 2016, 06:50 PM
 
Originally Posted by The Final Dakar View Post
Ah, I misunderstood why you thought the clause was decorative. I see what you're saying, but here's something you should be wary about: I think I agree with Scalia. That usually doesn't happen.
On what basis?

I used to agree with him on this, too. The basis was that's how the sentence made sense to me.

I got backed into a corner and was forced to admit this is a weak argument, especially in light of it using archaic, pseudo-Latin grammar I'd never heard of before.

Needing something stronger, I spent time in the rabbit hole and came out with the interpretation I'm arguing for being reflected in the congressional record, unlike the Scalia interpretation, which isn't.
     
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Jan 26, 2016, 06:53 PM
 
Originally Posted by The Final Dakar View Post
Thanks for the explanation. How does he decide whether to apply a constructionist or originalist argument?
The mystery bullshit algorithm.
     
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Jan 26, 2016, 07:09 PM
 
Originally Posted by The Final Dakar View Post
In a rush, but I think my interpretation falls inline with Scalia's Originalist argument, right? Since you can't know if the FF meant modern armament.
If I understand you right, yes.

In this particular scenario (others may be different)...

An originalist is concerned with what the Founding Fathers meant by arms.

A strict constructionist is concerned with the Founding Fathers' opinion only in the narrow context of whether they would define modern arms as "arms". The same way you could ask them if they considered a modern cruise ship a "ship". I assume they would, just as they'd consider a nuke to be an arm.

You have a different situation when it comes to "well regulated". The Founding Fathers would define that much differently, so one needs to account for it.
     
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Jan 28, 2016, 06:09 PM
 
Originally Posted by subego View Post
On what basis?

I used to agree with him on this, too. The basis was that's how the sentence made sense to me.
Same here.


Originally Posted by subego View Post
The mystery bullshit algorithm.
Ah, good. Because I suspected as much.
     
   
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