Think of law as being like a complicated game, such as Chess or Cricket (the rules of which happen to called "the Laws of Cricket"). For example, Chess has rules in how the pieces are to move. One does not say to a chessmaster you should have moved a knight in a straight line for four squares since that violates the rules of chess. One needs to follow the rules of law when practising the profession of law, one set of rules are called the canons of Statutory Interpretation which deal with how a statute is to be interpreted.
Under most of the canons of Statutory Interpretation, the class of the people is limited by the term militia. For example:
Construction of text as a whole
The first linguistic canon is that an Act or other legislative instrument is to be read as a whole, so that an enactment within it is not treated as standing alone but is interpreted in its verbal context.
Ejusdem generis ("of the same kinds, class, or nature")
When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where "cars, motor bikes, motor powered vehicles" are mentioned, the word "vehicles" would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).
The Latin words ejusdem generis (of the same kind or nature), have been attached to a canon of construction whereby wide words associated in the text with more limited words are taken to be restricted by implication to matters of the same limited character.
Thus, the general term "people" in the Second Amendment is limited by the restrictive "well-regulated militia".
The principle may apply whatever the form of the association, but the most usual form is a list or string of genus-describing terms followed by wider residuary or sweeping-up words. The canon arises from the linguistic implication by which words having literally a wide meaning (when taken in isolation) are treated as reduced in scope by the verbal context. It is an instance of ellipsis, or reliance on implication. As Rupert Cross put it, following Lord Diplock: 'the draftsman must be taken to have inserted the general words in case something which ought to have been included among the specifically enumerated items had been omitted . . .' (Cross 1987, 133). Or, as Odgers says, it is assumed 'that the general words were only intended to guard against some accidental omission in the objects of the kind mentioned and were not intended to extend to objects of a wholly different kind' (Odgers 1987, 184). It follows that the principle is presumed to apply unless there is some contrary indication.
In pari materia ("upon the same matter or subject")
When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter. That is the Second Amendment must be interpreted in light of the US Constitution's provisions relating to the militia (i.e., US Constitution Article I, Section 8 Clauses 15 & 16).
Noscitur a sociis ("a word is known by the company it keeps")
When a word is ambiguous, its meaning may be determined by reference to the rest of the statute. That is the Second Amendment must be interpreted as a whole and in light of the US Constitution's provisions relating to the militia (i.e., US Constitution Article I, Section 8 Clauses 15 & 16).
In the case of the Second Amendment, the word people reflects back to the Militia. The use of the term people does not expand the stated purpose of the Second Amendment, that is:
A well regulated militia being necessary to the security of a free StateThe only way that the word "people" can be interpreted as the subject for the Second Amendment is to say that the first half is not important. If that is the case, why have the first half?
If the first half is irrelevant that takes you into another realm:
Cessante ratione, cessat et ipsa lex.(The reason of the law ceasing, the law itself also ceases)
Which means that if the "cause/reason" for the Second Amendment was the "well-regulated militia", then it could be argued that when that reason ceased, the law ought likewise to cease with it. Thus, those who say that the militia portion is unimportant have made it clear that the reason is no longer valid, therefore, the Second Amendment is without effect and is now void.
I am beginning to see Heller-McDonald as the opening blow to the uncomfortable reality that the Second Amendment is a dead letter in modern society.
See also:
Bennion on Statutory Law--Statutory interpretation
So why did the founding fathers want to weaken the militia by writing the second amendment? You do agree that your interpretation leaves a weaker militia than my interpretation, correct? I asked this question in the “TS’s Dilemma” thread, but didn’t hear back from you, so I’ll post it again:
ReplyDeletePonder this: which would yield a more effective militia? 1) Arms are provided to militia members by the government and those members are trained by the government in a time of need (keeping in mind they have never handled weapons prior to being called into militia service). 2) The people have a right to keep and bear arms. They buy as many weapons as the wish, and use them as they wish for lawful purposes- hence establishing the “gun culture” that is so maligned by your type. In time of need, they bring their personal arms and existing skills for service in the militia.
Which of these two provides a bigger, more powerful, “well regulated” militia? Which is easier? Cheaper? Make the assumption that the only thing the founding fathers cared about was the strength of the militia for the security of a free state. Assume they don’t give a crap about personal self-defense, hunting, target shooting, etc.- ONLY that which would yield the strongest militia for the security of a free state. 1 or 2?
I suspect TS that the answer to your question is that it varies. There may very well have been periods when the government supplied weapons to the militia were superior, and that there was some benefit to be had in a standardized kind of weapon for our armed forces, militia or standing army.
ReplyDeleteBut given the extent to which firearms were expensive, custom made items, more available to the wealthy, at least the best and most state of the art, that I can see some merit to at least some people providing their own.
The mistaken assumption to me would be to posit that the words don't apply to changing circumstances, rather than as contradictory.
Perhaps you read with an eye less discering of the changing detail of the context?
I do not come to the same conclusion that you do, rather I look at it in the context of the evolving U.S. standing army, post American revolution.
Dog gone, I may need to clarify that the individual right of the people doesn’t mean the government can’t provide weapons as well. Congress has the power to arm the militia AND the people have the power to arm themselves. That yields a stronger militia than if only the government could arm the militia.
ReplyDeleteWeaken it by writing the Second Amendment?
ReplyDeleteTS, you totally misunderstand the history and law behind the Second Amendment to make such as statement.
First off I don't need to assume they don’t give a crap about personal self-defense, hunting, target shooting, etc. since none of that is mentioned in the Second Amendment the way it is in other proposals or State rights to arms.
No express mention is made of these concepts in the Second Amendment--got that?
Expressio unius est exclusio alterius ("the express mention of one thing excludes all others").
Even if we want to go beyond the text and look at the history, there is more than enough evidence that non-militia purposes were not their primary interest.
I have already given you the Patrick Henry comments from the Virginia Ratification debates that show his concern was the power of congress to arm the militia. This cause people to worry about the possibility that Congress would fail to arm the militia.
For most of the 19th and 20th Century Arms were kept in armories for use by the Militia/national guard--so 1 was not a problem.
In fact, if you weren't a total idiot, you would understand that
IT IS CONGRESS' POWER TO ARM THE MILITIA ACCORDING TO ARTICLE I, SECTION 8, CLAUSE 16
Not the states, not individuals.
Can you deny this? It does not say individuals are to arm the militia--does it?
The Second Amendment was the guarantee that the congress would not fail to arm the militia--no more, no less.
The fact that I have gone over this and you wish to ignore this is your problem--not mine.
Unless you provide specific language which shows that these purposes are part of the Second Amendment--you're fucked.
If you don't know chess, don't make comments about the game.
If you don't know cricket, don't make comments about the game.
If you don't know basketball, don't make comments about the game.
Likewise, if you don't know how the game of law is played, shut up until you learn the rules.
TS, show me where it says individuals are to arm the militia in Article 1, Section 8, Clause 16:
ReplyDeleteTo provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
NOWHERE
If it doesn't say individuals, you can't assume that individuals have the power to arm the militia.
DOES THAT MAKE SENSE TO YOU?
Laci, so you are not willing to answer the question then? I get it. Lawyers ask questions- they don’t answer them.
ReplyDeleteLaci: “show me where it says individuals are to arm the militia in Article 1, Section 8, Clause 16:”
ReplyDeleteIt doesn’t. It is the second amendment that does that. There must be individual power to arm the militia other wise the second amendment would be surplusage.
Laci - how then are State Constitutions that specifically grant the individual the right to own and bear arms considered to be in compliance with a Federal Constitution that does not grant these rights? Has anyone challenged these state provisions as violating the Constitution that limits the right to bear arms to the militia?
ReplyDeleteI HAVE ANSWERED YOUR QUESTION
ReplyDeleteNot in the way that you want, but I have answered your question more than you can count.
I can come up with some reasons for this, but they aren't very polite in regard to your intelligence.
Sorry, but the Second Amendment cannot contradict the US Constitution.
A law must be interpreted so as to be internally consistent--you are saying that The Second Amendment implies something that it does not.
Again, provide explicit language.
In fact, it is the right of the people to keep and bear arms, not to acquire them.
The arms they keep and bear are provided by Congress.
Internal and external consistency
ReplyDeleteIt is presumed that a statute will be interpreted so as to be internally consistent. A particular section of the statute shall not be divorced from the rest of the act. The ejusdem generis (Latin for "of the same kind") rule applies to resolve the problem of giving meaning to groups of words where one of the words is ambiguous or inherently unclear. The rule results that where "general words follow enumerations of particular classes or persons or things, the general words shall be construed as applicable only to persons or things of the same general nature or kind as those enumerated." 49 F. Supp. 846, 859. Thus, in a statute forbidding the concealment on one's person of "pistols, revolvers, derringers, or other dangerous weapons," the term "dangerous weapons" may be construed to comprehend only dangerous weapons of the kind enumerated, i.e., firearms, or perhaps more narrowly still, handguns. Here, the term "dangerous weapons" must be given a meaning of the "same kind" as the word of established meaning.
TS, read this post about state Constitutional provisions.
ReplyDeleteThe US Constitution is the base line for rights, State Constitutions cannot grant lesser rights. State Constitutions, however, can explicitly provide greater rights, in particular "gun rights", but it is ultimately the US constitution prevails.
State Constitutions can add to, but they cannot subtract or contradict from those granted by the US Constitution.
For example Pennsylvania grants expanded protections in regards to search and seizure than those granted by the US Constitution.
Also, Minnesota explicitly grants a right constitutional to hunting.
"State Constitutions can add to, but they cannot subtract or contradict from those granted by the US Constitution."
ReplyDeleteSo individual ownership of guns is not contradictory to federal law?
Laci: “In fact, it is the right of the people to keep and bear arms, not to acquire them. The arms they keep and bear are provided by Congress.”
ReplyDeleteWhoa, whoa there. Didn’t you just say that the second amendment had something to do with Patrick Henry saying something about when congress fails to arm the militia? Here, I’ll have the court reporter read back your statement:
Laci (half an hour ago): “I have already given you the Patrick Henry comments from the Virginia Ratification debates that show his concern was the power of congress to arm the militia. This cause people to worry about the possibility that Congress would fail to arm the militia.”
How do you reconcile those two statements?
Regarding my question, it was very simple and has nothing to do with legal construct, grammar, or the word “people”. The question is does a right that belongs to the people to arm themselves (in conjunction with congress’s power to arm the militia) yield a stronger militia than if there were no right of the people to do so? Regardless of how you feel about the second amendment, can I get a simple yes or no answer?
You have it backwards, Federal law according to the Constitution is the Supreme law of the land (Article VI, Clause ii).
ReplyDeleteAlthough, I do have to admit this is an good question.
Example, federal law allows for ownership of machineguns, but Michigan law does not. In this case, Michigan law controls.
One could try to argue that Federal Law preempts Michigan law, but I think that would not pass Heller-McDonald:
We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
At this point, Heller-McDonald has said that only bans on firearms in the home owned by law abiding citizens are unconstitutional. It has not expanded that holding.
The Civic right interpretation is silent on that matter, you can have gun bans, but you can also have laws like Kennesaw, Georgia.
All the civic right does is remove any claim that the Second Amendment address personal gun rights.
There is no need to reconcile my comments about Patrick Henry's speech. I have published it before for you to read, but in short:
ReplyDeleteLet me here call your attention to that part which gives the Congress power "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States--reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither--this power being exclusively given to Congress.
Repeat:
this power being exclusively given to Congress.
This is your answer.
Is that clear enough for you?
The question is does a right that belongs to the people to arm themselves (in conjunction with congress’s power to arm the militia) yield a stronger militia than if there were no right of the people to do so?
ReplyDeleteMy personal opinion on this matter is irrelevant, it is the Constitution which is the relevant source of authority.
Again, is that clear enough for you?
If I only cared about "gun control" I would have no problems with Heller-McDonald--again, is that clear enough for you?
Furthermore and in reiteration, TS, my opinion about the Civic right being the correct interpretation has no bearing upon my feelings about gun control.
ReplyDeleteThey are based upon my reading of the primary source materials and making up my mind about their validity.
If anyone's opinion is clouding their judgement on this matter, it is you.
I have provided examples from the Constitution, From Patrick Henry, and the rules of Constitutional construction that back up my opinion.
You have not given me a valid reason to aceept your interpretation.
If anything, you have shown me that you chose to ignore anything that contradicts your opinion.
As I said, If I only cared about "gun control" I would have no problems with Heller-McDonald
--again, is that clear enough for you?
You have shown to me that you could give a rat's ass about the law and the Constitution in your comments, TS.
I prefer law and the rule of law.
It beats the alternative.
More Patrick Henry for you:
ReplyDeletefor, as arms are to be provided by Congress, they may or may not furnish them
Got that?
Laci, you have been telling us that Henry’s quotes were expressing his concern for needing the Second Amendment. Your words:
ReplyDeleteLaci: “The Second Amendment only addresses the concern expressed by Patrick Henry”
Then you said this:
LAci: “Repeat: this power being exclusively given to Congress. This is your answer. Is that clear enough for you?”
That power WAS exclusively given to congress. In 1788. He said this before the Second Amendment was ratified. At that time Henry spoke of a need to give power to the people. The Bill of Rights was ratified a year later. This is what you have been telling us. I’ll also provide the rest of Henry’s speech right after you cut it off because it is interesting:
The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory. Our situation will be deplorable indeed: nor can we ever expect to get this government amended, since I have already shown that a very small minority may prevent it, and that small minority interested in the continuance of the oppression. Will the oppressor let go the oppressed? Was there ever an instance? Can the annals of mankind exhibit one single example where rulers overcharged with power willingly let go the oppressed, though solicited and requested most earnestly? The application for amendments will therefore be fruitless. Sometimes, the oppressed have got loose by one of those bloody struggles that desolate a country; but a willing relinquishment of power is one of those things which human nature never was, nor ever will be, capable of.
It sounds like he has grave concerns about oppression when the power to arm the militia resides strictly with congress. Henry was speaking AGAINST congress having sole power to arm the militia, was he not?
Laci: “My personal opinion on this matter is irrelevant, it is the Constitution which is the relevant source of authority. Again, is that clear enough for you?”
It is pretty clear that you would hate to admit there is a reason for granting rights to the people in order to have the strongest “well-regulated” militia necessary for a free state.
"It sounds like he has grave concerns about oppression when the power to arm the militia resides strictly with congress. Henry was speaking AGAINST congress having sole power to arm the militia, was he not?"
ReplyDeleteNope.
Henry is talking within the context of the militia clause in the Constitution, which refers only to military weapons ("Congress shall have the power to provide for organizing, arming, and disciplining the militia," Article I, Section 8, Clause 16). Henry isn't arguing against federal responsibility for arming the militia--instead, he argues that federal arming of militias may either supplant or duplicate the states’ arming of their own forces. Henry: "Our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall he doubly armed. The great object is that every man [of the militia] be armed. But can the people afford to pay for double sets of arms, &c? Every one who is able may have a gun. But we have learned, by experience, that, necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. "
In this, Henry is noting known facts: 1. that what's being talked about are militia weapons and equipment--not just firearms. 2. that at the time, some states couldn't properly supply the militia, so how could the Federal Govt?
NO!
ReplyDeleteYou have gone beyond the relevant portion.
Not to mention that you have misunderstood the passage to boot.
The Constitution as ratified states:
Congress shall have the power... To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
Henry was indeed speaking AGAINST congress having sole power to arm the militia, BUT.
Got that BUT
The Constitution as passed was this power was exclusively given to Congress, not the states, not the people-as the above text demonstrates.
Repeat:
this power was exclusively given to Congress, not the states, not the people.
TS, there is no militia except the national guard, which is the militia as organised under Article I, Section 8, Clause 16.
The Second Amendment cannot contradict the Constitution and grant powers that were not granted by the Constitution.
You are implying that there is an inconsistency.
No, the miltia needs to be trained and organised for it to be the strongest “well-regulated” militia necessary for a free state.
Additionally, well-regulated means organised under Article I, Section 8, Clause 16--even Soldier of Fortune disagrees with you on that one.
Anyway, here is my opinion. To quote Elbridge Gerry:
What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary.
Are you denying that the US has the largest military in the World--which is a standing army?
I'm sorry, TS, but you are pretty much wrong here, but too pig headed to admit it.
See Asked and Answered--Unorganised, Sedentary, reserve, etcetera militias explained
Laci: “The Second Amendment cannot contradict the Constitution and grant powers that were not granted by the Constitution.”
ReplyDeleteHow does that work for the other amendments?
Congress had sole power to arm the militia before the Bill of Rights. You are saying congress has sole power to arm the militia after the Bill of Rights. What exactly did it do? Were Henry’s concerns alleviated by this piece of surplusage that can’t contradict the constitution?
Wonderful discussion.
ReplyDeleteAs Frankie Pentangeli said in II, "I don't have your mind for the, the big deals, but this is a street thing."
Guns in America are bad news and the 2A has nothing to do with it.
It's an anachronism.
TS, Asked and answered.
ReplyDeleteJadeGold gets it right in his comment.
ReplyDeleteHow come other people are missing the point?