Thursday, August 25, 2011

TS's dilemma

Speaking about surplusage, why bother with the second amendent when Article I, Section 8, Clause 16 of the constitution already grants congress the power to organize and arm the militia? Are you saying a whole amendment to the bill of rights is mere surplusage? Or is it completely separate from Article I, Section 8, Clause 16 and affirms an individual right of the citizens to keep and bear arms- which the aforementioned clause does not?
If the Second Amendment right "pre-exists the Constitution", then The Second Amendment is surplusage--Why have this right if everyone knew it exists?

If Article I, Section 8, Clause 16 has no effect--why have the Second Amendment since it would be surplusage?

Article I, Section 8, Clause 16 does not have effect--then it is surplusage.

Let 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.--Patrick Henry, Virginia Ratifying Convention, 5 June 1788 Elliot 3:51--52


Note that Henry is specifically addressing Congress's Powers under Article I, Section 8, Clause 16 and mentions them in this quote.

But, it's a right of the people.

This is law, not math, not science, not philosophy--one uses the rules of legal construction, not the rules of other disciplines.

The Second Amendment only addresses the concern expressed by Patrick Henry: "If they (Congress) neglect or refuse to discipline or arm our militia".

BTW, if you are going to talk about Occam's razor, which is a principle that generally recommends, when faced with competing hypotheses that are equal in other respects, selecting the one that makes the fewest new assumptions.

This is the solution which gives you that answer.

29 comments:

  1. Laci: “If the Second Amendment right "pre-exists the Constitution", then The Second Amendment is surplusage--Why have this right if everyone knew it exists?”

    Not everyone knows it exists. See this blog for examples.

    Laci: “If Article I, Section 8, Clause 16 has no effect--why have the Second Amendment since it would be surplusage?”

    I never said it has no effect. I said it has a distinctly different purpose than the Second Amendment. You seem to imply that they are both about the federal arming of the militia- making one of them surplusage.

    Laci: “The Second Amendment only addresses the concern expressed by Patrick Henry: "If they (Congress) neglect or refuse to discipline or arm our militia".”

    I don’t see that contingency in the text. I also don’t see how Henry’s statement eludes to a collective right. He is expressing the need for a right that exists outside of the federal government.

    Laci: “…when faced with competing hypotheses that are equal in other respects, selecting the one that makes the fewest new assumptions.”

    Indeed, and you have to make all kinds of new assumptions to claim “the people” doesn’t mean the citizens of the United States.

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  2. Time to interject the word of the day, the verb "footle"footle\FOOT-l\ , verb;
    1.To act or talk in a foolish or silly way.noun:
    1.Nonsense; silliness.

    Origin:
    Footle has an uncertain origin. One candidate is the French se foutre, to care nothing." Another possibility is the Dutch vochtig, "damp or musty."

    A certain amount of the argumentation offered here in support of the 2nd Amendment is idle footling.

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  3. This comment has been removed by the author.

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  4. TS, by citing Occam's razor yyou have immediately shot yourself in the foot.

    You give a 10 paragraph "explanation" which the civic right does in three that is:

    --Article I, Section 8, Clause 16 gives congress power "to provide for organizing, arming, and disciplining the militia"
    --There was concern raised that Congress would not arm the militia
    --The Second Amendment addresses this concern

    I don’t see that contingency in the text.

    Are you blind or just ignorant?

    I guess I have to point it out to you

    Let 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.--Patrick Henry, Virginia Ratifying Convention, 5 June 1788 Elliot 3:51--52

    Indeed, and you have to make all kinds of new assumptions to claim “the people” doesn’t mean the citizens of the United States.


    Not at all, paraphrased:

    The right of the People to keep and bear arms shall not be infringed so that there can be a well regulated militia which is necessary to the security of a free State

    The language of the entire text limits the right of the people to the purpose of ensuring a well regulated militia.

    Your response regarding the fact that criminals who are covered under all the other amendments are exempt from the Second Amendment right requires all kinds of new assumptions which are not grounded in the text.

    Anyway, you have yet to back up your opinion with FACTS.

    You are providing uneducated opinion, not a fact based argument.

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  5. Laci: “Are you blind or just ignorant?”

    Blind. Because what I don’t see is: “A well regulated Militia, being necessary for the security of a free state, should congress not exercise the power to arm the militia, the right of the people to keep and bear arms shall not be infringed.”

    I guess my eyes don’t work right.

    If your claim is that one must join the national guard for the government to furnish arms for training to be kept under federal control- then there IS NO individual right of the citizens to keep and bear arms. How is “accepting training” a right of the people specified in the Bill of Rights? How is there an individual right to own a gun when a National Guard soldier neither bought the gun nor gets to keep it?

    Laci: “The right of the People to keep and bear arms shall not be infringed so that there can be a well regulated militia which is necessary to the security of a free State”

    Your comment STILL specifies a right that belongs to the people to keep and bear arms, of which a militia can be organized. Even if that is the ONLY reason for the second amendment, the right still belongs to individual people. Meaning- the individual gets to buy a gun, keep it in their home, and bear it.

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  6. Neither does your brain.


    I couldn't make it any clearer for you.

    That language is provided by reading Article I, Section 8, Clause 16, but you refuse to read the Second Amendment in light of that clause.


    The Militia Act of 1792, Passed May 8, 1792, providing federal standards for the organization of the Militia:

    That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball; or with a good rifle, knapsack, shot-pouch, and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.

    This who were exempt were not expected to comply with this.

    Yes, one must be a member of the National Guard for the right to apply.

    Why would someone who is not subject to militia duty want to purchase the kit?

    But, your explanation fails to say why criminals are exempt from the right to own arms.

    Please provide some explicit language in the Second Amendment that demonstrates that it was intended to apply to non-militia purposes.

    I don't see it, but I do see the word "Militia".

    Militia limits the purpose.

    Please provide a factual basis for your statement otherwise you are demonstrating your ignornance.

    Stop wasting my time.

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  7. Ohio has it right in our state preemption law:

    9.68 Right to bear arms - challenge to law.
    (A) The individual right to keep and bear arms, being a fundamental individual right that predates the United States Constitution and Ohio Constitution, and being a constitutionally protected right in every part of Ohio, the general assembly finds the need to provide uniform laws throughout the state regulating the ownership, possession, purchase, other acquisition, transport, storage, carrying, sale, or other transfer of firearms, their components, and their ammunition.


    Emphasis mine. Also, this law predates Heller. Everyone knows it is an individual right.

    http://codes.ohio.gov/orc/gp9.68

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  8. Good comment, FWM, I was planning on doing something about these provisions.

    You are on the right track.

    Let's say that McDonald v. Chicago was ridiculous for a few reasons.

    I am a bit lazy to do the post right now, but...

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  9. Laci: “Neither does your brain.”

    Lets try something. Pretend I am on a jury and you are presenting a case. Surely you wouldn’t say this or things like “you jurors are too stupid to understand me”. I have no doubt you posses the capability to be professional and respectful in a courtroom.

    Laci: “This who were exempt were not expected to comply with this. Yes, one must be a member of the National Guard for the right to apply.”

    Show me. Show me where it is forbidden to own arms if one is not is service of the militia. You have text showing that one must furnish their own arms as members of the militia, but that does not mean the reverse is true. Logic does not work that way. There would be all sorts of conundrums if did. Say for example where it is specified that you need a drivers license to rent a car. This of course does not mean that only those renting cars can drive on public roads.

    The key question I asked, which you failed to answer is why didn’t they say “…the right of the militia to keep and bear arms…” which would clearly mean service in the militia is a requirement. That was the undoing of the defense in Heller. The word is “people”, and that is what it came down to.

    Laci: “Why would someone who is not subject to militia duty want to purchase the kit?”

    Same reason I do.

    Laci: “But, your explanation fails to say why criminals are exempt from the right to own arms.”

    I already addressed that. Remember where I said some rights can be taken away for bad behavior? I don’t contend that the right is absolute- where we differ is what restrictions are reasonable and apparently whether the right exists at all for individuals.

    Laci: “Please provide some explicit language in the Second Amendment that demonstrates that it was intended to apply to non-militia purposes.”

    The word “people” as the subject of the right rather than “militia”. You can make the case that second amendment is anachronistic, as Mike does. Although I disagree, a much stronger case can be made that we don’t need militias anymore and therefore we don’t need the second amendment than trying to say the right as specified does not belong to individual citizens. In the former, you’ll need to get the whole amendment repealed- and also make the case that militias will NEVER be needed in the future. What you are doing is simply anti-gun desperation.

    Basically you are contending that the Second Amendment is there so that if congress fails to provided enough funds for arms, that the soldiers have to buy their own. And they needed a whole freakin’ amendment to the constitution to do that? I’m not buying that bridge.

    Laci: “Stop wasting my time.”

    Oh, am I keeping you from billable work? Based on how much you have written on this subject over the past few weeks, I think you *love* wasting your time.

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  10. I probably would be able to tell by your blank stare that you were missing my point.

    Furthermore, I have the feeling that you would engage in the practise known as Jury Nullification.

    I have shown you that the Second Amendment should not be interpreted in a vacuum--that is, it needs to be read in conjunction with the main text of the Constitution.

    In particular Articles I, Section 8, Clauses 15 & 16.

    No, Heller and McDonald chose to ignore precedent and the law.

    To fixate on the word people is a bogus idea--especially to assume that it means all citizens. That means that criminals, the insane, and others have the right to keep and bear arms.

    No, you did not address the topic of why criminals can't own arms, or as you people say:

    "What don't you understand about shall not be infirnged?"

    But Heller-McDonald also limits the class of the people to “law-abiding, responsible citizens”.

    So, how do they do that if that class is not specifically referenced? You are in more of a mess now than I am by saying that the amendment applies to the militia.

    The militia is mentioned in the text.

    Private uses are not.

    Basically you are contending that the Second Amendment is there so that if congress fails to provided enough funds for arms, that the soldiers have to buy their own. And they needed a whole freakin’ amendment to the constitution to do that? I’m not buying that bridge

    Explain the Patrick Henry quote then.

    The major problem is that I can provide as much irrefutable evidence as I want--you have made your mind up won't believe it.

    You are like the Jurors in OJ Simpson's Criminal Trial--no amount of evidence will change your mind.

    I'm not the one who would be annoyed with you--it's the other jurors who will try to get it through your thick skull.

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  11. Furthermore, TS, your interpretation states that parts of the constitution are without meaning, does not have effect--then it is surplusage. Such a construction.

    It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible.

    Simple enough for you TS?

    Now, annoy the other jurors.

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  12. Laci: “To fixate on the word people is a bogus idea”

    It’s only the subject of whom the right belongs to! It is only what the whole “collective right vs. individual right” argument centers on. But it is bogus you say? Give me a break. What about surplusage that you are always on about? That word has to be there for a reason? They have already addressed the militia in the text, yet chose to not state “the right of the militia…” Why don’t you answer the question that I have already asked you twice about why they didn’t say “militia” if that is what they meant?

    Laci: “No, you did not address the topic of why criminals can't own arms”

    I have already answered you twice on this, and I know you even agree with my answer. You don’t think all rights are absolute- so why do you keep bringing it up as an argument? You believe search warrants and imprisoning criminals are constitution don’t you?

    Laci: “So, how do they do that if that class is not specifically referenced?”

    The right belong to the people, but individual people can lose rights through their actions. Get it? (I know you agree with this)

    Laci: “It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible. Simple enough for you TS?”

    Like the word “people”? I already explained that the militia clause of the 2A is not surplusage. The importance of the militia is recognized and the right was stated as being for the people, which would in turn give the government the biggest and best militia pool (short of mandating gun ownership- which should not be required of free people). Your arguments are much closer to calling the whole 2A surplusage, or rather it was put in there to allow soldiers to buy their own arms if (and only if?) congress doesn’t do so. That is pretty obscure, and quite near surplusage. Why again would they need to amend the constitution for that?

    Laci: “explain the Patrick Henry quote then”

    Where did he say people outside of the militia don’t have a right to keep and bear arms?

    Lets talk sentence structure shall we? You understand that the militia clause is the dependant clause, and the “right of the people” clause is an independent clause right? They teach English in England, right? That means the independent clause can stand by itself. So if we look at just that clause, it is without doubt that the right belongs to the people and shall not be infringed. However, the first clause does throw a wrinkle in that. If the first clause is indeed a contingency (that service in the militia is a requirement), the problem is it would alter the independent clause. The right would cease to belong to the people, and would now belong exclusively to the militia. But they didn’t use that word in the independent clause, did they? Because they used the word “people” it means the right belongs to the individual and can be exercised outside of militia service. But what we can learn from the dependant clause is that the Militia is the primary reason for the second amendment and that the militia is necessary for the security of a free state. Again, if you want to argue that the Militia is the ONLY reason for the second amendment, then you need to present the case that the militia is no longer necessary (and never will be), and work to get the whole thing repealed. Until then, the right belongs to the people.

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  13. WHAT ABOUT THE MILITIA????

    DO YOU UNDERSTAND ANY OF THIS?

    No,you are not like a juror, you are like a witness who has been shown to not know what he is saying.

    You have said the the right of criminals can be infringed despite the language to the contrary.

    Sorry, but since you are on a computer and not in court with the people in the courtroom laughing at you making an idiot of yourself, you can go on and on as you are.

    This is not an independent clause, it cannot stand by itself.

    This is not English literature, this is law and subject to the rules of legal construction, not grammar.

    The meaning of the language of the statute must be determined in light of its objectives, purposes, and practical effect as a whole. If a statute is so ambiguous that a judge cannot make a reasonable construction of its disputed provisions, and a reasonable person could not determine from reading it what the law orders or prohibits, it is void for vagueness because it violates the guarantee of Due Process of Law.

    Thus,it does not need to be repealed by your admission, it is invalid.

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  14. Blackstone stated that, although the words of an enacting clause were ‘generally to be understood in their usual and most known signification,’ yet if its words, after due analysis, were ‘still dubious’ or ‘ambiguous, equivocal, or intricate,’ one might look to the context, which included ‘the proeme, or preamble, [which] is often called in to help the construction of an act of parliament.’ (1 Blackstone at 59-60).

    Someone said that the proeme could be read as starting with Because. Which means a better way of reading this is 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.

    So, using the text above and the Constution, The right to “Keep and bear arms” has something to do with “a well regulated militia” since that is mentioned in the text of the Second Amendment and is a purpose tied to “providing for the common defence” which is a purpose stated in the Constitution. It has nothing to do with self-defence since nowhere in the text of the Second Amendment or the Constitution is the phrase “self-defence” present or even hinted at.

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  15. The citation from Blackstone regarding the “proeme, or preamble” is part of a larger section that consists of “observations concerning the interpretation of laws.” 1 Blackstone at *58. One of those “observations” was: “BUT, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the laws itself ought likewise to cease with it.” 1 Blackstone at *61.

    Blackstone refers to this “when the reason ceases, the law ought to cease” principle several times in the Commentaries, which would seem to indicate that he considered it a fairly important interpretive principle. 2 Blackstone at *390-91 (discussing property interests in tame and domestic animals and noting “But here the reasons of the general rule cease, and ‘cessante ratione cessat et ipsa lex‘ [The reason of the law ceasing, the law itself also ceases]“), 3 Blackstone at *219 (discussing the law of nuisance, and noting “But, where the reason ceases, the law also ceases with it : therefore it is no nuisance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water.”), 4 Blackstone at *3 (noting that some aspects of Britain’s criminal law “seem to want revision and amendment” and explaining that “These have chiefly arisen from too scrupulous an adherence to some rules of the antient common law, when the resons have ceased upon which those rules were founded . . . “), 4 Blackstone at *81 (discussing the law of treason, and noting that the “plain intention of this law is to guard the blood royal from any suspicion of bastardy, whereby the succession to the crown might be rendered dubious: and therefore, when this reason ceases, the law ceases with it . . .”), 4 Blackstone at *330 (discussing the plea of a former attainder, and noting “But to this general rule however, as to all others, there are some exceptions; wherein, cessante ratione, cessat et ipsa lex.”).

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  16. TS,if you needed brain surgery would you go to a brain surgeon or an auto mechanic?

    Likewise,if you wanted to interpret law, would you go to a grammarian or a lawyer?

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  17. "Likewise,if you wanted to interpret law, would you go to a grammarian or a lawyer?"

    I would say that if I wanted the most authoritative interpretation on the law of the United States I would go to the Supreme Court. Can you tell me what the latest opinion of the Supreme Court is on the 2nd Amendment?

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  18. Shall not be infringedAugust 26, 2011 at 4:47 PM

    Furthermore, I have the feeling that you would engage in the practise known as Jury Nullification.

    Wow you say that as if it is a bad thing......

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  19. No further comments are necessary.

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  20. 5 Justices came up with a novel interpretation that violated all rules of legal interpretation making the opinion ripe for attack.

    4 Justices followed the civic right
    4 Justices signed on a bizarre policy oriented document which is as bad as the one the other five in the majority came upwith.

    Thus, the civic right interpretation is still legally acceptable.

    Tough Shit.

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  21. "Thus, the civic right interpretation is still legally acceptable."

    That seems to be in direct conflict with the latest majority ruling of the Supreme Court. In America, what body of the government is tasked with deciding the Constitutionality of a law if its meaning is challenged in court? For instance, if someone were to challenge the DC law on handgun ownership, who would determine what the Constitution states in that case?

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  22. Shall not be infringedAugust 26, 2011 at 11:32 PM

    Laci The Dog said...

    No further comments are necessary.


    Excellent, I will keep that in mind....

    You don't like jury nullification, so it must be a good thing.

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  23. One quick comment for you to ponder, Laci:

    You have made great efforts to tie the second amendment to service in the militia. I have never disputed the importance of a well regulated militia in the scope of the right. However, for all your quotes you are still yet to produce any indication that the right does not exist outside of the militia. Ponder 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?

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  24. TS, don't you see you're talking about 18th century stuff that has no application in today's world.

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  25. Yes Mike, I am. Because the topic of this thread is what those 18th century founders were thinking when they specified a right that belongs to “the people” instead of the militia.

    MikeB: “don't you see you're talking about 18th century stuff that has no application in today's world.”

    How about tomorrow’s world?

    As I said earlier in this thread, the anti-gun position of trying to argue that the second amendment is no longer needed and should be repealed entirely is far more respectable that attempting to redefine it as not applying to the people.

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  26. TS, the constitution is quite clear that rebellion and insurrection is NOT a lawful right, not to individuals, and not to groups, not even to states.

    The rights to change the government and to protest it is limited to legal assembly and legal free speech.

    Shame on those unamerican traitors who even contemplate the possiblity of armed rebellion.

    They are proposing treason, not patriotism, and not any kind of understanding or loyalty to the founding fathers or their fellow citizens, and least of all, respect and honor to our armed forces.

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  27. I haven’t said a thing about insurrection, Dog gone. Of course overthrowing the government is defined as treason. Those rebels in Libya are breaking the law and Obama and NATO are aiding those criminals.

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  28. I think you may have something there, TS.

    "Those rebels in Libya are breaking the law and Obama and NATO are aiding those criminals."

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  29. The problem TS is that your solution of having private individuals buy their weapons is unworkable. If you look back the firearms cenuses from when people were required to provide their own arms, you see that quite a few weren't armed.

    Also, the idea of well-regulated is to have organised and trained bands.

    The unorganised Militia is exactly that, it is unorganised and untrained.

    It has no rights under the Second Amendment.

    So, TS, you are proposing something that is about as far from what the 18th Century intention could be.

    BUt, I know that you don't want to hear that, but try to understand.

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