Thursday, May 9, 2013

Ignorance is GREG!

Greg Camp Sez: 1. You give us a link to statuatory interpretation, but fail to recognize that we're talking about the constitutional interpretation:

Well, Greg, it IS a legal document. And it was written to those rules.

That is a comment which is the equivalent of "why do I need to know grammar when I write?" or  "Why do I need to know the rules of chess?"

An even shorter simpler answer, Greg, anyone who watches crime TV shows knows more about the law and legal method than you do.
In analyzing a statute’s text, the Court is guided by the basic principle that a
statute should be read as a harmonious whole, with its separate parts being
interpreted within their broader statutory context in a manner that furthers statutory
purpose. The various canons of interpretation and presumptions as to substantive
results are usually subordinated to interpretations that further a clearly expressed congressional purpose.
 from Statutory Interpretation: General Principles and Recent Trends, Congressional Research Office, Order Code 97-589.

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803): said that

The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction…It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.

Rules of statutory interpretation regarding the proeme, AKA the first clause of the Second Amendment.
If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point.
That gets back to my comment that Article I, Section 8, Clause 16 expressly gives CONGRESS the power to ARM  the militia.  Looking at the document as a whole, the Civic Right (not my interpretation personally, but the one which was accepted until Heller threw the law into flux).

I also talk about a concept called desuetude, that is where laws become obsolete.  Many laws have sunset clauses written into them.

In the case of the Second Amendment, the first clause announces the purpose (from Adam Freeman's Clause and Effect) :
The best way to make sense of the Second Amendment is to take away all the commas (which, I know, means that only outlaws will have commas). Without the distracting commas, one can focus on the grammar of the sentence. Professor Lund is correct that the clause about a well-regulated militia is “absolute,” but only in the sense that it is grammatically independent of the main clause, not that it is logically unrelated. To the contrary, absolute clauses typically provide a causal or temporal context for the main clause.
The founders — most of whom were classically educated — would have recognized this rhetorical device as the “ablative absolute” of Latin prose. To take an example from Horace likely to have been familiar to them: “Caesar, being in command of the earth, I fear neither civil war nor death by violence” (ego nec tumultum nec mori per vim metuam, tenente Caesare terras). The main clause flows logically from the absolute clause: “Because Caesar commands the earth, I fear neither civil war nor death by violence.”
Diagramming the Second Amendment, one should end up with something that expresses a causal link, like: “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.” In other words, the amendment is really about protecting militias, notwithstanding the arguments to the contrary.

In his Rudiments of English Grammar (1790), Noah Webster writes that “a nominative case or word, joined with a participle, often stands independently of the sentence. This is called the case absolute.” Webster gives several examples, including, “They all consenting, the vote was passed.” He explains, “The words in italics are not connected with the other part of the sentence, either by agreement or government; they are therefore in the case absolute, which, in English, is always the nominative.” Grammatical independence, to Webster, is not about political self-determination, it's all about the nominative case. But he would acknowledge without hesitation that the vote would not have passed without the consent of the voters.

Webster’s readers would have had no difficulty recognizing that the Second Amendment also begins with an absolute. They would have studied the absolute in school, and they had probably been tested on it in a federalist-era version of No Child Left Behind.

Any educated federalist also would have learned in school that government, in grammar, merely refers to the case of a noun – its inflection as a nominative, dative, genitive, accusative (or, in the case of Latin, an ablative). As Robert Lowth, the author of the most widely-studied school grammar of the time, put it, “Regimen, or government, is when a word causeth a following word to be in some case, or mode.” For example, prepositions cause the following noun or pronoun to take the dative case. Or as the schoolbooks liked to say, prepositions govern the dative. That’s why we say, “Give the gun to me,” not, “Give it to I.”

Anyway, since the clause "a well regulated militia is necessary to the security of a free state" announces the purpose for the right, We need to go back to the citation from Blackstone regarding the “proeme, or preamble” since it 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.”).

In other words, the phrase "a well regulated militia is necessary to the security of a free state" is already the sunset clause written into the Second Amendment.

By saying that this clause is no longer applicable, you have said that the reason for the Second Amendment no longer exists.  Thus, the Second Amendment died roughly the time that Story said:
And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised,that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see.There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

That's why people like Greg and the Five fools want to see it neglected.  The problem is that The Second Amendment was pretty much an irrelevance well before it was written.  See Adam Smith’s Wealth of Nations, Book V, Chapter I (Of the Expences of the Sovereign or Commonwealth), PART I: 16-27 (Of the Expence of Defence) for a critique of the miltia system from 1775.

Anyway, Constitutional interpretation IS statutory interpretation.  It is a statute, one of the first drafted by congress.

Where does this leave us? As a well constructed sentence, the Second Amendment says this: the people have a right to bear arms, inasmuch as that pertains to forming a regulated militia to secure a free state. Nothing more, nothing less. What of the right to personal self-protection? Who knows! — the Second Amendment does not talk about that. The main clause, “the right of the people to keep and bear arms shall not be infringed”, cannot be read without the preceding absolute — otherwise the Founding Fathers would have omitted that absolute. (I take it as given that they included in the Constitution only those words that they thought should be there and be interpreted; that they didn’t insert window-dressing or fluff.) Moreover, assuming the Founding Fathers were rather well educated, none of them would have misunderstood the limiting condition that the initial absolute put on the concluding main clause. Importantly it sets the topic: the militia, not the individual. We can certainly hem and haw as to the meaning of individual terms in the Second Amendment — “militia”, “well regulated”, “the people”, “security”, “infringed”, “arms” — but we should be crystal-clear as to the grammar. If one thing is manifest, it’s that the initial absolute puts a limit on the applicability of the main clause; the latter cannot and should not be interpreted without the former.

It's just that something like that is above Greg's level of intellect.

And waaayyyyyy beyond Orlin's.


  1. Once again, Laci goes on at great length, but manages to be simply wrong in his conclusions.

    To clarify, the Second Amendment is a conditional sentence: If P, then Q.

    P = a well-regulated militia being necessary to the security of a free state

    Q = the right of the people to keep and bear arms shall not be infringed.

    The only way a conditional statement like that can be false overall is if P is true and Q is false. Indeed, the statement as a whole is true even when P is false and Q is true. Thus, even if a well-regulated militia isn't necessary, the right of the people remains.

    Here's another sentence, constructed exactly as the Second Amendment is:

    Vitamin C being necessary to the health of sailors, the right of the people to keep and eat limes shall not be infringed.

    Can anyone seriously claim that such a sentence only allows for the use of said citrus fruit for the narrow purpose of getting a particular vitamin while at sea? Such a sentence, if in the Constitution, would be designed to protect the growing and common use of limes so as to maintain their availability for sailors. When something is in common use, it's easy to obtain. But using limes simply because you enjoy the taste isn't disallowed. Neither would be putting limes in a bowl and painting them in a still-life.

    Laci is free to carry on with his interpretation, but he also fails to recognize that the trend with the Constitution and our understanding of it has been in the direction of increasing freedom. I mentioned abortion in a previous thread, and I'll bring gay marriage in here. Neither is specifically stated in the text, but both have come to be seen--to varying degrees, to be sure--as rights that are protected by the document.

    The general principle of the Constitution is to create an environment in which free people are able to act together or separately as they choose. The Founders didn't always understand what they meant by that, but in general, that was their intent. We have a protecting document that guards our rights by restraining what government can do or demand.

    One other thing. Laci, I ignored some things in your screed because they're irrelevant to the subject at hand.

    1. Since Laci always makes it a personal scorecard as to who is smart and who is stupid, I would have to vote for you, Greg, as his intellectual superior.

      It's always such a drag to get involved in an argument with Laci. It's a colossal waste of time. One time he set a trap for right-wing patriots, entitled, "American Independence, Blessing or Curse?" The only patriot he snagged in his stupid trap was a hippie patriot. He still launched into me with all of his invective. Calling my intellect small, the result of too many drugs, etc. Total and irredeemable asshole. I wouldn't give him the time of day.

    2. Thank you for that, Flying Junior. It's my professorial nature to try to stamp out ignorance wherever I encounter it, but some cannot be helped.

  2. Pooch, please provide your analysis to the other nine amendments to prove to us that none of them mean what they say, either. Thanks.

    orlin sellers

  3. Are you tipping over your king, or are you going to answer the simple Miller question I asked?

    Why did the type of gun matter in the Miller case? What would the decision have been if the gun in question were a Thompson sub-machine gun instead of a sawed-off shotgun? The reason stated for upholding the law no longer applies.

  4. Laci,

    This is a nice, longwinded, fancy argument, but what it all comes down to is this, in your conclusion: "As a well constructed sentence, the Second Amendment says this: the people have a right to bear arms, inasmuch as that pertains to forming a regulated militia to secure a free state."

    We'll ignore the fact that you left out keep--that is Own arms. Another way to phrase your sentence would be: The people have a right to keep and bear arms, only for purposes of forming a militia to secure a free state.

    We can reduce this down to X may do Y, but only if Z is true.

    Meanwhile, earlier in your piece, you translated the Second Amendment into modern language 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."

    A similar simplification would render this statement: Because Z is important, X may do Y.

    Once we simplify these statements down to this level, it becomes clear that one is not the equivalent of the other.

    I'm sure you'll pontificate about how I don't understand what you wrote between these two statements, and how if I just understood it, I would understand the transformation from the latter form into the former.

    However, I understand your reasoning just fine. I just reject it as trying to hammer history into a mold that fits the outcome you like.

    Your goal in this is to transform a statement of why a right is important and must be protected into a limitation of the applicability of that right and of the term of its existence.

    This not only flies in the face of good grammar, it flies in the face of the founders' views of the importance of the militia. They did not see the militia as a body of temporary utility--instead, every indication from their writings and the way they drafted the Constitution points to their fear of a standing army and their intention to limit the ability to raise an army and have the country be protected by a Militia, which could be raised quickly, and a Navy. It was thought that these two could hold off invaders while a proper army was raised.

    Therefore, there would be no intention, on the part of the framers, for the Second Amendment to become obsolete at some future date when the militia became obsolete--to say this would be to say that they expected the 2nd Amendment to become obsolete once we started ignoring the national defense structure set up in the rest of the Constitution.

    Which brings us to an interesting conundrum: You claim a high respect for the Constitution and demand that we take every word and phrase in it seriously. If you truly hold the Constitution in the level of reverence you claim to, why are you not Demanding that we return to the defensive structure it sets up? A well regulated Militia, limits on funding the standing Army (or even heeding the founders' suggestions and doing away with it as much as possible during peace time), and a Navy protecting us.

    After all, if you hold the Constitution, and every word, phrase, and intention in it in such high regard, would this not be the better goal, rather than accepting that we have abandoned the Constitution, and using that abandonment to declare other portions of it to have lapsed?

  5. Another Hadrian's Wall of text what whines about how the court ruled on the Second Amendment, five years ago.

    Few people in the US actually care about your view on the Second Amendment

  6. Any amendment says what the courts say it says, especially the Supreme Court. Just as our Courts upheld slavery and discrimination in the past, we grow, change, admit mistakes, change our laws, and make a more just society to live in. Stop arguing Bunker Hill thinking should be the thinking in the 21st century and ongoing. The founders came up with a solution for their times, so must we. They knew that and included a process to improve and change the laws set down.

    1. Yes: Amendments. They didn't expect the Supreme Court to make up new interpretations of the existing text of the Constitution to suit what the Justices thought were the needs of the new times.

    2. If the balance on the Supreme Court had been just one man different, or if it changes by that one vote in the future, gun-rights rulings will have a totally different look. What will you say then? Is that when you go into the immoral laws and tyranny routine?

    3. As we've explained before, Mike, we keep trying to use the political system. We argue in court against what we see as an errant interpretation the same way we're continuing to oppose bad precedents on the 4th Amendment. We keep trying to win in the elections. We keep trying to assert our rights at the State level. Etc.

      As we've told you over and over again, we don't want to see violence. We discuss the possibility of resistance against tyranny as a last ditch effort if everything else fails. However, rather than argue against us, you keep beating up a strawman that wants bloodshed right around the corner.

    4. The law does not live in purity, it lives in the decisions of the Justices sitting at the time and making decisions. The founders were well aware of human and political influences. They hoped future generations would do better, but produced the best they could at the time. Even the slave holding founders stated all were created equal and envisioned a time when the law reflected that sentiment. They achieved the best compromise they could at the time. For all you experts, please advance your thinking on what the founders would think of how their 2nd amendment has produced the gun violence in our current society and would they approve of this situation, or try to make changes to improve the gun violence we live with. Or maybe you would propose that they would be happy where our level of violence and make no changes.

    5. Anonymous, perhaps you'd be interested in Steven Pinker's assertion that violence today is actually much lower than it ever was before the twentieth century.

      The popular impression of lots of violence comes from the media constantly milking every incident to draw in viewers.

    6. You guys keep trumpeting the violence-is-going-down theme but the real point is are we satisfied with the way it is? The obvious answer is no, we're not. The 30,000 plus gun deaths alone, many of which are easiy preventable, are proof of that for most of us.

    7. Mikeb, in a country of 300,000,000+ people, 30,000 is a small number. In addition, since more than half of that 30,000 are suicides--and we've shown you many times that the suicide rate doesn't correlate to gun laws--the problem is much smaller than you'd like to imply.

    8. No, Greg, it's not. That's why we use the rate of gun deaths per 100,000 to compare. If you talk about 1st world nations, the US is the disgraceful winner. So, no, the numbers are not small.

  7. IN 1789 were their 30,000 deaths a year by gunshot, outside of the military? Were their 30,000 death by gun sot in 1960, 1920, or 1980? NO. This gun violence is recent and new. Not only in number, but character.

    1. Consider this:

      And this:

      The data are incomplete from our early history, but the trend lines show that homicide is on a decline. The fact that gun laws have been improving over the last two decades may or may not have anything to do with it, but certainly, more guns in more places hasn't lead to an increase in the murder rate.