Cessante ratione legis cessat ipsa lex--When the reason for the law ceases, the law itself ceases.
It is as applicable to modern life as laws allowing for trial by ordeal, the Militia Act of 1792, or direct appointment of Senators.
If anything, my interaction with the commenters, in particular TS, here has solidified this opinion.
People wish to ignore the militia aspect of the amendment, people misunderstand the concept of the militia. That means the reason for the law no longer exists.
People wish to claim militia status who have no idea of being enrolled or muster lists. Let alone there hasn't been a muster day in well over 150 years.
Add in that we have a standing army. 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.Or Patrick Henry:
A standing army we shall haveThe Militia has been replaced by a very large standing military with all the evils that the founders warned. So much for the Second Amendment and its guaranty. That guaranty is so meaningless and lost in the passage of time.
As I said, Cessante ratione legis cessat ipsa lex--When the reason for the law ceases, the law itself ceases.
The Second Amendment is as irrelevant to modern life as the Articles of Confederation.
As such, it has no validity or applicability in modern life.
A standing army we shall haveIt has automatically been repealed since it lacks relevance.
This is a completely different direction than what you have been saying these past few weeks. Get the Second Amendment repealed then. But don’t tell me the right doesn’t belong to the people as long as it is in the Bill of Rights. It is desperation.
ReplyDeleteNO!
ReplyDeleteThis is my personal opinion, not my legal opinion.
TS, you are showing yourself to be a complete and total dumbfuck in my opinion.
I seriously think that you are far too stupid to understand the points I am making.
You can't understand the difference between legal and personal opinion.
Additionally, this opinion has nothing to do with gun control and more to do with the institution of the militia.
As I have said before, you are a real time waster.
If you can't grasp distinctions between concepts then you are a complete and total moron.
Please don't ask for me to be polite as you have strained my patience in trying to explain concepts to you which you are clearly unable to grasp.
BTW, I want to attract your piss poor attention, TS to:
ReplyDeleteIf anything, my interaction with the commenters, in particular TS, here has solidified this opinion.
Laci: “you are showing yourself to be a complete and total dumbfuck in my opinion.”
ReplyDeleteIs that your personal opinion or your legal opinion?
What is your problem anyway? I have engaged in civil debate with Mike for years. I have maintained cordial conversation with Dog Gone. Even Jadegold has been respectful to me at all times- I can’t say he has been that way to others, but I appreciate that he has not crossed the line with me (I attribute that to giving due mutual respect). Yet, the blogger who has not been able to keep his composure when challenged, the one who repeatedly uses profane personal insults even though asked to keep it civil, is the trial lawyer.
ReplyDeleteOf your words, that is the part I don’t understand.
Look, I have been very civil, I have gone out of my way to explain these concepts in very clear language.
ReplyDeleteBut you just don't get it.
It seems you don't want to get it.
I've tried to understand your point of view and show you where you are wrong, but you can't understand that you are wrong.
Instead, you insist on sayiing the same things over and over.
No, it makes no sense to have guns out in the hands of untrained civilians who are not the militia, not matter how much they fail to understand that.
That is not what the constitution says or wants anyway.
No, it is the exclusive right of Congress to organise, arm, and discipline the militia--not the states, not the people.
I can give you four different interpretations of the Second Amendment--That passed down by the Heller-McDonald Majority, the Civic Right interpretation presented by the Stevens Dissent, Breyer's Dissent, and my own personal opinion.
No, they do not contradict because they are four different interpretations.
I wanted to keep my personal opinion out of this because it is irrelevant--I find the Civic Right interpretation the most persuasive.
I believe I am saying these things in clear and concise language, yet I believe that you will be incapable of understanding what I am saying.
I have a lot of difficulty dealing with someone who is incapable of understanding concept that are clearly explained to them.
You are not engaging in "civil debate", civil debate has rules, you are doing something other than that.
What I see you doing is trying to be annoying.
So, unless you can grasp what I am saying, I am not going to bother tryiing to explain things to you.
If you're getting into Civil Debate, or rules of advocacy, what you are doing could be called badgering the witness. You are not seeking to establish additional facts or check the reliability of existing facts. Instead, It seems that you are only trying to argue with me.
ReplyDeleteAdditionally, repetitive questioning which garner the objection--asked and answered.
Also, You asks questions that are irrelevant to the issue--in particular my opinion.
C'mon, Laci, TS is right on this one. He's been civil and should receive the same from you.
ReplyDeleteTS, the obsolete idea shouldn't necessitate repealling the Amendment. There are lots of examples of obsolete ideas in the Constitution and even in the Bill of Rights.
My personal opinion, not my legal one, is that the 3rd Amendment is an example of this.
I love the latin. Cessante ratione legis cessat ipsa lex.
Look, I have no patience for someone who is gong to ask me the same question over and over after I have answered it.
ReplyDeleteEven more so, when I have tried as hard as I could to put the thought into the simplest language possible.
The History of the Second Amendment is far more complicated than the extremely simple version I gave TS a while back in response to his Ockham's Razor comment.
Although that was reducing it to its simplest terms.
The Second Amendment is far more than something dealing with firearms--it deals with the military, defence policy, and Anglo-American (and Scottish) history.
As for your comment about the Third Amendment, MikeB, that is correct.
There is a strong bond between the Second and Third Amendment and the sentiment against standing armies. It is no coincidence that they are paired in the Text (but that would confuse poor TS even more).
Or to again quote Henry:
He says that one ground of complaint, at the beginning of the revolution, was, that a standing army was quartered upon us.
The Third Amendment is the least litigated of the Bill of Rights provisions and is followed by the Second Amendment in SCOTUS jurisprudence with 6 cases. Again, that is no coincidence.
No, the Second Amendment does not need to be repealed, it needs to be understood. But once it is understood becomes apparent that there is no application for it in modern times.
Unless of course, the person proposing its application is suggesting scraping the current military structure in favour of a Swiss style military. But I seriously doubt that TS is proposing that.
Even if not understood, the purpose, or reason, of the Second Amendment is
A well regulated militia being necessary to the security of a free State
It is implemented by:
the right of the People to keep and bear arms shall not be infringed.
People who argue that the "purpose" is not relevant are making an argument that Cessante ratione legis cessat ipsa lex applies.
As I said, the Second Amendment does not need to be repealed, it needs to be understood.
Laci - so in your opinion if the US was to add a new Amendment that stated something along the lines of
ReplyDelete"All citizens of the United States have the right to purchase, keep, and bear arms"
would that be in contradiction to anything existing in the Constitution?
Yes and No, that would be an amendment to the Constitution, but it would have to state that it was in addition to the powers granted by Article I, Section 8, Clause 16.
ReplyDeleteAlso, the probability of such an amendment passing would be negligable--especially if it were made clear was that it was to expand the Second Amendment.
Although, I think we may see an affiliate of the Cato Institute here and they can buy what they want--especially changes to the government.
Laci - by ignoring any reference to the militia, why would a new Amendment need to mention anything about Article I, Section 8, Clause 16? Since that article makes no reference to the general public then it has no bearing on the general public right? According to you, both Article I, Section 8, Clause 16 and the 2nd Amendment deal only with the militia. My proposed new amendment would not affect the militia in any way would it?
ReplyDeleteAs I think about it, would this even need to be a Constitutional Amendment? Couldn't Congress simply pass a law stating that it is legal for all citizens to purchase, keep, and bear arms? Is there anything in the Constitution that would forbid such a bill?
Interesting question, but...
ReplyDeleteThis is an admission that the Second Amendment does not grant "gun rights".
To say that such an amendment is necessary is pretty much admitting my point. Which is:
If the reason for a law ceases to exist, so does the law.
The reason for the Second Amendment is:
A well regulated Militia, being necessary to the security of a free State
Which is implemented by:
the right of the people to keep and bear Arms, shall not be infringed
One cannot exist without the other.
Each is as important as the other.
To say that one part can exist when the other is not valid is to admit that the reason for the law is no longer valid, therefore, the law is no longer valid.
Additionally, it is an admission that the Militia is the true purpose behind the Second Amendment.
I don't necessarily agree that such an amendment is necessary as the Supreme Court has currently ruled that the 2nd Amendment does grant an individual right to own a gun.
ReplyDeleteI was just wondering if in your opinion there was something in the Constitution that expressly forbids individuals to own guns.
Hae you read what I have written?
ReplyDeleteThe answer you seek is there.
But, I'll be nice and recap for you.
The Second Amendment is silent on individual gun rights under the Civic right interpretation: there is nothing to stop the government from banning all firearms (short of public opinion) and there is nothing to stop a place like Kennesaw, GA from making everyone buy a gun (other than it might infringe upon their religious beliefs).
It just means you can't say that the Second Amendment supports "gun rights" outside the militia.
I should say preventing the Federal Government from enacting gun laws.
ReplyDeleteMost state Constitutions provide for gun rights.
That is where gun rights come from.
Laci - I think I understand your opinion on this, it is just that your opinion is in opposition to the latest ruling by the Supreme Court to some extent (I think).
ReplyDeleteThe supreme court decided that some restrictions are ok, but outright bans are not. What constitutes an allowable restriction will be argued over for a long time whenever a government body tries to institute one. The Supreme Court will be called upon to clarify the ruling over and over again as specific laws are passed and challenged.
I would bet that in America, a federal law stating that all citizens have a right to own guns is more likely to pass and be deemed Constitutional than a federal law outlawing gun ownership to anyone not serving in a government militia, the National Guard, or the US Armed forces.
NO, Jim, my problem is that the SCOTUS failed to follow precendent and the law.
ReplyDeleteIf you are going to worship the Founding Fathers, then you should have a problem with this decision as well.
DC's licence plates state "Taxation Without Representation".
DC is as much as colony as the original 13.
They complained about:
--The king obstructing the Administration of Justice
--He has refused his Assent to Laws, the most wholesome and necessary for the public good.
Quite frankly, even if they disagreed with DC'slaws, they were locally enacted and locally popular. To have an unelected body overturn them would be tyranny in their opinion.
Now, isn't that ironic that The Second Amendment would be an instrument of tyranny?
So, whether you like the law or not, Jim, if you are not a citizen of the District, you have no right to complain about their laws.
Or else you are more of a tyrant than King George.
Jim says, "a right to own guns is more likely to pass and be deemed Constitutional than a federal law outlawing gun ownership"
ReplyDeleteJim, I don't think it's so polarized. There's a middle ground which is exactly what is meant by "reasonable restrictions."
I don't know anyone who is preaching "outlawing gun ownership." Do you?
"I don't know anyone who is preaching "outlawing gun ownership." Do you?"
ReplyDeleteI would say the District of Columbia was preaching this.