Question

Would you be upset if one of the governmental branches acts outside of its listed Constitutional powers (i.e., it does something which it does not have an explicit grant to do)?  For example, the Congress set up its own special court system or the president makes laws.

Would it upset you even if the action was something you agreed with?

The Originalist's dilemma

Justice Scalia has a fallacy that the Constitution must be interpreted within its original meaning, yet he must admit that he should be incredibly incredibly (yes, I mean to say that twice) wary about overturning laws made by elected officials if he is going to do that.

Why?

This power is not expressly granted in the Constitution.

In fact, as I have pointed out many times before, this power comes from the case of Marbury v. Madison, which also said: It cannot be presumed that any clause in the Constitution is intended to be without effect.

So, should he be very wary about declaring laws unconstitutional since that is not a power which is expressly granted by the constitution? 

Additionally, since he went against Marbury once to the detriment of public safety in the Heller decision, should he admit that decision committed the grossest of errors in his political philosophy?

In fact, if anything the Heller decision totally contradicts his claimed belief in that the document should be interpreted as originally intended.  After all, the Second Amendment was implemented by the Militia Act of 1792--not the guns for criminals acts.

Scalia is not as clever as he would like to paint himself as he has painted himself into an ideological corner which those cleverer than he is can laugh at his folly.  The ultimate farce is that he is claiming powers which have not been granted to him by the document he claims to believe in.

Quote of the Day

I am really amazed at people who say they support the Constitution, yet can talk about armed rebellion against the United States:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

US Constitution, Article III, Section iii

The US Constitution protects States Rights?

Most of this was taken from www.outsidethebeltway.com/the-anti-federalist-impulse/ with some editorial tweeks by me. The original is by Steven L. Taylor who is the Professor and Chair of Political Science at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. No wonder it was pretty good, but still needed a few tweeks.


I like to say that some of the defenders of the Constitution need to study up on what exactly they claim to be defending since they tend to say thing that go against the Constitution, such as the Second Amendment somehow repeals Article III, Section iii and allows one to wage war against the United States.

One of the remarkable examples of the Constitutionalist movement is that while they speak with great fervour about the Constitution and the Founding Fathers:  they rather frequently use arguments of anti-Federalists founders  (they also come out and say that the US was established as a "Christian", nation rather than a secular one as well).  For your information, the anti-Federalists were those who opposed the ratification of the US Constitution, typically on the grounds that that states ought to continue to retain their power positions under the Articles of Confederation (the US’s first "constitution", more or less, that was in place from 1777-1789 and subsequent ratification by the states).

One of the massive mistakes made by those on the rightward side of the debate who claim the sacred nature of the Constitution is the assertion that the Framers were states rights activists or that the goal of the constitution was to constrain the federal government vis-à-vis the states.  While there is a debate to be had over the appropriate scope of the federal government, as well as the meaning of things like the 10th Amendment, the commerce clause, and the general welfare clause, there is no debating that the whole goal of the US Constitution was to create a strong, viable central government.   It is indisputable that the US Constitution was written and deployed to give the federal government more power over the states than had previously existed (not the other way around as some would have it).  Yes, there are limits placed on the federal government, but the Constitution itself was not created in the context of the need to constraint government, it was created in the context of the need to create a viable, functional government (and one that was demonstrably more powerful than that which existed under the Articles of Confederation).  The argument for true state-level sovereignty was an anti-Federalist, pro-Article of Confederation argument.  Indeed, if the Framers had wanted a tiny central government that was subordinate to the states they already had one and therefore had no reason to meet in Philadelphia in 1787.

To quote James Madison from a letter to George Washington in April of 1787: “I would propose that…the national government should be armed with positive and compleat authority in all cases which require uniformity; such as the regulation of trade, including the right of taxing both exports and imports, the fixing the terms and forms of naturalization, etc. etc.”

If one is going to argue that, ultimately, the states should supersede the federal government, then one is not making federalist (i.e., pro-constitution) arguments, one is making an anti-federalist (i.e., anti-constitution) arguments. If one wants to see the Framers’ views of a system in which state power can trump federal power (i.e., a confederation) one need look no further than Federalist 15-22 (not to mention the text of the Constitution itself).  This quote from 16, which strikes me as especially relevant to refuting the Constitutionalist mindset:

The result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice.

It is utterly inconsistent to claim the Constitution as one’s moral foundation and parading around with a copy of it in one’s shirt pocket and then arguing from the anti-Federalist position. At a minimum, it shows that one does not understand one’s own arguments. Mostly it is just a constant source of amazement to me that those who are the most vocal about the Constitution and the Founding generation get it so wrong most of the time. I would much prefer it if these folks would simply say, “You know, the anti-Federalist had a point about X, Y, and Z” (but that would mean that the Constitution isn’t perfect, which would create its own set of difficulties for them). I would also add that the Anti-Federalist position was the one that lost otherwise the would still be trying to function under the Articles of Confederation: if it even still existed.

Then again, it also shows that they have no real understanding of the Constitution or Constitutional law.

Next installment: why it is wrong to claim the Declaration or Independence as a legal basis for revolt (or Article VI for idiots).

I've said it before, but you don't listen to me.

Yeah, you know more about the law than I do...

Anyway, this comes from Andrew F. Branca: somebody I would definitely describe as being pro-gun, but some of you have problems with Andy Raymond being "pro-gun".

Here’s some breaking news for you “OCIYF!” people:

YOU HAVE ABSOLUTELY NO SECOND AMENDMENT RIGHT TO CARRY A FIREARM INTO A PRIVATELY OWNED BUSINESS.

None. Zero. Zilch. Zip.

The Second Amendment forbids the Federal government—and since McDonald also the individual state governments—from infringing on the right of the people to keep and bear arms. Key word: government.

The Second Amendment does nothing whatever to constrain the rights of private property owners to determine for themselves whether to allow the carry of guns—concealed or open—on their property.
To put it even more simply, when you are on someone else’s property you are there as an invited guest. You stay at their pleasure, and under their rules, rules that only they are entitled to define. Make your host unhappy for any reason whatever and they are entirely within their rights to order you to leave. Refuse to comply and you’ve become a criminal guilty of trespass.

Got that:  The Constitution and Bill of Rights apply to government, not private action.

He also has some choice words for the Open Carry movement as well.

Saul Cornell on Heller

I may not agree with him on everything, but he is pretty bang on in the American Constitution Society blog post History and 'Heller': The Past as a Two-Edged Sword. I thought about excerpting it, but it's pretty good:

In District of Columbia v. Heller, Justice Scalia engaged in a revisionist exercise, rewriting history to further his ideological agenda. If you have any doubts about this proposition, just consider the following: according to Heller’s logic, it would have been okay for the first Congress to pass a law making muskets illegal in the District of Columbia, but Congress would have been prohibited from banning dueling pistols. Such a conclusion is pretty hard to reconcile with the Amendment’s text and history.

Scalia’s majority opinion is an example of the new originalism. Following the wacky logic of this theory, Scalia argues that the Founding era would not have treated the Amendment’s preamble as the “key to open the mind of the makers” of the text. Instead, Justice Scalia believes that the average competent speaker of eighteenth-century American English would have looked at the text and said, “Yep, we should read this backwards.” (Just try to find a John Marshall decision where he reads a text backwards.) Where does the evidence for this novel technique come from, you may ask? The answer: from legal treatises written in the middle of the 19th century. Either Justice Scalia does not understand that legal thought changed in the tumultuous decades after ratification or he believes in time travel. (I hope it is the latter, since that would be crazy but interesting. The former claim is just intellectually embarrassing.)

 

Heller’s misuse of history borders on the scandalous, but we are pretty much stuck with it. The decision also points to history as the starting point for evaluating gun laws. Of course, this raises the thorny question about which history matters most when seeking to understand the meaning and scope of the right: Founding era, Reconstruction, the last century (or the future—Heller already assumes the existence of time travel—why not)?

 

Some gun rights advocates interpret Heller’s assertion that “constitutional rights are enshrined with the scope they were understood to have when the people adopted them" to mean only laws on the books in 1791 count. This claim about original meaning is seriously flawed. The original meaning of a text is not the same as the original expected application of the text. Indeed, Scalia’s opinion mocks the idea that the right to bear arms would only apply to Revolutionary era muskets; so, if that it is true, it is hard to see how only laws regulating muskets are legal from a constitutional perspective.

 

Finally, gun rights champions ought to be a bit more careful about what they wish for, because sometimes wishes come true. If we froze the Second Amendment’s meaning and scope as of 1791, it would mean no right to stand your ground; no right to carry, in most cases; required government inspection of privately owned firearms; and a host of other regulations. Perhaps we should turn the clock back to 1791 and give gun rights extremists the real historical Second Amendment they crave.

I trust Saul Cornell on this subject far more than some asshole in the internet.

Question of the day

Q:  The question -- does federal law supersede or take precedent over state law?

A:  Federal law supersedes per Article VI:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

So, when some local yokel says they won't enforce federal law, they are being an Unconstitutionalist.

Thomas Jefferson on Constitutional change

A couple of things to ponder...

William Rawle on the Domestic Violence Clause (Article 4, Section 4 of the US Constitution):

"Not a word in the Constitution is intended to be inoperative, and one so significant as the present was not lightly inserted. The United States are therefore bound to carry it into effect whenever the occasion arises, and finding as we do, in the same clause, the engagement to protect each state against domestic violence, which can only be by the arms of the Union, we are assisted in a due construction of the means of enforcing the guaranty. If the majority of the people of a state deliberately and peaceably resolve to relinquish the republican form of government, they cease to be members of the Union. If a faction, an inferior number, make such an effort, and endeavour to enforce it by violence, the case provided for will have arisen, and the Union is bound to employ its power to prevent it."

First off, he points out that

"Not a word in the Constitution is intended to be inoperative, and one so significant as the present was not lightly inserted."

That reiterates the point I keep mentioning from Marbury v. Madison (It cannot be presumed that any clause in the constitution is intended to be without effect;–Marbury v. Madison, 5 U.S. 137 [1803]).  So, no matter how much people may want to wish away the Militia from the Second Amendment, it would only make that "mere surplusage -- is entirely without meaning -- if such is to be the construction". 

But I have also pointed out that Rawle said this about the Second Amendment:

In the second article, it is declared, that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable;yet, while peace prevails, and in the commencement of a war before a regular force can be raised, the militia form the palladium of the country. They are ready to repel invasion,to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.

Rawle then goes on to point out: "The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed." The word "corollary" means "a proposition that follows from (and is often appended to) one already proved."

Again, that means that both clauses must be interpreted in relation to each other.

And if you want to take the next paragraph to mean personal arms:

"The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."

I would point you to Article 1, Section 8, Clause 16, which gives congress the power to arm the militia.  It was that power that led to the Second Amendment being written: press-pubs.uchicago.edu/founders/tocs/a1_8_16.html

But, it isn't so much the Second Amendment pseudo-scholarship that I want to address here as much as the belief that there is some "right" to revolt against the US Government. We also add to the overwhelming evidence that that is silly, something called the Domestic Violence clause:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

This is what Rawle is talking about when he says:

If the majority of the people of a state deliberately and peaceably resolve to relinquish the republican form of government, they cease to be members of the Union. If a faction, an inferior number, make such an effort, and endeavour to enforce it by violence, the case provided for will have arisen, and the Union is bound to employ its power to prevent it.

So, if you are going to try and use obsolete and obscure clauses in the Constitution to try and justify your silly "gun rights" position keep in mind you have a few things working against you:  history (Shays' Rebellion) and the document itself.

Of course, you could try and say that the we should use the modern meaning of the term "Domestic Violence".

BTW, Rawle wasn't the only one to point out this section of the Constitution addressed insurrection.  Here's Joseph Story:

§ 1808. The want of a provison of this nature was felt, as a capital defect in the plan of the confederation, as it might in its consequences endanger, if not overthrow, the Union. Without a guaranty, the assistance to be derived from the national government in repelling domestic dangers,which might threaten the existence of the state constitutions,could not be demanded, as a right, from thenational government. Usurpation might raise its standard,and trample upon the liberties of the people, while the national government could legally do nothing more, than behold the encroachments with indignation and regret. A successful faction might erect a tyranny on the ruins of order and law; while no succour could be constitutionally afforded by the Union to the friends and supporters ofthe government. But this is not all. The destruction of the national government itself, or of neighbouring states,might result from a successful rebellion in a single state.Who can determine, what would have been the issue, if the insurrection in Massachusetts, in 1787, had been successful,and the malecontents had been headed by a Caesar ora Cromwell? If a despotic or monarchical governmentwere established in one state, it would bring on the ruin ofthe whole republic. Montesquieu has acutely remarked,that confederated governments should be formed only between states, whose form of government is not only similar,but also republican.

As I like to say, Some people who say they are defending the Constitution need to bone up on what they are claiming to defend.

Instead, they seek to make themselves the "domestic dangers" the Constitution was written to prevent.

"The Supreme Court has made itis decision; now let them enforce it!"

The quote I use to open this comes from what President Andrew Jackson is supposed to have said in response to the decision in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832): "John Marshall has made his decision; now let him enforce it!"

There is no constitutional provision for judicial review of laws by the US Supreme Court, neither is there a constitutional provision which allows the court to enforce its "decisions". I asked the question of how does one deal with a rogue court which goes beyond its powers when Scalia judicially amended the Constitution with his Heller decision.  He totally violated the rule of law and gave sanction to a version of the Second Amendment which is without historic or legal basis:

In the second article, it is declared, that a well regulatedmilitia is necessary to the security of a free state; a propositionfrom which few will dissent...The corollary, from the first position, is, that the right ofthe people to keep and bear arms shall not be infringed.

I also give this interpretation of the Miller case from a Justice who was on the court at the time of Miller, William O. Douglas, dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972) :

The police problem is an acute one not because of the Fourth Amendment, but because of the ease with which anyone can acquire a pistol. A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment, which reads, “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.”

There is under our decisions no reason why stiff state laws governing the purchase and possession of pistols may not be enacted. There is no reason why pistols may not be barred from anyone with a police record. There is no reason why a State may not require a purchaser of a pistol to pass a psychiatric test. There is no reason why all pistols should not be barred to everyone except the police.

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”

“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia – civilians primarily, soldiers on occasion.” Id., at 178-179.

Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment. I share with Judge Friendly a concern that the easy extension of Terry v. Ohio, 392 U.S. 1, to “possessory offenses” is a serious intrusion on Fourth Amendment safeguards.

Of course, the real goal of libertarians is the destruction of government and the rule of law--even if the "law" we follow is one of custom rather than actual legislated (or constitutionally provided) law.

They would be happy to see the court system abolished.

Especially if that happens from within.  Thank you, Justice Scalia.

If I am only an amateur...

What is legal Eagle45...

I made the following comment:

Laci The DogFeb 13, 2012 02:04 PM

I have made a post about the English Bill of Rights.

Maybe you should familiarise yourself better before you pretend to argue it.

I would also suggest that you not confuse the doctrine of self-defence with national defence. At common law, deadly force was discouraged.

In fact, its use could render one the aggressor and lead to legal prosecution.

The problem is, LegalEagle, you are using a shotgun argument.

You arguments are like tossing spaghetti on the wall hoping that something might stick, but nothing does since you are obviously unclear on this topic.

If you know anything about US Jurisprudence, then you know full well that Marbury says "It cannot be presumed that any clause in the constitution is intended to be without effect"

You are saying that the most important clause is "is mere surplusage, is entirely without meaning, if such is to be the construction."

You are violating the rules of US Constitutional interpretation as set forth by Marbury in your proposed construction,




Laci The DogFeb 13, 2012 02:15 PM

I should add that Marbury's rule of statutory construction reinforces my position that the proeme is indeed important.

If it provides the purpose for which the Second Amendment was adopted, then it it highly important to its interpretation.

You would render the "proeme" mere surplusage" by making the presumption that it has no effect.

That violates Marbury.

And if Marbury is no longer valid, then Heller is no longer valid since Marbury is where the concept of Judicial review comes from.

Judicial review which invalidates popularly passed laws by local citizenry, especially those taxed without representation, were grievances in the Declaration of Independence.

So much for the Second Amendment being the tool of Liberty--you have led it to be the exact tyranny complained of by the colonials.

Marbury, of course, refers to the case of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), but more about that after I post LegalEagle45's response to the above.

legaleagle_45Feb 13, 2012 03:09 PM

Marburys Rules of Construction:

"1) "The rights enumerated in this Bill of Rights shall not be construed to limit other rights of the people not therein expressed. For (not to mention the liberal and beneficial manner of Construction which we have a right to) the plain, natural, and obvious meaning of the charter is, to grant and confirm certain Rights, Privileges, and Immunities to all his Majesty's subjects who then did or ever should inhabit that tract of country in America usually called Virginia, according to the Descriptions and Boundaries of the original Charters, not before otherwise appropriated or disposed of by His Majesty's Ancestors." - George Mason, July 1773, Extracts From The Virginia Charters, With Some Remarks On Them Made In The Year 1773"

Thus the rights are construed liberally...

Laci wrote: "It cannot be presumed that any clause in the constitution is intended to be without effect"

Yep, and you seem to believe the 2nd is without effect, because you can not tell us what the 2nd protects. You say it is obsolete and "irrelevant since 1792", which directly contradicts this presumption.

You are not too good at this Lacy...

Problem, Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) is a very important case in Supreme Court jurisprudence. One doesn't need to go very far to find that out. The first result in my google search was:

Marbury v. Madison - Wikipedia, the free encyclopedia

en.wikipedia.org/wiki/Marbury_v._Madison

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise ...

a little further down in the results one finds:

Marbury v. Madison – Case Brief Summary

www.lawnix.com/cases/marbury-madison.html

Facts, issue, holding, and rule of law in the landmark case of Marbury v. Madison – Case Brief Summary.

I made a post about this case earlier on in response to:

An anonymous idiot, said:

You mention Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), quite a bit.

And for good reason. But anon missed this post: An Interesting Factoid. He also doesn't have an understanding of the fundamentals of Constitutional law.

The problem, LegalEagle45, is that this case is the first one studied in Law School Constitutional Law classes for precisely the reasons I gave in the aforementioned post:

Marbury is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it "unconstitutional", a process called judicial review. The landmark decision helped define the "checks and balances" of the American form of government.

Since it defined judicial review, it also provided guidelines for that review--the most important of which is the one I keep mentioning--that "It cannot be presumed that any clause in the constitution is intended to be without effect".

According to Marbury, One cannot presume that any language in the Constitution is mere surplusage--is entirely without meaning.

Sorta sad statement about the US educational system that you have to get your civics lessons from a Brit!

LegalEagle, while sounding as if he knows something about the law demonstrates that he does not have one of the extreme basics of US Constitutional law and Supreme Court Jurisprudence--knowledge of the case Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

That is the rough equivalent of not knowing what a stop sign looks like or which side of the road you drive on if you are able to drive a car.

Perhaps, this is why he was consistently making my argument for me through his ignorance.

Yes, LegalEagle, you just made a goal--

FOR THE OTHER TEAM

And you can't stop doing it.

While this is the most egregious of his mistakes, if one is at all familiar with the law, legal practise, and legal method, one would see that LegalEagle45 consistently got it wrong from citing cases and authorities which supported my case if they didn't just fail to refute it.

I should also add, as a landmark supreme court case, Marbury is actual legal precedent and LegalEagle45's George Mason quote is pure blather. Again, LegalEagle provides a quote which doesn't really make his point, but he keeps hoping that if he quotes lots and lots of people, it might snow the unwary into thinking he has some idea of what he is talking about.

As I said after reading his first response--thanks for making my case for me.

But in this instance, LegalEagle45, you really fucked it.

You fucked it royally.

Whenever I hear someone parrot "individual right, individual right, individual right", it reminds me of this:


Substitute "individual right" for "Brawndo".

One more nail in LegalEagle's coffin:

Marbury v. Madison (1803)

Marbury v. Madison, arguably the most important case in Supreme Court history, was the first U.S. Supreme Court case to apply the principle of "judicial review" -- the power of federal courts to void acts of Congress in conflict with the Constitution. Written in 1803 by Chief Justice John Marshall, the decision played a key role in making the Supreme Court a separate branch of government on par with Congress and the executive.

And another from Time:

Top 10 Landmark Supreme Court Cases

It has been 10 years since the concluding chapter of the 2000 election. On Dec. 12, 2000, the Supreme Court decided Bush v. Gore — just one decision in a long line of important cases. TIME takes a look at other landmark rulings

Marbury v. Madison

Roe and Heller

Very little of the criticism this page receives addresses the most valid point of criticism which is how can I be upset about DC v. Heller, but not Roe v. Wade, 410 U.S. 113 (1973)? But that also works the other way, How can you like Heller-McDonald, but not Roe v. Wade?

There is a simple non-legal answer which is that the most blatant form of tyranny is when a government interferes with a woman’s personal choice to have a child. This is a matter between a woman, her doctor, and her significant other with no place for government interference.

I am amazed at how many people want “gun rights” and freedom from government interference, yet balk at abortion. Also, it is amazing that people can call themselves “pro-life”, yet have no problem with shooting and killing someone. Or even capital punishment.

I mentioned use-benefit analysis in another post and personally, I find abortion to be far more of a right to be protected than some illusory “gun right”.

That said, I have several legal grounds to dislike Heller.

The first is that it is poorly written and does not stand scrutiny. Anyone who has read my posts can see that there are multiple lines of attack of this POS written by a committee.

Secondly, Scalia has had to violate everything he claims to believe in regarding judicial practise. The most egregious of these being that Scalia’s dissent in Planned Parenthood v. Casey, 505 U.S. 833 (1992) acknowledged that abortion rights are of “great importance to many women”, but asserted that it is not a liberty protected by the Constitution, because the Constitution does not mention it!

In fact, reading Planned Parenthood v. Casey makes me even more curious as to how Scalia could deign to find a right of self-defence in the Second Amendment.

Scalia does everything that he expresses disgust in in his Planned Parenthood dissent.

The issue is whether it is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion not because of anything so exalted as my views concerning the “concept of existence, of meaning, of the universe, and of the mystery of human life.” Ibid. Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected–because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.

Roe v. Wade on the other hand, has some legal basis to support it. The Supreme Court rested its conclusions in Roe on a previously recognized constitutional right to privacy emanating from the Due Process Clause of the Fourteenth Amendment. Justice Blackmun said that the “right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”

I am of the school that the decision is correct, but for the wrong reason. The First Amendment States that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”.

I extend this right to include exercising personal beliefs concerning the beginning of life. The morality of abortion is grounded in the precise belief of the nature of the fetus in Christianity, Judaism, Humanism as well as other religions and ethical systems,. There is a general consensus that when the foetus becomes a human person, then abortions should be severely limited. The question is when does life begin? But that is an ethical decision. Most would confine abortions at the stage when the foetus is viable to situations that threaten the life of the pregnant woman; a very few would eliminate access to abortions totally. The problem that generates so much controversy is that no consensus exists in society over the point, between conception and birth, when personhood begins.

Jewish beliefs and practice concerning abortion do not neatly match either the “pro-life” nor the “pro-choice” points of view. The general principles of modern-day Judaism are that:

• The fetus has great value because it is potentially a human life. It gains “full human status at birth only.”
• Abortions are not permitted on the grounds of genetic imperfections of the fetus.
• Abortions are permitted to save the mother’s life or health.
• With the exception of some Orthodox authorities, Judaism supports abortion access for women.
• ”…each case must be decided individually by a rabbi well-versed in Jewish law.”

Islam allows for abortion in cases where the mother’s life is threatened.

Sikhism has no problem with abortion.

Additionally, while the “right to an abortion” may not be specifically mentioned in the Constitution, it is a personal choice relating to health, personal finances, beliefs and other issues that government has no right to intrude upon.

As I said in my use-benefit analysis post, there are some things which are beneficial to society, of which prevention of unwanted children is one.

At this point, I have to reiterate another point I have made in my posts, that the Heller decision did not invalidate gun control laws. The problem is that Scalia did not give any idea of the scope of his new right.

The problem is that there are loads of knee-jerk RKBA people out there who follow rather than think. They are told that there is an individual right enshrined in this decision and then say this is about time. They do not analyse what has been written or think about the implications.

Next post in this series, Wedge issues.

No, Jim, you're wrong!

Heller is not the Supreme law of the land.

Article 6, Clause 2 of the US Constitution states:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Concept of Judicial review does not come from the Constitution, but originates from Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Marbury is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it "unconstitutional", a process called judicial review. The landmark decision helped define the "checks and balances" of the American form of government.

Since it defined judicial review, it also provided guidelines for that review--the most important of which is the one I keep mentioning--that "It cannot be presumed that any clause in the constitution is intended to be without effect".

According to Marbury, One cannot presume that any language in the Constitution is mere surplusage--is entirely without meaning.

Additionally Marbury states that:

Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

The question is how does one deal with a decision from a Judge which departs from the text of the constitution and precedent--as happened in the Heller-McDonald decisions?

Unfortunately, the Constitution is silent on this topic. Does one revert to prior settled law, which in this case is US v. Miller, 307 U. S. 174 (1939), which was a unanimous decision?

The problem is, Jim, that The Heller decision set some very bad precedents if you are truly aware of how the case progressed. It unsettled 70 years worth of law. Three years and more than 400 legal challenges later, courts — so far — have held that the Supreme Court’s ruling in Heller was narrow and limited, and that the Second Amendment does not interfere with the people’s right to enact legislation protecting families and communities from gun violence.

Will a court ultimately see that the Heller decision is incorrect and that Stevens's dissent is the proper interpretation? After all Silberman overruled settled law in Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), cert. denied, 128 S. Ct. 2994 (2008).

If anything, Marbury reinforces that the Rule of Law applied in the US:

"The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right."

The essential characteristics of the rule of law are:

i. The supremacy of law, which means that all persons (individuals and government) are subject to law.
ii. A concept of justice which emphasises interpersonal adjudication, law based on standards and the importance of procedures.
iii. Restrictions on the exercise of discretionary power.
iv. The doctrine of judicial precedent.
v. The common law methodology.
vi. Legislation should be prospective and not retrospective.
vii. An independent judiciary.
viii. The exercise by Parliament of the legislative power and restrictions on exercise of legislative power by the executive.
ix. An underlying moral basis for all law.

Heller violated the rule of law and other principles given for Judicial Review in Marbury.

Heller in and of itself is an unconstitutional decision since it is judicial legislation.

I am not wasting my time, and the more people like you tell me that I am wrong, the more I become resolved in my quest to make the truth known.

As one of my professors in law school told me:

"go out and make some law."

Marbury v. Madison, for the ignorant septics

An anonymous idiot, said:

You mention Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), quite a bit.

And for good reason. But anon missed this post: An Interesting Factoid. He also doesn't have an understanding of the fundamentals of Constitutional law.

Marbury is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring it "unconstitutional", a process called judicial review. The landmark decision helped define the "checks and balances" of the American form of government.

Since it defined judicial review, it also provided guidelines for that review--the most important of which is the one I keep mentioning--that "It cannot be presumed that any clause in the constitution is intended to be without effect".

According to Marbury, One cannot presume that any language in the Constitution is mere surplusage--is entirely without meaning.

Sorta sad statement about the US educational system that you have to get your civics lessons from a Brit!

Septic--Yank

Why I hate the individual right interpretation of the Second Amendment and so should you.

Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.–James Madison

It cannot be presumed that any clause in the constitution is intended to be without effect;--Marbury v. Madison, 5 U.S. 137 (1803).

I was thinking about calling this post The Truly Embarrassing Militia Clauses of the US Constitution as a take of on Sandford Levinson's "The Embarrassing Second Amendment". In it, Levinson points out that "the second amendment is not taken seriously by most scholars." Levinson then says:

I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even "winning," interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation. Thus the title of this essay --The Embarrassing Second Amendment -- for I want to suggest that the Amendment may be profoundly embarrassing to many who both support such regulation and view themselves as committed to zealous adherence to the Bill of Rights (such as most members of the ACLU). Indeed, one sometimes discovers members of the NRA who are equally committed members of the ACLU, differing with the latter only on the issue of the Second Amendment but otherwise genuinely sharing the libertarian viewpoint of the ACLU.

Problem is that Lawyers know the rules of the game better than most plain folks, and in Constitutional law, it appears some know it far better than 5 of the Judges on the Supreme court. Never mind that when Levinson wrote his piece (1989-1990) the Civic Right interpretation was pretty much the norm. The Second Amendment was neglected since it was pretty much seen as settled law prior to the rise of the revisionist pseudo-scholars. Levinson article was part of the flood of scholarship that has led to revisionism of the Second Amendment pseudo-scholars which has unsettled nearly 70 years of settled precedent. The pseudoscholars have been like good magicians and directing people's attention to the wrong thing while they deceive them into making the illusion look real.

But, my reason for disliking the individual right interpretation goes to the two quotes that start here. True "Second Amendment" scholarship goes beyond just the text of the Second Amendment which everyone involved in this game knows comes in two versions:

As passed by the Congress:

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

.As ratified by the States:

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.

The Pseudoscholarship only looks at the second half of the Second Amendment ("the right of the People to keep and bear arms shall not be infringed") and tries to neglect the Prefatory clause (A well regulated militia being necessary to the security of a free State). Unfortunately, this has coloured the debate in recent years despite the admonition from Marbury v. Madison that "It cannot be presumed that any clause in the constitution is intended to be without effect". The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. It is wrong that the prefatory text should be treated as mere surplusage according to the original rule for interpreting the Constitution.

The current debate isn't True Second Amendment/Constitutional law scholarship since that MUST include also the militia clauses from Article I, Section 8 of the US Constitution along with the text of the Second Amendment:

Clause 15. The Congress shall have Power *** To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.

Clause 16. The Congress shall have 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.

These two clauses change the debate and bring it closer to historic reality of how the Second Amendment should be interpreted. When the commentators were saying things such as "The great object is, that every man be armed", Henry was specifically addressing Article I, Section 8, Clause 16 as the text shows:

As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of "arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States." To the state legislatures is given the power of "appointing the officers, and training the militia according to the discipline prescribed by Congress." I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects. If the states have the right of arming them, &c., concurrently, Congress has a concurrent power of appointing the officers, and training the militia. If Congress have that power, it is absurd. To admit this mutual concurrence of powers will carry you into endless absurdity— that Congress has nothing exclusive on the one hand, nor the states on the other. The rational explanation is, that Congress shall have exclusive power of arming them, &c., and that the state governments shall have exclusive power of appointing the officers, &c. Let me put it in another light.

May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man 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. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by a concurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.

The problem is that if one looks at the Second Amendment in light of Congress's powers under the Militia clauses, in particular--the power to arm the militia, the individual right proposition begins to wither away. Even more so when seen in the proper historical perspective. Then, needs to add Article 1, Section 8, Clause 12 (To raise and support Armies) to the mix to get the proper meaning of the Second Amendment.

Somehow, the dislike of Standing Armies in the Anglo-American mind has also been neglected in this mix. In the 17th and 18th Century Great Britain and the British Colonies in America, there was a sentiment of distrust of a standing army not under civilian control. In England, this led to the Bill of Rights 1689, which reserves authority over a standing army to Parliament, not the King. The Declaration of Independence lists keeping standing armies during time of peace as one of the grievances. This dislike was far more nuanced in the United States Constitution which reserves by virtue of "power of the purse" similar authority to Congress, instead of to the President. The President, however, retains command of the armed forces when they are raised, as commander-in-chief. This dislike of standing armies heavily flavoured the debates relating to the adoption of both the Constitution and Bill of Rights, which leads to to this question from 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. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.

The Constitution’s retention of the militia and its creation of divided authority over that body did not prove sufficient to allay fears about the dangers posed by a standing army. For it was perceived by some that Article I contained a significant gap: While it empowered Congress to organize, arm, and discipline the militia, it did not prevent Congress from providing for the militia’s disarmament. As George Mason argued during the debates in Virginia on the ratification of the original Constitution:

“The militia may be here destroyed by that method which has been practiced in other parts of the world before; that is, by rendering them useless—by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has the exclusive right to arm them.” Elliot 379.

On the one hand, there was a widespread fear that a national standing Army posed an intolerable threat to individual liberty and to the sovereignty of the separate States. Governor Edmund Randolph, reporting on the Constitutional Convention to the Virginia Ratification Convention, explained: “With respect to a standing army, I believe there was not a member in the federal Convention, who did not feel indignation at such an institution.” 3 J. Elliot, Debates in the Several State Conventions on the Adoption of the Federal Constitution 401 (2d ed. 1863) (hereinafter Elliot). On the other hand, the Framers recognized the dangers inherent in relying on inadequately trained militia members as the primary means of providing for the common defense, and the institutional deficiencies of the militia were the subject of bitter complaint.

Fortunately, the Congressional debates regarding the adoption of the Second Amendment are very short and found here. There was debate in Congress over the religious exemption, and it was removed. Otherwise, there was general discussion of standing armies and the militia, not about personal uses, and widespread support for the proposed Amendment. It became part of the Constitution with the rest of the Bill of Rights on December 15, 1791.

Considering the immediate political context of the Second Amendment, as well as its long historical background, there can be no doubt about its intended meaning. There had been a long standing fear of military power in the hands of the executive, and, rightly or wrongly, many people believed that the militia was an effective military force which minimized the need for such executive military power. The proposed Constitution authorized standing armies, and granted sweeping Congressional power over the militia. Some even feared disarmament of the militia. The Second Amendment was clearly and simply an effort to relieve that fear.

Thus, the Second Amendment needs to be read as more than just one clause, but within the context of text of the entire Constitution for it to be properly understood. The majority opinion neglected the guide to constitutional construction given by Marbury that "It cannot be presumed that any clause in the constitution is intended to be without effect" and rendered the "prefatory clause" to be mere surplusage, which is far from how a truly "original interpretation" based upon how such a text was understood to be read. This has led to absurdities such as the Chicago v. McDonald ruling which said that a provision relating to Congress's powers under Article I, Section 8, Clause 16 applies to the states--even though the states do not have these powers granted to them.

It seems to me that there are good reasons for ignoring the Heller-McDonald decisions and reverting to the standard announced by US v. Miller that said the entire text of the Second Amendment must be used for its interpretation:

With obvious purpose to assure the continuation and render possible the effectiveness of such forces (The Article I, Section 8, clause 15 & 16 Militias), the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

Justice William O. Douglas (who was on the Court at the time of Miller) later described the decision as:

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.” Adams v. Williams, 407 U.S 143, 150 -51 (1972)

Miller addressed Congress's power over the militia, yet it has been dropped from the current discussion of the Second Amendment thus removing it from the the debate regarding the proper scope of the Amendment.

Ultimately, the right granted by the Second Amendment (and the Third) was supposed to be one that there would be no Standing Army, not for private citizens to own firearms. The Constitution, in particular, the Second Amendment is silent on the issue of non-militia arms. That fact, strips away the concept of "gun rights" as being protected under the US Constitution (although gun rights are found in State Constitutions). Instead, the Second Amendment is a window on a vastly different United States from the one we now live. One in which standing armies were feared.

The Constitution is not to be taken piecemeal, but to be seen as a whole to properly understand it. The individual right concept separate texts from historical background and says that clauses in the constitution are intended to be without effect rendering them mere surplusage. This turns the constitution upon its head by neglecting that there are two concepts that are in conflict here: the State Militias and the Federal Army.

Yet, rather than scream bloody murder this act has been allowed to be perpetrated upon the American public. Justice Berger called this interpretation a fraud upon the American public and the 5 justices played fast and loose with the rules of Constitutional interpretation to distort the constitution. Those who dislike penumbras in the law and government intrusion into the private lives of citizens, yet can tolerate Heller-McDonald need to understand what they have just condoned. For Heller-McDonald has not come from the penumbras, but out of nowhere in violation of the role of judges to be interpreters of the law, not legislators.

Delegates to the Constitutional Convention had no intention of establishing any personal right to keep and bear arms. Therefore the "individualist" view of the Second Amendment presented in the Heller-McDonald decisions must be rejected in favor of the "collectivist" interpretation, which is supported by history and the pre-Heller-McDonald Supreme Court decisions on the issue: in particular US v. Miller.

The nature of the Second Amendment also does not provide a right that could be interpreted as being incorporated into the Fourteenth Amendment. It was designed solely to protect the states against the powers given to the Federal government under Article I, Section 8, Clause 16, not to create a personal right which either state or federal authorities are bound to respect.

The contemporary meaning of the Second Amendment should be the same as it was at the time of its adoption. The federal government may regulate the body that was called the Militia (now the National Guard), but may not disarm it against the will of state legislatures. Nothing in the Second Amendment, however, precludes Congress or the states from requiring licensing and registration of firearms; in fact, there is nothing to stop an outright congressional ban on private ownership of all handguns and all rifles.

See:
THE POWER TO RAISE AND MAINTAIN ARMED FORCES
Founders' Constitution:
Article 1, Section 8, Clause 12
Article 1, Section 8, Clause 15
Article 1, Section 8, Clause 16
Second Amendment
Amendment Three
House of Representatives, Amendments to the Constitution 17, 20 Aug. 1789 Annals 1:749--52, 766--67

Weatherup, Roy, Standing Armies And Armed Citizens: An Historical Analysis of The Second Amendment, 2 Hastings Const. L.Q. 961-1001 (1975)

Schwoerer, Lois G. "No Standing Armies!" The Antiarmy Ideology in Seventeenth-Century England

It's an individual right

The issue isn't whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question we are trying to decide. The text of the Amendment, its history, and the decision in United States v. Miller, 307 U. S. 174 (1939), provided a clear answer to that question.

In that case. The Supreme Court upheld a conviction under that the National Firearms Act holding that, “[i]n the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Miller, 307 U. S., at 178. The view of the Amendment The Court took in Miller—that it protects the right to keep and bear arms for certain military purposes, but that it does not curtail the Legislature’s power to regulate the nonmilitary use and ownership of weapons—is both the most natural reading of the Amendment’s text and the interpretation most faithful to the history of its adoption.

But it's a right of the people

The phrase "the people" is a term of art used in select parts of the Constitution. This term "the people" refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

As I like to point out, The Constitution begins with the phrase "We the people", but did the entire population take part in the drafting of the document,or was it the representatives of the people who did that task?

In the Heller-McDonald decisions, the majority opinion interprets the Second Amendment to protect a “subset” significantly narrower than the class of persons protected by the First and Fourth Amendments to “law-abiding, responsible citizens.” But the class of persons protected by the First and Fourth Amendments is not limited because felons (and presumably irresponsible citizens as well) may invoke the protections of those constitutional provisions.

The Heller-McDonald decisions neglect the manner that the Framers used the phrase “the people” in these constitutional provisions. In the First Amendment, no words define the class of individuals entitled to speak, to publish, or to worship. It grants the right peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of “the people.” These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert.

As used in the Fourth Amendment, the term “the people” describes the class of persons protected from unreasonable searches and seizures by Government officials. It is true that the Fourth Amendment describes a right that need not be exercised in any collective sense. But that observation does not settle the meaning of the phrase “the people” when used in the Second Amendment . For, as we have seen, the phrase means something quite different in the Petition and Assembly Clauses of the First Amendment . Although the abstract definition of the phrase “the people” could carry the same meaning in the Second Amendment as in the Fourth Amendment , the preamble of the Second Amendment suggests that the uses of the phrase in the First and Second Amendments are the same in referring to a collective activity. By way of contrast, the Fourth Amendment describes a right against governmental interference rather than an affirmative right to engage in protected conduct, and so refers to a right to protect a purely individual interest. As used in the Second Amendment, the words “the people” do not enlarge the right to keep and bear arms to encompass use or ownership of weapons outside the context of service in a well-regulated militia.

There is also the rule of Statutory interpretation called Ejusdem generis ("of the same kinds, class, or nature") which is when there is a more specific descriptor 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" in the text.

Thus, the words “the people” in the Second Amendment refer back to the object announced in the Amendment’s preamble. They remind us that it is the collective action of individuals having a duty to serve in the militia that the text directly protects and, perhaps more importantly, that the ultimate purpose of the Amendment was to protect the States’ share of the divided sovereignty created by the Constitution.