Essay Question on the Second Amendment:

Please explain how a document which states as its purposes is to "form a more perfect Union...insure domestic Tranquility" (Preamble).

Then makes it clear that the role of the militia is "execute the Laws of the Union, suppress Insurrections and repel Invasions" (Article I, Section 8, clause 15).

We need to add in Article IV, Section 4, 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 provision in our Constitution requires that the federal government protect us from harms that we inflict upon ourselves, harms that threaten our health and our survival: in particular domestic insurrections.

Finally, 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

That rules out "natural law" as being legal precedent (as well as other documents such as the Declaration of Independence in addition to misquotations from the founding fathers) .

With the real kicker being Article III, Section. 3:

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 Constitution seems pretty clear that insurrection is not a right.

Next we come to Amendment II:

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.

Now, I need to keep reminding you of the rule of construction: Expressio unius est exclusio alterius.

 "The expression of one thing is the exclusion of another."  That is items not on the list are impliedly assumed not to be covered by the statute or a contract term. However, sometimes a list in a statute is illustrative, not exclusionary. This is usually indicated by a word such as "includes" or "such as."

None of that is present in the above passages.


Simple form since I know the calibre of intelligence here:

• If the statute mentions it--it is covered.

• If the statute don't mention it--it ain't covered.

In this case, we do not see anything in the Second Amendment which mentions "fighting tyranny" (as it also lacks any specific mention of personal uses such as hunting or self-defence).


The rules to this are simple and found here. BTW, using the rules, in particular, Internal and external consistency, where it is presumed that a statute will be interpreted so as to be internally consistent. That is, a  particular section of the statute shall not be divorced from the rest of the act.The Second Amendment applies to the Militia based upon Article I, Section 8, Clause 16 granting congress the power to ARM the Militia.

Please explain how things which are not specifically can be legally covered?  How do you read into the text things which not only aren't present, but are inconsistent with the document?

I can't wait to see the idiotic comments you will make--especially Greg who will show his ignorance of law, yet be all too willing to pontificate despite his lack of knowledge on the topic.

Rules of Constitutional Construction

Just a simple list, but something people need to be aware of before they start coming up with nonsense. It was found here

Within these methods, we can, by study of the writings of the Founders, and the writings they read, elicit such principles for interpreting or constructing the Constitution for the United States as the following:

1. The Constitution is the written document. Although it may be considered to include the understandings of its words as of the time of ratification, it does not include the subsequent body of practices or precedents upon which constitutional decisions might be based, which may or may not be consistent with it, or authorized by it. The written document refers to itself as "this Constitution", and provides for only four methods by which it may be amended, all of which apply only to the written document.
   
   
2. The authority for provisions of the Constitution is the ratifications and state admissions. Current consent or acquiescence, or lack thereof, to the Constitution or any practice, does not affect the original constitutive acts, and has no authority, unless expressed through adoption of amendments as provided in Article V.
   
   
3. Provisions of the Constitution are mutually consistent. There are no internal logical contradictions, except that a provision of an amendment inconsistent with a previous provision supersedes that provision.
   
   
4. None of the words are without force and effect, except those superseded by amendments, unless such amendments are repealed. Except for the statement of purpose in the preamble, every word was intended by the Framers to be legally normative, and not just advisory, declaratory, aspirational, or exhortatory. Verba intelligi ut aliquid operantur debent. Words should be interpreted to give them some effect.
   
   
5. Rights and powers are complementary. Every right recognized by the Constitution is an immunity, that is, a right against a positive action by government, and is equivalent to a restriction on delegated powers. Conversely, every delegated power is a restriction on immunities. An immunity may be expressed either as a declaration of the right, or as a restriction on powers.
   
   
6. There are no redundancies within the original unamended Constitution. However, amendments may be alternative ways of expressing equivalent content in the original unamended Constitution or previous amendments. More specifically, the Bill of Rights added no new content not implicit in the original unamended Constitution, except the twenty dollar rule of the Seventh Amendment.
   
   
7. The Constitution was intended to define a functionally complete and harmonious system. That does not mean, however, that all powers anyone might think the nation or any branch, level, office or department should have, were actually delegated.
   
   
8. Original "intent" is functional, not motivational. The private motives of the Framers or Founders are irrelevant and largely unknowable, and likely to have been diverse. The common law rule of interpretation understood by the Founders was to discern the functional role of elements of the law, not the private purposes of the lawgivers.
   
   
9. The ratification debates are the best evidence of original understanding. The arguments of those opposed to ratification are not just the positions of the losers in the debates, which some might dismiss as not indicative of original understanding. As the debates proceeded, understandings evolved and clarified, and positions changed. Most opponents were satisfied by adoption of a Bill of Rights, and by assurances by the proponents concerning how the words of the Constitution would be interpreted, and those assurances must be considered part of the original understanding. That means that a construction to which the more significant "anti-federalists" would object is almost certainly incorrect.
   
   
10. Powers are narrow, rights broad. The entire theme and tenor of the ratification debates was that delegated powers were to be interpreted as strictly as possible, consistent with the words, and rights as broadly as possible, with the presumption in favor of the right, and the burden of proof on those claiming a power. Potestas stricte interpretatur. A power is strictly interpreted. In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.
    
    
11. Delegated powers cannot be subdelegated. The U.S. Constitution vests all legislative powers in Congress, and all judicial powers in the Supreme Court and inferior courts, except as specifically expressed. Executive branch officials may subdelegate but must remain responsible for the actions of their subordinates. There can be no authority exercised that is not accountable through constitutional officials.Delegata potestas non potest delegari. A delegated power cannot be delegated. 9 Inst. 597.
    
    
12. The power to regulate is not the power to prohibit all modalities of something. It is only the power to issue prescriptions to "make regular", enforceable only by deprivations of property or privileges, not of life, limb, or liberty. There must always be some modality that is not prohibited.
    
    
13. Implied powers are only to "carry into Execution" an expressed power and not to do whatever is necessary to achieve the intent for which a power might be exercised. Delegation of a power is delegation of the right to make a certain kind of effort, not to do whatever is necessary to get a desired outcome.
    
    
14. There can be no common law crimes. They are in conflict with the prohibitions on ex post facto laws and bills of attainder.
    
    
15. Rights may not be disabled or unduly burdened by legislative or executive process. "Due" process is judicial only, involving the granting of a petition to disable a right of the defendant, with the burden of proof on the plaintiff or prosecutor, and with the defendant having at least those minimum protections that prevailed during the Founding. with similar disablements having similar standards of proof and protection.
    
    
16. There is no right without a remedy. Ubi jus ibi remedium. There must always be an accessible forum in which a complainant has oyer and terminer for any petition.
    
    
17. The Founders were learning. "Original meaning" is not just about what the Founders consciously meant at the moment of ratification, but includes what they would discover with further study of the legal tradition they invoked in the words they chose. Thus, they referred to authors like Blackstone and Coke when they were unsure what they meant, and so must we.
    
    
18. Early practice indicative but not dispositive. Early practice by the Founders may provide evidence of their aspirations in the words they chose, but should not be regarded as perfect expressions of their intent. Practice can represent compromise with practical concerns and may lag behind the ideals contained in the words.
    
    
19. Mental models of mental models. Each of us has a mental model of the world that includes a model of the mental models others have of the world. Communication is possible only to the extent that our mental models of the mental models of others are somehow accurate or congruent. When a lawgiver issues a law, a command to others for future compliance, he is relying on others to understand his words the way he does, and those others are relying on him to use words with the meanings they have for them. But words are an imperfect way to convey meanings, and if the recipient of the command cannot interrogate the lawgiver for his meaning, he must try to improve his mental model of the lawgiver's mental model by such means as learning to accurately predict what the lawgiver will write about matters the recipient has not previously read.
    
    
20. Find the right level of abstraction. It was common for the Founders to use somewhat more concrete words to mean broader principles. Thus, "press" or "arms" is not limited to the technology of the time, but refers to the general function they served. "Militia" does not mean merely those legally obliged to respond to an official call-up, but defense activity generally.
    

The Second Amendment according to Greg.

If we were to use the intepretation Greg gives the Second Amendment using the rules of statutory construction it would read:

The right of the law abiding people to own those weapons used by ladies and gentlemen which can be operated by one person shall not be questioned.

I should add that St. George Tucker, Joseph Story, and other contemporary commenters discuss the differences between the English Bill of Rights and Second Amendment:

St. George Tucker, Blackstone's Commentaries 1:App. 300

Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

William Rawle, A View of the Constitution of the United States 125--26 1829 (2d ed.)

In most of the countries of Europe, this right does not seem to be denied, although it is allowed more or less sparingly, according to circumstances. In England, a country which boasts so much of its freedom, the right was secured to protestant subjects only, on the revolution of 1688; and it is cautiously described to be that of bearing arms for their defence, "suitable to their conditions, and as allowed by law." An arbitrary code for the preservation of game in that country has long disgraced them. A very small proportion of the people being permitted to kill it, though for their own subsistence; a gun or other instrument, used for that purpose by an unqualified person, may be seized and forfeited. Blackstone, in whom we regret that we cannot always trace the expanded principles of rational liberty, observes however, on this subject, that the prevention of popular insurrections and resistance to government by disarming the people, is oftener meant than avowed, by the makers of forest and game laws.

Story, Commentaries on the Constitution 3:

§ 1891. A similar provision in favour of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being declared, "that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law." But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege.

Hurdles the "individual right" interpretation of the Second Amendment needs to overcome

Hurdles the "individual right" interpretation of the Second Amendment needs to overcome (in no particular order):

The first that comes to mind is that there is no explicit language granting such a right. The text of the statute is used first, and it is read as it is written, using the ordinary meaning of the words of the statute. Courts must presume that a legislature says in a statute what it means and means what it says in a statute. We this analogue to the Second Amendment that demonstrates what this means:

That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination, to, and governed by, the civil power

or

A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use.

Or

The people shall have a right to bear arms, for the defense of themselves and the State.

Note that a personal right is specifically mentioned in the above texts, whereas it is not in the Second Amendment to the US constitution.

Next, it is presumed that a an act of legislation will be interpreted so as to be internally consistent. A particular section statute shall not be divorced from the rest of the act. That means that other sections addressing the militia from the Constitution need to be added to the interpretation of the Second Amendment.

Additionally, Every part of a legislative act is presumed to be of some effect and is not to be treated as meaningless unless absolutely necessary.

Let's not forget congress' powers under Article I, Section 8, Clause 16 while we are at it:

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;

It is congress's power to arm the militia. It was feared that congress could neglect to fulfill this duty to the detriment of the militia.

In short, we must find our meaning in the text, not outside of it. We can also look for further guidance in the Constitution since the Second Amendment must be read within the framework of the constitution. However, a search of the Constitutional text will find that one constitutional purpose is to "provide for the common defence" and you don't have to read to far into the Constitution to find that stated. Nowhere is self-defence mentioned in the US Constitution.

Not to mention that the doctrine of self-defence did not allow for armed self-defence in all cases, but required only the reasonable amount of force to counter the threat. Additionally, there was a duty to retreat at the time the Constitution was written. To argue that the Founders intended that armed defence was an option without specifically mentioning it is a further absurdity.

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

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

Blackstone refers to this "when the reason ceases, the law ought to cease" principle several times in the Commentaries, which would seem to indicate that he considered it a fairly important interpretive principle. 2 Blackstone at *390-91 (discussing property interests in tame and domestic animals and noting "But here the reasons of the general rule cease, and 'cessante ratione cessat et ipsa lex' [The reason of the law ceasing, the law itself also ceases]"), 3 Blackstone at *219 (discussing the law of nuisance, and noting "But, where the reason ceases, the law also ceases with it : therefore it is no nuisance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water."), 4 Blackstone at *3 (noting that some aspects of Britain's criminal law "seem to want revision and amendment" and explaining that "These have chiefly arisen from too scrupulous an adherence to some rules of the antient common law, when the resons have ceased upon which those rules were founded . . . "), 4 Blackstone at *81 (discussing the law of treason, and noting that the "plain intention of this law is to guard the blood royal from any suspicion of bastardy, whereby the succession to the crown might be rendered dubious: and therefore, when this reason ceases, the law ceases with it . . ."), 4 Blackstone at *330 (discussing the plea of a former attainder, and noting "But to this general rule however, as to all others, there are some exceptions; wherein, cessante ratione, cessat et ipsa lex."). Someone said that the proeme could be read as starting with Because. Which means a better way of reading this is Because a well regulated militia is necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

All that means any attempt to say that the "proeme" is in anyway meaningless (as happened in Heller) renders the Second Amendment meaningless. That is the paradox of the "individual right" interpretation.

Next, we come to the historic role of the militia in relation to a citizen of a republic's civic duties. I've mentioned this before, but...

Americans inherited the concept of Civic republicanism from seventeenth century English "Commonwealthmen". This concept was a primary ideological value driving the American Revolution and the framing of the Constitution. Historian Gordon Wood writes that "[r]epublicanism meant more for Americans than simply the elimination of a king and the institution of an elective system. This concept added a moral dimension and utopian aspect to the political separation from England--an aspect that involved the very character of their society."

The classical liberal tradition gave the independence movement its values and concepts with which we have grown familiar. The most important of which was a civic and patriot ideal in which the personality was founded in property, perfected in citizenship but perpetually threatened by corruption; government figuring paradoxically as the principle source of corruption and operating through such means as patronage,faction, standing armies (as opposed to the ideal of the militia), established churches (opposed to the Puritan and deist modes of American religion) and the promotion of a monied interest .

The founders believed in the Republic and that was how they wanted the newly formed United States to function. Republicanism made high moral demands on its citizens, in addition to entrusting them with the defense of their communities. For example, a citizen of a republic was expected to subordinate self-interest to the overarching good of the community.

The public good was, in fact, the lodestar for a republican government. Citizen participation in civic affairs was absolutely essential to a republican government. It was understood that there was a moral obligation obligation for citizen participation in government. This moral obligation was described in the literature of the times as public or civic virtue.

The next hurdle is the Standing Army v. Militia question which was a very prominent theme in Anglo-US history during the 17th, 18th, and start of the 19th Century. There's a lot more material out there saying this was the concern than any indication of an "individual right to arms" outside the context of the militia duty. Straight up, a professional standing army was seen as another instrument that could be used by a tyrannical government to subjugate its citizens and the constitution created a Federal Army. The institution of the militia served to eliminate the possibility of a coup by ambitious leaders using a preofessional standing army--and that is very much what all the misqutations show when one reads them in context. The presence of an armed citizens' militia served as a visible reminder to the executive of the ability of the people to remove the "tyrant" by force if necessary.

But, since the militia is an institution of Anglo-American heritage--why does the concept of "gun rights" only exist in the US? Shouldn't this "right" exist in other common law jurisdictions? How (and why) did the Australians, who have a similar attitude to firearms as the US, enact such strong gun laws after the Port Arthur massacre? That shouldn't have happened if there was a universal common law concept of gun rights.

We can get into how Scalia and Alito legislated from the bench by judicially amending the Constitution in their decisions (see US v Miller and Justice Stevens' dissent in Heller) , but that is many other posts I have made.

In short, the "individual right" interpretation of the Second Amendment has a lot of work to get around the warning bells to thinking minds that it is bullshit. There is too much revisionist history and nonsense written buttressing that opinion that makes no sense when properly scrutinised.

Resources:

• Tom W. Bell, The Third Amendment: Forgotten but Not Gone, 2 William & Mary Bill of Rights J. 117 (1993).
• William S. Fields and David T. Hardy, The Third Amendment and the Issue of the Maintenance of Standing Armies: A Legal History, 35 Am. J. Legal Hist. 393 (1991).
• Western, J.R.: English Militia in the Eighteenth Century: The Story of a Political Issue, 1660-1802 (ISBN: 978-0751201406)
• Beckett, Ian: Britain's Part-Time Soldiers: The Amateur Military Tradition 1558-1945 (ISBN: 978-1848843950)
• Cress, Lawrence Delbert Cress. Citizens in Arms: The Army and the Militia in American Society to the War of 1812
• Cunliffe, Marcus, Soldiers and Civilians: The Martial Spirit in America, 1775-1865
• Denning, Brannon P., Palladium of Liberty? Causes and Consequences of the Federalization of State Militias in the Twentieth Century, 21 Okla. City U. L. Rev. 191-245 (1996)
• Mahon, John K, The History of the Militia and the National Guard
• Millett, Allan R. & Maslowski, Peter, For The Common Defense: A Military History of the United States of America: Revised Edition
• Riker, William H, Soldiers of the States
• One of the few Law Review articles discussing the historical militia is "The Militia Clause of the Constitution" by Frederick Wiener 54 Harvard Law Review 181(1940).
• See also 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.
• Also, David Chandler & Ian Beckett, The Oxford Illustrated History of the British Army (ISBN: 978-0198691785) has a section on the Amateur Military Tradition (I.E., the Militia).
• 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
• Whisker, James Biser The Citizen-Soldier under Federal and State Law, 94 W. Va. L. Rev. 947 (1991-1992)
• Cooper, Jerry The Rise of the National Guard: The Evolution of the American Militia, 1865-1920, ISBN: 978-0803264281
• Bogus, Carl T. THE HISTORY AND POLITICS OF SECOND AMENDMENT SCHOLARSHIP: A PRIMER, Chicago-Kent Law Review, Symposium on the Second Amendment, vol. 76, 2000: 3S
• Spitzer, Robert J. LOST AND FOUND: RESEARCHING THE SECOND AMENDMENT, Chicago-Kent Law Review,Symposium on the Second Amendment vol. 76, 2000: 349

More rules of Statutory Construction

Law is not a common sense profession. That is, it does not make sense to those who have not trained in or practised the profession. For example, it follows the rules of statutory construction, not those of grammar.

Think of law as being like a complicated game, such as Chess or Cricket (the rules of which happen to called "the Laws of Cricket"). For example, Chess has rules in how the pieces are to move. One does not say to a chessmaster you should have moved a knight in a straight line for four squares since that violates the rules of chess. One needs to follow the rules of law when practising the profession of law, one set of rules are called the canons of Statutory Interpretation which deal with how a statute is to be interpreted.

Under most of the canons of Statutory Interpretation, the class of the people is limited by the term militia. For example:

Construction of text as a whole
The first linguistic canon is that an Act or other legislative instrument is to be read as a whole, so that an enactment within it is not treated as standing alone but is interpreted in its verbal context.

Ejusdem generis ("of the same kinds, class, or nature")
When a list of two or more specific descriptors is followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them. For example, where "cars, motor bikes, motor powered vehicles" are mentioned, the word "vehicles" would be interpreted in a limited sense (therefore vehicles cannot be interpreted as including airplanes).

The Latin words ejusdem generis (of the same kind or nature), have been attached to a canon of construction whereby wide words associated in the text with more limited words are taken to be restricted by implication to matters of the same limited character.

Thus, the general term "people" in the Second Amendment is limited by the restrictive "well-regulated militia".

The principle may apply whatever the form of the association, but the most usual form is a list or string of genus-describing terms followed by wider residuary or sweeping-up words. The canon arises from the linguistic implication by which words having literally a wide meaning (when taken in isolation) are treated as reduced in scope by the verbal context. It is an instance of ellipsis, or reliance on implication. As Rupert Cross put it, following Lord Diplock: 'the draftsman must be taken to have inserted the general words in case something which ought to have been included among the specifically enumerated items had been omitted . . .' (Cross 1987, 133). Or, as Odgers says, it is assumed 'that the general words were only intended to guard against some accidental omission in the objects of the kind mentioned and were not intended to extend to objects of a wholly different kind' (Odgers 1987, 184). It follows that the principle is presumed to apply unless there is some contrary indication.

In pari materia ("upon the same matter or subject")
When a statute is ambiguous, its meaning may be determined in light of other statutes on the same subject matter. That is the Second Amendment must be interpreted in light of the US Constitution's provisions relating to the militia (i.e., US Constitution Article I, Section 8 Clauses 15 & 16).

Noscitur a sociis ("a word is known by the company it keeps")
When a word is ambiguous, its meaning may be determined by reference to the rest of the statute. That is the Second Amendment must be interpreted as a whole and in light of the US Constitution's provisions relating to the militia (i.e., US Constitution Article I, Section 8 Clauses 15 & 16).

In the case of the Second Amendment, the word people reflects back to the Militia. The use of the term people does not expand the stated purpose of the Second Amendment, that is:

A well regulated militia being necessary to the security of a free State

The only way that the word "people" can be interpreted as the subject for the Second Amendment is to say that the first half is not important. If that is the case, why have the first half?

If the first half is irrelevant that takes you into another realm:

Cessante ratione, cessat et ipsa lex.(The reason of the law ceasing, the law itself also ceases)
Which means that if the "cause/reason" for the Second Amendment was the "well-regulated militia", then it could be argued that when that reason ceased, the law ought likewise to cease with it. Thus, those who say that the militia portion is unimportant have made it clear that the reason is no longer valid, therefore, the Second Amendment is without effect and is now void.

I am beginning to see Heller-McDonald as the opening blow to the uncomfortable reality that the Second Amendment is a dead letter in modern society.

See also:
Bennion on Statutory Law--Statutory interpretation