Doc
Doc
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January 14th, 2011 at 8:09:20 AM permalink
Quote: mkl654321

...So I see this decision as essentially the opinion of one man--Kennedy--given that the votes of the other eight were a foregone conclusion. And rather than consider the opinion of one man--evn an exalted Supreme court justice--to be law, I will still go with the amendment as it was written (not to mention over 200 years of case law). An ideologically split 5-4 decision isn't enough to justify reading a constitutional amendment in a way other than as it was written.

I think that the fact that a "Militia" was specifically mentioned meant that this amendment referred to the right of the people to raise a militia--period. The fact was, the right of a person to own a gun wouldn't have been questioned at that time--many people needed a gun for safety, or simple survival. THEREFORE, the "founding fathers" wouldn't have felt the need to codify the right to gun ownership in the first place--it would have been taken as a given.


mkl, this is the third time that I have mentioned that the link EB provided earlier in this thread is an interesting read. Have you actually read it yet?

That ruling goes into great detail analyzing the wording that was chosen for the amendment and the reasons that wording was chosen. Individual words, groups of words, clauses, and the entire sentence are analyzed in the context of the language used at the time and the wording used elsewhere in the constitution. Contemporary dictionary definitions, possible idiomatic meanings, and usages in contemporary documents are examined. The meaning and usage of the term "militia" is discussed in detail. I found the analysis much more convincing than anything I have previously read, either in the commercial media or in discussion forums, though I do not make it a practice to read judicial rulings.

While I may like or dislike various rulings by the supreme court, I hope I never become so radical/reactionary/extremist that I believe that my own interpretation of the constitution is more valid than that of the majority of the justices.

Court decisions that are 5-4 are common. And they establish in reality the fundamental law of the land, even for those people who feel that the law should be different.
ItsCalledSoccer
ItsCalledSoccer
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January 14th, 2011 at 8:09:48 AM permalink
Quote: mkl654321

But for the right of WHOM to "bear arms? An individual, or "the people"?

Let's look at that in the context of a close reading of the Second Amendment, based on the very reasonable premise that the writers of that amendment chose their words very carefully:

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.

First of all, the Amendment says that "the people" have the right to keep and bear arms, NOT "a person" or "an individual". There are many rights that "the people" have but "a person" does not--to wage war, for example. So the distinction is important, and in the Second Amendment, is made abundantly clear.

"The people" can both keep and bear arms without any one individual owning or possessing a gun; the militias referred to in the amendment usually got their guns from an armory, which was public rather than private property. Thus, this amendment does NOT validate individual gun ownership. (It also, of course, does not invalidate it.)

The fact that the "right...to bear Arms" is stated as a dependent clause to the statement that a "well regulated Militia" is necessary, means that the idea of the right to bear arms is SUBORDINATE to the need for a functional militia. In other words, "the people" only have the right to bear arms IN THAT CONTEXT and FOR THAT PURPOSE--to form a militia when needed.

Gun nuts will blow right past this reasoning, but nonetheless, the above is a precise reading of the amendment's language. That reading is correct regardless of how you or I or anyone else feels about it.

There may be abundant other arguments for the right of an individual to own a gun, but the Second Amendment argument is a spurious one. It does appeal to Sarah Palinesque conservatives and those with tiny brains, because if your English skills are limited (or you're just fond of jumping to conclusions that you want to reach), you might misread the Second Amendment as endorsing PERSONAL gun ownership.



Quote: ItsCalledSoccer

I'm actually open to this changing, but I'm not open to using back-door legislation, questionable judicial decisions, and etymological gymnastics to change it.



Emphasis on ETYMOLOGICAL GYNMASTICS. Wow, surely the Nadia Comenic of constitutional interpretation!

This is bullshit. And, if you don't buy the bullshit, the you MUST be ...

Quote: mkl654321

Sarah Palinesque


or
Quote: mkl654321

tiny brains


or
Quote: mkl65432

fond of jumping to conclusions


or
Quote: mkl654321

misreading



Whatever nasty name-calling, trying to ridicule, and condescention is, it's not a way to interpret the Constitution. But you don't bother me. I know I'm smarter and clearer-thinking than you, and I don't need to demean and insult anyone to try to make my point, much less a Constitutional interpretation. I wonder if it's even possible for you to make any argument (faulty as it is) without appending a "if you don't think this way, you're an idiot" statement at the end?

All documents need some level of interpretation, so I don't have a problem with that. But there are better ways to interpret a document than not. Rule #1 is: use the document to interpret the document. That's the first problem I have with these gynmastics: it doesn't ever refer to another instance of "the people" in the Constitution itself in its interpretation.

In this case, that would mean "the people" should be given the same meaning that the overall document gives it. So ... find the phrase "the people" in the entire document and see how it's treated. Then you can start assigning interpretation.

On my reading, "the people" as internally stated, is far, far away from this interpretation. Not surprising, I guess, seeing as how the Constitution's overall use of "the people" is never mentioned.
mkl654321
mkl654321
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January 14th, 2011 at 12:09:04 PM permalink
Quote: bbvk05

If I said "Interstate travel being necessary for the nation's economy, the right of the people to own and drive cars shall not be infringed"- what would that mean to you?

It is also pretty funny that you made a big deal about english grammar- then you said the "right of the people" clause is a dependent clause when it is actually an independent clause. To top it off your precious militia statement is a dependent clause. Your blinding grammar errors aside, you also refuse to follow proper statutory interpretation. Plain language, purpose, public policy, baby. All support a reading of the recognition of an individual right for purposes of supporting a well regulated militia. Don't worry, I am under no illusions that this will convince you. I am sure you cannot be troubled to read the constitutional congress records to see how disturbingly wrong your position is. The seizure of private arms by the government was on everyone's minds because it had just happened.



I didn't say that "the right of the people" was the dependent clause. Please read for content, as I keep telling my students. Your trying to correct my grammar is kind of hilarious. In any case, the only issue is the grammar of the amendment, which is unequivocal.

I don't know what your reference to "just happened" might be, but do you realize that when the Second Amendment was written, the United States had been an independent nation for several years, and the War of Independence had ended almost a decade ago?
The fact that a believer is happier than a skeptic is no more to the point than the fact that a drunken man is happier than a sober one. The happiness of credulity is a cheap and dangerous quality.---George Bernard Shaw
mkl654321
mkl654321
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January 14th, 2011 at 12:15:51 PM permalink
Quote: Doc

mkl, this is the third time that I have mentioned that the link EB provided earlier in this thread is an interesting read. Have you actually read it yet?

That ruling goes into great detail analyzing the wording that was chosen for the amendment and the reasons that wording was chosen. Individual words, groups of words, clauses, and the entire sentence are analyzed in the context of the language used at the time and the wording used elsewhere in the constitution. Contemporary dictionary definitions, possible idiomatic meanings, and usages in contemporary documents are examined. The meaning and usage of the term "militia" is discussed in detail. I found the analysis much more convincing than anything I have previously read, either in the commercial media or in discussion forums, though I do not make it a practice to read judicial rulings.

While I may like or dislike various rulings by the supreme court, I hope I never become so radical/reactionary/extremist that I believe that my own interpretation of the constitution is more valid than that of the majority of the justices.

Court decisions that are 5-4 are common. And they establish in reality the fundamental law of the land, even for those people who feel that the law should be different.



Yes, I read the article rather thoroughly. The arguments that were made were compelling but not convincing. And furthermore, the dissenting arguments were just as compelling. Did you read any of those? (They were accessed through a separate link.)

And I don't think that Supreme Court decisions are the be-all and end-all of American law. If that was the case, the Dred Scott Decision would still apply, for example. in any case, the Court did NOT invalidate all gun control laws--only the particular one that was the basis of the appeal.

I still insist on interpreting the Second Amendment as worded, not otherwise. The decision of a single Supreme Court justice notwithstanding. If the writers of the amendment had meant to simply codify the right of an individual to own a gun, then they wouldn't have qualified it with the statement about the militia; they would have simply said: "The right of the people to keep and bear arms shall not be infringed."

Edit: and there are such things as incorrect, faulty, or ideologically-driven Supreme Court decisions.
The fact that a believer is happier than a skeptic is no more to the point than the fact that a drunken man is happier than a sober one. The happiness of credulity is a cheap and dangerous quality.---George Bernard Shaw
mkl654321
mkl654321
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January 14th, 2011 at 12:26:59 PM permalink
Quote: ItsCalledSoccer

Whatever nasty name-calling, trying to ridicule, and condescention is, it's not a way to interpret the Constitution. But you don't bother me. I know I'm smarter and clearer-thinking than you, and I don't need to demean and insult anyone to try to make my point, much less a Constitutional interpretation. I wonder if it's even possible for you to make any argument (faulty as it is) without appending a "if you don't think this way, you're an idiot" statement at the end?

All documents need some level of interpretation, so I don't have a problem with that. But there are better ways to interpret a document than not. Rule #1 is: use the document to interpret the document. That's the first problem I have with these gynmastics: it doesn't ever refer to another instance of "the people" in the Constitution itself in its interpretation.

In this case, that would mean "the people" should be given the same meaning that the overall document gives it. So ... find the phrase "the people" in the entire document and see how it's treated. Then you can start assigning interpretation.

On my reading, "the people" as internally stated, is far, far away from this interpretation. Not surprising, I guess, seeing as how the Constitution's overall use of "the people" is never mentioned.



You THINK you're smarter and clearer-thinking than me; the irony in your statement is that if you WERE, in fact, smarter and clearer-thinking than me, you nonetheless wouldn't claim that, because you would have the intellect to realize that you don't have the evidence to make such a claim. Similarly, I don't know how smart or dumb YOU are.

The process of interpretation involves trying to parse out what the writer was thinking, and what was his intention. If the writer had intended to codify personal gun ownership, he wouldn't have qualified the wording by mentioning militias--not IN THE SAME SENTENCE, at any rate.

I do agree that "interpretation" is rarely unequivocal. However, reading the Second Amendment as an endorsement of PERSONAL gun ownership is just plain ridiculous. I happen to feel that gun ownership IS a right, but the Second Amendment isn't what confers that right. And when gun nuts quote it, they very likely haven't engaged in any kind of analysis of its language one way or another.
The fact that a believer is happier than a skeptic is no more to the point than the fact that a drunken man is happier than a sober one. The happiness of credulity is a cheap and dangerous quality.---George Bernard Shaw
Doc
Doc
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January 14th, 2011 at 1:19:38 PM permalink
Quote: mkl654321

... I don't think that Supreme Court decisions are the be-all and end-all of American law. If that was the case, the Dred Scott Decision would still apply, for example. in any case, the Court did NOT invalidate all gun control laws--only the particular one that was the basis of the appeal.


The decisions may not be "the be-all and end-all of American law", but they are the official rulings on the foundation of law. I think that's rather important. The old decision you cite did indeed apply until it was reversed, just as the decision we have been discussing will continue to apply until such time as the court chooses to reverse it, should that day ever come.

You are absolutely correct that the court did not invalidate all gun-control laws. They restricted their final ruling to the case that was brought before them, noting that further clarification may be required in the future but was not something they (other than one justice) wanted to get into at that time. From our discussions above, I thought the issue here was not the specific gun-control law that was invalidated but the proper interpretation of the wording of the 2nd amendment. That is an issue that the justices discussed in quite some detail, addressing many of the points raised repeatedly in this thread including the usage of "militia" and "the people". You found the arguments compelling but not convincing, but they were adequately convincing to the people who actually matter in such instances.

Quote: mkl654321

I still insist on interpreting the Second Amendment as worded, not otherwise. The decision of a single Supreme Court justice notwithstanding. ...


It seems clear, mkl, that you view your interpretation of "the Second Amendment as worded" as being more valid than the interpretation of "the Second Amendment as worded" as explained in detail by the majority of the justices of the supreme court. I cannot support that viewpoint either from you or from myself. And it was not at all a decision of a single justice; it was a decision by the majority of the court.

If you really believe that the rulings by 8 out of the 9 are predetermined prior to hearing of cases and split 4-4, then every decision will be 5-4. If you really believe that, then perhaps those 8 should just stay home, and we could just have the one remaining make all of the decisions. I don't view the supreme court that way at all.

I view this particular decision -- and its detailed explanation of the proper interpretation of the 2nd amendment -- to clearly be exactly as it is described: the opinion of the court, determined by the majority just the way it is supposed to be. This is true whether you or I agree with them or not.
ItsCalledSoccer
ItsCalledSoccer
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January 14th, 2011 at 2:19:55 PM permalink
Quote: mkl654321

You THINK you're smarter and clearer-thinking than me; the irony in your statement is that if you WERE, in fact, smarter and clearer-thinking than me, you nonetheless wouldn't claim that, because you would have the intellect to realize that you don't have the evidence to make such a claim. Similarly, I don't know how smart or dumb YOU are.



I pretty much am, and do. We've gone over that. No need to go over it again. I don't hold your intellectual shortfall against you.

Quote: mkl654321

The process of interpretation involves trying to parse out what the writer was thinking, and what was his intention. If the writer had intended to codify personal gun ownership, he wouldn't have qualified the wording by mentioning militias--not IN THE SAME SENTENCE, at any rate.

I do agree that "interpretation" is rarely unequivocal. However, reading the Second Amendment as an endorsement of PERSONAL gun ownership is just plain ridiculous. I happen to feel that gun ownership IS a right, but the Second Amendment isn't what confers that right. And when gun nuts quote it, they very likely haven't engaged in any kind of analysis of its language one way or another.



Not ridiculous at all. The language says:

Quote: TheConstitution

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.



Your first pass was to try to convince me that "the people" had some meaning other than ... umm ... the people. You know, kind of like "I have an IQ of 190" really means some 500-word explanation as to why you really weren't saying "I have an IQ of 190."

Not only that, you don't even use the Constitution to try to invent such an interpretation, but all sorts of "I have an IQ of 190 but I don't really but I do but I don't" bullshit.

You won't care, and surely it makes me

Quote: mkl654321

fond of jumping to conclusions



but for others, here's an example why:

Quote: TheConstitution

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.



Quote: TheConstitution

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.



Apply the above interpretation MKL applies:

Quote: mkl654321

But for the right of WHOM to "choose their representatives"? An individual, or "the people"?

Let's look at that in the context of a close reading of the Article II, based on the very reasonable premise that the writers of that article chose their words very carefully:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.

First of all, the Article says that "the people" have the right to elect their representatives, NOT "a person" or "an individual". There are many rights that "the people" have but "a person" does not--to wage war, for example. So the distinction is important, and in Article II, is made abundantly clear.

"The people" can elect their representatives without any one individual voting; the representatives referred to in the article usually got their authority from kingly mandate, which was public rather than private policy. Thus, this article does NOT validate individual selection of their representatives. (It also, of course, does not invalidate it.)



I could go on, but it's scary enough already. Whatever "the people" means, it does not draw a distinction between society and individuals, and there's no use of it within the document to suggest otherwise. The Constitution itself supports that, not some "I have an IQ of 190, but not really, but really, but not really" mental gymnastics. But once again, just to be clear ...

Quote: ItsCalledSoccer

I'm actually open to this changing, but I'm not open to using back-door legislation, questionable judicial decisions, and etymological gymnastics to change it.

mkl654321
mkl654321
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January 14th, 2011 at 6:30:32 PM permalink
Quote: Doc

It seems clear, mkl, that you view your interpretation of "the Second Amendment as worded" as being more valid than the interpretation of "the Second Amendment as worded" as explained in detail by the majority of the justices of the supreme court. I cannot support that viewpoint either from you or from myself. And it was not at all a decision of a single justice; it was a decision by the majority of the court.

If you really believe that the rulings by 8 out of the 9 are predetermined prior to hearing of cases and split 4-4, then every decision will be 5-4. If you really believe that, then perhaps those 8 should just stay home, and we could just have the one remaining make all of the decisions. I don't view the supreme court that way at all.

I view this particular decision -- and its detailed explanation of the proper interpretation of the 2nd amendment -- to clearly be exactly as it is described: the opinion of the court, determined by the majority just the way it is supposed to be. This is true whether you or I agree with them or not.



You clearly give more weight to a 5-4 decision than I do. And yes, I consider the votes of most of the judges to be a complete foregone conclusion. One bloc of four almost always voted together; the other bloc of four did the same. Only Kennedy's vote was ever in doubt. So this ruling was a combination of ideology plus coin flip.

I also--unspeakable hubris though it may be--disagree with the logic that drove the majority opinion. They lifted much of the reasoning that was behind the amendment at the time it was written and tried to helicopter it into a modern setting. That only sort of worked. I'd bring in some specific examples of what I mean, but you wouldn't be convinced, because you assign more weight to the august words of a SUPREME COURT JUSTICE than little ol' me.

The sad fact is that the Second Amendment does not really apply to today's world. It deals with militias--and ONLY with militias--and we don't have militias any more. The Second Amendment was written to ensure the safety of the people--as in, the collective body--by guaranteeing their right and ability to form militias. It was never envisioned as ensuring the rights of a neo-Nazi survivalist to cache fifty grenade launchers and 200 bricks of C-4 in his underground bunker. As I said earlier, gun ownership and the necessity for it was a given in eighteenth-century America; the writers of the Constitution would have felt no need to explicitly codify the right to it.
The fact that a believer is happier than a skeptic is no more to the point than the fact that a drunken man is happier than a sober one. The happiness of credulity is a cheap and dangerous quality.---George Bernard Shaw
mkl654321
mkl654321
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January 14th, 2011 at 6:35:33 PM permalink
Quote: ItsCalledSoccer

Your first pass was to try to convince me that "the people" had some meaning other than ... umm ... the people. You know, kind of like "I have an IQ of 190" really means some 500-word explanation as to why you really weren't saying "I have an IQ of 190."



Your claim to intellectual brilliance is somewhat blunted by the fact that you couldn't understand that "the people" is not the same as "an individual". The Second Amendment codified a right of THE PEOPLE--to form a militia. It did NOT codify the right of AN INDIVIDUAL to own a gun.

I also explained that the Constitution grants many rights to the people that are understood not to be the right of any one individual. But you slept through that part.

And pick away at that IQ thing all you want--I already retracted that statement (specifically, I said I don't KNOW what my IQ currently is--and neither does anyone else, yourself included). But at least I don't believe in The Man In the Sky.
The fact that a believer is happier than a skeptic is no more to the point than the fact that a drunken man is happier than a sober one. The happiness of credulity is a cheap and dangerous quality.---George Bernard Shaw

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