Smith & Wesson to Offer 'Commemorative' D.C. vs. Heller Gun

[red states rule]

This is what you would call "in your face". I hope S&W sells out

Could the Franklin Mint be far behind?



July 23, 2008
Smith & Wesson to Offer 'Commemorative' D.C. vs. Heller Gun


As part of the project, an engraved Smith & Wesson Model 442 revolver will be presented to each of the six plaintiffs - Shelly Parker, Tom Palmer, Gillian St. Lawrence, Tracey Ambeau, George Lyon and Dick Heller - for their key roles in working to protect the Second Amendment right to keep and bear arms. Smith & Wesson will make the commemorative revolver available for consumer purchase in Fall 2008 and will direct a portion of the proceeds to the Second Amendment Foundation to acknowledge the organization's pivotal role in the Heller case and its ongoing efforts to preserve the Second Amendment rights of U.S. citizens.
Over at HuffPost, Josh Sugarman makes the argument that Smith & Wesson is thumbing its nose at police departments with this announcement, since the gun ban was strongly supported by the MPD, and the company is well known for manufacturing a "revolver that can penetrate the body armor worn by law enforcement."

The 'commemorative' revolver is clearly targeting serious gun enthusiasts, the sort of people who would want to add such a piece to their gun collections, but we suppose some of you District residents who are planning to obtain a handgun might be interested as well.

http://dcist.com/2008/07/23/smith_and_wesson_to_offer_commemora.php

[avatar4321]

well, if thats your thing, fine, but i prefer hand to hand combat weapons.

[hjmick]

I'd buy one.

[red states rule]

I'd buy one.

They need to send a free one to the DC Mayer

I would

[Jagger]

Justice Scalia’s Methodology Of Constitutional Interpretation Is Just An Excuse For His Judicial Activism


In the excerpt below, from the U. S. Supreme Court's opinion in the case of D. C. v. Heller, authored by Justice Scalia, the notorious judicial activist announces his intention to follow a rule of constitutional construction which dictates that the words of the Constitution should be understood in the sense of their normal and ordinary use by ordinary citizens of the founding generation.


The Second Amendment provides: “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.” In interpreting this text, we are guided by the
principle that “[t]he Constitution was written to be understood
by the voters; its words and phrases were used in
their normal and ordinary as distinguished from technical
meaning.” United States v. Sprague, 282 U. S. 716, 731
(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).
Normal meaning may of course include an idiomatic
meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the
founding generation...


Scalia is an incompetent activist. The Constitution wasn't made with the lawmakers understanding that it would be interpreted according to the normal and ordinary use of words by ordinary citizens of the founding generation.

John Jay, the first Chief Justice of the U. S. Supreme Court, knew that there were well established common law rules of interpretation and that they applied to the U. S. Constitution.


The question now before us renders it necessary to pay particular attention to that part of the second section which extends the judicial power "to controversies between a State and citizens of another State." It is contended that this ought to be construed to reach none of these controversies excepting those in which a State may be plaintiff. The ordinary rules for construction will easily decide whether those words are to be understood in that limited sense.
--John Jay in his opinion in Chisholm v. Georgia (1793)

[red states rule]

If you own a gun, there are rules you have to obey


http://www.strangepolitics.com/images/content/111633.jpg

[hjmick]

Justice Scalia’s Methodology Of Constitutional Interpretation Is Just An Excuse For His Judicial Activism


In the excerpt below, from the U. S. Supreme Court's opinion in the case of D. C. v. Heller, authored by Justice Scalia, the notorious judicial activist announces his intention to follow a rule of constitutional construction which dictates that the words of the Constitution should be understood in the sense of their normal and ordinary use by ordinary citizens of the founding generation.


The Second Amendment provides: “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.” In interpreting this text, we are guided by the
principle that “[t]he Constitution was written to be understood
by the voters; its words and phrases were used in
their normal and ordinary as distinguished from technical
meaning.” United States v. Sprague, 282 U. S. 716, 731
(1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).
Normal meaning may of course include an idiomatic
meaning, but it excludes secret or technical meanings that
would not have been known to ordinary citizens in the
founding generation...


Scalia is an incompetent activist. The Constitution wasn't made with the lawmakers understanding that it would be interpreted according to the normal and ordinary use of words by ordinary citizens of the founding generation.

John Jay, the first Chief Justice of the U. S. Supreme Court, knew that there were well established common law rules of interpretation and that they applied to the U. S. Constitution.


The question now before us renders it necessary to pay particular attention to that part of the second section which extends the judicial power "to controversies between a State and citizens of another State." It is contended that this ought to be construed to reach none of these controversies excepting those in which a State may be plaintiff. The ordinary rules for construction will easily decide whether those words are to be understood in that limited sense.
--John Jay in his opinion in Chisholm v. Georgia (1793)

Blah blah blah blah...

Why don't you just say it, you don't want any private citizen to own a gun. You wish to disarm all law abiding citizens in the United States leaving guns in the hands of the government controlled military, the government controlled law enforcement agencies, and the criminals. You would have us all on our knees and at the mercy of the judgement of others.

[red states rule]

Blah blah blah blah...

Why don't you just say it, you don't want any private citizen to own a gun. You wish to disarm all law abiding citizens in the United States leaving guns in the hands of the government controlled military, the government controlled law enforcement agencies, and the criminals. You would have us all on our knees and at the mercy of the judgement of others.

He looks to these people for advice on gun laws


http://www.strangepolitics.com/images/content/10663.jpg

[Jagger]

Blah blah blah blah...

Why don't you just say it, you don't want any private citizen to own a gun. You wish to disarm all law abiding citizens in the United States leaving guns in the hands of the government controlled military, the government controlled law enforcement agencies, and the criminals. You would have us all on our knees and at the mercy of the judgement of others.

Why don't you just say you like pinko commie judicial activists like Scalia legislating from the bench?

[Jagger]

Activist Judges Use Old Foreign Law To Interpret U. S. Constitution



"‘It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’ ” J. Bishop, Commentaries on Written Laws and Their Interpretation §51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165 (K. B. 1802)).

--D. C. v. Heller

Did anyone notice that Rex v. Marks was an English case? The five judicial activist are using very old foreign law to interpret the U. S. Constitution.

[Little-Acorn]

Relax, RSR and Hjmick. "Jagger" will obviously do anything he can to try to discredit the Heller opinion, including splitting the tiniest, most irrelevant hairs he can dig up and hoping somebody takes him seriously.

Ignore him and he'll eventually go away.

Please.

[Jagger]

The five judicial activists comprising the majority in D. C. v. Heller chose to apply the rule established by the Court of the Kings Bench in the case of Rex v. Marks (1802), for no reason other than it would produce the results they personally desired.

What makes Joel Prentiss Bishop an authority on which rules of construction should be applied to the U. S. Constitution?

Why isn't the Sprague Court still the authority on which rules of interpretation should apply to the Constitution?

Why aren't Tiffany, Volokh, Dwarris or Sedgwick still the authority on the proper use of preambles in Constitutional interpretation?

So far, the five little activists have, with regard to the rules of construction, switched authorities six times. The five activists are obviously cherry picking. They are choosing to apply only those rules of construction that will produce the outcome they personally desire.

The well established common law rules of construction existent at the time the Constitution was being made, are the rules that should be applied to the Constitution. Those rules are found in Blackstone's Commentaries, which was probably the only source of information about English common law the lawmakers had access to as the Constitution was being made.

[Jagger]

Here's Alexander Hamilton saying that the intention of the lawmakers should be ascertained by applying the well established common law rules of construction to the U. S. Constitution.



Whatever may have been the intention of the framers of a constitution, or of a law. that intention is to be sought for in the instrument itself, according to the usual and established rules of construction.

--Alexander Hamilton on whether the Constitution grants Congress power to establish a national bank

[red states rule]

Relax, RSR and Hjmick. "Jagger" will obviously do anything he can to try to discredit the Heller opinion, including splitting the tiniest, most irrelevant hairs he can dig up and hoping somebody takes him seriously.

Ignore him and he'll eventually go away.

Please.

Given the reaction of the left to this decison, it was the right call

[Jagger]

Given the reaction of the left to this decision, it was the right call What reaction of the left?

[Rick OShea]

[CENTER]Justice Scalia’s Methodology Of Constitutional Interpretation Is Just An Excuse For His Judicial Activism

>SNIP<

Since you have abandoned the other thread I guess I will just bring over my rebuttal to your "Scalia is an activist" copy and paste.

He goes . . .


Jagger, there were not 5 "activist" Justices there were nine :laugh2: . . . The dissents agree with the majority that the right protected by the 2nd is an individual right. On that single point the opinion of the Court was unanimous; Breyer's dissent at pg 3 says:


"I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:

(1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (STEVENS, J., dissenting). . . . "

The disagreement between the majority and the dissents lies in the scope of the protection of that right. The liberal side of the Court just thought the DC statute was a legitimate exercise of power using a new standard of scrutiny . . .

It was the dissent that is breaking new ground in constitutional interpretation, not the majority!

Instead of pushing this strained "Scalia is an activist violating the rules of interpretation," why don't you tell all of us why the individual right secured by the 2nd is of such a diminished status that it requires the application of this special lower standard of scrutiny proposed by the liberal Justices.

Explain why the individual right to arms is of a lower class than the rest of the rights protected by the Bill of Rights (remaining consistent with your iron-clad rules of constitutional interpretation of course).

Looking forward to your reasoned and logical reply.

[Jagger]

Rick OShea
Jagger, there were not 5 "activist" Justices there were nine . . . The dissents agree with the majority that the right protected by the 2nd is an individual right.
Explain to me why it was judicial activism for the court to says the right to keep and bear arms was an individual right.


The disagreement between the majority and the dissents lies in the scope of the protection of that right.
I agree.


The liberal side of the Court just thought the DC statute was a legitimate exercise of power using a new standard of scrutiny . . .
What new standard?


It was the dissent that is breaking new ground in constitutional interpretation, What new ground was broken?


Instead of pushing this strained "Scalia is an activist violating the rules of interpretation," why don't you tell all of us why the individual right secured by the 2nd is of such a diminished status that it requires the application of this special lower standard of scrutiny proposed by the liberal Justices.

Explain why the individual right to arms is of a lower class than the rest of the rights protected by the Bill of Rights (remaining consistent with your iron-clad rules of constitutional interpretation of course).

The provisions in the first ten amendments guarding the other rights, are not preceded by a "proem" that must, according to the common law rules of construction, be "made to conspire" with the second clause "to some common end."

I interpret the rule of construction to mean that the first clause of the Amendment must work together with the second clause to the common end of the security of a free state.

First, we must ascertain the meaning of the phrase "security of the free state." Let's start by ascertaining the meaning of the word "state."

One meaning is "a politically organized body of people usually occupying a definite territory, especially one that is sovereign. Another meaning is "the political organization of such a body of people." A third is "a government or politically organized society."

To be continued.....

[Rick OShea]

Explain to me why it was judicial activism for the court to says the right to keep and bear arms was an individual right.
Obviously, with the vigor that you have articulated your disagreement with Scalia's constitutional interpretation, one would surmise that you disagree with the majority's decision (that the DC statutes were unconstitutional under the 2nd).

I must admit I was surmising a position for you because you have been unclear in explaining what the decision should be - using your rules of interpretation.

I assumed that with you desiring that the "first half" of the 2nd be applied with some impact upon the right, you were standing in the "state's right" or "collective right" camp. I assumed that your application of the "activist" label to Scalia (and the majority) was because they dismissed the declaratory clause's "action" and "demand" upon the right secured by the 2nd. Thus, I took your position to be one fundamentally at odds with the individual right interpretation of the 2nd Amendment.

So, saying five Justices were activist (when all nine said the right protected was an individual right) - means four were not activist. . . So I ask, why not, how did the dissent's interpretation align with "the accepted rules of constitutional interpretation?"


What new standard?
Well, up to now either "intermediate scrutiny" or "rational relation" has been the constitutional standard applied to laws contested on RKBA grounds. The dissent wants 2nd Amendment / RKBA cases decided on an "interest balancing" standard whereupon conditions unrelated to the examination of the fundamental legitimacy of the legislature to act are considered (see pgs 9 - 11 of Breyer's dissent and pgs 62 & 63 of the majority opinion in rebuttal).


What new ground was broken?
Scalia argues that such an "interest balancing" standard has never been applied to an enumerated right:


"The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad."

On the other hand, Breyer argues that applying strong standards of scrutiny to gun control laws would not be workable because:


" . . . almost every gun-control regulation will seek to advance (as the one here does) a primary concern of every government—a concern for the safety and indeed the lives of its citizens.”

So Breyer promotes his "interest balancing" standard which inherently assumes certain conditions, Breyer states:

"In applying this kind of standard the Court normally defers to a legislature’s empirical judgment in matters where a legislature is likely to have greater expertise and greater institutional factfinding capacity"

That's fine for technical regulations or the tax code but daaaUM, is that standard appropriate for an enumerated right?

According to Breyer it should be assumed that legislatures have "empirical judgment" and "greater expertise" in knowing the limits of their legitimate powers as they relate to rights. Thankfully that belief did not prevail in Heller. One shudders contemplating the reach of the next "Patriot Act" if this standard is extended to other enumerated rights. And that line of thinking brings us to revisit my transplanted question in my first post in this thread.


Explain why the individual right to arms is of a lower class than the rest of the rights protected by the Bill of Rights (remaining consistent with your iron-clad rules of constitutional interpretation of course).

So yes, it is a new standard (as applied to enumerated rights) that expands the power of government without redress; it steps even further toward assuming every law's legitimacy (well, if the legislature thought it was a good idea it must be, they know more than us) than the present insult to liberty "rational relation" test used now.


The provisions in the first ten amendments guarding the other rights, are not preceded by a "proem" that must, according to the common law rules of construction, be "made to conspire" with the second clause "to some common end."
The Amendment's declaratory clause states why the amendment exists. The declaratory clause does not spek to the right to arms, only why the right is secured . . . The individual citizen's right to arms and the 2nd Amendment are two completely separate entities.

Remember, the 2nd Amendment has but one action, to bind the federal government. Do you view the Amendment as a permission slip for the citizen and that the right is meted out in only the precise droplets that can be squeezed from the wording of the amendment? If so you are fundamentally wrong.

SCOTUS has stated repeatedly that the citizen's right to arms is not granted by the 2nd and does not emanate from the Amendment merely recognizing and securing the right.

That truth presents us with a question directly related to the rules of constitutional interpretation:

Since the right does not depend in any way upon the words chosen to secure it, how can the words then be "interpreted" to constrict, condition or qualify the right? (which again I am surmising you believe to be the correct path and what you in fact wish to do)


I interpret the rule of construction to mean that the first clause of the Amendment must work together with the second clause to the common end of the security of a free state.
It does, perfectly.


First, we must ascertain the meaning of the phrase "security of the free state." Let's start by ascertaining the meaning of the word "state." . . .
You are welcome to undertake any inspection of lexicon or linguistic usage you desire but to argue that the words chosen to be used in the Amendment somehow condition or qualify the right is illegitimate however.


To be continued.....
I'll be checking back . . .

[Jagger]

The Second Amendment is extremely ambiguous. Especial when the rules of construction require that,


...every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end...where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.

-- James Madison; Federalist No. 40

In Federalists No. 40, James Madison wrested with the problem that the goal of achieving a NATIONAL and ADEQUATE GOVERNMENT couldn't be achieved by means of mere ALTERATIONS and PROVISIONS in the ARTICLES OF CONFEDERATION. The means was insufficient to achieve the goal. Therefore, Madison sacrificed the means to the more important goal and expanded the means enough to achieve the goal.

In the case of the Second Amendment, the means to achieving the goal of "a well regulated militia" - "the right of the people to keep and bear arms" -, exceeds, rather than falls short of providing, a means to achieving "a well regulated militia."

The issue is whether the means to achieving "a well regulated militia" should be scaled back, in the name of public safety, to what is necessary to achieve "a well regulated militia."

[Jagger]

...the following seems to be defective : — " 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."* A militia is "the body of soldiers in a state enrolled for discipline, but not engaged in actual service, except in emergencies, as distinguished from regular troops, whose sole occupation is war or military service.""}" Is the keeping and bearing of arms by the citizens in the militia while attending their military services, all that is not to be infringed ? Or are they at liberty to keep and bear arms when, and where, and how they will? If the latter, what has the militia to do with the question? The militia would not be one whit better regulated from the circumstance of the citizens keeping and bearing arms off duty. From the above rationale, a law that " the citizens, at the command of the magistrate, shall wear weapons and serve in the wars," might have been as justly inferred.

--Samuel Higgs Gael (1840); A Practical Treatise on the Analogy Between Legal and General Composition

[Rick OShea]

The Second Amendment is extremely ambiguous.

Only to those that wish to ignore the fundamental principles of this nation and to dismiss the plain directives of the Supreme Court (without even looking at Heller).

You are nothing but a cut-n-paste troll; you can not debate this issue; all you have are your mindless boilerplate statements that you robotically post. It is clear I am wasting my time trying to debate you with philosophical, historical and legal theories.

So I say goodbye to you worthless troll. Maybe next semester your leftist ConLaw professor will drop another turd down your throat for you to regurgitate repeatedly on the boards.

What an f'n waste of bandwidth you are . . .

Here is one afternoon's cyber diarrhea from our Rolling Stones fan . . .

08/20/08 1:31pm -- http://www.ronpaulforums.com/showthread.php?t=117524
08/20/08 2:27pm -- http://forums.officer.com/forums/showpost.php?p=1378024&postcount=12
08/20/08 2:30pm -- http://iidb.infidels.org/vbb/showthread.php?p=5512187#post5512187
08/20/08 2:55pm -- http://forums.pcper.com/showthread.php?t=456217&page=11
08/20/08 3:18pm -- http://www.nvnews.net/vbulletin/showpost.php?p=1751350&postcount=71
08/20/08 3:25pm -- http://intjforum.com/showpost.php?p=177128&postcount=12
And finally here:
08/20/08 3:40pm -- http://www.debatepolicy.com/showthread.php?t=15488&page=7

[Jagger]

Obviously, with the vigor that you have articulated your disagreement with Scalia's constitutional interpretation, one would surmise that you disagree with the majority's decision (that the DC statutes were unconstitutional under the 2nd).

I believe the law established by the activists in D. C. v Heller, including the law it attempted to establish with dicta, is reasonable public policy that generally squares with my personal views on individual weapon ownership. However, I also believe the Court took the wrong road to get to that policy.

I have not yet formed a final opinion on whether the law established by the activists in Heller would have been the same as if it had applied what I believe to be the most reasonable method of Constitutional interpretation.


I must admit I was surmising a position for you because you have been unclear in explaining what the decision should be - using your rules of interpretation.

I have not yet formed a final opinion on whether the law established by the activists in Heller would have been the same as if it had applied what I believe to be the most reasonable method of interpretation.

I didn't make the rules of construction. They were as, Alexander Hamilton wrote in the Federalist Papers, made "...by the courts in the construction of the laws."


I assumed that with you desiring that the "first half" of the 2nd be applied with some impact upon the right, you were standing in the "state's right" or "collective right" camp.

A that does is put me in the "rules of construction" camp with James Madison who wrote in the Federalist Papers that,


There are two rules of construction, dictated by plain reason, as well as founded on legal axioms. The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.



I assumed that your application of the "activist" label to Scalia (and the majority) was because they dismissed the declaratory clause's "action" and "demand" upon the right secured by the 2nd. Thus, I took your position to be one fundamentally at odds with the individual right interpretation of the 2nd Amendment. I branded Scalia as an activist because I believe he allowed his personal views on the issue of individual gun ownership to influence his interpretation of the Constitution, not because of the meaning he assigned to the Second Amendment. I have not yet formed an opinion on whether he got the meaning right by taking the wrong road.

[Jagger]

The Amendment's declaratory clause states why the amendment exists. That does appear to be the case, my wise, learned and observant friend.


The declaratory clause does not speak to the right to arms, only why the right is secured . . .
Did you apply an objective method of interpretation to the text of the Amendment to ascertain that the "declaratory clause does not speak to the right to arms", or did you just decide that based on your personal views regarding individuals having fire arms?


The individual citizen's right to arms and the 2nd Amendment are two completely separate entities. What does that mean?


Remember, the 2nd Amendment has but one action, to bind the federal government. Is there a general rule of interpretation regarding "the reason and spirit of the law", or did you invoke it just to get an outcome that conspires with your personal views?

[red states rule]

http://www.scottbieser.com/images/Sept11_c540.jpg

[Jagger]

Do you view the Amendment as a permission slip for the citizen and that the right is meted out in only the precise droplets that can be squeezed from the wording of the amendment? If so you are fundamentally wrong.
I view the Amendment as a part of a legal instrument to be construed according to the time honored well established common law method of interpretation existent at the time the Constitution was made.


SCOTUS has stated repeatedly that the citizen's right to arms is not granted by the 2nd and does not emanate from the Amendment merely recognizing and securing the right. That's nice, but I don't see where the Amendment actually says that.

[Jagger]

...the right does not depend in any way upon the words chosen to secure it...
Huh? I don't follow you. :confused:

[Jagger]

how can the words then be "interpreted" to constrict, condition or qualify the right? By applying the same two rues of construction James Madison applied in Federalist No. 40 to expand the authority of the general convention, held in Philadelphia in 1787, to allow it to frame a new Constitution.

[Jagger]

...to argue that the words chosen to be used in the Amendment somehow condition or qualify the right is illegitimate however. You're really going to piss James Madison off, if you keep talking like that...

[midcan5]

The Most Mysterious Right by Cass R. Sunstein

“To understand the problem, we must begin with the text of the Second Amendment: “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.”"

“In 1991, Warren E. Burger, the conservative chief justice of the Supreme Court, was interviewed on the MacNeil/Lehrer NewsHour about the meaning of the Second Amendment’s “right to keep and bear arms.” Burger answered that the Second Amendment “has been the subject of one of the greatest pieces of fraud– I repeat the word ‘fraud’–on the American public by special interest groups that I have ever seen in my lifetime.” In a speech in 1992, Burger declared that “the Second Amendment doesn’t guarantee the right to have firearms at all. ” In his view, the purpose of the Second Amendment was “to ensure that the ’state armies’–’the militia’–would be maintained for the defense of the state.”

It is impossible to understand the current Second Amendment debate without lingering over Burger’s words. Burger was a cautious person as well as a conservative judge, and the chief justice of the Supreme Court is unlikely to offer a controversial position on a constitutional question in an interview on national television.”

http://www.tnr.com/politics/story.html?id=e8997807-107b-461f-90d2-51a3ef91b508



"I went up there, I said, "Shrink, I want to kill. I mean, I wanna, I
wanna kill. Kill. I wanna, I wanna see, I wanna see blood and gore and
guts and veins in my teeth. Eat dead burnt bodies. I mean kill, Kill,
KILL, KILL." And I started jumpin up and down yelling, "KILL, KILL," and
he started jumpin up and down with me and we was both jumping up and down
yelling, "KILL, KILL." And the sargent came over, pinned a medal on me,
sent me down the hall, said, "You're our boy.""

LYRICS - Alice's Restaurant

[Rick OShea]

Oh what the heck, you have some easily destroyed statements here and I've got a few free minutes . . .



The Amendment's declaratory clause states why the amendment exists.
That does appear to be the case, my wise, learned and observant friend.
Well it is a distinction that should be made and understood by all. I encounter so many ignorant people on these boards that believe the Amendment's declaratory clause states why the RIGHT exists and erroneously claim that the declaratory clause somehow "controls" or "directs" the right to keep and bear arms. So, I think it is a good distinction to be made early on in the discussion; and I'm glad you agree with it . . .


Did you apply an objective method of interpretation to the text of the Amendment to ascertain that the "declaratory clause does not speak to the right to arms", or did you just decide that based on your personal views regarding individuals having fire arms?
You are arguing your position as if the 2nd Amendment has never before been examined by SCOTUS . . . Your interpretive rules must be applied in conformity to and subordinate to that which has already been decided. My statement conforms with those earlier decisions and the fundamental principles upon which the 2nd rests.

The 2nd Amendment's declaratory clause, "A well regulated Militia, being necessary to the security of a free State, . . . " is a simple absolute phrase; can you show me where the right to arms is discussed, mentioned, contemplated or an any way alluded to?



The individual citizen's right to arms and the 2nd Amendment are two completely separate entities. What does that mean?
Well, let's put it this way . . . If you were to hold a constitutional convention and have the 2nd Amendment stricken from the US Constitution, the right of the citizen to keep and bear arms would continue on without a hiccup.

The right to arms is not dependent in any way upon the Constitution for its existence; thus, the right to arms and the 2nd Amendment are two separate and distinct entities . . . To aid in understanding this concept of pre-existing rights perhaps this would be a great time for you to read Cruikshank (http://supreme.justia.com/us/92/542/case.html) (focus on pgs 551 - 553) and Presser (http://supreme.justia.com/us/116/252/case.html) (focus on pg 265).

After you read them please return with your modified argument and we will begin anew . . .



Remember, the 2nd Amendment has but one action, to bind the federal government.Is there a general rule of interpretation regarding "the reason and spirit of the law", or did you invoke it just to get an outcome that conspires with your personal views?
I'm just repeating what the Supreme Court has already ruled regarding the 2nd Amendment and its action . . . As I suggested, acquaint yourself with what is already settled ground regarding the RKBA and the 2nd Amendment before you go poking around with your dull shovel . . .



SCOTUS has stated repeatedly that the citizen's right to arms is not granted by the 2nd and does not emanate from the Amendment merely recognizing and securing the right.That's nice, but I don't see where the Amendment actually says that.
Supporting those words is a foundation of principles that drive the interpretation. You are trying to take a dictionary and your rules and interpret something without of any understanding or appreciation of the principles upon which the provision rests. That's why you are failing so miserably and why you, "have not yet formed a final opinion" on the meaning of that which you are debating . . .

Since you like the Federalist so much it is interesting to read what they thought of adding a bill of rights; let's read what Hamilton said in 84:


"I . . . affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power."

Can you comprehend the principle at work here? Our Constitution was such a radical instrument because the fundamental principle was that the powers of the government were strictly limited only extending to that which was specifically granted. Since no power was ever granted to government to injure the rights of the citizen our rights were safe! Why declare that non-existent powers can not be exercised?

The Bill of Rights, including the 2nd Amendment, is a redundancy, prohibiting the exercise of powers which the federal government does not possess!

Also note that Hamilton is warning us of exactly what you are promoting. No matter what words are chosen in the provision merely securing the right and even though those words were never meant to permit any regulating power, the fluidity of words can furnish a plausible pretense for claiming that power.

You Jagger are a "usurper," precisely what Hamilton feared. You claim the "ambiguity" of the words necessitates defining them divorced of any philosophical context and that can lead to only one thing; the injury of rights.

What you fail to grasp (or purposely ignore) is that the right is not dependent upon the words . . . interpret all you want . . . the right will not be modified by modern reconstruction or perversion of the provision.



the right does not depend in any way upon the words chosen to secure it,Huh? I don't follow you. :confused:


The right there specified is that of bearing arms for a lawful purpose. This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, . . . "

U S v. CRUIKSHANK 92 U.S. 542 (1875)

Have those five sentences ever been projected on your retinas before?

Just keep reading them for a while, ask yourself, what is the "it" the court speaks of; allow it all to sink in . . .

[Rick OShea]

“In 1991, Warren E. Burger,

>>>SNIP<<<

It is impossible to understand the current Second Amendment debate without lingering over Burger’s words.

Well, Warren Burger is a anti-gun kook . . .

By 1991 he'd been a paid puppet of Handgun Control Inc. for years and was still basking in the accolades from the left for his Parade Magazine article (Jan. 14, 1990). In that article he began his 2nd career of trashing the 2nd Amendment.

While on the Supreme Court Chief Justice Warren Burger never wrote a word about the Second Amendment. The actual Parade Article has such incredible legal and philosophical contradictions in it it can only be read as evidence of Berger's dementia.

He claims that there is an unquestioned right for Americans to defend their homes; he also says that, "the Constitution protects the right of hunters to own and keep sporting guns for hunting game," that no one could, "challenge the right to own and keep fishing rods and other equipment for fishing -- or to own automobiles."

Since he just created some new rights and the criteria for exercise I guess he is duty bound to declare their scope also. . . Burger goes on to tell us what types of guns are protected by the Constitution; "To keep and bear arms for hunting today is essentially a recreational activity and not an imperative of survival, as it was 200 years ago; 'Saturday night specials' and machine guns are not recreational weapons and surely are as much in need of regulation as motor vehicles."*

Burger asserts that these three unenumerated "Constitutional rights"--hunting, fishing, and buying cars--are so firmly guaranteed as to be beyond question yet no Supreme Court case has ever held any of these activities to be Constitutionally protected.

So, according to Berger, some unidentified part of the Constitution (but not the Second Amendment) guarantees a right to own guns for home defense and a right to own hunting guns. Some other section protects a right to fishing equipment and a right to buy automobiles but the Constitution does not guarantee the right to own inexpensive handguns.

OK, thanks Warren!

[Jagger]

Well it is a distinction that should be made and understood by all. I encounter so many ignorant people on these boards that believe the Amendment's declaratory clause states why the RIGHT exists and erroneously claim that the declaratory clause somehow "controls" or "directs" the right to keep and bear arms. So, I think it is a good distinction to be made early on in the discussion; and I'm glad you agree with it . . .

According to one of the rules of construction, the words of the introductory clause must be made to conspire with the other words of the Amendment to a common end. If that can't be done, the means (the right to keep and bear arms , if it ever conflicts with the the achievement of the "security of a free state," might have to be sacrificed to that end. Of course, the phrase "security of a free state" is a bitch to interpret, because it's so ambiguous.

According to another rule, "the proeme [preliminary comment]..is often called in to help the construction of an act."

According to another rule "the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason...of it...for when this reason ceases, the laws itself ought likewise to cease with it." Depending on the meaning of "well regulated militia", the reason for the right to keep and bear arms may have ceased. In which case, the right ought likewise to cease.

[Jagger]

Your interpretive rules must be applied in conformity to and subordinate to that which has already been decided.

If one is going to comply with the rules and principles of stare decisis and follow judge made law established in previous judicial opinions that construed the language, one doesn't revisit the original text of the Constitution, one visits, or revisits, the previous judicial opinions.

If there are no previous judicial opinions establishing the meaning of the language, or if the Court, or a portion thereof, doesn't feel obligated to respect the previous judicial decisions, and instead chooses to revisit the original text of the Constitution to ascertain the will of the lawmakers at the time they made the Constitution; The court should, in my humble opinion, apply the common law method of legal interpretation that was so well established established and so non controversial at the time the Constitution was made, , that the lawmakers simply took for granted that they applied to the U. S. Constitution.

[Jagger]

Here's is an item of historical evidence from the time when the Constitution was being made, that the well established common law rules of construction were taken for granted to apply the U. S. Constitution.




This article [of the U. S. Constitution] vests the courts with authority to give the constitution a legal construction, or to explain it according to the rules laid down for construing a law.

--Robert Yates on January 31, 1788 interpreting Article III of the Constitution.

[Nukeman]

Here's is an item of historical evidence from the time when the Constitution was being made, that the well established common law rules of construction were taken for granted to apply the U. S. Constitution.




This article [of the U. S. Constitution] vests the courts with authority to give the constitution a legal construction, or to explain it according to the rules laid down for construing a law.

--Robert Yates on January 31, 1788 interpreting Article III of the Constitution.

The funny thing that you are not seeing is the intent of the time. Do you honestly believe that the founding fathers of this great nation would want to limit what the citizenship is able to do to the government, after fighting for their freedom's they would place restictions right back in the constitution?

If you look at the wording of the state constitutions that came AFTER the federal constitution you will get a better understanding of the intent.

here is one simple example of the Indiana Constitution written shortly after. Notice how the language has been simplified and direct...


Sect. 20. That the people have a right to bear arms for the defence of themselves, and the state; and that the military shall be kept in strict subordination to the civil power.
.

That is the whole thing simple, to the point, and NO ROOM FOR INTERPRETATION........

I can continue to call up EVERY state formed after the writing of the constitution if you would like and we can review their wording as well.....

[Nukeman]

Here are a few more to go with the one from Indiana. YOU will note the simplification of the wording. This was done due to the "questioning of the federal constitution.....



Vermont

Article 16. [Right to bear arms; standing armies; military power subordinate to civil]
That the people have a right to bear arms for the defence of themselves and the State--and as standing armies in 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.

Tennessee

Section 26th That the free men of this State have a right to keep and to bear arms for their common defence

Ohio

§ 1.04 Bearing arms; standing armies; military powers (1851)
[ View Article Table of Contents ]
The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be kept up; and the military shall be in strict subordination to the civil power.

Mississippi

SECTION 12.
The right of every citizen to keep and bear arms in defense of his home, person, or property, or in aid of the civil power when thereto legally summoned, shall not be called in question, but the legislature may regulate or forbid carrying concealed weapons.

Illinois
SECTION 22. RIGHT TO ARMS
Subject only to the police power, the right of the
individual citizen to keep and bear arms shall not be
infringed.

It really doesn't get any simpler than that. The individuals living at the time had the same questions you have so in order to eliminate any further questions they simplified what the intent was......

If you can't understand this than there really is NO help for you. You can deconstruct and pick apart every word of the US Constitution to your hearts content, but you need to understand it was the INTENT not the wording..

[Jagger]

...you are not seeing is the intent of the time. I'm not trying to see the intent of the time, what ever that is. I'm trying to ascertain the meaning of the Constitution according to the well established common law rules of construction the lawmakers, judging from the evidence in Madison's Notes on the Constitutional Convention, the Federalist Papers, the Anti-Federalist Papers and the Debates and Proceedings of the State Ratifying Conventions took for granted would be applied to the Constitution to ascertain its meaning.

Are you familiar with the well established common law rules of construction as existed at the time the Constitution was made?

[Nukeman]

I'm not trying to see the intent of the time, what ever that is. ?

Are you really attempting to be this obtuse or does it come naturally?



I'm trying to ascertain the meaning of the Constitution according to the well established common law rules of construction the lawmakers, judging from the evidence in Madison's Notes on the Constitutional Convention, the Federalist Papers, the Anti-Federalist Papers and the Debates and Proceedings of the State Ratifying Conventions took for granted would be applied to the Constitution to ascertain its meaning.

Are you familiar with the well established common law rules of construction as existed at the time the Constitution was made I don't have an in depth knowledge of the rule of construction but I do know what it is.

YOU are failing to understand the intent of the framers of the constitution. YOU are willing to throw that out the window just so YOU can pick apart the meaning of a few words. YOU however have not given a valid argument as to WHY the states choose to use more common language to avoid this type of confusion!!!

[Jagger]

If you look at the wording of the state constitutions that came AFTER the federal constitution you will get a better understanding of the intent. Where did you get the silly idea that the meaning of the U. S. Constitution is supposed to be ascertained by substituting the words of one of the State Constitutions for the words the lawmakers actually put in the U. S. Constitution?

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[Jagger]

here is one simple example of the Indiana Constitution written shortly after. Notice how the language has been simplified and direct...

Quote:
Sect. 20. That the people have a right to bear arms for the defense of themselves, and the state; and that the military shall be kept in strict subordination to the civil power.
.
That is the whole thing simple, to the point, and NO ROOM FOR INTERPRETATION........

I can continue to call up EVERY state formed after the writing of the constitution if you would like and we can review their wording as well..... If the lawmakers who made the Second Amendment had wanted the people to have an unambiguous right to keep and bear arms for their self defense, they would have used unambiguous language such as was used by the lawmakers who made the Indiana Constitution.

However, the federal lawmakers didn't want the people to have an unambiguous right to keep and bear arms for their self defense. That's why they didn't use the language the Indiana lawmakers used. Instead the U. S. lawmakers said nothing whatsoever about self defense and then included a proem, that made the meaning of the Second Amendment dubious.

[Yurt]

If the lawmakers who made the Second Amendment had wanted the people to have an unambiguous right to keep and bear arms for their self defense, they would have used unambiguous language such as was used by the lawmakers who made the Indiana Constitution.

However, the federal lawmakers didn't want the people to have an unambiguous right to keep and bear arms for their self defense. That's why they didn't use the language the Indiana lawmakers used. Instead the U. S. lawmakers said nothing whatsoever about self defense and then included a proem, that made the meaning of the Second Amendment dubious.

how do you know, that to them, it was ambiguous?

[Nukeman]

Where did you get the silly idea that the meaning of the U. S. Constitution is supposed to be ascertained by substituting the words of one of the State Constitutions for the words the lawmakers actually put in the U. S. Constitution?



NOT just ONE of the states constitutions but damn near EVERYONE of them. So tell me why I should not infer from the wording of the states (that make up the U.S.A.) what the US constitution is MEANT to say.

You are soooo quick to refute what everyone is thinking just so you can use the "law of construction". The drafters of the Constitution were very learned men and as such would speak differently than the common citizen so when the sates drafted their constitutions they used a more common language BASED UPON THE FOUNDING FATHERS PRINCIPLES. Like I said before if you can not understand such a simple concept you are an idiot. Ohh you may have a lot of knowledge on the "law of construction" but you really are having a difficult time grasping something so simple..

[Jagger]

NOT just ONE of the states constitutions but damn near EVERYONE of them. So tell me why I should not infer from the wording of the states (that make up the U.S.A.) what the US constitution is MEANT to say.

You are soooo quick to refute what everyone is thinking just so you can use the "law of construction". The drafters of the Constitution were very learned men and as such would speak differently than the common citizen so when the sates drafted their constitutions they used a more common language BASED UPON THE FOUNDING FATHERS PRINCIPLES. Like I said before if you can not understand such a simple concept you are an idiot. Ohh you may have a lot of knowledge on the "law of construction" but you really are having a difficult time grasping something so simple..

Dude, if the federal lawmakers had wanted to be clear, they would have been clear like the State lawmakers were. You're forgetting, or perhaps you have not been made aware, that the Amendments were calculated to be ambiguous, deceptive, good for nothing and to do more harm than benefit.

************



You will find our Amendments to the Constitution calculated merely to amuse, or rather to deceive.

Source: Thomas Tudor Tucker to St. George Tucker, 2 October 1789, Roberts Autograph Collection, Haverford College, Haverford, Pennsylvania

************



With respect to amendments matters have turned out exactly as I apprehended from the extraordy doctrine of playing the after game: the lower house sent up amendments which held out a safeguard to personal liberty in a great many instances, but this disgusted the Senate, and though we made every exertion to save them, they are so mutilated & gutted that in fact they are good for nothing, & I believe as many others do, that they will do more harm than benefit:

Source: William Grayson to Patrick Henry, 29 September 1789, Patrick Henry Papers, DLC.

[Jagger]

how do you know, that to them, it was ambiguous? Because, all of the Amendments were calculated to be ambiguous. When it made the Amendments, Congress carefully culled the English language for words doubtful in their meaning



My third letter to you on the 14th. inst. will satisfy you how little is to be expected from Congress that shall be any ways satisfactory on the subject of Amendments.. . . The English language has been carefully culled to find words feeble in their Nature or doubtful in their meaning!Source: Richard Henry Lee to Patrick Henry, 27 September 1789, Miscellaneous Manuscripts, DLC.

[Jagger]

The second amendment is about the right of the people, as opposed to the states, or any other organization, to KEEP....and BEAR.....ARMS.... The object, the goal, the end sought to be achieved by the Second Amendment, as much as I hate to admit it, is "the security of the free state."

"The right...to keep and bear arms" is merely the means to the end of "a well regulated militia", which in turn is merely the means to the end of "the security of a free state. "

According to the rules of construction, the words must be made to conspire to a "common end", which means "the well regulated militia" must be made to conspire with the "right of the people" to achieve the common end of "the security of the free state."

Here we have a case of the means being more than is required to achieve the end. The only people who need to be able to keep and bear arms in order to achieve "the security of a free state" are the people of "a well regulated militia."

According to the rules of construction, if the words cannot be made to conspire, the means must be sacrificed to the more important end.

In the event that the "right of the people" conflicts with "the security of a free state", the means must be sacrificed to the end.

That concludes my lecture for the day.....

[Jagger]

Evidence that the founders didn't expect the members of the militia to provide their own arms
They expected the states to arm the militia



The town shall at the expense of the town, shall provide for, and furnish the militia with arms and equipment, which shall remain the property of the town.

--An act for regulating and governing the Militia of the Commonwealth of Massachusetts passed June 1793


Does this evidence totally destroy the theory that the members of the militia were supposed to provide their own arms?

[Mr. P]

Evidence that the founders didn't expect the members of the militia to provide their own arms
They expected the states to arm the militia



The town shall at the expense of the town, shall provide for, and furnish the militia with arms and equipment, which shall remain the property of the town.

--An act for regulating and governing the Militia of the Commonwealth of Massachusetts passed June 1793


Does this evidence totally destroy the theory that the members of the militia were supposed to provide their own arms?

:link: Please.