The Commonplace Second Amendment

[Bigfoot 88]

The Commonplace Second Amendment

Excellent article by Professor Volokh.

I find the appendix most enlightening, as it gives great insight into the common legal language of the time.

 

[Harshaw]

The Commonplace Second Amendment

Excellent article by Professor Volokh.

I find the appendix most enlightening, as it gives great insight into the common legal language of the time.

There are quite a few articles and compilations along these lines.

The idiot who wrote "The Privilege to Keep and Bear Arms" actually tried to use state Bills of Rights as "evidence" that it's a state's right only. 'Coz, you know, a bill of rights is where a state would place an enumeration of its OWN powers.

 

[VanceMack]

There are quite a few articles and compilations along these lines.

The idiot who wrote "The Privilege to Keep and Bear Arms" actually tried to use state Bills of Rights as "evidence" that it's a state's right only. 'Coz, you know, a bill of rights is where a state would place an enumeration of its OWN powers.

That's the part that floors me. People are so invested in what they WANT it to mean that they ignore the basic fundamental reality that it is the Second Amendment to the Constitution and part of the Bill of Rights specifically enumerating individual rights. The intent is undeniable; whether people like it or not is irrelevant.

 

[Harshaw]

That's the part that floors me. People are so invested in what they WANT it to mean that they ignore the basic fundamental reality that it is the Second Amendment to the Constitution and part of the Bill of Rights specifically enumerating individual rights. The intent is undeniable; whether people like it or not is irrelevant.

It makes even less sense (as an "argument") in a state constitution.

 

[wolfman24]

That's the part that floors me. People are so invested in what they WANT it to mean that they ignore the basic fundamental reality that it is the Second Amendment to the Constitution and part of the Bill of Rights specifically enumerating individual rights. The intent is undeniable; whether people like it or not is irrelevant.

Good job

 

[Bob N]

The following is from the writings of Professor Eugene Volokh:

I believe the justification clause may aid construction of the operative clause but may not trump the meaning of the operative clause: To the extent the operative clause is ambiguous, the justification clause may inform our interpretation of it, but the justification clause can't take away what the operative clause provides. And because we know that operative clauses may be at times broader and at times narrower than justification clauses, we should accept that the two clauses will sometimes point in different directions.

When considering the second amendment I not only believe that the justification clause aids in the construction of the operative clause, I most certainly believe that it completes it.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The justification clause identifies the subject of the sentence which is "militia"; the operative clause goes on to inform us who the militia are: "the people"; and what do the people get to do? Keep and bear arms, and that right shall not be infringed. Naturally infringing on the people to keep and bear arms would be totally absurd seeing that they are the militia and may need to respond with those arms immediately.

Professor Volokh is sort of looking at this as a sentence with an indirect clause (justification) and a direct one (operative). Take note of this sentence: Knowing that the customer must adhere to correct maintenance procedures, in order to keep a brand new car running correctly as well as safely, the company went about making an owner's manual so that the customer can enjoy many years of satisfaction of the purchase.

First the operative clause or direct one: the owner's manual will help the customer enjoy many years of satisfaction.

There is no way that you can trump that; however, when one takes the (justification) indirect clause in to consideration, then one can obtain more valuable information such as inside the manual is important information that the customer should use in order to bring about the customer's satisfaction. Note the clauses works in conjunction, complimenting one another in order to make a complete sentence.

Lets get back to the second amendment and the way the Professor holds an analogy to that second amendment and to Rhode Island's 1842 constitution. Here is Rhode Island's:

The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty...

Now once again the actual 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.

Taking the Rhode Island's justification clause and comparing it to the actual second amendment's justification clause one can discover four distinct important elements: Liberty, Press, for the Rhode Island and Militia, Regulated, for the second amendment. The framers of both must have felt that it was important enough to include both elements in their statements or they would not have included them. But also take notice that one that has the words liberty and press are quite separable to regulated and militia. Could one presume that the justification clause was not needed to figure out that the press be free in Rhode Island's statement? Possibly. Would we be left in a quandary if regulated was left out of militia? I think we would be; we would be left hanging in the air as to who is responsible for that militia. Is it self regulated? If so one would believe that our forefathers would have been educated enough to write that down for clarity.

Getting to the bottom of this post, I believe that gun ownership is a must for the people to be a working militia; however, that doesn't mean that the people do not have the right to regulate guns (going through the proper process.) when looking at the whole spectrum.

In conclusion, if there are any misconstrues on the second amendment perhaps it should be ratified to more present day standards. When one looks at the why of the second amendment, one can understand why our forefathers did what they did because the people were seen as the natural first responders to defense, but I personally believe that the militia was to be well regulated, or our forefathers would have left it out or made it to be more distinct to tell the people that it is either self regulated or will take orders from it's individual states.

 

[Harshaw]

The following is from the writings of Professor Eugene Volokh:

When considering the second amendment I not only believe that the justification clause aids in the construction of the operative clause, I most certainly believe that it completes it.



The justification clause identifies the subject of the sentence which is "militia"; the operative clause goes on to inform us who the militia are: "the people"; and what do the people get to do? Keep and bear arms, and that right shall not be infringed. Naturally infringing on the people to keep and bear arms would be totally absurd seeing that they are the militia and may need to respond with those arms immediately.

Professor Volokh is sort of looking at this as a sentence with an indirect clause (justification) and a direct one (operative). Take note of this sentence: Knowing that the customer must adhere to correct maintenance procedures, in order to keep a brand new car running correctly as well as safely, the company went about making an owner's manual so that the customer can enjoy many years of satisfaction of the purchase.

First the operative clause or direct one: the owner's manual will help the customer enjoy many years of satisfaction.

There is no way that you can trump that; however, when one takes the (justification) indirect clause in to consideration, then one can obtain more valuable information such as inside the manual is important information that the customer should use in order to bring about the customer's satisfaction. Note the clauses works in conjunction, complimenting one another in order to make a complete sentence.

Lets get back to the second amendment and the way the Professor holds an analogy to that second amendment and to Rhode Island's 1842 constitution. Here is Rhode Island's:



Now once again the actual second amendment:



Taking the Rhode Island's justification clause and comparing it to the actual second amendment's justification clause one can discover four distinct important elements: Liberty, Press, for the Rhode Island and Militia, Regulated, for the second amendment. The framers of both must have felt that it was important enough to include both elements in their statements or they would not have included them. But also take notice that one that has the words liberty and press are quite separable to regulated and militia. Could one presume that the justification clause was not needed to figure out that the press be free in Rhode Island's statement? Possibly. Would we be left in a quandary if regulated was left out of militia? I think we would be; we would be left hanging in the air as to who is responsible for that militia. Is it self regulated? If so one would believe that our forefathers would have been educated enough to write that down for clarity.

Getting to the bottom of this post, I believe that gun ownership is a must for the people to be a working militia; however, that doesn't mean that the people do not have the right to regulate guns (going through the proper process.) when looking at the whole spectrum.

In conclusion, if there are any misconstrues on the second amendment perhaps it should be ratified to more present day standards. When one looks at the why of the second amendment, one can understand why our forefathers did what they did because the people were seen as the natural first responders to defense, but I personally believe that the militia was to be well regulated, or our forefathers would have left it out or made it to be more distinct to tell the people that it is either self regulated or will take orders from it's individual states.

According to you, there's no distinction between the the People the Government, thus, under your theory, there's no need for a militia when the government has a military. According to you, it's all the same. And in fact, according to you, the right of the People to keep and bear arms means it's the government who may keep and bear the arms.

So, given that, nothing in this post makes a whole lot of sense.

 

[Bob N]

According to you, there's no distinction between the the People the Government, thus, under your theory, there's no need for a militia when the government has a military. According to you, it's all the same. And in fact, according to you, the right of the People to keep and bear arms means it's the government who may keep and bear the arms.

No. You said that is what I meant, not me. :shrug:

 

[Harshaw]

No. You said that is what I meant, not me. :shrug:

No, it's what you said:

Yes. The ones that the people (government) say are legal.

The People and the Government are not the same -- this the fundamental conceptual error you have.

If they were, there would be no need for a Bill of Rights, which goes on at lengths about the "rights of the People" as AGAINST the Government.

And if that weren't enough -- which it is, from a contextual point of view -- it's made crystal clear in the 10th Amendment:



Which mentions three distinct holders of power -- the United States Government, the State Governments, and the People.

This, of course, doesn't even address that the distinction between the People and the Government was well-understood, and assumed by the Framers. That's basic high school civics.

I'm sorry, but I suggest that you read the Preamble; they're one in the same.

 

[wolfman24]

The following is from the writings of Professor Eugene Volokh:

When considering the second amendment I not only believe that the justification clause aids in the construction of the operative clause, I most certainly believe that it completes it.



The justification clause identifies the subject of the sentence which is "militia"; the operative clause goes on to inform us who the militia are: "the people"; and what do the people get to do? Keep and bear arms, and that right shall not be infringed. Naturally infringing on the people to keep and bear arms would be totally absurd seeing that they are the militia and may need to respond with those arms immediately.

Professor Volokh is sort of looking at this as a sentence with an indirect clause (justification) and a direct one (operative). Take note of this sentence: Knowing that the customer must adhere to correct maintenance procedures, in order to keep a brand new car running correctly as well as safely, the company went about making an owner's manual so that the customer can enjoy many years of satisfaction of the purchase.

First the operative clause or direct one: the owner's manual will help the customer enjoy many years of satisfaction.

There is no way that you can trump that; however, when one takes the (justification) indirect clause in to consideration, then one can obtain more valuable information such as inside the manual is important information that the customer should use in order to bring about the customer's satisfaction. Note the clauses works in conjunction, complimenting one another in order to make a complete sentence.

Lets get back to the second amendment and the way the Professor holds an analogy to that second amendment and to Rhode Island's 1842 constitution. Here is Rhode Island's:



Now once again the actual second amendment:



Taking the Rhode Island's justification clause and comparing it to the actual second amendment's justification clause one can discover four distinct important elements: Liberty, Press, for the Rhode Island and Militia, Regulated, for the second amendment. The framers of both must have felt that it was important enough to include both elements in their statements or they would not have included them. But also take notice that one that has the words liberty and press are quite separable to regulated and militia. Could one presume that the justification clause was not needed to figure out that the press be free in Rhode Island's statement? Possibly. Would we be left in a quandary if regulated was left out of militia? I think we would be; we would be left hanging in the air as to who is responsible for that militia. Is it self regulated? If so one would believe that our forefathers would have been educated enough to write that down for clarity.

Getting to the bottom of this post, I believe that gun ownership is a must for the people to be a working militia; however, that doesn't mean that the people do not have the right to regulate guns (going through the proper process.) when looking at the whole spectrum.

In conclusion, if there are any misconstrues on the second amendment perhaps it should be ratified to more present day standards. When one looks at the why of the second amendment, one can understand why our forefathers did what they did because the people were seen as the natural first responders to defense, but I personally believe that the militia was to be well regulated, or our forefathers would have left it out or made it to be more distinct to tell the people that it is either self regulated or will take orders from it's individual states.

Is it not amazing how great minds think alike?

 

[ttwtt78640]

The following is from the writings of Professor Eugene Volokh:

When considering the second amendment I not only believe that the justification clause aids in the construction of the operative clause, I most certainly believe that it completes it.



The justification clause identifies the subject of the sentence which is "militia"; the operative clause goes on to inform us who the militia are: "the people"; and what do the people get to do? Keep and bear arms, and that right shall not be infringed. Naturally infringing on the people to keep and bear arms would be totally absurd seeing that they are the militia and may need to respond with those arms immediately.

Professor Volokh is sort of looking at this as a sentence with an indirect clause (justification) and a direct one (operative). Take note of this sentence: Knowing that the customer must adhere to correct maintenance procedures, in order to keep a brand new car running correctly as well as safely, the company went about making an owner's manual so that the customer can enjoy many years of satisfaction of the purchase.

First the operative clause or direct one: the owner's manual will help the customer enjoy many years of satisfaction.

There is no way that you can trump that; however, when one takes the (justification) indirect clause in to consideration, then one can obtain more valuable information such as inside the manual is important information that the customer should use in order to bring about the customer's satisfaction. Note the clauses works in conjunction, complimenting one another in order to make a complete sentence.

Lets get back to the second amendment and the way the Professor holds an analogy to that second amendment and to Rhode Island's 1842 constitution. Here is Rhode Island's:



Now once again the actual second amendment:



Taking the Rhode Island's justification clause and comparing it to the actual second amendment's justification clause one can discover four distinct important elements: Liberty, Press, for the Rhode Island and Militia, Regulated, for the second amendment. The framers of both must have felt that it was important enough to include both elements in their statements or they would not have included them. But also take notice that one that has the words liberty and press are quite separable to regulated and militia. Could one presume that the justification clause was not needed to figure out that the press be free in Rhode Island's statement? Possibly. Would we be left in a quandary if regulated was left out of militia? I think we would be; we would be left hanging in the air as to who is responsible for that militia. Is it self regulated? If so one would believe that our forefathers would have been educated enough to write that down for clarity.

Getting to the bottom of this post, I believe that gun ownership is a must for the people to be a working militia; however, that doesn't mean that the people do not have the right to regulate guns (going through the proper process.) when looking at the whole spectrum.

In conclusion, if there are any misconstrues on the second amendment perhaps it should be ratified to more present day standards. When one looks at the why of the second amendment, one can understand why our forefathers did what they did because the people were seen as the natural first responders to defense, but I personally believe that the militia was to be well regulated, or our forefathers would have left it out or made it to be more distinct to tell the people that it is either self regulated or will take orders from it's individual states.

Indeed, words have meaning especially those in legal documents.

well regualted: Meaning of the phrase "well-regulated"

Well regualted militia: Meaning of the words in the Second Amendment

A Well Regulated Militia?

http://www.lectlaw.com/files/gun01.htm

http://2ampd.net/Articles/Tremoglie/a_well-regulated_militia.htm

 

[Bob N]

No, it's what you said:

Harshaw: If it's not the people that made the government than who runs the government--machines? And we were under a whole set of different elements of an argument

 

[Harshaw]

Harshaw: If it's not the people that made the government than who runs the government--machines? And we were under a whole set of different elements of an argument

I didn't say there were no people in government -- exactly what I was referring to, I quoted above -- and these are the same circumstances of argument. I also took your argument further, to its logical implications.

You apparently want the People and the Government to be "one and the same" when it's convenient, but distinct when it's not.

 

[Bob N]

I didn't say there were no people in government -- exactly what I was referring to, I quoted above -- and these are the same circumstances of argument. I also took your argument further, to its logical implications.

You apparently want the People and the Government to be "one and the same" when it's convenient, but distinct when it's not.

Harshaw: we the American people made the Union. We are the only ones that get to make laws; we are the only ones that get to add or ratify amendments. I hope that you are not under the impression that the people from Red China are responsible for this do you?

 

[Harshaw]

Harshaw: we the American people made the Union. We are the only ones that get to make laws; we are the only ones that get to add or ratify amendments. I hope that you are not under the impression that the people from Red China are responsible for this do you?

Now you're back to saying the Government and the People are "one and the same." This is childish; make up your mind. I got it right -- you want that to be true when you like where it takes you, but deny it's what you mean when it goes someplace you don't like.

 

[Bob N]

Now you're back to saying the Government and the People are "one and the same." This is childish; make up your mind. I got it right -- you want that to be true when you like where it takes you, but deny it's what you mean when it goes someplace you don't like.

Actually I'm comfortable right where I am right now. Thanks! :funny

 

[SMTA]

Now you're back to saying the Government and the People are "one and the same." This is childish; make up your mind. I got it right -- you want that to be true when you like where it takes you, but deny it's what you mean when it goes someplace you don't like.

Dude! You are caught in a nasty merry-go-round that ain't 'gonna stop.

Jump for your own mental safety now!!!

 

[Harshaw]

Dude! You are caught in a nasty merry-go-round that ain't 'gonna stop.

Jump for your own mental safety now!!!

RLN is indeed showing himself to be a strong candidate for someone not to be bothered with.