13 October 2009

A Simple Second Amendment question and answer part II

I demonstrated how the Second Amendment should be interpreted in A Simple Second Amendment question and answer.

Again, we shall use this as our text for 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.

Now, I hear another question that why shouldn't we ignore the proeme/preamble "A well regulated militia being necessary to the security of a free State"? After all there are "scholarly" articles that suggest this position and it was the position taken by DC v. Heller?

OK, that leaves us with the right of the People to keep and bear arms shall not be infringed.

What exactly does that mean since we can't infer self-defence or resisting tyranny if the phrases aren't specifically mentioned.

Other than the method of statutory interpretation used by Blackstone that requires on use the proeme to help discern meaning, we have Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) which offers the guidance that:

Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all.

It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.

and

The subsequent part of the section is mere surplusage -- is entirely without meaning -- if such is to be the construction.


The above quotes are not in order as they appear in the decision, but placed in such a way as to educate modern minds.

You can't have a clause in the Constitution that is without meaning. Justice Stevens takes Scalia to task at pp 8-9 of his dissent for ignoring the canon of Marbury v. Madison. Of course, you could argue that the words require the proeme to be mere surplusage.

The claim that one can disreagard the proeme is essentially anachronistic. While several nineteenth-century treatises on interpretation support this devaluation of prefaces or prologues, orthodox late eighteenth-century learning, reflected by Blackstone among others, was that prefaces and prologues were pivotal to ascertaining meaning, and indeed that purpose clauses were largely outcome determinative respecting textual interpretation. But, I said that in part I of this Question.

The problem is how does one intepret the Second Amendment if we can't infer self-defence or resisting tyranny if the phrases aren't specifically mentioned?

I find it interesting that the apologists for Heller don't find the insertion of items not mentioned are inferred. It amazes me that more people aren't disturbed by that practise. It is completely against legal method and due process to infer something in a law that is not specifically mentioned. It is even more incorrect to ignore the language of a law in its interpretation solely on the basis that it is "inconvenient".

I find it even more disturbing that precedent was overturned without a solid legal basis.