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.

A Simple Second Amendment question and answer

In proper legal theory, one has to use the text of a law to determine its meaning. 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.

I picked this version because I don't want tiny minds making stupid comments about punctuation even though the four comma version might be better for the point I'm trying to make here. But we will use this version. Given the intellect of some people answering this, it is probably better to use smaller numbers (yes, and what comes after two????). After all, you give them 2+2 and they come up with 5.

Anyway, We are not going to discuss whether this is an individual, collective or civic right. We are going to analyse the sentence that is the Second Amendment. We will also look at it in light of what the Constitution says.

Why is there a "the right of the People to keep and bear arms" that "shall not be infringed" using the words above? What is the scope of this right?

If your answer is self-defence, then you are wrong since the phrase self-defence is not plainly written in the text. It is a common legal principle that one cannot infer something when it is not plainly written in the text. It is a principle of statutory interpretation that The express mention of one thing excludes all others, that is items not on the list are assumed not to be covered by the statute.

Again, Fighting government tyranny is not mentioned in the Second Amendment. Additionally, Fighting government tyranny makes no sense in light of Article III, Section iii. That means the insurrection theory is truly not supported by any serious constitutional scholarship. The concept of fighting government tyranny makes even less sense when you consider that Samuel Adams said, "Rebellion against a king may be pardoned, or lightly punished, but the man who dares to rebel against the laws of a republic ought to suffer death."

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

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

Someone said that the proeme could be read as starting with Because. Which means a better way of reading this is Because a well regulated militia is necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.

So, using the text above and the Constution, The right to "Keep and bear arms" has something to do with "a well regulated militia" since that is mentioned in the text of the Second Amendment and is a purpose tied to "providing for the common defence" which is a purpose stated in the Constitution. It has nothing to do with self-defence since nowhere in the text of the Second Amendment or the Constitution is the phrase "self-defence" present or even hinted at.

We will now turn to the universally accepted authority for legal interpretation at the time of the Constitution's adoption, William Blackstone:

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

Blackstone refers to this "when the reason ceases, the law ought to cease" principle several times in the Commentaries, which would seem to indicate that he considered it a fairly important interpretive principle. 2 Blackstone at *390-91 (discussing property interests in tame and domestic animals and noting "But here the reasons of the general rule cease, and 'cessante ratione cessat et ipsa lex' [The reason of the law ceasing, the law itself also ceases]"), 3 Blackstone at *219 (discussing the law of nuisance, and noting "But, where the reason ceases, the law also ceases with it : therefore it is no nuisance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water."), 4 Blackstone at *3 (noting that some aspects of Britain's criminal law "seem to want revision and amendment" and explaining that "These have chiefly arisen from too scrupulous an adherence to some rules of the antient common law, when the resons have ceased upon which those rules were founded . . . "), 4 Blackstone at *81 (discussing the law of treason, and noting that the "plain intention of this law is to guard the blood royal from any suspicion of bastardy, whereby the succession to the crown might be rendered dubious: and therefore, when this reason ceases, the law ceases with it . . ."), 4 Blackstone at *330 (discussing the plea of a former attainder, and noting "But to this general rule however, as to all others, there are some exceptions; wherein, cessante ratione, cessat et ipsa lex.").

Some of these seem to refer to common-law decision making, but he also applies this principle to statutes.

Which means that if the "cause/reason" for the Second Amendment was the "well-regulated militia", then it could be argued that when that reason ceased, the law ought likewise to cease with it.

I know I will have lost the simpler minded readers with the citations from Blackstone, but it is rather simple:

The right to keep and bear arms is tied to the militia since no other purpose is mentioned in the text. Additonally, if we look in the Constitution, we find that one of its stated purposes is to "provide for the common defence". So, it would seem far more likely that the right is in some way tied to a "well regulated militia" than some other purpose.

Of course, with my federalism and stare decisis posts, we can see that the supporters of an individual right don't mind playing fast and loose with the law. The scary bit is that there has become a cottage industry of "scholars" who have been foisting this theory on an unquestioning public. No one has asked "how can self-defence be comvered when it is not specifically mentioned? Isn't it a tenet of statutory interpretation that the express mention of one thing excludes all others?"

Also, you don't need to go beyond the text of the Constitution to find mention of the militia and Congress' power to "provide for organizing, arming, and disciplining the Militia". Again, nothing mentioned in the US Constution regarding personal defence. However, the language, which is within the Constitution might provide a clue as to the reason for "the right of the People to keep and bear arms". That purpose is to provide that congress continues its obligation to arm the militia according to Article I, Section 8, Clause 16.

One other point that shoots down the individual right interpretation is that there is quite a bit of commentary surrounding the adoption of the Constitution which point to concerns based upon article I, Section 8, clauses 15 & 16, not private purposes. The fact that private purposes were mentioned in various proposals only adds weight to the fact that they were not included in the text of the Second Amendment.

The express mention of one thing excludes all others, that is items not on the list are assumed not to be covered by the statute.

Using foreign law sources as precedent

In common law legal systems, a precedent, or authority is a legal case establishing a principle or rule that a court or other judicial body utilizes when deciding subsequent cases with similar issues or facts. There are two forms of precedent: Binding precedent and Persuasive precedent.

Binding precedent relies on the legal principle of stare decisis. A stare decisis means to stand by things decided. It ensures certainty and consistency in the application of law. Existing binding precedents from past cases are applied in principle to new situations by analogy.

Precedent that is not mandatory but which is useful or relevant is known as persuasive precedent (persuasive authority or advisory precedent). Persuasive precedent includes cases decided by lower courts, by peer or higher courts from other geographic jurisdictions, cases made in other parallel systems (for example, military courts, administrative courts, indigenous/tribal courts, State courts versus Federal courts in the United States), and in some exceptional circumstances, cases of other nations, treaties, world judicial bodies, etc.

In a case of first impression, courts often rely on persuasive precedent from courts in other jurisdictions that have previously dealt with similar issues. Persuasive precedent may become binding through the adoption of the persuasive precedent by a higher court.

Foreign law cannot be used as a holding or a precedent or to bind an outcome of a legal decision interpreting the Constitution except in extremely exceptional circumstances. That would be that the court had no precedent.

Courts should ban the citation of persuasive precedent from outside their jurisdiction, with two exceptions:

(1) cases where the foreign jurisdiction's law is the subject of the case, or
(2) instances where a litigant intends to ask the highest court of the jurisdiction to overturn binding precedent, and therefore needs to cite persuasive precedent to demonstrate a trend in other jurisdictions.

It is interesting that Scalia has been a vocal opponent of the practice of using foreign law sources as precedent. I guess he does whatever justifies his conclusion. Even if that means an incorrect application of the law, his supposed beliefs on judicial interpretation, or whatever else can be used to make a justification for his conclusion.

Was he trained by Jesuits?

The problem is that if one chooses to use a foreign source to enlighten a legal decision, then one must also see how the other jurisdiction has applied this source.

Where I am going with this is that I believe that the use of Blackstone implies that there is no relevant precedent in the US jurisdiction that will illuminate our understanding of the Second Amendment. This is, of course, wrong, but it is the assumption that Scalia takes.

You see there are articles out there which say that the holding would have been different if Scalia properly gave deference to Blackstone's method of legal interpretation. Especially since Blackstone knews about these forms of precedent and would have said that US v Miller was binding precedent.

But, Scalia is ignorant of the binding authority of prior precedent thus believing that there is no Second Amendment jurisprudence whatsoever.

Taking this as his point of view, he has chosen the English Bill of Rights and Blackstone as persuasive authority.

But, he shouldn't have limited himself there. He should have seen how other Common Law jurisdictions have applied the relevant text and the law of self-defence. That is the proper method for using persuasive authority: see how have other courts applied the law in question.

I mean, aren't British, Canadian, Australian, New Zealand and so forth Courts familiar with their law?

The problem is that Scalia glommed onto a phrase, a concept, but again shows his ignorance. He doesn't care what the other jurisdictions do with the law, he wants to justify his own untenable position.

The problem is that this also flies in his face as anyone familiar with firearms laws in other Common law jurisdictions knows. There is no right to a firearm.

Likewise, self-defence: Self-defence in English law is a complete defence to all levels of assault and can't be used to mitigate liability, say, from murder to manslaughter where a soldier or police officer acting in the course of his duty uses a greater degree of force than necessary for self-defence (compare the situation in some of the Australian states in Self-defence). Hence, self-defence is distinguishable from provocation which only applies to mitigate what would otherwise have been murder to manslaughter (i.e. provocation is not a complete defence).

Because of the completeness of the defence, Self-defence is interpreted in a relatively conservative way to avoid creating too generous a standard of justification. The more forgiving a defence, the greater the incentive for a cynical defendant to exploit it when planning the use of violence or in explaining matters after the event. Thus, although the jury in self-defence cases are entitled to take into account the physical characteristics of the defendant, that evidence has little probative value in deciding whether excessive force was actually used. The general common law principle is stated in Beckford v R (1988) 1 AC 130:

"A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. It must be reasonable."

Opinions can differ on what is a reasonable amount of force, but one thing is certain. The defendant does not have the right to decide how much force it is reasonable to use because the defendant would always believe he or she was acting reasonably and would never be guilty of any offence. It is for the jury, as ordinary members of the community, to decide the amount of force which would be reasonable to use in the circumstances of each case. It is relevant that the defendant was under pressure from an imminent attack and might not have had time to make entirely rational decisions, so the test must balance the objective standard of a reasonable person by attributing some of the subjective knowledge of the defendant, including his or her beliefs as to the surrounding circumstances, even if mistaken. However, even allowing for any mistakes made in a crisis, the amount of force must be proportionate and reasonable given the value of the interests being protected and the harm likely to be caused by use of force. The classic test comes from the Jamaican case of Palmer v The Queen, on appeal to the Privy Council in 1971:

"The defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. ...Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. ...It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have [to] avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence... If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."

How does that work in practise?

Tony Martin, a middle-aged farmer, was awakened one night by the sounds of burglars breaking into his isolated farmhouse in Norfolk, England. Fearing for his life, because he lived alone on his remote farm more than 30 minutes away from the nearest police station, Mr. Martin relied upon his shotgun for his safety. He fired on the burglars, killing one, and wounding a second.

Doesn't that Sound like a clear case of self-defence?

Sorry, but Tony Martin was sentenced to life in a British prison. On appeal, his sentence was later reduced to five years in prison. The government is so set against citizens using firearms to defend themselves that now it is fighting Martin’s early release from prison. Even though he’s been a model prisoner, government lawyers claim he represents a “threat to society.” Why? Because he refuses to admit he did anything wrong in defending his life and his property. Believe it or not, the government even argues burglars need to be protected from the people they attempt to rob.

The government is not completely without a heart, however. The wounded robber was granted £5,000 to assist him in suing Martin for damages. The robber, who has multiple convictions and has never held a steady job, claims that his injuries keep him from working.

Not an aberation: there is also Padraig Nally in Ireland.

Using examples such as those, Scalia should have found that not only was DC's law Constitutional--it didn't go far enough.

A Blackstone timeline

--Commentaries were first published between 1765 and 1769 in Oxford, England.

1765
March 22 The Stamp Act
March 24 The Quartering Act of 1765
May 29 Patrick Henry's "If This Be Treason" speech
May 30 The Virginia Stamp Act Resolutions
Oct. 7-25 The Stamp Act Congress
1766
March 18 The Declaratory Act
1767
June 29 The Townshend Revenue Act
1768
August 1 Boston Non-Importation Agreement
1770
March 5 The Boston Massacre

1771
--Commentaries on the Laws of England first issued in an American edition.

1773
May 10 The Tea Act
Dec. 16 The Boston Tea Party
1774
March 31 Boston Port Act, one of the "Intolerable Acts"
May 20 Administration of Justice Act, one of the "Intolerable Acts"
May 20 Massachusetts Government Act, one of the "Intolerable Acts"
June 2 Quartering Act of 1774, one of the "Intolerable Acts"
June 22 Quebec Act, one of the "Intolerable Acts"
Sept. 5-Oct. 26 The First Continental Congress meets in Philadelphia and issues Declaration and Resolves
Oct. 10 Battle of Point Pleasant, Virginia (disputed as to whether it was a battle of the American Revolution or the culmination of Lord Dunmore's War)
Oct. 20 The Association (prohibition of trade with Great Britain)

1775
Apr. 18 The Rides of Paul Revere and William Dawes
Apr. 19 Minutemen and redcoats clash at Lexington and Concord "The shot heard 'round the world."
May 10 Ethan Allen and the Green Mountain Boys seize Fort Ticonderoga
May 10 The Second Continental Congress meets in Philadelphia
June 15 George Washington named Commander in Chief
June 17 Battle of Bunker Hill: The British drive the Americans from Breed's Hill
July 3 Washington assumes command of the Continental Army
1776
Jan. 15 Paine's "Common Sense" published
March 17 The British evacuate Boston; British Navy moves to Halifax, Canada
June 12 The Virginia Declaration of Rights
June 29 The First Virginia Constitution
June 28 Patriots decisively defeat the British Navy at Fort Moultrie, South Carolina
July 1-4 Congress debates and revises the Declaration of Independence. See Chronology of the Declaration
July 4 Congress adopts the Declaration of Independence; it's sent to the printer
July 8 The Declaration of Independence is read publicly

The Articles of Confederation and Perpetual Union, commonly referred to as the Articles of Confederation, was the first constitution of the thirteen United States of America. The Second Continental Congress appointed a committee to draft the 'Articles' in June 1776 and proposed the draft to the States for ratification in November 1777. The ratification process was completed in March 1781, legally federating the sovereign and independent states, allied under the Articles of Association, into a new federation styled the "United States of America". Under the Articles the states retained sovereignty over all governmental functions not specifically relinquished to the central government.

1780
--Sir William Blackstone dies on 14 February 1780

1781
Jan. 1 Mutiny of unpaid Pennsylvania soldiers
Sept. 15 French fleet drives British naval force from Chesapeake Bay
Oct. 19 Cornwallis surrounded on land and sea by Americans and French and surrenders at Yorktown, VA

1782
Nov. 30 British and Americans sign preliminary Articles of Peace

1783
April 19 Congress ratifies preliminary peace treaty

The Treaty of Paris (1783), which ended hostilities with Great Britain, languished in Congress for months because state representatives failed to attend sessions of the national legislature. Yet Congress had no power to enforce attendance under the Articles of Confederation.

Sept. 3 The United States and Great Britain sign the Treaty of Paris officially ending the War of American Independence (AKA American Revolution)
Nov. 25 British troops leave New York City
Dec. 23 Washington resigns as Commander

1786
September--Commissioners from five states met in the Annapolis Convention to discuss adjustments to the Articles of Confederation that would improve commerce.

1787
May 25 to September 17, 1787: delegates from 12 states met in Philadelphia, Pennsylvania, to address problems in governing the United States of America, which had been operating under the Articles of Confederation following independence from Great Britain. Although the Convention was purportedly intended only to revise the Articles of Confederation, the intention of many of its proponents, chief among them James Madison and Alexander Hamilton, was from the outset to create a new government rather than "fix" the existing one. The delegates elected George Washington to preside over the convention. The result of the Convention was the United States Constitution.
September 20, 1787 The proposed Constitution is read in Congress
September 26, 1787 Congress takes up debate on the proposed Constitution
September 28, 1787 Congress refers the proposed Constitution to the states
December 7, 1787 Constitution is ratified by the first state – Delaware

1788
August 2, 1788 First North Carolina convention refuses to ratify Constitution without amendments

1789
March 4, 1789 First United States Congress is seated
September 26, 1789 Congress sends twelve amendments to the Constitution to the states for ratification. The last ten were eventually enacted as the Bill of Rights.

1791
December 15, 1791 Bill of Rights comes into force on ratification by Virginia

Get my point?

No?

Then to clarify it for you. When Blackstone died, the Colonies were still colonies with the War for Independence raging on, The Treaty of Paris was 3 years in the future, there were the Articles of Confederation, but no US Constitution. Wouldn't be for another 7 years. The Bill of Rights was 9 years in the future and wasn't in effect for another 11 years. How could he have known about the Second Amendment, let alone the Constitution unless he was psychic.

For all Blackstone knew, the Colonies could repent their ways and become good little colonies again (there's still hope).

BUT BLACKSTONE KNEW DICK ABOUT THE US CONSTITUION OR BILL OF RIGHTS

This should be pretty clear, but I think some people don't understand it...

Constitutions, or charters, are documents which set forth the structure and rules of governance. These entities ruled by constitutions can be countries or "artificial persons" (that is corporations, trusts, Companies, Unincorporated institutions, Partnerships, and so on).

That said, the US Constitution is a separate thing from the British Constution. Well, the British Constution isn't really a document, but a set of laws. That is constitutional statutes enacted by the Parliament (E.G, House of Commons Disqualification Act 1975, Northern Ireland Act 1998, Scotland Act 1998, Government of Wales Act 1998, European Communities Act 1972 and Human Rights Act 1998) and also unwritten sources such as constitutional conventions, observation of precedents, royal prerogatives, custom and tradition, such as always holding the General Election on Thursdays.

There is no difference in legal terms between constitutional law and statutory law (i.e. law applying to any area of governance) in the English system. Both can be altered or repealed by a simple majority in Parliament. In practice, democratic governments do not use this opportunity to abolish all civil rights, which in theory they could do, but the distinction between regular and constitutional law is still somewhat arbitrary, usually depending on the traditional devotion of popular opinion to historical principles embodied in important past legislation. For example, several Acts of Parliament such as the Bill of Rights, Human Rights Act and, prior to the creation of Parliament, Magna Carta are regarded as granting fundamental rights and principles which are treated as almost constitutional.

By separating itself from England, The United States broke with English Constitutional law and created its own rules of governance. The law of the United States was originally largely derived from the common law system of English law, which was in force at the time of the Revolutionary War. The supreme law of the land, under the Constitution's Supremacy Clause (VI), is the United States Constitution, as well as laws enacted by Congress, and treaties to which the U.S. is a party. The Constitution forms the basis for federal laws under the federal constitution in the United States; it circumscribes the boundaries of the jurisdiction of federal law along with the laws in the fifty U.S. states and in the territories.

The most important source of law is the United States Constitution. All other law falls under and is subordinate to that document. No law may contradict the Constitution. For example, if Congress enacts a statute that conflicts with the Constitution, the Supreme Court may find that law unconstitutional and declare it invalid. Notably, a statute does not disappear automatically merely because it has been found unconstitutional; it must be deleted by a subsequent statute. Many federal and state statutes have remained on the books for decades after they were ruled to be unconstitutional. However, under the principle of stare decisis, no sensible lower court* will enforce an unconstitutional statute, and any court that does so will be reversed by the Supreme Court. Conversely, any court that refuses to enforce a constitutional statute (where such constitutionality has been expressly established in prior cases) will risk reversal by the Supreme Court. (But who reverses the ninnies when they mess up???)

While Blackstone may have talked about rights, he knew full well they could be repealed by Parliament. This is why the language is "bear arms for their own defense, as suitable to their class and as allowed by law". This is the way rights are treated under the English Constitution. Here today and gone tomorrow.

Again, if one uses Blackstone as a source, one knows that the right to bear arms for defence in England (and by extension the UK and other common law countries) is next to nil as well. This is because the right is "as allowed by law". That is it is under regulation by parliament and not as absolute as the language in the Second Amendment. The Founding fathers were well aware of the tenuous nature of rights under the English system, which did not define or quantify natural rights. They believed that adding a Bill of Rights to the Constitution would limit their rights to those listed in the Constitution. This is the primary reason the Ninth Amendment was included.

On June 5, 1788, Patrick Henry spoke before Virginia's ratification convention in opposition to the Constitution: "Is it necessary for your liberty that you should abandon those great rights by the adoption of this system? Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings—give us that precious jewel, and you may take every thing else!"

The founders knew they were setting up a totally new and different system from the English one under the US Constitution.

Of course, as I read more about Scalia's pretensions at "originalism", the more I worry that he is willing to destroy rights willy nilly in the common law fashion. Sod the fact the US Constitution is a written document: he'll tear it up.

But, I would prefer for my elected officials to do that. There is a reason that Royalty and nobility are unconstitutional.

Unless, of course, I am calling the shots here!

* On the other hand, a non-sensical supreme court can do whatever it wishes until whapped over the head.

More Blackstone silliness!

I have to admit to musing on the fact that using Blackstone as US Constitutional authority leads to some very wrong results: especially for Catholics.

One needs to remember that the Test Acts, as well as anti-Catholic sentiment, were still going strong in Britain and the United States during the Revolutionary and Constitutional drafting periods. One of the Test Acts is titled An Act for preventing Dangers which may happen from Popish Recusants', Charles II, 1672, Statutes of the Realm: volume 5: 1628-80 (1819), pp. 782-85

Get the picture?

As I mentioned in my previous post, John Jay, the first chief justice of the US Supreme Court urged the New York Legislature to require office-holders to renounce foreign authorities "in all matters ecclesiastical as well as civil." That means you mackeral snappers need to renounce popery and put your true allegiance in the US Constitution.

Love it or burn at the stake.

I believe they were still chopping off heads and sticking them on poles as punishment for treason in Britain around this time. I am not sure about hanging, drawing, and quartering. Whatever the state of capital punishment at the time, the English Criminal law at the time of the adoption of the constitution was called the Bloody Code because a large number of crimes were punishable by execution. Transportation to the North American colonies, which went on to become the United States, and Australia after US independence, was a frequent alternative to the death penalty.

One reason we need a space program is so that we can shoot criminals into space.

It is a melancholy truth, that among the variety of actions which men are daily liable to commit, no less than an hundred and sixty have been declared by Act of Parliament to be felonious without benefit of clergy; or, in other words, to be worthy of instant death — William Blackstone

I predict that Scalia's last opinion be that by using Blackstone as an authority and no less than the words of the First US Chief Justice, the Article VI language that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States" is unconstitutional.

Scalia would then order that all US Catholics would be burned at the Stake on the Captiol Mall on the Fourth of July.

I mean wouldn't that be original intent?

(Note: I should write for the Onion: Scalia writes opinion advocating burning Catholics at the Stake

William Blackstone and the Second Amendment

I had an interesting banter with someone who purports to be a "Second Amendment Scholar" who said that Blackstone 'called it the "fifth auxillary right" of Englishmen' in reaction to my question about "where is Self-defence mentioned in the Second Amendment?"

WTF?

Blackstone being Commentaries on the Laws of England. The four volumes of the Commentaries were first published between 1765 and 1769 in Oxford and first issued in an American edition in 1771.

Blackstone would be appalled to be cited as an authority in this matter and even more appalled in how he is used in the DC v. Heller opinion for the reasons I will mention in this.

I can point out a multitude of points why citing Blackstone is incorrect.

First off, it is a text book, which means it isn't even law in England. Never has been and never will. The "Second Amendment Scholar" should have read the whole wikipedia article before making a dumb statement about its being used as an authority by the Supreme Court: the United States Supreme Court quotes from Blackstone's work whenever they wish to engage in historical discussion that goes back that far (Colonial times), or further.

2) The title and dates of publication give you another two, Blackstone's Commentaries on The Laws of England (1769): unless he was psychic, he wasn't writing about the Second Amendment. He is also commenting on English Common law, not US Constitutional law.
A correlary to (2) is that Blackstone died on 14 February 1780, which means he didn't physcially take part in the debates regarding the US Constitution. So, while he is an example of an opinion on the state of the Common law in pre-Revolutionary times, he isn't a US Constitutional authority.

The Court’s reliance on Blackstone’s Commentaries on the Laws of England is unpersuasive for the same reason as its reliance on the English Bill of Rights. Blackstone’s invocation of “‘the natural right of resistance and self preservation,’” ante, at 20, and “‘the right of having and using arms for self-preservation and defence’” ibid., referred specifically to Article VII in the English Bill of Rights. The excerpt from Blackstone offered by the Court, therefore, is, like Article VII itself, of limited use in interpreting the very differently worded, and differently historically situated, Second Amendment.

Justice Stevens's dissent in Heller, p.30

Add in that self-defence as a topic is discussed in a different section: Blackstone's Commentaries on the Laws of England, Book the Third, Chapter the First: Of the Redress of Private Wrongs by the Mere Act of Parties p.3

I get into this subject later in this post.

3) Article VI puts paid to any claim of Blackstone having any bearing upon the Second Amendment. For those not in the know. this is the text of Article VI:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

That means the British Bill of Rights, Declaration of Independence, Articles of Confederation, or a Philadelphia phone book from 1776 (if one existed) aren't constitutional authorities and neither is Blackstone. Unless one is talking about a question of common law, which the Second Amendment ISN'T, Blackstone cannot be cited as an authority. Did Scalia have some third grader or his grandchild write DC v. Heller?.

Also, foreign law cannot be used as a holding, precedent, or to bind an outcome of a legal decision interpreting the Constitution. Strangely, the use of foreign law as being a no-no is something Scalia claims to believe, but not in this instance for some odd reason. Likewise, using a pre-revolutionary law textbook is a no-no as well: especially when trying to decipher the Constitution.

4) Most common law countries don't even allow lesser self-defence items (e.g. pepper spray), let alone firearms. Britain has had laws regarding weaponry for some time. Examples of past regulation of Arms in England, The Assize of Arms from 1181, The Assize of Arms from 1252, The English Archery Law of 1363, The Border Reivers were forbidden to carry weapons by James I (England, VI of Scotland), James II "caused several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law" from BOR 1689, the Act of Proscription of 1746.

As early as the second year of Edward III., a statute was passed prohibiting all persons, whatever their condition, “to go or ride armed by night or by day.” And so also at common law the “going around with unusual and dangerous weapons to the terror of the people” was a criminal offence.

Even sillier is the belief that armed self-defence was acceptable at the time the Constitution was written. As anyone who knows the British law of self-defence knows, even the military can be called to account for excessive force. If there were a right to self-defence at that time, the soldiers in the Boston Massacre would not have been brought to trial for murder! I mean 9 soldiers surrounded by an ugly crowd--what other course of action did they have except shoot? Also, why didn't the shipowners shoot the raiders during the Boston Tea Party?

Furthermore, The Bill of Rights of 1689 states that:

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law

Got that as allowed by law?

So, again, don't look to Common law for guidance on the Second Amendment. Especially since you are then stuck with how other common law countries, in particular England, have used and interpreted that source: e.g., Tony Martin.

Also, arms means weapons of all sorts, not just firearms. Hence "suitable to their conditions" which means a toff can have a sabre and a pistol and a peasant a pike. So, longbows, swords, etcetera have been regulated by English law since time immemorial: usually for ensuring the common defence.

St. George Tucker wrote this regarding the English Bill of Rights in his 1803 edition of Blackstone's Commentaries:

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

It is pretty obvious that Blackstone would have been aware of the limitations to the "right to keep and bear arms" and know that it was not related to self-defence. The linking of self-defence to the Second Amendment is a very recent trend which comes from the "new scholarship".

I know that I said something about taking DC v. Heller to the Privy Counsel in a previous post, but only a well educated US court is capable of rendering a judgement on the Second Amendment. I would imagine the Privy Counsel saying something such as that the Second Amendment is a US Constitutional question, which it is. Justice Stevens also correctly points out in his Heller dissent that any look at British law is totally different from US law (which doesn't stop me from wanting to take DC v. Heller to the privy counsel). But I don't really want to digress into that as I have more than enough posts about how the Second Amendment fits into the structure of the US Constitution.

Also, to say that arms are necessary for self defence neglects Blackstone's writings concerning the law of self-defence which are:

THE defence of one's self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affrayd . For the law, in this case, respects the passions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say, to what wanton lenghs of reapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defence therefore as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away be the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay even for homicide itself: but care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor.

Blackstone's Commentaries on the Laws of England, Book the Third, Chapter the First: Of the Redress of Private Wrongs by the Mere Act of Parties p.3

In short, as I have also said in previous posts, one can only use enough force to resist the attack and not become the aggressor. In fact, one should back down if possible rather than escalate to violence if one follows the common law of the time.

Statutes have recently changed the law of self-defence to allow for deadly force, but that is a statutory change and not a change in the common law. I have posted more than enough about the Common law doctrine of self-defence in other posts.

Going beyond self-defence, citing Blackstone as an authority would also require that you give deference to the proeme of the Second Amendment according to his rules of statutory interpretation.

If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point.

The law which relates to the same point as the Second Amendment is the US Constitution itself and in particular Article I, Section 8: To provide for organizing, arming, and disciplining, the militia.

That would mean that you would have to go with it being a civic right (that is only for the militia) since deference must be given to the proeme (A well regulated militia, being necessary to the security of a free state). You would also have to look at other provisions in the Constitution that addressed the militia, which there are. Scalia decided to pick and choose his authority and sources ignoring this portion of the common law doctrine, misinterpreting the law of self-defence--which isn't even mentioned in the Second Amendment, and ignoring the militia clauses in the main text of the Constitution.

In fact, Scalia violates another dictate found in Blackstone: stare decisis.

A judge is “bound by oath to decide according to the law of the land,” William Blackstone, Commentaries on the Laws of England. Blackstone notes that “it is an established rule to abide by former precedents,” that the scales of justice be kept steady and “not liable to waver with every new judge’s opinion.” It is a good thing, to achieve that end, the judge is “sworn to determine not according to his own private judgment, but according to the known laws and customs of the land.” (Blackstone at 117)

Stare Decisis is not absolute. Blackstone wrote, “[T]his rule admits of exception, where the former determination is most evidently contrary to reason” (Blackstone at 118). In such instances, it is incumbent on the inferior judge to decide pursuant to his Oath, and not to the faulty and irrational opinions of men. The DC. v. Heller chain of decisions is contrary to when an exception can be made to stare decisis as it was the opinion of the people and the faulty reliance upon Blackstone (and other irrelevant authorities).

In fact, the Heller decision is flawed from a stare decisis viewpoint in that there is no valid reason to overturn US v. Miller, 307 U.S. 174 (1939) other than public misinterpretation of the Second Amendment and a need to state the holding in idiot proofed modern English, which Justice Stevens did. The new scholarship is all over the place since it once talked about the militia, now we are seeing it being talked about in the context of self-defence for which there is no basis in the US Constitution.

I mean do a search for the term self-defense in one of the online versions of the constitution It ain't there!. Common defense is and self incrimination is, but not self-defence.

There especially is not any authority to say the Second Amendment covers the right of self-defence using Blackstone.

The question asked by Patrick Henry was "When this power is given up to Congress without limitation or bounds, how will your militia be armed?" when the Second Amendment was being debated.

He wasn't talking about self-defence! In fact, none of the quotes in the ratification debates deal with anything other than the question of Federal power under article I, Section 8:

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

For more quotes go here. The relationship between a Federal Army and state militias was what was being discussed at the time, not self-defence.

Which gets back to my point that The Book is called Blackstone's Commentaries on the Laws of England and was published roughly 20 years before the Constution and before the war for American Independence. Blackstone was dead when the Constution was debated and had no idea of Article I, section whatever or the Second Amendment. That means you can't place the Second Amendment in the context of his commentaries: it is a US Constitutional law issue.

NOT A COMMON LAW ONE.

Blackstone would have given deference to the prior court decisions under the doctrine of stare decisis and weight to the proeme (A well regulated militia, being necessary to the security of a free state).

Blackstone would be appalled to see his work trashed by Scalia in the DC v. Heller decision since this decision doesn't follow Blackstone in any sense.

Ya can't pick and choose what part is useful if you want to say he is an authority; well, with the exception where he is clearly irrelevant, which he is in regard to the Second Amendment jurisprudence.

I am not sure how Blackstone would have deferred to the legislature, which the Heller courts failed to do as well.

Justice Stevens's opinion is a much better opinion from a legal standpoint: especially if one wished to use Blackstone as a source. Justice Stevens follows stare decisis, gives weight to the proeme, and did not give weight to "the faulty and irrational opinions of men".

As Justice Stevens said.

The majority cannot seriously believe that the Miller Court did not consider any relevant evidence; the majority simply does not approve of the conclusion the Miller Court reached on that evidence. Standing alone, that is insufficient reason to disregard a unanimous opinion of this Court, upon which substantial reliance has been placed by legislators and citizens for nearly 70 years.