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.

Justice Antonin Scalia is ignorant!

I just wanted to say it loud and clear. Maybe he will see it.

The grounds for this is that he has chosen to ignore prior precedent from US. V. Miller in his DC v. Heller decision. Scalia was bound by precedent which he chose to ignore.

Perhaps the Court’s approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow.

Justice Steven is polite, but I will use these terms since they are legal terms.

ignorance XIII. — (O)F. — L. ignōrantia, f. prp. of ignōrāre not to know, misunderstand, disregard, rel. to ignārus unaware; see -ANCE.
So ignorant XIV. ignore †not to know XVII; (of a grand jury) reject (a bill); refuse to take notice of XIX. — (O)F. ignorer or L. ignōrāre.

Ignorantia juris non excusat.

This is especially true for someone who purports to be a high court judge.

And I hope he bloody sues me because I want to hear his explanation as to why he ignored this:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

The Constitution as originally adopted granted to the Congress power- '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.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
UNITED STATES v. MILLER, 307 U.S. 174 (1939)