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.
Showing posts with label statutory interpretation. Show all posts
Showing posts with label statutory interpretation. Show all posts
13 October 2009
12 October 2009
Turtles all the way down
The most widely known version appears in Stephen Hawking's 1988 book A Brief History of Time, which starts:
OK, I'll have to admit to intellectual laziness since I learned about this from the first season of QI instead of reading Stephen Hawking. Where I picked it up isn't as important as the concept of knowledge and myth.
For some reason some ancient beliefs and superstitions have not given way to logic and science. The popular imagination holds a belief, yet refuses to shed it to fact. Ignorance keeps hold even though knowledge has tried to explain facts.
"But it's turtles all the way down!"
The argumentum ad populum. Someting is true because many or all people believe it. There is a converse to this the argumentum ad verecundiam, the argument from authority or appeal to authority is a logical fallacy, where it is argued that a statement is correct because the statement is made by a person or source that is commonly regarded as authoritative.
But, if the people or the authority is wrong, then that does not make the proposition true. So, even if 5 out of 4 of the Supreme Court justices rule that someting is the law, that does not make it proper law.
I have to admit, that any legal scholar if pressed would say that if something is not mentioned in a law, that it is not applicable, yet the argument in DC v. Heller was given court time.
The question is how does one educate the people that the popular beliefs about the Second Amendment, in particular it's being an "individual right" are The Emperor's New Clothes. There really isn't anything there. Heller was pure partisan politics which is the only reason that piece of intellectual dishonesty could have been written.
Everyone who has read the decision has found it wanting, with the exception of some gun control groups who are happy that it allows for reasonable restrictions and the "me too" crowd of Second Amendment "Scholars"--of couse. I have to admit that it is a harbinger of ill when I think of this in light of Cass Sunstein: "The Second Amendment: The Constitution's Most Mysterious Right", but I am not sure how the ill will come about.
The problem is that it is difficult dealing with ignorance as the quote at the beginning points out.
So, it is a chore to deal with it whether the ignorance comes from the people or those in power
A well-known scientist once gave a public lecture on astronomy. He described how the earth orbits around the sun and how the sun, in turn, orbits around the center of a vast collection of stars called our galaxy. At the end of the lecture, a little old lady at the back of the room got up and said: "What you have told us is rubbish. The world is really a flat plate supported on the back of a giant tortoise." The scientist gave a superior smile before replying, "What is the tortoise standing on?" "You're very clever, young man, very clever", said the old lady. "But it's turtles all the way down!"
OK, I'll have to admit to intellectual laziness since I learned about this from the first season of QI instead of reading Stephen Hawking. Where I picked it up isn't as important as the concept of knowledge and myth.
For some reason some ancient beliefs and superstitions have not given way to logic and science. The popular imagination holds a belief, yet refuses to shed it to fact. Ignorance keeps hold even though knowledge has tried to explain facts.
"But it's turtles all the way down!"
The argumentum ad populum. Someting is true because many or all people believe it. There is a converse to this the argumentum ad verecundiam, the argument from authority or appeal to authority is a logical fallacy, where it is argued that a statement is correct because the statement is made by a person or source that is commonly regarded as authoritative.
But, if the people or the authority is wrong, then that does not make the proposition true. So, even if 5 out of 4 of the Supreme Court justices rule that someting is the law, that does not make it proper law.
I have to admit, that any legal scholar if pressed would say that if something is not mentioned in a law, that it is not applicable, yet the argument in DC v. Heller was given court time.
The question is how does one educate the people that the popular beliefs about the Second Amendment, in particular it's being an "individual right" are The Emperor's New Clothes. There really isn't anything there. Heller was pure partisan politics which is the only reason that piece of intellectual dishonesty could have been written.
Everyone who has read the decision has found it wanting, with the exception of some gun control groups who are happy that it allows for reasonable restrictions and the "me too" crowd of Second Amendment "Scholars"--of couse. I have to admit that it is a harbinger of ill when I think of this in light of Cass Sunstein: "The Second Amendment: The Constitution's Most Mysterious Right", but I am not sure how the ill will come about.
The problem is that it is difficult dealing with ignorance as the quote at the beginning points out.
So, it is a chore to deal with it whether the ignorance comes from the people or those in power
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.
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.
24 June 2009
Or, you are charged with possession of an illegal weapon and
the weapon in question is a Great Highland Bagpipe.
The prosecution is based upon a statute dealing with firearms. In fact, the precise language is that "the weapon must fire a projectile using either a chemical, explosive, or pneumatic pressure force"
The prosecution relies upon the 1746 prosecution of James Reid, a Piper who was executed at York as a rebel. In his trial it was alleged in his defence that he had not carried arms, but the court observed that a Highland regiment never marched without a piper and therefore that his bagpipe in the eyes of the law was an instrument of war.
"The bagpipe is the only musical instrument deemed a weapon of war because it inspired its troops to battle and instilled terror into the enemy. The skirl of the pipes stirs men's and women's souls and its power and influence in battle as in life, is measurable".
The prosecution brings forth loads of documentation to prove that the bagpipe is an instrument of war and should be considered a weapon. Oh dear, even the EU bureaucrats want to go after bagpipes as well!
Should the law be extended based solely upon this new scholarship?
You're in court and the Judge is a large marsupial
Why because you have been charged with a crime.
Let's make this fun, you were charged with possession of a controlled substance: Motor Oil.
The law you were charged with states:
a person is guilty of Criminal Possession of a Controlled Substance in the Third Degree when that person knowingly and unlawfully possesses one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of one-half [1/2] ounce or more.
I'll add in the narcotic drugs for purpose of this act (and example) are opium, morphine, heroin, and Oxycontin, which is found in the definition section that I just made up for this example.
But the controlled substance you are found in possession is pure motor oil: no weird summertime blend that just happens to contain any of the mentioned narcotics.
Where in the words of the quoted statute are the words "motor oil"?
Nowhere, right.
My point exactly.
But the prosecutor is arguing that motor oil is controlled since there are taxes on it, it is only sold in filling stations, and has been rationed in the past. The words "containing a narcotic drug and said preparations, compounds, mixtures or substances" don't really matter since this is about controlled substances, which motor oil surely is. She even brings in loads of legislative histories dealing with the rationing of motor oil, which in her opinion proves beyind a reasonable doubt that motor oil is a controlled substance. And she has popular opinion on her side to boot.
There is the new scholarship which proves motor oil is a controlled substance.
So, Nearly everybody believes motor oil is a controlled substance since this is my example and you have to take this as a given, even though it is legally incorrect.
All the case law says that this is ridiculous because the whole wording of the statute needs to be considered. One cannot go outside of the statute, or just use part of the statute and disregard inconvenient language such as "containing a narcotic drug and said preparations, compounds, mixtures or substances". Add in that motor oil and narcotics are two different things. The intent of the legislature writing the controlled substance law didn't consider motor oil, let alone have it around ad arguendo (after all this is my example). Add in that all legal precedent says that controlled substance only applies to narcotics enumerated in my example.
If you think Heller was correctly decided, then you should have no problem with being convicted.
As I like to say:
show me the words "self-defence" in this text:
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.
or this one:
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.
You can't, can you.
I see the words "well regulated militia", but zip about self-defence.
Now, if you were charged with a crime and the actual act wasn't covered by the wording in the text, would you expect to be convicted?
Nope, any lawyer would rip holes in the prosecution. Well, except for the second amendment crowd as they would believe it was a controlled substance just because everyone believes it is a controlled substance.
Additionally, you are saying that the law can be anything a judge decides it to be irrespective of the wording or precedent since Heller was correctly decided. Popular opinion counts far more than legal precedent or proper legal method.
Is that what you really want?
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