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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 10-20-2009, 11:43 PM
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Default 'This Right is Not Allowed by Governments that are Afraid of the People' - 14A

Clayton Cramer, Nicholas Johnson, and George Mocsary have just published a very interesting analysis of the original public meaning of the Second Amendment a the time of the adoption of the 14th Amendment.

I highly suggest those interested in what 2A we're likely to get incorporated reading it:
http://ssrn.com/abstract=1491365

For those who haven't used SSRN before, click the download link and then click on of the location icons to start downloading the PDF.

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Old 10-20-2009, 11:53 PM
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Timing is everything. Thanks for the link, Gene.
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Old 10-21-2009, 3:20 AM
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Fascinating read, and I'm only 1/4th through it.
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  #4  
Old 10-21-2009, 7:43 AM
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Its coming in 'damaged' for me. IE, I can't open it. Is there another source for it?

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Old 10-21-2009, 8:24 AM
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I got "Service Unavailable" at first. I had to click the New York location a few times but it worked.
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Old 10-21-2009, 8:25 AM
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Originally Posted by Mulay El Raisuli View Post
Its coming in 'damaged' for me. IE, I can't open it. Is there another source for it?

The Raisuli
I could email it to you if you like. It's only 200kb.

Edit... trying to upload it to this site... Let's see if it works.
Attached Files
File Type: pdf SSRN-id1491743.pdf (198.9 KB, 184 views)
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  #7  
Old 10-21-2009, 9:46 AM
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An excellent read indeed.

Thank you Hoffmang and Casual Shooter. This is a very interesting document that should be read by all.
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Old 10-21-2009, 10:09 AM
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Default MacDonald case.

The "Heller" ruling blew me away, in all honesty I was expecting a very narrow ruling.

I thought the "MacDonald case" would probably be a very narrow ruling, but something tells me that isn't going to happen.

Nicki
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  #9  
Old 10-21-2009, 10:38 AM
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Quote:
Originally Posted by Casual_Shooter View Post
I could email it to you if you like. It's only 200kb.

Edit... trying to upload it to this site... Let's see if it works.

Thanks to Wilhawker, I have a working copy now. Your link seems to work well also, however.

I'm with Niki. BIG things are going to come with McDonald.

But, as looked through this, I was reminded again of footnote 8 from Heller; restrictions against concealed carry are going to be allowable. The paper is just chock full or Decisions that label the Right as an individual one, but that also state that laws against concealed carry are perfectly permissible under Constitutional (either state or federal) law. As I see it then, LOC is going to be the Minimal Constitutional Standard.

Which I think is just great.

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  #10  
Old 10-21-2009, 11:03 AM
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While this looks like an excellent paper, having just got to page 2 I already question the methodology (though I applaud the authors' clarity of thought in stating their assumptions so well at the outset). The issue I question is itself subtle enough that I was not consciously aware of it before, so I think it is extremely interesting and well worth arguing back and forth. So I shall argue against their precise methodology and see where that leads.

I post this before reading further for a reason--I might well prefer their results to those of the method I am going to advocate. I can always revisit the argument after finishing the paper, but I cannot again think it through tabula rasa.

While the authors are admirably clear, I will attempt to re-state the paper's position as follows.

1. They accept the doctrine of Original Public Meaning. In particular, this means that the 2A binds the federal government according to the public meaning of the 2A when ratified in 1791.

2. The 14th Amendment was understood to Incorporate the 2A against the states when ratified in 1866, and therefore does so today.

3. The public understanding of the 2A in 1866 was not precisely the same as in 1791 (but I choose not to read the ways in which they claim it has changed yet).

This brings us to the issue I propose debating: which public meaning does the 14A incorporate against the states? In other words, does "Original" mean the context of the ratification of the 2A, or of the 14A? This is a very good question, as we have two amendments separated in time with different contexts. It brings into sharp relief that the 14A has hermeneutical problems unique to itself. Ordinary "civil rights" amendments state the rights to be protected directly. They have only one natural context. The 14A states them indirectly, by reference to preexisting amendments. This is subtly, but profoundly, different, and the methodology of Original Public Meaning as usually stated is incomplete in the presence of this indirection. I commend the authors for making this so clear.

The paper assumes that the governing context of the 2A as applied against the states is that of 1866, since it is the 14th amendment which applies the 2A against the states (N.B.: the 14A was ratified in 1868--I suspect they chose 1866 because that was the date of the Civil Rights act whose Constitutionality the 14A was to protect--I accept their date without taking a position on that point). I wish to argue the contrary position that while it is the context of 1866(8) which is to be used in answering the question of what the 14A applies against the states, once it is understood that the enumerated rights such as the 2A are to be Incorporated then it is the context of 1791 which is to be used in evaluating the content of those rights.

The authors again summarize with admirable precision:

Quote:
The public meaning of 1866 is a fixed point of reference that generates the interesting possibility that originalism may give the Second Amendment one meaning when applied to the federal government, and a different meaning when applied to the states, through the Fourteenth Amendment.
That is precisely the thesis I wish to discuss--I am taking the position that whatever the meaning the 2A has in binding the feds is the meaning it has in binding the states (IOW I reject the possibility in bold while they accept it). My hermeneutical stand is that one needs only to examine one context for purposes of determining what precisely is forbidden the states and the federal government alike. The methodology of the paper requires a dual context. In effect, it applies the context of the 14A to the text of the 2A. That is precisely the heart of the problem: it still severs text from context. It is less ad hoc and less arbitrary than the Living Constitution hermeneutic, but it still produces a Frankenstein monster. By contrast I evaluate every text it it's own natural context.

What does the dual context hermeneutic imply if really believed? Suppose the 14A was ratified in 1960 for purposes of ending segregation instead of in 1868 (for purposes, one might say, of preventing it in the first place). The dominant understanding of the 2A in the academy in 1960 was Collective Rights (if I have chosen a poor example date, simply substitute what you like for 1960--the point is not about 1960 but about the implications of the methodology). The dual contextual theory would imply that this 14A incorporated an understanding of the 2A which is utterly fallacious and historically mad. It says that the 14A freezes any errors and misunderstandings of 1960 forever in so far as we apply the 2A to the states. In fact, what it really amounts to is that the 14A actually does NOT and CANNOT incorporate the 2A, but rather a hybrid monster consisting of the text of 1791 evaluated in the context of 1960.

Is this a consistent methodology? Logically speaking, I believe it is. If we can evaluate the text of the 2A in the context of 1791, we can do so in the context of 1866. Our system will not melt into a mass of logical contradictions and undecidable interpretations. But I think the larger result is irrational; it says that mistakes in understanding can be canonized forever, no matter how insane they can be shown to be. It achieves consistency by specifying precisely the alien context to be sewn onto the text of 1791, but that precision does not make it less unwise.

I also suspect it is alien to the methodology of the ratifiers of the 14A. If asked directly what 2A they believed they were extending to the newly freed slaves, I believe they would have said it was the same one codified in 1791. I believe they would have to, by the foundational logic of Preexisting Right and Social Contract. The claim of the founders is precisely that the legal right is an operational protecting of a pre-existing moral right. One cannot argue that the substance of the moral right was different in 1866 than it was in 1791--that way lies a philosophy (thankfully) still in their future.

Even worse (for the authors) is the fact that the BoR codifies a particular notion of citizenship. Is the very meaning of citizenship is a matter of Living Context? Is the citizenship extended to the freed slaves in section one if the 14A of a different nature than that extended to the citizens of the thirteen colonies in 1787? I think that is incoherent, and very probably dangerous. Given a different history, I suspect this methodology could possibly be used to change the effective meaning of citizenship for all citizens just as the Living Constitution hermeneutic already has.

The authors insist that this dual-context hermeneutic is not smuggling the Living Constitution in by the back door because they do not apply the continuous process usually implied by "LC". They correctly note that 1866 is an unambiguous fixed point, and their results are fixed and unchanging. They are correct that their results differ in that respect. However, it is not so unlike the LC hermeneutic as they claim--on the contrary, it is explicitly dependent on it. In fact, what they have done is to claim that while it is invalid to continuously evolve the operational meaning of a text, taking one step of the LC hermeneutic is not only acceptable but necessary. The authors' implicitly accept the following thesis:

Quote:
While not every "Living" meaning is valid, the meaning incorporated against the states is that obtained by a Living Constitutional analysis performed in 1866.
I think this is unacceptable.

One might ask why someone (I say "someone" because I certainly cannot say anything about the motives of the authors themselves) might prefer this hermeneutic--Gene certainly implies that the dual-context hermeneutic is likely to be persuasive on the court. He would know more about that than I. But we can consider why it might be persuasive.

The answer might well have nothing to do with the 2A. Whatever hermeneutic is to be used in understanding the 14A must be applied uniformly, and that means that the entire BoR is at stake in so far as it's application against the states is concerned. If the Incorporated 2A right is to be evaluated against the context of 1666, then so are the Incorporated rights codified in the 1A and all the rest. Perhaps this view might gain traction with a view to future arguments about another right of greater interest. Given that it appears that there is liberal support for resurrecting the P&I clause from the dead in order to support modern agendas, it is not unreasonable to suggest that there are many who will think strategically in this way (no matter what their ideological preference). It would be enlightening to apply the methodology of this paper to the full array of hot-button civil rights issues of today and see if any of the results are more congruent with the preconceived prejudices of some significant group than the methodology I suggested.

OTOH, scholars have a notable tendency to wish to save a position they've devoted their life too. Because this paper accepts LC as a discrete step, if not a continuous process, it might be much more soothing to the somewhat damaged pride of those who prefer LC in toto.

In any event, what is discussed in the first two pages of this paper potentially affects nearly everything we regard as a protected civil right as far as the states are concerned. To misuse Suzanna Hupp's famous line, "the Fourteenth Amendment ain't just about guns." That's why it's important, and why I wanted to question the thesis before even reading the rest of the paper.

Why yes, that IS a great big target I just painted on my chest. Feel free to tear it apart line by line. I posted it precisely so that could be done.

7x57
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  #11  
Old 10-21-2009, 11:05 AM
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This sounds promising and not only for guns.

I can see a lot of knife laws changing as well.
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Old 10-21-2009, 11:06 AM
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Originally Posted by Mulay El Raisuli View Post
But, as looked through this, I was reminded again of footnote 8 from Heller; restrictions against concealed carry are going to be allowable. The paper is just chock full or Decisions that label the Right as an individual one, but that also state that laws against concealed carry are perfectly permissible under Constitutional (either state or federal) law. As I see it then, LOC is going to be the Minimal Constitutional Standard.
LOC is definitely the minimum we would get from full incorporation. However; along with incorporation comes the whole 14th amendment, including "equal protection." If CCWs are available they will need to be available to everyone without undue restrictions. (i.e. you can't require 2,000 hours of training and $2,000 annual fees)
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Old 10-21-2009, 11:21 AM
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7x57, If you read further, you'll see that by 1866 the thought was that RKBA was an individual right entirely divorced from the militia. That individual right was what they wanted to incorporate against the states because "militias" were disarming freed men.

If you go back to the English common law, I think they saw a fundamental right to self defense and RKBA. If this was understood before the constitution was written and in 1866, is there any chance that the second amendment did not mean that in 1791?

I would say no, the second amendment was always meant to codify an individual right that no level of government can infringe.
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Old 10-21-2009, 11:26 AM
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Postscript: in honor of co-author Clayton Cramer, who is a software engineer, I am going to make a point that is not merely geeky, as the previous post was, but cross-disciplinarily geeky.

The issue the paper raises is very similar to the computer-language issue of scope. (With a view to writing this postscript I even used some similar language in my critique.) The analogous computer issue revolves around what entity a symbol in the text of a program (such as 'x') refers to. To determine this, one needs to evaluate the text against a particular context, just as one must do to read any human-language text.

When the entity is defined in the text itself, this is fairly unambiguous. This would be analogous to the 14th amendment re-iterating the rights it proposes to incorporate. But it is ambiguous when the symbol ("x") refers to an object defined in another context, similar to how the 14A actually references the rights it incorporates. In both cases, the ambiguity must be resolved in order to determine meaning.

There are two basic answers to how a language should determine the context: dynamic scoping and static scoping. In dynamic scoping, "x" refers to the context in which the code was called. It is different at every calling point, and so the meaning of x is (potentially) different on every call.

By contrast, in lexical scoping, "x" refers to the lexically enclosing context at the point of definition. It has the same binding on every call. If that's unfamiliar, just understand that lexical scoping always uses the single context of the point of definition (of which there can only be one). Dynamic scoping uses the many scopes of the point of calling, of which there are as many as the number of calls in the text of the program.

In this analogy, the authors have proposed that one amendment's references to other parts of the constitution be resolved by the dynamic scope of the referencing text. I have proposed instead that the references be resolved by the static scope of the referenced text.

As a playful poke that Mr. Cramer at least would understand, I note that in practice dynamic scoping is always a mistake. It's been done many times (starting with the second oldest language lisp, I think, as I believe Fortran did not allow nested scopes in the first place), because it's easy to implement in an interpreted language. And every single time it becomes a burden when the language is used for large programs. A great many languages that started with dynamic scoping switch to static scoping (introduced in the also ancient Algol) because of this--lisp and perl are the first two that come to mind. This switch is painful because it breaks old code or uglifies new code, but it is often done anyway. I am not, however, aware of any language which switched from static scope to dynamic scope.

So my playful question to Mr. Cramer is why he wishes to import this failed scoping rule into the Constitution when the problem is as old as lisp and the better solution is as old as Algol.

That has been today's instalment of "strange analogies that only six people in the world understand or care about." We now return you to your regularly scheduled, singly-geeky legal discussion.

7x57
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Old 10-21-2009, 11:45 AM
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Another way to say it is that the 14'th amendment was always intended to incorporate the second amendment as written. At the time they thought that meant an individual right to keep and bear arms.

So the argument in the article isn't really about incorporation but rather scrutiny.

If they were afraid of the consequences of incorporating the second amendment as they understood it in 1866 (as an individual right), they wouldn't have ratified the fourteenth.

The context in 1791 was right after fighting a revolution, thus they talked about militias and overthrowing tyrants.

The context in 1866 was right after fighting a civil war and trying to ensure the rights of freed men, thus they talked about individual rights.

They are both important and they are not mutually exclusive, they were just the issue of the day.
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Old 10-21-2009, 12:02 PM
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On LC vs OI

First, an offtopic preface of sorts:

7x57, as usual, you have a lot to say, but most of us really can only grasp a portion of the whole thing. Some will complain that it's your fault; that you fail to express yourself in a way that is easily understandable. Others (myself included, for the most part) would more easily attribute that failure to the readers' (myself included) laziness.

That said, I do think you need to step back sometimes and break down your thoughts into smaller, digestible chunks. Clear writing is very difficult, especially when you are trying to convey difficult concepts. Richard Feynman, in particular, was fond of saying that if you can't explain something to a 3rd grader, you don't really understand the material.

Now, on to the meat of OI vs LC, which, ultimately, is what your post is about (i think). Namely, the attempt by the authors of the paper to have it both ways. I agree. But IMO it is impossible to discuss any *legal* interpretation of the constitution w/o some LC component, and thus will always run into the (inconsistent, illogical, unstable) tension you describe. Why? Our system of government is built on a social contract, which describes two things

1) there is a set of inaliable (axiomatic) rights. These are the *bare minimum* of "things we can all agree on".

2) there is a means by which laws can be passed/changed such that we find compromise on the things we don't necessarily agree upon.

Why do we need the latter? Because the former isn't enough for a (sufficiently) large and diverse population to stay "properly governed". Implicit in every social contract is the idea that there will always be rules that some participants disagree with, but that they will (necessarily) agree to abide by assuming they agree (uniformly) on the method by which those rules are both formed and enforced.

However, that *method* requires the axioms of 1), or the social contract breaks down, and inevitibly becomes corrupted by the forces of authoritariansm/ogilarchy/kleptocracy, and your representative form of government collapses.

The duality occurs when people confuse the (original intent) axiomatic universal rules with the meta-rules for the (living) formation/enforcement of non-axiomatic rules.

Hell, the duality is right there in the history of the Bill of Rights. They are axiomatic rules added as amendments to the meta-rules.

Now, I have painted my own target on my own chest, because I haven't really answered your question (assuming you actually asked one).
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Old 10-21-2009, 12:04 PM
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Quote:
Originally Posted by wash
If you go back to the English common law, I think they saw a fundamental right to self defense and RKBA.
There's a bad problem with bringing the English into it, wash, dating back to the 1300s. The English were allowed and in fact required to have bows in their homes ready for defense of self and more importantly of state. It was acknowledged that self defense was good and the advantages of a well practiced citizenry in use of arms served the country well. This is undoubtedly the origin of the first clause of the 2nd Amendment. There were two trapdoors in it, however, which are poisonous to their freedom and eventually were used to bring it down: the law applied only to Protestants and chisel points were strictly forbidden from private ownership and possession punishable by death. These three problems, class distinction, difference of weapons of war and weapons of civil use, and possession as a crime, are the three roots of evil in our present situation in California, New York, and elsewhere and present a threat to the entirety of the 2nd Amendment as first presented by the Sullivan Law then the NFA. Even worse you can see the case of Massachusetts having had a RKBA clause but with exception/loophole clauses in it allowing for easy sabotage justified by them to the point of taking a right and rendering it meaningless, as they have.

To address the first, the matter of right to arms only able to be claimed by Protestants established precedent of acceptable prejudice of law rather than equal protection and application. Of course medieval Europe and England had no qualms with a complex tiered system of social and legal classes, that was an accepted norm that few questioned, but as a matter of disparate treatment in civil law going out of their way to put it on paper is quite a step. Having it as a starting point naturally allows for whatever arbitrary and unfair distinctions and stipulations they can fashion so long as they could concoct a reason for it--sounds a lot like good cause and permits, rational basis and even intermediate scrutiny, doesn't it?

Secondly the matter of chisel points. What is a chisel point? Remembering we're talking about archery here, each arrow has a head which adapts it to its purpose. Most common target practice would have a rounded, semi blunt point, so nothing objectionable about that. Then you have broadheads, or whatever they'd call them back then, for taking of game, having a sharp point and cutting edges. This would also probably be what they'd use for self defense, and when they could, feeding their families, albeit by permission as the nobles owned the land. But now as we get to the other purpose, the purposes of war, we arrive at the chisel point. This was an arrowhead which was made to pierce armor, undoubtedly mostly intended for that of the common foot soldier who might have some thick and tough leather shielding and maybe chain mail but it was good for stuff up to and including the plate armor worn by a knight. That's perfectly fine when you're fighting for merry ole England and putting down the French or whoever they don't like at the time, but in time of peace that's a big no no because their knights were a noble class and also the enforcers of the crown's policy. The lower class citizenry could effectively resist the nobles if they could take down knights--think shoulder launched missiles like the Stinger against F16's and B52's. This wasn't something the king would like to allow, so possession and ownership of chisel points outside time and place of war was a hanging offense. A perhaps more draconian version but nonetheless the exact same concept as the NFA for the same reasons, and then later the CGA's "sporting purposes" distinction.

Thirdly, as a subset of the chisel point prohibition, the establishment of possession as a crime in and of itself. A rather nasty violation of the notion of rights, privacy, property, and due process, don't you think? It makes you wonder why prior restraint is acknowledged as unlawful yet is conveniently ignored when it comes to arms. It probably originates in custom at that point, then of course we have the Sullivan Law as its modern reincarnation.

So no, wash, we DO NOT want to copy the English on this matter AT ALL in a few aspects. I for one am really, REALLY leery of having the 2nd Amendment post 1866 being read in a Civil War context of citizens being stripped of the right to revolution and resistance of government oppression by removal of parity of force. That crosses back to another thread, of course, of where the line exists on 2nd Amendment limitation, and it needs to be said as often as necessary till we can get the point across: like self defense against criminals, the right to preservation against larger threats exists not just in the right to have the means to have a small token opposition, but that to be able to prevail.
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In Pennsylvania Your permit to carry concealed is called a License to carry fire arms. Other states call it a CCW. In New Jersey it's called a crime.
Discretionary Issue is the new Separate but Equal.

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Old 10-21-2009, 12:23 PM
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Originally Posted by curtisfong View Post
Some will complain that it's your fault; that you fail to express yourself in a way that is easily understandable.
Sometimes that is indisputably true. As explanation, if not defense, arguments I make here are arguments I make to myself and to others--and what I post is what I believe to be the strongest case I can make to myself. The really useful critiques are when someone can successfully attack the position precisely as I hold it. If I simplify too much, then it is too easy for me to dismiss the critique as not applying precisely to my real position.

That could simply be understood as me saying that I am often unable to simplify without losing precision, at least in my own mind. I accept that critique of a personal limitation.

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That said, I do think you need to step back sometimes and break down your thoughts into smaller, digestible chunks.
I'm not sure how one would actually break down my criticisms. I essentially make one--that the paper's method evaluates texts in alien contexts. The rest is an attempt to explain how that happens and what it means. I suspect if I'd simply posted "the paper evaluates texts in alien contexts" no one would have understood the point and I'd have had to try to explain in the same way.

How would you make the argument in a more cleanly partitioned manner?

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Clear writing is very difficult, especially when you are trying to convey difficult concepts. Richard Feynman, in particular, was fond of saying that if you can't explain something to a 3rd grader, you don't really understand the material.
Richard Feynman >> 7x57



7x57 is absolutely incapable of the transparent precision of QED (or The Character of Physical Law among others). That book is probably near the absolute limit of simplification without inaccuracy. There have been quite a few physicists as great as or greater than Feynman. There may never have been another of his rank capable of that kind of writing, just as there was no other philosopher of Plato's rank capable of his writing. Consider the quite opaque popularizations done by Einstein or Hawking. You can't really understand them without actually knowing the supposedly more complicated physics they attempt to simplify--but you can profitably improve your practical understanding of the full implications of the mathematical theory of relativistic quantum fields by reading QED. That's...amazing.

I can't do physics at their level, you will not be surprised to know, but I fear I write closer to their level. Not Feynman's.

Anyway--thanks for a serious reply. I have to try to fix a car today so I can hunt tomorrow, so if I don't end up replying soon it isn't because I didn't think your post worth replying to but because on the contrary it deserves some real thought.

ETA: a very picky quibble. It wasn't a "3rd grader," it was a Freshman. A Freshman at Caltech (who is a different creature than a Freshman most places). Feynman was speaking precisely, and he did not really believe he could explain field theory and all the rest of physics to a 3rd grader (though he'd be willing to try, just as I've explained a fair amount of astrophysics to my kindergartener--my favorite Feynman story is turning to a child as bored as he was and starting a conversation about infinity by saying "Did you know there are more numbers than there are numbers?"). He did, however, believe he could explain it to undergraduates and did so habitually (he met with them in the basement of one of the undergrad houses where, I think, professors and grad students weren't allowed because they'd intimidate the undergrads he wanted to get really thinking). And once when asked to explain spin to the undergrads he finally said he couldn't do it, which meant they (probably meaning the whole field--Feynman didn't have the personally to suggest anyone knew anything "important" he didn't) didn't really understand it.

Feynman died a couple of years before I got to Caltech, which is something I very much regret.

7x57
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I know every chance I get I'm going to accuse 7x57 of being a shill for LCAV. Because I can.

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Old 10-21-2009, 12:31 PM
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How would you make the argument in a more cleanly partitioned manner?
I wish I knew. I suffer from a very similar affliction. I try to express concepts I don't think I fully understand and when I do actually understand the concepts, I'm almost invariably bad at simplifying it in a way that makes sense.

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Richard Feynman >> 7x57

I already know I don't have his intellect, and never will. I would settle for .00001% of his ability to distill and convey information.
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Old 10-21-2009, 12:53 PM
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You know, one thing I can do quickly is actually try curtisfong's suggestion. So:

The problem with this paper is it evaluates texts in alien contexts unknown to their authors.

All done. If that helps, argue away. Seriously--I'll keep checking in, because auto mechanics is boring without something for the mind to chew on. If it does not help, see my previous tome for turgid elaboration.

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Old 10-21-2009, 1:03 PM
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So no, wash, we DO NOT want to copy the English on this matter AT ALL in a few aspects. I for one am really, REALLY leery of having the 2nd Amendment post 1866 being read in a Civil War context of citizens being stripped of the right to revolution and resistance of government oppression by removal of parity of force. That crosses back to another thread, of course, of where the line exists on 2nd Amendment limitation, and it needs to be said as often as necessary till we can get the point across: like self defense against criminals, the right to preservation against larger threats exists not just in the right to have the means to have a small token opposition, but that to be able to prevail.
I'm not saying copy English common law. I'm saying that's the historical context of 1791.

In 1776, the founding fathers said all men are created equal. That eliminates the classes. If the bill of right gave one man the right to keep and bear arms, it gave it to all of us.

The U.S. failed to appoint a king or outlaw chisel point arrows so I don't see a conflict.
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Old 10-21-2009, 1:09 PM
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It is a fascinating read to a legal noob like me.

Thanks for the link!
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Old 10-21-2009, 1:17 PM
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The problem with this paper is it evaluates texts in alien contexts unknown to their authors
Perfectly stated. I'll give it a shot. The fundamental problem is that all arguments for a LC interpretation rely on the premise that every single portion of the constitution is sensitive to contemporary context, that would be alien to not only courts of the past, but the framers (and signatories) themselves. Therefore, by necessity, we must have a living constitution to help frame the original intent in contemporary context.

I propose to cut the gordian knot by submitting that it is not up to the judicial branch to entirely recast and reinterpret the constitution for every generation or contemporary circumstance but rather to intentionally put the framers and past court decisions in alien contexts, and synthesizing (as best they can) what their interpretation would be given the contraints of OI.

To that end, IMO the paper has it right: I don't think there is anything fundamentally wrong with evaluating texts in alien contexts, as long as there is a strict understanding that OI is incorruptible. Furthermore, there must be an understanding that the text of the constitution itself may not fully express OI properly, even in its proper context, given the politics of the time giving rise to unclear wording just to get people on board.

That last bit is a far stickier issue than interpreting text in an alien context...

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Old 10-21-2009, 1:26 PM
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I'm going to get some tools (when do you stop buying tools? when you're dead). In the mean time, to ensure I'm playing fair, I offer what I believe is the strongest critique of my position (and probably the motivation for theirs):

My position can lead to people ratifying a law whose consequences they do not understand or intend.

There is much more to be said about that, but but let's leave it at that and the idea that the authors are probably motivated by their dislike of that effect.

In fact I believe it may be true that when a text references another separated in time one *must* give up either the congruence between Original Intent and Original Meaning (normally we assume intelligent people know the meaning of a text in a context they share with the author) or the idea that the understanding *at ratification* is the controlling understanding.

I have to admit that I am even more interested in the light that this paper sheds on the whole concept of Original Meaning than I am in the 2A implications (important as they are). This clarifies issues of interpreting texts generally, of interest for example to protestant theologians (possibly muslim theologians, but I can't say how their exegetical methods work).

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Old 10-21-2009, 1:39 PM
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My position can lead to people ratifying a law whose consequences they do not understand or intend.
I'd ask if the law we are newly ratifying is changing the axioms, or simply one of the fungible rules.

If one of the fungible rules, certainly one of the features of any rational legal system is that unintended consequences of laws should be fixable. Alien
consequences (the "not understand" category) are only fixable if we agree we can frame OI in an alien context. I'm not sure if that is your point.

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the authors are probably motivated by their dislike of that effect.
I would say that dislike should be almost universal. Hopefully.

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the congruence between Original Intent and Original Meaning
Before commenting, I'd like you to explain your terms

I could make an educated guess, but I would rather not.

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the understanding *at ratification* is the controlling understanding.
Which only helps us with "unintended" consequences, unfortunately. Not the "not understand" class of consequences.

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This clarifies issues of interpreting texts generally, of interest for example to protestant theologians
While theology is somewhat interesting to me (from a historical/literary/sociological perspective), I generally have very little interest in interpreting non-functional law in either contemporary or alien contexts. I prefer to assume they only have meaning in their own native, narrow context.
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Old 10-21-2009, 1:44 PM
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Let me try to distill this:

Origional intenet means what they meant when they wrote the BOR.

We try to determine origional intent by the plain writing along with letters, speeches and news accounts of the day.

"living constitution" means what people will try and twist the meaning to based on their agenda today.

7x57 is saying that looking at the second amendment through 1866 eyes, you are 1/2 way accepting a "living constitution" because the letters, speeches and news accounts of 1866 are different from 1791.

The way I see it is that in 1866 they saw the second amendment as more expansive than in 1791, so there's nothing about the 1866 context that should limit the scope of the incorporated second amendment to anything less than the most expansive views in 1791.

Then if you look back at 1791, you know why they are talking about militias, they just got done fighting a revolution and they don't want their fight to become meaningless by allowing the new government to degenerate to something just as bad as English rule.

English common law is important because of the anti-federalists. They thought that there should not be a bill of rights because it would tell the government exactly where our rights could stop. They believed that the rights we have are intrinsic which is a nice thought but hard to protect. The federalists and anti-federalists idea of a free man's rights was based on English common law.

In 1791 everyone (except possibly the English) thought that we have the right to keep and bear arms. The second amendment was just what they decided to write down.
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Old 10-21-2009, 2:15 PM
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Originally Posted by wash View Post
Origional intenet means what they meant when they wrote the BOR.

We try to determine origional intent by the plain writing along with letters, speeches and news accounts of the day.
No, original intent means interpreting law based on the understanding and meaning at the time of the writing. (a small but important difference)

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Originally Posted by wash View Post
"living constitution" means what people will try and twist the meaning to based on their agenda today.

7x57 is saying that looking at the second amendment through 1866 eyes, you are 1/2 way accepting a "living constitution" because the letters, speeches and news accounts of 1866 are different from 1791.
I think you are mostly correct here though using words like "twist" and "agenda" you do a disservice to those who hold a living constitution belief.


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Originally Posted by wash View Post
The way I see it is that in 1866 they saw the second amendment as more expansive than in 1791, so there's nothing about the 1866 context that should limit the scope of the incorporated second amendment to anything less than the most expansive views in 1791.

Then if you look back at 1791, you know why they are talking about militias, they just got done fighting a revolution and they don't want their fight to become meaningless by allowing the new government to degenerate to something just as bad as English rule.
I suspect that since we had just put down a serious uprising in 1866 it is highly unlikely that the legislature was very excited about the idea of firearms for the purpose of arming militias for insurrection. This is likely why there was so much more focus on self-defense.

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Originally Posted by wash View Post
English common law is important because of the anti-federalists. They thought that there should not be a bill of rights because it would tell the government exactly where our rights could stop. They believed that the rights we have are intrinsic which is a nice thought but hard to protect. The federalists and anti-federalists idea of a free man's rights was based on English common law.
Can you support this? My understanding is that the BoR was written in response to concerns of the anti-federalists, not over their objections.



I think the dual-context model is attractive because it is more likely to attract a majority than a more traditional Originalist interpretation. Yes, a political compromise. For SCOTUS to recognize the 2A to be incorporated against the state as written it would open a very large number of militia weapons up to private ownership. I think they will be much more comfortable transferring certain rights to the States rather than relinquishing them to the people. (Sad, I know.) This could mean a lot more freedom to people in pro-gun States but still provide a lot of relief to those of us in anti-gun States. Interestingly it may also alleviate some of the firearms-based states rights battles that are currently gaining steam.

One problem with a dual-context interpretation, is that it assumes a "living rights" model instead of the "living constitution" model. If we assume that the meaning of the 2A didn't change before 1866 (i.e. orignialism) but the rights protected against State interference aren't the same as the rights protected from Federal interference then what DID change? The only logical item to look at is the right itself. I think that this logical inevitability may prove difficult for some members to stomach.

Of course this could also open up a Pandora's box of potential civil rights roll backs. It could be argued that any infringement considered acceptable in 1866 was essentially codified by the 14th amendment and can be infringed by the states.

It is quite possible that this model may attract a majority of the court with 4 of the Heller 5 either dissenting or relying on a concurrence rather than signing the majority opinion.
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Old 10-21-2009, 2:35 PM
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Where's the quote I'm thinking of?

Something along the lines of "...how can a person "keep and bear arms" in deference to the Federal government if the states may deny that right..."
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Old 10-21-2009, 2:38 PM
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Found it. From HERE.
Quote:
"A Second Amendment right valid only against the federal government is meaningless to Americans disarmed by state officials..." -Alan Gura
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Old 10-21-2009, 2:38 PM
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Maybe my terminology is not correct but my idea of a living constitution point of view is a person that will say "well it says militia so lets limit RKBA to militias because it doesn't make sense to have people owning guns today" or at worst "well, I don't care what they said, guns are bad so we can ignore that part of the constitution because the founding fathers didn't have anything better than a musket".

The reason I think the two time contexts are appropriate is that the first question is what does the second amendment mean and the second question is what did they think the fourteenth amendment meant. If the fourteenth amendment meant incorporation of the second amendment, then it's legitimate to ask what they thought they were incorporating.

If the answer is that the second amendment was an expansive individual right and that the right to self defence was implied, then the scrutiny required for gun laws will be quite strict. Shall not be infringed will finally have some teeth.

If they find that we don't have a right to self defense, I'll sign up for my government issue body guard right away...

Oh, I might be mixed up but I thought the Federalist papers were letters going back and forth between the federalists who wanted a bill of rights and anti-federalists who did not.
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Old 10-21-2009, 2:42 PM
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Originally Posted by wash View Post
English common law is important because of the anti-federalists. They thought that there should not be a bill of rights because it would tell the government exactly where our rights could stop. They believed that the rights we have are intrinsic which is a nice thought but hard to protect. The federalists and anti-federalists idea of a free man's rights was based on English common law.
You have it backwards. The Federalists, including James Madison, argued against the necessity of a bill of rights as part of their effort to get the original Constitution ratified which had none. The Anti-Federalists argued for the necessity of a bill of rights as part of their effort to defeat the original Constitution, which again had none.

The compromise, to the extent that there was one, was that James Madison promised to introduce a bill of rights as amendments. Apparently his integrity was held in such high regard that his word was enough for plenty of people and it was ratified without a bill of rights but with Madison's promise.

The upshot is that the BoR was written by someone who argued that it was unnecessary. That said, either he kept his promise with extraordinary resolve, or the arguments of the anti-Federalists had made a real impression on him. I don't have time to check for clues about this in the document he introduced, but I bet someone knows which it is anyway.

ETA: we cross-posted. The Federalist Papers is about the ratification of the original 1787 Constitution--the Bill of Rights only comes in for the reasons stated above. When reading it one must understand that the existing order that Publius is arguing against is neither British rule nor the separate states, but the states weakly united under the Articles of Confederation. It had no BoR either, but it's government was so weak that it hardly mattered and could only affect the member states. The proposed Constitution would create a Federal government that, while insignificant by today's standards, had the power to affect citizens directly, and thus in the minds of the anti-Federalists required extra safeguards to control these greatly expanded powers. That's also why the BoR is about the citizens--it's supposed to control the power the Feds have, for the first time, over citizens directly without going through the states.

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Old 10-21-2009, 2:54 PM
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Oops, my bad.
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Old 10-21-2009, 3:31 PM
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Actually, the conclusions drawn at the end of this paper, provide for a much more broad interpretation than I would have expected. It gives me hope!
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Old 10-21-2009, 4:34 PM
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I love reading nursing and health care research, but when it comes to legalize. Gads, I must be an idiot, then again we all have our own specialties.

With that said, I usually read abstracts, introductions, problem statements and finally the conclusion or discussion.

The last sentence of the conclusion is a most excellent point regarding the belief of the people of that time:

"Even those who were committed to stripping blacks of their new status considered the individual right to arms an attribute of citizenship."
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Old 10-21-2009, 5:01 PM
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In 1776, the founding fathers said all men are created equal. That eliminates the classes. If the bill of right gave one man the right to keep and bear arms, it gave it to all of us.
Slaughterhouse, Plessy, and the estate tax reestablished classes and thus created asymmetric legal rights. Brown v. Board of Education DID NOT overturn legal discrimination against classes of people, it only said what those classes could not be. States can still find businesses or groups of people they don't like and craft laws against them, they just have to be sly about it and come up with reasons that have withstood the courts. They do it all the time. NY, NJ, MD, MA, et al. came up with the idea that they hate gun owners and subject us to prejudices and disparaging treatment at will in ways they couldn't dream of tormenting a religion or race they don't like. They can do it to farmers of a certain crop, certain vehicle owners, players of a certain sport, and so on. No way in hell do they view or treat all people equally or well.

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The U.S. failed to appoint a king or outlaw chisel point arrows so I don't see a conflict.
Read what I said on that. We have the NFA plus the Hughes Amendment and state prohibitions on select fire, suppressors, and SBR's which essentially is the same as the ban on chisel points.
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In Pennsylvania Your permit to carry concealed is called a License to carry fire arms. Other states call it a CCW. In New Jersey it's called a crime.
Discretionary Issue is the new Separate but Equal.

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Old 10-21-2009, 5:08 PM
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Those cases were all tried after 1791. They don't change the original intent.

The fact that they wrote the BOR without a king and without banning chisel point arrows shows that class and limiting arms to "sporting purposes and self defense" was not on their mind.
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Old 10-22-2009, 3:33 AM
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Gura said in the oral arguments in McDonald(7th circuit) that the time to base the 2A on was 1868,not 1791. Of course, the purpose at that point was for the Freedmen to defend themselves against private acts of lawlessness, similiar to why people carry today.
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Old 10-22-2009, 4:50 AM
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from what ive ubderstood so far, and ive only read six pages. its late and im going to bed. is that we have the rkba and ccw (bear arms) anywhere for self defense. and even if they said hey you dont have the right, we still would in order to maintain a militia. because every male from 17(18)- 45 needs to be ready. kinda like the selective service. which makes me wonder why if 2 or more people are caught training in military fashion, it is illegall and paramilitary. if th ng needed an auxiallary force it would be useless to augment it with untrained people. i know thats awhole other topic. sorry im tired.
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Old 10-22-2009, 6:09 AM
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Well I can simplify the whole thing for you.
A- You have rights
B- some do not want you to have rights.
It is understood, that when you drop a pebble into still water, ripples occur.
They want to drop the pebble without the ripples. It is all about control.
They want to give you as much impression of right with as little actual right
as possible.
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Old 10-22-2009, 6:27 AM
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Originally Posted by dantodd View Post
LOC is definitely the minimum we would get from full incorporation. However; along with incorporation comes the whole 14th amendment, including "equal protection." If CCWs are available they will need to be available to everyone without undue restrictions. (i.e. you can't require 2,000 hours of training and $2,000 annual fees)

Absolutely true. And it is because of "equal protection" that (IMHO) the effort to get CCW first is misplaced. "May Issue" simply won't survive any standard of scrutiny that's likely to be employed in the Federal courts once we have Incorporation.

Better still, sanity will be the case in all 50 states since the standards will be Federal. I'm sure there will be certain 'flavors' of the Right among the various states, just as there is with driver's licenses. Still, a driver's license from CA is valid in NY, at least for tourists, & so will a CCW.

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