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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #41  
Old 12-01-2021, 4:57 PM
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Originally Posted by TrappedinCalifornia View Post
What I'm talking about is yet another violation you are conducting of the rules of logic.
I'm in the process of going back over everything you've written with respect to the subject we're talking about, starting with your very first response in the other thread. I'm only a fraction of the way through.

But in reading that, it's clear that I haven't been as consistent in the use of some of my terms as I should be, and that my understanding of the meaning of those terms differs from yours. I think yours is a bit more nuanced for the most part, so I'll attempt to adopt them going forward (e.g., "valid" versus "sound").

All of this raises a question on my part, however. With respect to truth, where does repeatable observation fit into it? I would regard repeatable observations to be the definition of truth, i.e. if something is repeatably observable, that thing is truth, because it's as close as we can get to the objective real world.

This is important, because for me it is the thing that distinguishes subjective "truth" from objective truth.

Anyway, I'll continue reading, but it would probably be useful to have an answer to this going forward, because what I'm putting forward is fully dependent on it.
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Old 12-01-2021, 6:06 PM
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Originally Posted by kcbrown View Post
...But in reading that, it's clear that I haven't been as consistent in the use of some of my terms as I should be, and that my understanding of the meaning of those terms differs from yours. I think yours is a bit more nuanced for the most part, so I'll attempt to adopt them going forward (e.g., "valid" versus "sound")...
It's not about "my use." It's about your claim to 'logic.' If you are going to rest upon logic as the basis for your argument, then you have to play by the rules of logic. What I was demonstrating is that 'valid' has a specific meaning and so does 'sound.' They are NOT synonymous terms under the Rules of Logic which are then 'nuanced' or not by individuals.

Quote:
Originally Posted by kcbrown
All of this raises a question on my part, however. With respect to truth, where does repeatable observation fit into it?
Once again, you are referencing induction in pursuit of justifying a deductive premise...

Quote:
Originally Posted by kcbrown
I would regard repeatable observations to be the definition of truth, i.e. if something is repeatably observable, that thing is truth, because it's as close as we can get to the objective real world.
Under the Rules of Logic, you cannot mix the two approaches. Such is one of the limitations of 'logic' when it comes to the real world. In a simplistic and colloquial sense, such is explored in Star Trek in the relationship between Kirk, Spock, and McCoy, as well as in Data's quest to become "more human." It's the very reason Kant declared: "I have therefore found it necessary to deny knowledge in order to make room for faith."

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Originally Posted by kcbrown
This is important, because for me it is the thing that distinguishes subjective "truth" from objective truth.
The problem is, as I have been pointing out, your 'objective truth' when it comes to 'original intent' is an article of faith as it is as much a belief as it is a documented reality. Observation is meaningless without reflection and reflection involves interpretation, even if that interpretation amounts to nothing more than: "How does or could this directly impact me in this moment?"

As a result, what you are seeking is a deductive premise upon which to base your arguments; i.e., one which is inviolable, restricting or removing counter argument so as to eliminate confusion and/or dissonance. It's why you have been a pundit for 'systemic restrictions' in a reworked Constitution. It's also why I keep using the Biblical analogy.

The first words in the Bible? "In the beginning, God created..." When Moses asked who he should say sent him, the response? "I AM." When Jesus was asked what the greatest commandments were, how did he respond? Matthew 22...

Quote:
36 Master, which is the great commandment in the law?

37 Jesus said unto him, Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy mind.

38 This is the first and great commandment.

39 And the second is like unto it, Thou shalt love thy neighbour as thyself.

40 On these two commandments hang all the law and the prophets.
Those are ALL deductive premises. In the case of Matthew 22:40, the point is noted; i.e., that the rest, including the 10 Commandments, lies in those premises.

The problems then are the same as now. Not everyone buys into those premises, even if simply in the sense conveyed. Who or what is "God?" Does "God" even exist? Even if "God" exists, were the specific rules derived from those two greatest commandments for everyone or just for a Chosen People and, if the latter, who constitutes the Chosen People?

Even in the Declaration of Independence we see the deductive premises... "the Laws of Nature and of Nature’s God" and "We hold these truths to be self-evident." In other words, we have Naturally derived rights and the "truths" we hold as inviolable are.

What you are up against is the age-old, unresolved issue of "What is Truth?" As you say...

Quote:
Originally Posted by kcbrown
Anyway, I'll continue reading, but it would probably be useful to have an answer to this going forward, because what I'm putting forward is fully dependent on it.
Yet, the very reason it has remained unresolved throughout Human history is that not everyone interprets what is observed the same way. It's why eyewitness testimony is so frustrating. It's why you have so many 'exercises' demonstrating that and people have to, by and large, be trained to see things as objectively as possible. The trouble is that last... "as possible." Such depends on a variety of factors, not all of which are shared or shared equally by all individuals. It's the very reason, as you observed, that when it comes to something like "carry"...

Quote:
Originally Posted by kcbrown
All of which is to say that the spectrum of beliefs with respect to what is protected is as varied as the number of possible combinations in existence...
It's why some see an AR-15 as "nothing but a killing machine" while others see it as an objectively appropriate firearm for target shooting, hunting, self-defense, et al. It's why some prefer 9mm to .45 ACP. It's why some prefer revolvers or bolt actions or lever actions to semi-autos.

As I said, there is a general consensus as to the meaning of the 2nd Amendment. From a certain point of view, even the individual right and collective right supporters share a (limited) consensus. It's just that the details which follow vary dramatically. (Both of which we see evidenced in the majority opinion and the dissent in Heller.)

What you are attempting is to create a definitive from an 'amorphous;' amorphous being defined as something less than definitive. What I and many others have argued is that we were given the amorphous for a reason. As I said in my previous post, 'original intent' was based in We the People being willing to interact with a degree of conformity which not only allows for individuality, but protects it. It's something exemplified in Scalia's reference to "affrighting" as an existing limitation on the exercise of the right. It wasn't a prohibition against carrying the weapon. It was a prohibition against carrying the weapon for the purposes of frightening people.

That's the type of 'balance' the Founders originally intended. It's why Adams referenced a moral and religious people. It's why Lincoln declared that you're not going to please all of the people all of the time. Conformity means the imposition of limitations and those limitations need to be based in shared concerns, not imposed by a faction, even the majority. In the same way, restrictions on the limitations must be based in shared concerns, not imposed.

In the case of your definition of "original intent," you are attempting to impose your, personal understanding of it as a definitive. As has been repeatedly demonstrated, imposition of a supposedly 'objective' standard on an inherently 'subjective' issue never ends well. In fact, it's the very thing we are fighting against, just from a different direction where the Left is attempting to impose their understanding as a definitive.
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  #43  
Old 12-01-2021, 10:08 PM
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Originally Posted by TrappedinCalifornia View Post
You get the gist of it. It's the question that Sotomayor is asking today... Sotomayor warns of danger to Supreme Court legitimacy in abortion fight: 'How will we survive?'



For me, this is the 'success' associated with Trump's judicial appointments. It's not about whether we now get 'our way.' It's about forcing the Left to confront what the Right has dealt with over the last 40 or 50 years; i.e., the ramifications of a partisan controlled Court. Such is what I have been attempting to convey in this thread.

The reality is that what we are confronting is a conflict of ideologies in the Judiciary (not just on SCOTUS), where political leaning dictates a conclusion which is then rationalized/justified rather than more neutral attempts at deriving a 'balanced' end. It's precisely why we are seeing the efforts Sotomayor is alluding to when she says...



It's the same thing we lament regarding the 9th Circuit. It's the same thing we've complained about over the last several decades with regard to a "left-leaning" SCOTUS.

Unfortunately, there will always be a certain amount of 'prejudice' derived from deductive premises in court decisions. The crux of it should be persuasive argument rather than insisting this or that is the only legitimate argument. In that vein, one need be cautious about preaching to the choir and enjoying the accolades of the congregation. All of us tend to surround ourselves with those who view things similarly and that leads to a viewpoint that 'everyone' sees things the same way. Such a perspective leads away from persuasion to one of adamancy; something which then feeds recalcitrance rather than acceptance that 'the other side' may also have a point.

It's something we're seeing in the threads regarding 'carry' and it's something that kcbrown notes in the OP of his thread... On open carry, concealed carry, and Heller...



I've noted the same thing with regard to what is protected by the 2nd Amendment when it comes to activities such as hunting. It's not JUST about this or that aspect. It's supposed to be about taking the most inclusive view of the individual right and balancing it against the rights of the group; but, 'favoring' the right of the individual. It's not about the scope of the right dictating the exercise of the right. It's about not allowing the group to dictate limitations on the exercise of the right to the point of obviating the scope of the right.

It's why Scalia juxtaposed the two statements in Heller...



The problem is that people, including judges/Justices, have adopted one or the other of those statements as overriding precepts to the point of excluding the other from their thinking. While it is true that the scope of the right is virtually unlimited as it is naturally derived, it is ALSO true that every one of us, every day limits the exercise of our rights in exchange for access to the benefits of society. It comes down to the idea that with nothing but individuals, you can't have a society; but, society needing to realize that it is made up of individuals.

That's been the basis of the Great Experiment that is the United States and is expressed, to a degree, within the very name "United" States. We are united (a society), but maintain our individuality (states). It's something we've drifted away from as the Federal Government has grown stronger and more invasive, attempting to impose a common, inviolable standard on a diverse group of people. It's the very thing which has reduced too many SCOTUS decisions to 5 - 4 splits, a desire to impose a standard which isn't shared, but is representative of a faction.

As Lincoln famously said...



What that means for We the People and the Judiciary and the Politicians is that each 'side' gets something or everyone ultimately ends up with nothing. In other words, 'compromise' has become a dirty word precisely because it is no longer viewed as a compromise so much as "we/they get what we/they want and you or I might be left with... something." It's something you see underlying Sotomayor's reflection on the Court; i.e., 'if we eliminate abortion...' In other words, it is framed as unfettered abortion vs. no abortion rather than abortion being allowed under specific circumstances rather than as simply another method of birth control.

It was the 'art' of compromise we see in the Constitution. It's why the Constitution and the Bill of Rights lacks a certain amount of specificity. Both allow for flexibility to adapt to the times and the circumstances and the People. Such is actually the greatest strength of those principles and why Adams famously noted...



It's not about preaching to the choir or having a specific which is restrictively held to. It's about We the People being willing to interact in the 'originally intended' manner; i.e., a degree of conformity which not only allows for individuality, but protects it. Such was the very purpose of the Bill of Rights, as stated in its preamble...



The "beneficent ends?"
Here's where I disagree with Sotomayor. It has been long established that no right is unlimited, yet she and other liberals refuse to accept any regulation on abortion. She is attempting to scare the court into protecting abortion from the very thing she supports for gun rights. In the grand scheme of things, a ban of abortion beyond 16 weeks is what I would compare to the ban on automatic weapons or explosives. You can probably argue that it is unconstitutional but it would likely be upheld by any reasonable standard the court would follow.

Sotomayor is a partisan ruler warning of the dangers of partisan rulings, only because the threat is aimed at something she supports.
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Old 12-02-2021, 2:46 AM
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...Sotomayor is a partisan ruler warning of the dangers of partisan rulings, only because the threat is aimed at something she supports.
As I said, you get the gist of it.
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Old 12-02-2021, 11:03 AM
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It's not about "my use." It's about your claim to 'logic.' If you are going to rest upon logic as the basis for your argument, then you have to play by the rules of logic. What I was demonstrating is that 'valid' has a specific meaning and so does 'sound.' They are NOT synonymous terms under the Rules of Logic which are then 'nuanced' or not by individuals.
(bolded emphasis mine)

I hope you realize the irony of the above in light of your Devil's Advocate argument.

How do you square the above with your Devil's Advocate argument? Why should the meaning you claim above be the meaning used, in light of your Devil's Advocate argument?


Meanwhile, I'll continue going over everything you've written, but thought I'd mention the above because, frankly, I just can't resist.
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Old 12-02-2021, 4:42 PM
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(bolded emphasis mine)

I hope you realize the irony of the above in light of your Devil's Advocate argument.

How do you square the above with your Devil's Advocate argument? Why should the meaning you claim above be the meaning used, in light of your Devil's Advocate argument?


Meanwhile, I'll continue going over everything you've written, but thought I'd mention the above because, frankly, I just can't resist.
Because YOU are the one appealing to logic and demanding YOUR argument is the ONLY 'valid' and 'legitimate' one.

What I am demonstrating is what someone else noted...

Quote:
Originally Posted by MountainLion
...kcbrown espouses a particular theory of how written law is to be interpreted (which is somewhat close to the originalist school of thought), but gets many of the details wrong, and uses all the wrong terms...
It's something you've done, repeatedly, to other posters in criticizing their... unique... use of terms, understandings, etc. to support their arguments.

I'm pointing out that you are using terms, not as they are defined within the realm of logical discourse, but as an emotional 'trick' to not only engender support, but to preclude criticism. The problem is, in doing so, you invite the very criticism you wish to preclude and fail to persuade.

What this all boils down to is what I've told you before; i.e., why Bhobbs gets the gist of it, even if he 'drifts' a bit in terms of the details. Every time "the System" isn't working in their favor or in a manner they deem acceptable, someone (not just you) wants to change "the System" so that it will function more 'correctly' (according to them). They will charge that "the System" isn't working and is in need of 'fixing,' being somewhat 'vague' in terms of their proposed 'fixes'... such as with your 'systemic restrictions.'

When they meet with 'resistance,' that resistance becomes their foil; not necessarily for generating greater specificity and better argumentation, but for engendering support for their 'cause.' Put another way, they tend to fall back on 'feelz,' just as does the Left. Such is all well and good, insofar as it goes, in that passion is needed to create change. When all is said and done, however, for change to happen, it must be specific and based, not so much in 'feelz,' but in an intellectually sound rationale; i.e., one that is both valid and true.

Therein lies the problem and one I have been demonstrating through use of your own arguments. Objective truth is something which holds true for everyone, no matter what we choose to believe individually. Yet, you push personal interpretation (what you believe) as 'objective truth' and then use that to justify your argument as the only 'logical' (valid) and 'legitimate' one to be had. You have met with a certain level of success and general accolades on this (and presumably other) site(s) because most of us share, to whatever degree, your beliefs vis a vis the scope of the right for individuals and a reduction, to a bare minimum, of Government interest (exercise of the right). But, it's also why there has, yet, been no effective call for a Constitutional Convention due to your inability to persuade.

Not everyone shares your interpretation as 'objective truth;' thus, severely calling into question the idea that it is 'objective truth.' By calling into question the 'truth' of your premises, the soundness of your argument(s) is/are also called into question, no matter how validly phrased. Those are the rules of logical argument and I didn't invent them. Therefore, your demand... your presumptive claim to an intellectually superior argument... that we simply accept your argument as 'true' fails and the reason is so fundamental that you either miss it or choose to ignore it or attempt to use it to your advantage. Not only are you violating the rules of the 'game' as you are claiming to play it, when human perception is involved, true 'objectivity' is nigh unto impossible.

That is the key to the Constitution and why I specifically reference the Declaration, the Convention, Adams, and Lincoln. The Constitution, including the Bill of Rights, outline a System for We the People. The lynch pin to the Declaration is that all men are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. Yet, Life/Liberty/pursuit of Happiness are not 'objectively' measured. They are, fundamentally, perceptions and those perceptions differ among individuals, creating the very spectrum of beliefs you've noted in the specific of 'carry' in your other thread...

Quote:
Originally Posted by kcbrown
All of which is to say that the spectrum of beliefs with respect to what is protected is as varied as the number of possible combinations in existence...
That spectrum was on full display at the Constitutional Convention, resulting in the 'compromise' which is the Constitution. It's the very reason it is deliberately... my term is 'amorphous' (i.e., less than well defined), but others tend toward descriptors ranging from vague to unworkable. Why? Ultimately, those at the Convention did not want and could not impose their personal beliefs beyond a general consensus. To do otherwise would have flown in the face of the very thing they were declaring themselves independent from. Thus, they chose to create the outline based on those things largely shared, to whatever degree, among the delegates.

But, that was the gist of Adams' warning regarding a religious and moral people. What he was indicating was a sense of shared values and perceptions. It's what Lincoln was getting at; i.e., that the People were focusing on, not the shared values/perceptions, but the differences. Yet, the only way "the System" outlined by the Constitution works is in a focus on what is shared among We the People.

Instead of focusing on the shared, you too are focusing on a fundamental difference. You wish to impose what you see as the individual scope of the right on everyone as an absolute restriction on what can be pushed as limitations on the exercise of the right. In doing so, you're not jumping into the deep end of the pool, you are throwing the entirety of the System off the ship over the deepest part of the ocean in that you are inviting the full spectrum of beliefs rather than steering a course based on the shared values/perceptions which the ship represents. For that to work, based on everyone's own version of a 'ship,' you must create a synchronized fleet out of a ragtag collection of 'ships' that do not share similar capabilities or destinations. Put another way, you are creating more of the very anarchy you are striving to rectify.

It's not "the System" which requires changing. What has changed is We the People. We no longer strive for 'acculturation' (a level of conformity) and, instead, have emphasized our 'differences.' This is what Lincoln was getting at. It's what Adams was getting at. It's what the Constitution is based on as it's what the Constitutional Convention strove toward. It's what the Declaration specifically states...

Quote:
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
It's why you wouldn't be able to limit a new, Constitutional Convention to the 2nd Amendment and/or those areas you, personally, wish to 'fix.' We the People... plural. With that comes the full spectrum of beliefs, perceptions, agendas, et al. In this case, you'd be starting over with a significantly more diverse spectrum than that confronted by the Founders who shared a certain level of commonality which doesn't exist, as a practical matter, today (even in theory), but has been deliberately mooted in the sense of the differences having been exacerbated.

Are there attributes commonly shared today? Sure. Are they sufficient to create and institute a new System? The question is seriously in doubt. Is there a 'better' path? Maybe. That path?

The same one which has been used against us. It's the quintessential: How do you eat an elephant? You go to the People and get them to focus on the things we have in common in the same way others have gone to them and gotten them to focus on the differences. It's the only way for our System (old or new) to work 'properly.'

I realize that is what you see yourself as attempting, but it's something you can't accomplish by misleading yourself or others or both with presenting your argument as intellectually superior based on a methodology you are refusing to abide by and, instead, just as with your personal understanding of the right, along with how you perceive its exercise, imposing your own, unique definitions on terms such as valid, axiom, legitimate, sound, etc. As I said, it's not about "my use" of the terms or my role as Devil's Advocate. The fact that you continue to attempt to paint it as such is simply another indication of what MountainLion was getting at with...

Quote:
Originally Posted by kcbrown
...espouses a particular theory of how written law is to be interpreted (which is somewhat close to the originalist school of thought), but gets many of the details wrong, and uses all the wrong terms...
You are using an 'unique' approach, outside the rules of what you claim to be basing it on, to push an 'unique' theory. The reason you've met with some measure of success HERE is that we share certain aspects in terms of 'feelz.' But, what I'm highlighting as a Devil's Advocate, is why you aren't meeting with a similar degree of success in the larger scheme; i.e., your argument falls apart based on the very thing you proclaim to rest that argument upon. That is the actual irony.

Last edited by TrappedinCalifornia; 12-02-2021 at 4:48 PM..
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Old 12-02-2021, 5:24 PM
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1. Induction and deduction are two, differing forms of logic and, according to the rules of logic, cannot be mixed.
Having read https://iep.utm.edu/ded-ind/, I now understand why I was confused by how you were using these terms. My understanding of logic comes from mathematics, engineering, and science, not philosophy (this could easily explain a great many things...). "Induction" as I originally understood it is mathematical induction, and isn't the same thing as induction as you refer to it here. So now that I (hopefully) have a better understanding where you're coming from ...

What is the source of your claim that you can't mix induction and deduction? It seems to me that in any multi-stage logical argument, you should be able to use the output of one form of argument as inputs to the other form, though it seems to me that using the output of an inductive argument as the input to what would otherwise be a deductive argument would in turn transform that deductive argument into an inductive argument.

Which is to say, it seems to me that all sub-arguments of a deductive argument must be deductive, but sub-arguments of an inductive argument can be deductive.

But that's very different from saying that the two can't be mixed together. So I'm left to wonder what exactly you mean by "mixed together", and where you get this assertion from.
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Old 12-02-2021, 6:18 PM
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Having read https://iep.utm.edu/ded-ind/, I now understand why I was confused by how you were using these terms. My understanding of logic comes from mathematics, engineering, and science, not philosophy (this could easily explain a great many things...). "Induction" as I originally understood it is mathematical induction, and isn't the same thing as induction as you refer to it here. So now that I (hopefully) have a better understanding where you're coming from ...

What is the source of your claim that you can't mix induction and deduction? It seems to me that in any multi-stage logical argument, you should be able to use the output of one form of argument as inputs to the other form, though it seems to me that using the output of an inductive argument as the input to what would otherwise be a deductive argument would in turn transform that deductive argument into an inductive argument.

Which is to say, it seems to me that all sub-arguments of a deductive argument must be deductive, but sub-arguments of an inductive argument can be deductive.

But that's very different from saying that the two can't be mixed together. So I'm left to wonder what exactly you mean by "mixed together", and where you get this assertion from.
Politics is philosophy, not mathematics or engineering.

Once again, you are attempting to 'change the rules' through rhetoric. In the vein of the Encyclopedia Britannica reference I just provided, what you are attempting to do is impose a more absolutist degree of political science on something which is based on political philosophy. Note from the Encyclopedia Britannica...

Quote:
The central problem of political philosophy is how to deploy or limit public power so as to maintain the survival and enhance the quality of human life.
Which is precisely the point of the Bill of Rights and exactly what you are attempting to 'tweak' by promoting a philosophical approach to the scope of the right so as to limit the Government's ability (public power) to limit the exercise of the right.

It's just like when you ask where I get the idea you can't mix inductive logic with deductive logic. I told you, the first day of a Logic 1A course. It's not possible in the way you are presenting your argument. It is possible in, for lack of a better term, a 'fuzzy math' approach; which is something different than what you are attempting with your definitive only "valid" and only "legitimate" (an inherently subjective evaluation).

Which brings us right back to the same go 'round; a 'mixed method' approach is laden with mines, traps, and misinformation. As an example: "It seems to me that... you should be able to use... though it seems to me..." By definition and default, you are inserting your own, subjective 'feelz' into creating justification for how you're attempting to put your argument together. Not everyone shares or is going to share that sense of subjectivity; making it something other than 'objective truth.' It's also what I mean by attempting to 'change the rules' through rhetoric.

While induction and deduction can be complementary, they cannot be 'mixed' other than in a strictly subjective sense. While such may be how politics is practiced, that does not make it 'correct' philosophically or scientifically. In 'mixing' them, you are violating the rules for each. In violating those rules, you introduce subjectivity and interpretation; which is exactly what I have been telling you that you are doing. As such, you cannot claim to be working from an 'objective' truth. Instead, you are attempting to impose a 'subjective' truth as an 'objective' standard. In doing so, you are creating a paradox where everyone begins to get an headache over the rhetoric involved to justify it and the arguments become repetitive in that they are based as much, if not more, in adamancy, something which then feeds recalcitrance, which spawns repetitiveness. (Which is why we've been getting the reaction from some to our 'walls of text' in threads.)

Which is precisely where we've been at for several years, including with this thread. Again, it's why MountainLion has shared that your approach is...

Quote:
Originally Posted by MountainLion
...kcbrown espouses a particular theory of how written law is to be interpreted (which is somewhat close to the originalist school of thought), but gets many of the details wrong, and uses all the wrong terms...
Note the words particular, interpreted, close, school of thought, etc. While he was referring to our 'qualifications,' what I'm speaking to is something more fundamental. You are attempting to impose your own, subjectively derived, political philosophy under the guise of a 'scientific' (rational, to you) approach. Which is why I said you have met some success here in that we share many of your subjective 'feelz.' Thus, while there is a measure of 'objective truth' within THIS, SPECIFIC audience, it is still not 'objective truth' to even this audience in that there are variances in what we believe and those variances are not always minor. In other words, even within the 'choir and congregation,' the best you can achieve is a general consensus, not 'objective truth.'

That is the real world reality, something that stares you in the face with your inability to create a new, Constitutional Convention, let alone 'control' one even if you did. It's why your argument has some credibility, but isn't entirely credible. It's why you are attempting to undermine 'the rules' I am sharing (not creating or uniquely using) and introduce your own interpretation to create a veneer of 'credibility.' It's why you have attempted to undermine the credibility of what I have been demonstrating (through quotes from references) with your rhetoric.

It's why, as with our past exchanges, we have, once again, reached an impasse. In effect, I'm asking you to abide by the rules you claim to be playing by and you continue to create your own rules (adjusting them to adapt to the counter arguments), demanding we abide by them. You are engaged in a subjectively interpretive endeavor while envisioning and presenting yourself as doing the opposite.

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Old 12-02-2021, 6:53 PM
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Originally Posted by TrappedinCalifornia View Post
It's just like when you ask where I get the idea you can't mix inductive logic with deductive logic. I told you, the first day of a Logic 1A course.
I haven't taken any logic courses offered by a philosophy department. All of the logic courses I've taken were in mathematics or engineering, and those said nothing of the sort.

You may have misread my intention with respect to what I said. I'm not attempting to assert that one can mix the two, I'm attempting to understand why they can't be mixed, or if there are some conditions under which they can be mixed (and, if so, what those conditions are).


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While induction and deduction can be complementary, they cannot be 'mixed' other than in a strictly subjective sense.
Could you elaborate on this? Because what this means isn't clear to me at all.

If I arrive at a conclusion via an inductive argument, and then presume that conclusion to be true, can I not then use that presumption as part of the foundation of a sound deductive argument (with the understanding that the deductive argument is sound only under the condition of the presumption)? If not, would it at least be reasonable to state the the deductive argument is now inductive and inherits that inductive trait from its inductively derived input?


In any case, if they can't be mixed at all, even with respect to using the output of one as the input of another, then I suppose all I can do is put forth the argument and let it be characterized in whatever way is appropriate.

I've finished reading through what you've written, and believe I see some of where you're coming from. I'll attempt to reformulate my argument in a more rigorous fashion, and I'll do my best to adhere to the rules of logic you've referenced. The argument in question is likely to wind up being inductive in the end, if I properly understand the difference between an inductive argument and a deductive one.
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Old 12-02-2021, 6:56 PM
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Oh, one other thing...

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Originally Posted by TrappedinCalifornia View Post
Politics is philosophy, not mathematics or engineering.
That may be. The problem is that politics ultimately intersects the real world and is used to steer actions in the real world, and the real world is much more in the realm of science than philosophy, at least where the two would collide.
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Old 12-02-2021, 9:08 PM
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I haven't taken any logic courses offered by a philosophy department.
Everything you are talking about, however, is philosophical. It's why we refer to the 'philosophies' the Founders drew upon.

Quote:
Originally Posted by kcbrown
You may have misread my intention with respect to what I said. I'm not attempting to assert that one can mix the two, I'm attempting to understand why they can't be mixed, or if there are some conditions under which they can be mixed (and, if so, what those conditions are).
As I said, you can, anytime you wish. It's called a 'mixed method.' But, as I said, it's laden with issues; some of which being what I'm highlighting that you are falling prone to. It's also the opposite of what you are proclaiming your approach to be.

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Originally Posted by kcbrown
Could you elaborate on this? Because what this means isn't clear to me at all.
Being complementary means they can provide a more complete understanding; something I've been arguing with another member over in a different context. However, both deduction and induction have their own rules and processes which stand in contradiction to one another. In a simplistic sense, it's why I told you earlier that a deductive argument is based on an absolute in the sense of the argument having to flow from it. With induction, a conclusion cannot be absolute, it can only be provisional. So...

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Originally Posted by kcbrown
If I arrive at a conclusion via an inductive argument, and then presume that conclusion to be true, can I not then use that presumption as part of the foundation of a sound deductive argument (with the understanding that the deductive argument is sound only under the condition of the presumption)? If not, would it at least be reasonable to state the the deductive argument is now inductive and inherits that inductive trait from its inductively derived input?
This is where you lose your way. Presumption is a subjective standard and inappropriate. Instead, you 'accept as true,' pending additional evidence/argument/results. Put another way, with induction, you derive a theory from observation and develop hypotheses from that theory to test. Yet, no matter how valid/sound the theory, it is always provisional as, at some point, it can and must be modified should new evidence support the modification. This is, in essence, what you are proposing.

However, deduction requires an absolute; e.g., my Biblical references such as "In the beginning, God created..." It cannot be provisional as to change the deductive premise means altering or potentially altering the argument and altering the argument is likely to alter the conclusion. This is, in fact, what you are attempting; i.e., restricting the ability to alter the rules when circumstances are determined to have 'changed' or are determined to demand a 'change.' (Sound familiar? It should. It's the very thing Living Constitutionalists argue. Note my earlier reference to Gorsuch.)

Thus, what you are proposing stands in contrast to what you are attempting, creating a paradox; not to mention a conundrum very much akin to the one you are attempting to preclude. While the Constitution (including the Bill of Rights) was intended to have a certain amount of malleability, the Founders deliberately made such change difficult lest it lead to a 'breaking' of the System it was intended to represent. It's why there is a certain intransigence (inflexibility) to true Originalism and too much pliability (flexibility) to Living Constitutionalism; thus, the 'tension' between the two which exerts influence on the 'balance point.' It's why the decisions of Scalia, Thomas, Gorsuch, et al. are not 'pure' Originalism.

It's also why I've maintained and continue to do so that a fundamental aspect of the Great Experiment is a 'maintenance' of the 'balance point.' A 'mixed method' approach is what I stated earlier in response to Bhobb...

Quote:
Originally Posted by TrappedinCalifornia
It's supposed to be about taking the most inclusive view of the individual right and balancing it against the rights of the group; but, 'favoring' the right of the individual. It's not about the scope of the right dictating the exercise of the right. It's about not allowing the group to dictate limitations on the exercise of the right to the point of obviating the scope of the right.
It's why Scalia indicated in Heller and post-Heller that the limitations would have to be determined very carefully. Which is why I referenced Lincoln in that at no time will everyone be pleased indefinitely. Likewise, in a derivative of Lincoln's saying...

Quote:
You can fool all the people some of the time and some of the people all the time, but you cannot fool all the people all the time.
That is the essence of the tension on the 'balance point;' i.e., while everyone may be pleased and/or fooled some of the time, such will not be indefinite. Thus, the reason for a certain malleability to the Constitution, but an associated difficulty to that malleability.

Quote:
Originally Posted by kcbrown
In any case, if they can't be mixed at all, even with respect to using the output of one as the input of another, then I suppose all I can do is put forth the argument and let it be characterized in whatever way is appropriate.
Now you're catching on. You must persuade others that your premise is true, your logic valid, and, thus, your argument sound. You cannot 'demand' or 'presume' or 'insist' or 'declare' that it is, particularly when it involves a certain degree of interpretation. That is where you still haven't quite wrapped your mind around it...

Quote:
Originally Posted by kcbrown
...I'll attempt to reformulate my argument in a more rigorous fashion, and I'll do my best to adhere to the rules of logic you've referenced. The argument in question is likely to wind up being inductive in the end, if I properly understand the difference between an inductive argument and a deductive one.
No matter how 'rigorous' you make your argument, it is still going to be based on an interpretive understanding of Constitutionally permissible limitations on the right. Rather than worrying about strict adherence to induction/deduction, what you need to focus on is persuasion. Unfortunately, that is something you cannot do with declaring "the proper interpretation of the Constitution" is based on your interpretive understanding of it.

Instead, you must persuade others that your (our) understanding of the right is appropriate to the end in view. To do that, you must be prepared to engage in the same discourse currently going on; i.e., something else Scalia called attention to in Heller...

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Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
Okay. That's a statement regarding the scope of the right, which is what the majority in Heller was intent upon dealing with at that moment in the decision. Later...

Quote:
Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right...
Such represents one of my personal peeves with Heller. In the way Scalia wrote the opinion, he occasionally appears to 'conflate' scope with exercise. Even though one can readily derive his intent, it's a penchant which has been repeatedly used against us in something Thomas later characterized as a 'crabbed reading.' If the scope of the right includes all 'bearable arms,' then the limitations must reference the exercise of the right vis a vis which 'bearable arms' are considered appropriate to be borne in society. (Thus, his reference, once again, to "affrighting" and the intent of the bearer.)

In other words, as I alluded to previously, Scalia had to set "the most likely reading" of the right as individual and the scope of the right applying "to all instruments that constitute bearable arms," even in modern times, against the idea (at least, in part, at the behest of Kennedy)...

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Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose...
Put another way...

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Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.”...

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
It's a passage I know you take personal issue with. However, it was the 'compromise' that Scalia made in the language to achieve what he felt was appropriate to the end in view for the case... the declaration of the 2nd Amendment as an individual right. What it amounts to is tantamount to his having said: 'The scope of the right is broad and it belongs to the individual, but we are not going to set out new or establish as Constitutional existing limitations on the exercise of the right in this decision. We are simply going to acknowledge that such limitations exist and their Constitutionality will have to be determined in future cases.' (Which is, in essence, what he said to Chris Wallace in the interview I embedded earlier.)

As part of your persuasion, you are going to have to convince people that you have a firm grasp on the difference between the scope of the right and the exercise of the right. Such is something which will be a difficult task if you intend using a 'limitless' scope of the right as your 'systemic restriction' for determining 'permissible' limitations on the exercise of the right. (Which is why Scalia 'punted' that issue in Heller to achieve what he needed as a first step; establishing a 'scope' and a 'test' to be used in future steps.) Which goes to...

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Originally Posted by kcbrown View Post
The problem is that politics ultimately intersects the real world and is used to steer actions in the real world, and the real world is much more in the realm of science than philosophy, at least where the two would collide.
Bear in mind that science and philosophy were treated as largely 'synonymous' for a longer period in human history than the derivations from Kant, Popper, Descarte, et al. Today, they are seen as 'equal' forces creating a tension on the culture and the culture is the very thing you are looking to tweak; meaning, once again, that you must be cautious in attempting to introduce 'scientific rigor' to an essentially 'philosophical' exercise.

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Old 12-02-2021, 10:25 PM
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Originally Posted by TrappedinCalifornia View Post
Everything you are talking about, however, is philosophical. It's why we refer to the 'philosophies' the Founders drew upon.
I agree, but with reservations. The philosophies in question have real-world implications and applications, sometimes immense ones, so it seems to me that it's important to understand that and, thus, to approach the problem with the real world as firmly in mind as possible.


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As I said, you can, anytime you wish. It's called a 'mixed method.' But, as I said, it's laden with issues; some of which being what I'm highlighting that you are falling prone to. It's also the opposite of what you are proclaiming your approach to be.
At this point, because I'll be reformulating, my approach is likely to differ in some respects from what I used before, and in any case, I think I see the futility in attempting to characterize it.


Quote:
Being complementary means they can provide a more complete understanding; something I've been arguing with another member over in a different context. However, both deduction and induction have their own rules and processes which stand in contradiction to one another. In a simplistic sense, it's why I told you earlier that a deductive argument is based on an absolute in the sense of the argument having to flow from it. With induction, a conclusion cannot be absolute, it can only be provisional.
Understood, and I'll do my best to keep that in mind.


Quote:
This is where you lose your way. Presumption is a subjective standard and inappropriate. Instead, you 'accept as true,' pending additional evidence/argument/results.
"Accept as true" is the meaning I was going for, so I'll note this usage for later.


Quote:
Now you're catching on. You must persuade others that your premise is true, your logic valid, and, thus, your argument sound. You cannot 'demand' or 'presume' or 'insist' or 'declare' that it is, particularly when it involves a certain degree of interpretation. That is where you still haven't quite wrapped your mind around it...
Well, I think I follow it now! What I'll come up with may look rather different than before, borrowing those things that I hope to be useful in persuasion and discarding others.

One of the reasons I'm going to attempt to be more rigorous is precisely for the purpose of persuasion. The fewer holes there are in the argument, the more compelling it should be. The better a job I can do in basing it on things that everyone can agree on, the more persuasive it should be.


Quote:
No matter how 'rigorous' you make your argument, it is still going to be based on an interpretive understanding of Constitutionally permissible limitations on the right. Rather than worrying about strict adherence to induction/deduction, what you need to focus on is persuasion. Unfortunately, that is something you cannot do with declaring "the proper interpretation of the Constitution" is based on your interpretive understanding of it.
Understood. So instead of attempting to show "the proper interpretation of the Constitution", what I should be doing is arguing for an interpretive approach that the listener will, after they hear the argument, prefer over other interpretive approaches, right?

Persuasion instead of bludgeoning.


Quote:
Instead, you must persuade others that your (our) understanding of the right is appropriate to the end in view.
There's a problem with that: the acceptance as true of the notion that the end in view is agreed upon in the first place.

I suppose that just means that there's going to be an appropriate audience for it, and the argument has to be properly tailored to that audience.

My hope is that I can come up with an argument that is sufficiently persuasive to change the minds of at least some people who are currently in the "living Constitution" camp. That, of course, requires that I make the argument good enough that it will easily persuade anyone here, so this should be a good litmus test.

Hey, if I'm going to set a goal, it may as well be a worthy one, right?


Quote:
As part of your persuasion, you are going to have to convince people that you have a firm grasp on the difference between the scope of the right and the exercise of the right.
I'm hoping that I don't necessarily have to get to that point with respect to the problem of determination of meaning, but I do recognize that it's certainly going to be a problem when it comes to the application of whatever meaning is arrived at.

Which is to say, I'm hoping that this is a problem that can be broken down into smaller bits, the way one might solve most real-world problems. But perhaps that's not truly feasible here. Won't know until I present the argument for discussion.


Quote:
Bear in mind that science and philosophy were treated as largely 'synonymous' for a longer period in human history than the derivations from Kant, Popper, Descarte, et al. Today, they are seen as 'equal' forces creating a tension on the culture and the culture is the very thing you are looking to tweak; meaning, once again, that you must be cautious in attempting to introduce 'scientific rigor' to an essentially 'philosophical' exercise.
Fair enough, but if the rigor I wish to achieve in my argument proves to be more persuasive than alternatives, then perhaps it'll be worth it.


Thanks for sticking with me on this. I'm hopeful it'll all be worthwhile in the end.
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Old 12-03-2021, 4:47 AM
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Originally Posted by kcbrown View Post
...The fewer holes there are in the argument, the more compelling it should be. The better a job I can do in basing it on things that everyone can agree on, the more persuasive it should be...

So instead of attempting to show "the proper interpretation of the Constitution", what I should be doing is arguing for an interpretive approach that the listener will, after they hear the argument, prefer over other interpretive approaches, right?

Persuasion instead of bludgeoning...

I suppose that just means that there's going to be an appropriate audience for it, and the argument has to be properly tailored to that audience.

My hope is that I can come up with an argument that is sufficiently persuasive to change the minds of at least some people who are currently in the "living Constitution" camp. That, of course, requires that I make the argument good enough that it will easily persuade anyone here, so this should be a good litmus test...
Bearing in mind that there will always be 'holes' insofar as a precise definition of original meaning. Likewise, whether it is the existing system or a 'new' one, it will always come down, to one degree or another, to a matter of philosophical preference vis a vis an "interpretive approach" to original meaning; no matter how detailed or 'restrictive' you make that approach. In fact, it's the very thing conservatives on SCOTUS such as Thomas, Alito, and Gorsuch, along with members here, are complaining about with regard to how the lower courts have been 'abusing' what was laid out in Heller. Either they've ignored it entirely or branch off into their own 'interpretation' of what was specifically said to meet their own ends rather than those intended by the majority opinion.

Thus, 'tailoring' it to a specific audience isn't just about making it appealing, it's about directly addressing their own, held interpretive approach in much the manner Scalia did in Heller with regard to Stevens' dissent. In other words, you're not necessarily going to change the minds of those who have an agenda (a differing judicial philosophy or are already sympathetic to your's), but looking to persuade the more 'neutral' who tend to 'favor' one philosophy or the other. As such, the litmus test isn't going to be 'easily persuading' the 'choir and the congregation' insofar as a more 'refined methodology.' It is going to be in its ability to move the needle with the "in-between" insofar as their preferences.

That's why the: "Persuasion instead of bludgeoning." Just like how Independents are moving away from Biden and the Democrats at the moment, due to, in large measure, their abandoning a 'moderate' position by adopting attempts to push through more 'radical' bills, regulations, etc. regardless of the 'agreement' among many Independents for some of what is being pushed. It's something we see evidenced in the COVID section of this site.

It's not about being anit-vaxx, for the most part. For those not resisting due to politics or conspiracy theories, it's about bucking the mandates which are based in arguments which have not convinced people of the necessity for mandates or the advisability of what is being mandated. In many respects, it goes back to...

Quote:
The proverb you can catch more flies with honey than with vinegar means that it is much easier to get what you want by being polite rather than by being rude and insolent...

The phrase was also used by Benjamin Franklin in Poor Richard’s Almanack, published in 1744:
Tart Words make no Friends: spoonful of honey will catch more flies than Gallon of Vinegar.
Phrased differently, it would be that persuasion is better than force; i.e., understanding the difference between persuasion and manipulation/coercion...

Quote:
  • Persuade: to prevail on (a person) to do something, as by advising or urging; to induce to believe by appealing to reason or understanding; convince.
  • Manipulate: to manage or influence skillfully, especially in an unfair manner; to adapt or change (accounts, figures, etc.) to suit one’s purpose or advantage.
  • Coerce: to compel by force, intimidation, or authority, especially without regard for individual desire or volition.
What you were doing in the OP is manipulating and what you have been arguing over the years vis a vis 'systemic restrictions' is coercion. What you are now suggesting is more akin to persuasion. In other words, in the OP, you were arguing that your's isn't a better or more appealing approach to achieve the appropriate end in view. You were arguing that it is the ONLY way to do so properly and to argue that, you were manipulating the available evidence to suit your purpose, even when 'acknowledging' that there were 'gaps' in the available evidence which make interpretation, to whatever degree, necessary and failing to accept that alternative interpretations were not only possible, but just as 'valid' as your own. (Which, as I've documented, is something different than 'truthful' or 'sound.')

Good luck in developing your 'new approach.'
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Old 12-03-2021, 11:45 AM
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Engineers despise philosophers with no science understanding almost as much as philosophers despise engineers with no philosophy degrees.

They are simply incapable of communicating effectively
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Old 12-03-2021, 3:24 PM
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Originally Posted by curtisfong View Post
Engineers despise philosophers with no science understanding almost as much as philosophers despise engineers with no philosophy degrees.

They are simply incapable of communicating effectively
I disagree. I mean, look at the discussion between myself and TrappedinCalifornia. Yeah, we've had our difficulties, but I think I understand his points (only he can say whether he thinks he understands mine. ).

Communication is an art as much as (if not more than) a science. My problem is that I've heretofore been treating it as the latter, at the expense of the former. I hope to rectify that, and also hope to incorporate that in my next attempt at making the argument here.
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Old 12-03-2021, 7:40 PM
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Default Attempt #2 ...

Taking the lessons from the previous discussion to the best of my abilities, I think I'll start off with an informal form of the argument. It may be easier to relate to, and thus may be more persuasive to some. I'll also give some thought to a formal argument, but that's for later.

So the question here is: assuming there is such a thing at all (I believe there is), what's the most appropriate way to interpret the Constitution and, more specifically, the 2nd Amendment?

Well, firstly, one has to answer "appropriate for what?" I would expect that this will depend on the role the interpretation will play.

For the courts, this isn't just an abstract philosophical exercise. Their use of the interpretation is for the purpose of deciding cases that ultimately (directly or indirectly) determine what people can and cannot do in the real world. And the Constitution was written and ratified with a set of real-world purposes in the minds of those involved (they were, after all, setting up a country). But I may be getting ahead of myself a bit.

So where to start? I'll start by asking: how do we normally interpret meaning in the first place? Perhaps more importantly, why do we do that at all?

Well, take a look at most of the conversations you've had, whether written or verbal. You're communicating with someone else, and they're communicating with you. The specific purpose of that communication can vary wildly, but I think one thing is quite consistent in it: each person intends to convey some meaning to the other. The specific purpose of doing so can vary enormously, of course, but I think each person clearly intends the other person to understand the meaning they're attempting to convey in the same way they do. Which is to say, each person communicates to the other for the purpose of getting the other person to come to the same understanding of what they're communicating that they have.

And that expectation doesn't seem to be only on the part of the speaker, but also appears to be present on the part of the listener. It appears to be routine for someone to ask the other person for clarification if he's uncertain about his own understanding of what the other person is attempting to convey. We do that every time we say "huh? What do you mean?" to the other person. This is so prevalent that it's almost automatic. It might even be automatic at some level. I'm speculating, but there might well be an instinctive component to this.

And it goes in both directions. Each person attempts to convey their understanding to the other person, and each person attempts to understand what the other person meant. When both people are doing both things, you have what I think most of us would regard as a good faith conversation (corrections welcome on this, of course). I'll refer to the meaning that any given person is attempting to convey to the other in such a conversation as the originally intended meaning.

The amount of effort that people put into this is high enough (it seems to be routine, after all, but takes effort) that it's worth answering why we do it.

I would say that the primary reason this tendency came about is survival, even if the most common use doesn't directly involve survival. People are social creatures. They interact with each other and, more importantly, they cooperate with each other. Proper cooperation requires that individuals do things in a coordinated fashion. This requires that each person know what to do, when to do it, and how to do it. Where do they get the necessarily knowledge for that? From others. Through communication with others.

If people are coordinating their efforts to achieve a goal and the understanding that some of the people have differs from the understanding they're expected to have, the end result is that their actions can, and at least sometimes will, differ from what was expected, and if it differs in a way that is important, this could easily cause what amounts to loss of coordination in the overall effort. This, in turn, can lead to failure of the coordinated action and thus failure to achieve the purpose of that action. And that purpose could well be a matter of life and death. An example of that is military action on the battlefield, where failure to achieve the objective is likely to cost lives and might well cost the war. But even when direct life and death isn't at stake, the well being of people could be. For instance, how well a company does in its business depends on how well the people within it coordinate their efforts to achieve the company's goals. Failure to achieve those goals can (and often does) result in failure of the business, loss of jobs and resources, etc. And it goes all the way to a personal level as well, for instance when a couple of people are working together to build something in their garage.

Being "on the same page" appears to be something that is needed so routinely that we generally seem to expect it in our communications (enough so that we have the aforementioned coined term for it: "on the same page"), and we get frustrated when we can't achieve it. If you want an example, you need only look at TrappedinCalifornia's frustration with me when it's clear I didn't fully understand his meaning.

So when we communicate to another, it appears that it's generally with the expectation that the other person will attempt to understand the meaning we're intending to convey. Sometimes that's difficult to achieve. Sometimes it takes multiple attempts, on the part of the speaker or the listener or both. But what seems to be a near-invariant is that the person who is speaking is doing so for the purpose of conveying his intended meaning to the listener so that the listener will come to the same understanding that the speaker has.

This doesn't appear to be limited to verbal communication, either. It is present in written communications as well, and this forum is a perfect example of that. But books, too, are an example. We use textbooks for the purpose of teaching people the concepts explained within them. The authors of such works seem to intend to teach the concepts on the basis of their own understanding of them (indeed, one wonders how they could teach them on any other basis), in as clear a manner as they can think to muster. Any of us who have written up instructional material for others can relate to this.

So: when we communicate, we almost always appear to do so for the purpose of conveying our understanding to someone else in such a way that the other person will come to the same understanding that we have. At least, I can say that's why I do it, even if I do it badly. Surely I'm not alone in this, no?

Because of the above, I have to conclude that the primary purpose we have for communicating with each other is to convey our originally intended meaning. I don't perceive any purpose for it that transcends that one (but that I don't perceive something doesn't mean others don't, so if there's a purpose for communication that transcends this one, I'm all ears). This purpose appears to be in place in our individual communications with each other as well as in communication that's intended for larger audiences (for instance, the CEO's message to the members of a company).


What has this to do with the Constitution, then? Well, the Constitution is a written work. Why was it written? TrappedinCalifornia alludes to some of that: part of it was for the purpose of getting others to agree to its contents. But if that's all it was for, then it didn't need to be in written form. People have group discussions and come to consensus within them all the time. So why written, then?

I believe the answer to that is that the authors and ratifiers intended not only to come to a common understanding amongst themselves, but for others to come to the same understanding of what they ratified as they had and to act on that basis. The Constitution is, after all, the foundation of the country. And I think that their expectation wasn't merely that their contemporaries would come to that same understanding, but that future generations would also come to that same understanding and, likewise, act on that understanding.

Is it possible that the originators of the Constitution (those who penned and ratified it) didn't have that expectation? I suppose so. But there is one thing in the Constitution that strongly suggests they did have that expectation: the amendment process.

If the author of a controlling work (a work that governs the actions of others) expects that he who is ostensibly governed by (or enforcing the provisions of) it will interpret the work however that reader wishes, or even just in a way that has no substantial derivation from the author's originally intended meaning, then what would be the point of placing within it a mechanism for alteration? The reader can achieve the effects of alteration merely by reading it in a manner that differs from that original intent, no? This, I argue, is very strong evidence that the originators of the Constitution intended those who would make use of it both then and in the future to, as much as possible, come to the same understanding of it that they had.


But that has implications. If that's why the Constitution is in written form, then courts and other bodies that claim to make decisions on the basis of it should, as much as possible, attempt to come as close to the aforementioned understanding as they can. To do otherwise is to sabotage the entire point of having a written Constitution in the first place. It seems to me that this is where the "living Constitution" people part ways with originalists and, I would argue, with the people who originally wrote and ratified the Constitution.


Now, how one might achieve that understanding and to what degree one might be able to achieve it are obviously manifestly important questions that have to be answered. But the interpretive goal comes first. If one doesn't know what kind of meaning one is attempting to arrive at, how can one determine how to arrive at it in the first place?

Additionally, because the Constitution was written and ratified by a body of people, those individuals obviously could have had different ideas about the meaning of what they were ratifying. One would hope that at the end, the understanding they reached was essentially the same between them. They certainly had conversations amongst themselves and I think it's reasonable to expect that they came to some common understanding of something. Figuring out what to do about the differences in that understanding, when attempting to understand the Constitution, can be enormously difficult, and there will most certainly be substantial disagreement on what to do about it. I frankly don't have a good answer to that except to say that whatever understanding we come to should at least, as much as we can manage, match the understanding that was common to all of the people involved, if there is any such common understanding at all (if there's not, then that just makes things even more difficult).

Even so, the originally intended meaning seems to me (and, if I've done my job right here, hopefully to you as well) to be, if nothing else, the most natural one to pursue, precisely because it's what we generally pursue in our own communications, so routinely that it sometimes seems like it's wired in. It's a goal to reach, and getting there may well be difficult or even impossible. But how is that different from any other worthy goal?


So hopefully the above is a better argument for why we should have "originally intended meaning" as the primary (if not singular) goal for our understanding of the Constitution, and why we should have overwhelmingly good reason for departing from that, if we are to be intellectually honest in that endeavor. Note, however, that this is just an interpretive goal. How best to reach that goal is a much larger topic that might well fill volumes when all is said and done.


So, TrappedinCalifornia, is the above an improvement? Your comments will be most welcome.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

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Old 12-04-2021, 2:16 AM
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Originally Posted by kcbrown View Post
...For the courts, this isn't just an abstract philosophical exercise. Their use of the interpretation is for the purpose of dictating what people can and cannot do in the real world. And the Constitution was written and ratified with a set of real-world purposes in the minds of those involved (they were, after all, setting up a country). But I may be getting ahead of myself a bit...
Be careful. The courts would claim their role is to interpret the LAW, including the Constitution. The consequences of the interpretation certainly segues into 'public policy,' which the Roberts Court in particular (including Gorsuch in the piece I provided earlier) has specifically deigned to 'stay out of' public policy; leaving it to the legislative branch.

Quote:
Originalism teaches only that the Constitution’s original meaning is fixed; meanwhile, of course, new applications of that meaning will arise with new developments and new technologies... Living constitutionalists often complain we can’t know the original understanding because the document’s too old and cryptic... The Constitution is short—only about 7,500 words, including all its amendments. It doesn’t dictate much about the burning social and political questions they care about. Instead, it leaves the resolution of those matters to elections and votes and the amendment process. And it seems this is the real problem for the critics. For when it comes to the social and political questions of the day they care most about, many living constitutionalists would prefer to have philosopher-king judges swoop down from their marble palace to ordain answers rather than allow the people and their representatives to discuss, debate, and resolve them. You could even say the real complaint here is with our democracy...
Thus, what the courts would say is what Scalia did in the interview; i.e., they determine what is Constitutionally permissible for the Government to do. While that may equate, pragmatically and eventually, into "what people can and cannot do," that's not how the courts view it for the purposes of their rulings. As I said, it's one of my personal irritations with the Roberts Court. There is a tendency to downplay or ignore the role of SCOTUS insofar as informing (even 'framing') public policy; it being tantamount to a 'washing of the hands' insofar as accepting responsibility for the public policies (the practical implications or real world consequences) which are passed as a result of their interpretations.

While I agree with the idea that they must look to the case in front of them and base their decisions on the Law and the Constitution specifically, part of their interpretive process must take into account the practical implications so as to frame the ruling(s) in a manner which mitigates (or precludes) nefarious use of public policy. (Such as what happened in D.C. subsequent to Heller and the continuing 'crabbed reading' of Heller in Circuits such as the 9th to 'justify' the truly egregious rulings we've been getting.) Short of the ability to do that, then the Court must be willing to reinforce their own decisions expeditiously in the face of such 'abuses.' (Put simply, I agree with Thomas and Alito that the Court has been, to whatever degree, shirking their responsibility in that regard; particularly with regard to the 2nd Amendment.)

Remember, as the SCOTUS website notes...

Quote:
When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.
Such is why I tend to cite the following from Barnette...

Quote:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
For me, it's a 'reminder' that there are real world consequences to court decisions and no matter how a particular judge or Justice or Court attempts to 'hide' behind 'checks & balances,' ultimately, there were certain things set aside by the Founders as supposedly exempt from 'public policy' decisions and the motivations behind them. Ostensibly, that is the foundation of the Court's responsibility; i.e., not to determine what is 'permissible' so much as to hold a line in terms of what isn't 'permitted.' It comes back to the very basis for Obama 'excoriating' the Courts in his State of the Union address over Citizens United and his proposed 'remedy'...



In other words, he was reacting to what he perceived as the real world consequences of the majority's interpretation and recommended invoking the 'check & balance' available to the Legislature. At which point, SCOTUS would then likely look at whether the Legislative 'response' was within their Constitutional authority... and the cycle would continue until a 'resolution' was reached.

I grant it comes down to a 'frame of mind' or 'perspective.' But, it's a significant one and it's right at the start of your argument. In a turn of phrase...
The Courts do not dictate what an individual or group of individuals can and cannot do in the real world. Instead, they interpret what powers Government has to regulate social behavior via public policy (regulations and laws).
While I grasp such is what you believe to be addressing (creating a limitation on what Government can do via its powers), bear in mind that you are perilously close to, once again, dictating an untrue premise to work from based on (manipulating) a personal interpretation into a perspective different than that held by the Government (not to mention many legal authorities) we were Constitutionally provided.

More to follow...
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Old 12-04-2021, 6:59 AM
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Originally Posted by kcbrown
...I would say that the primary reason this tendency came about is survival, even if the most common use doesn't directly involve survival. People are social creatures. They interact with each other and, more importantly, they cooperate with each other. Proper cooperation requires that individuals do things in a coordinated fashion. This requires that each person know what to do, when to do it, and how to do it. Where do they get the necessarily knowledge for that? From others. Through communication with others...
This is something else I noted in a cursory reading. On this site, you have those who argue that "teachers" are not necessary for individual survival. Instead, one learns from experience. I have argued that mankind has benefited from the experience of others, including those who preceded them, via communication of that experience. But, the question arises that if you are referencing 'social interaction' what are you referencing when you say "survival." Do you mean survival of the individual, survival of the social group (society), survival of the institutions of society, survival of certain behaviors, survival of... what, exactly?

When referring to individual rights and attempting to claim that the scope of that right is virtually unlimited and not subject to societal understanding, then there is no necessity to learn from others given that the right(s) is/are bestowed to us Naturally, meaning that your own, natural understanding is sufficient. On the other hand, if you are referencing society and the necessary cooperation involved in the what, when, where, and how of exercising the right within the context of that society, then you have to acknowledge the complexity of communication, not just through allusion to the effort involved, but also through recognition of the fact that communication of an absolute isn't always possible or discernible; i.e., it is not always something which can be communicated to or learned from others. As such, there is no, effective way to communicate the 'proper' exercise of a right under all circumstances.

For example, those who feel that the exercise of their rights flows from the Natural aspect of the right (i.e., it being up to the individual and not society as to the acceptable level of 'compromise') vs. a Constitution which speaks exclusively to the society and, thus, the societal view of acceptability when it comes to the exercising of a right. Thus, each, individual circumstance and the rights involved requires interpretation and, in many respects which matter, such interpretation is impossible prior to the exercise of the right; otherwise, you border on the 'thought police.' It's the very reason laws are reactive rather than proactive; e.g., "If you do X, then Y will be the consequence." It's why we have adjudication in the first place, so that, in our case, a 'jury of your peers' can interpret your actions to determine if they were reasonable under the circumstances within the context of your rights and the rights of those impacted.

Remember, as I said before, the rights listed in the Bill of Rights and other rights do not exist in isolation; either as rights or to the individual. While we like to declare that the rights listed in the Bill of Rights wouldn't be possible without the rights protected by the 2nd Amendment, it is just as true that the rights protected by the 2nd Amendment would be just as vulnerable without other rights such as Freedom of Speech, Freedom of Assembly, Freedom from unreasonable search and seizure, the right to vote, etc. As such, there is a certain level of 'objective truth' to the counter argument often heard; i.e., that our 2nd Amendment rights do not trump their 'right to Life.' In fact, it could be argued that the right to Life actually trumps in that, from a certain perspective, the 2nd Amendment is actually a subset of those rights listed in the Declaration... Life, Liberty, the pursuit of Happiness, and the right to establish, alter, and/or abolish Government (society) to secure those rights. Thus...

Quote:
Originally Posted by kcbrown
If people are coordinating their efforts to achieve a goal and the understanding that some of the people have differs from the understanding they're expected to have, the end result is that their actions can, and at least sometimes will, differ from what was expected, and if it differs in a way that is important, this could easily cause what amounts to loss of coordination in the overall effort. This, in turn, can lead to failure of the coordinated action and thus failure to achieve the purpose of that action...
While that is true, it then becomes a matter of who sets and how those expectations are set and enforced. By definition, a society is a group, not an individual. Such is the very basis of the Great Experiment; i.e., the overarching 'original intent' was based in We the People being willing to interact with a degree of conformity which not only allows for individuality, but protects it, while allowing for the creation and existence of society in perpetuity. Thus, when attempting to communicate the 'absoluteness' of an individual right and setting it against the needs of a society to be created and exist, can absolute expectations even exist or will they be more 'amorphous' to allow for changes in the group over time?

At the time of the Declaration, it is claimed that the largest city was Philadelphia, with a population of 40,000, with the next largest being New York at 25,000. Today, a population size of 25,000 - 40,000 is barely viewed as a "city" by many. Without getting lost in the weeds of minutiae over definitions, the question arises: What size 'group' can be effectively communicated to and how many individual interpretations does it take before anomalies appear in the behaviors related to what is 'expected' due to those individual interpretations/understandings? (Bear in mind, you're talking about setting a national standard.) Which leads us to...

Quote:
Originally Posted by kcbrown
And that purpose could well be a matter of life and death. An example of that is military action on the battlefield, where failure to achieve the objective is likely to cost lives and might well cost the war. But even when direct life and death isn't at stake, the well being of people could be. For instance, how well a company does in its business depends on how well the people within it coordinate their efforts to achieve the company's goals. Failure to achieve those goals can (and often does) result in failure of the business, loss of jobs and resources, etc. And it goes all the way to a personal level as well, for instance when a couple of people are working together to build something in their garage.
Fine. But, "being on the same page" in terms of an 'objective' is different than being in precise alignment over how to achieve that objective. Worse. Eliminating the ability to act/react based on 'systemic restrictions' could be as harmful, if not more so, to achieving the objective.

Such is why communication does not stop at a given point. It's an on-going process as coordination itself is a process. Put another way, it's not finite. Yet, you wish to create a near finite definition of "is" when it comes to an individual right and set that against a perpetually on-going process of societal maintenance. Put another way, the battle plan often gets thrown out the window with the first shot fired for a reason. In essence, that is the argument being proffered by the Living Constitutionalists and it is also why an "Originalist" such as Scalia said that the application to a modern context must be done very carefully.

Quote:
Originally Posted by kcbrown
...books, too, are an example. We use textbooks for the purpose of teaching people the concepts explained within them. The authors of such works seem to intend to teach the concepts on the basis of their own understanding of them (indeed, one wonders how they could teach them on any other basis), in as clear a manner as they can think to muster. Any of us who have written up instructional material for others can relate to this.
Yet, textbooks, no matter how strictly or loosely used, are still interpreted by the teacher and the student to fit within their frame of reference; i.e., their own understanding and experience. That is what makes the concepts relevant to the individual and their circumstance.

Quote:
Originally Posted by kcbrown
So: when we communicate, we almost always appear to do so for the purpose of conveying our understanding to someone else in such a way that the other person will come to the same understanding that we have. At least, I can say that's why I do it, even if I do it badly. Surely I'm not alone in this, no?
In in way, you are correct. However, it's not necessarily "the same understanding" so much as an understanding which is similar enough, while being relevant to the other person, so that you are on the "same page" in terms of the objective, but not necessarily in terms of the specifics in achieving that objective. Thus, when you say...

Quote:
Originally Posted by kcbrown
...the primary purpose we have for communicating with each other is to convey our originally intended meaning...
...you not only have to define what you are attempting to convey the "original, intended meaning" of, but the context for that meaning, while allowing for sufficient flexibility in the application of that meaning to permit individuals to act and society to function. That's the 'balancing act' I keep referring to. It's why I keep referencing Scalia's noting of "affrighting." The 'law' wasn't that you couldn't carry that type of weapon, period. The 'tort' was that you couldn't carry that type of weapon for the purpose of... frightening people. As I mentioned previously, when it comes to determining 'intent,' there are no hard and fast rules, just general guidelines and perception.

Put succinctly, you're still attempting to create an absolute where one doesn't and never has existed outside of certain, specific circumstances and premising your argument on that absolute.

cont'd.

Last edited by TrappedinCalifornia; 12-04-2021 at 7:58 AM..
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Old 12-04-2021, 7:00 AM
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What has this to do with the Constitution, then? Well, the Constitution is a written work. Why was it written? TrappedinCalifornia alludes to some of that: part of it was for the purpose of getting others to agree to its contents.
That's not why I said it was written. What I said is that's what we ended up with; i.e., a 'compromise' that could be agreed to by the delegates. Remember, what was signed was the result of the process of communication you just described, not the original, intended meaning of any single delegate or drafter. The reason it was placed in written form is, in essence, explained by the White House today...

Quote:
...A chief aim of the Constitution as drafted by the Convention was to create a government with enough power to act on a national level, but without so much power that fundamental rights would be at risk...
In other words, it was written to create the 'legal foundation' to ACT in creating a new Government and, thus, a new society which encompassed more than just the delegates or a select portion of the population at large. Which is, sort of, what you appear to have in mind...

Quote:
Originally Posted by kcbrown
I believe the answer to that is that the authors and ratifiers intended not only to come to a common understanding amongst themselves, but for others to come to the same understanding of what they ratified as they had and to act on that basis. The Constitution is, after all, the foundation of the country.
However, that ability to act, legally, is not the same as a 'final product;' which is precisely why there was a process for amending it and certain things were left a bit... less than specific... including the Judiciary, the rules of the Senate, etc.

Quote:
Originally Posted by kcbrown
And I think that their expectation wasn't merely that their contemporaries would come to that same understanding, but that future generations would also come to that same understanding and, likewise, act on that understanding.
Which is a major part of what you are up against and why I keep harping on what you are attempting to label "original, intended meaning." Your focus is on a portion of what was originally intended, not the entirety of it and, as I said, that portion does not stand in isolation or exist in (or even came into existence from) a vacuum.

Quote:
Originally Posted by kcbrown
...If the author of a controlling work (a work that governs the actions of others) expects that he who is ostensibly governed by (or enforcing the provisions of) it will interpret the work however that reader wishes, or even just in a way that has no substantial derivation from the author's originally intended meaning, then what would be the point of placing within it a mechanism for alteration? The reader can achieve the effects of alteration merely by reading it in a manner that differs from that original intent, no? This, I argue, is very strong evidence that the originators of the Constitution intended those who would make use of it both then and in the future to, as much as possible, come to the same understanding of it that they had.
That is YOUR interpretation of the amendment process, one I and most others on this site share. However, it is not the ONLY, 'valid' reading of that process and, in fact, it could be argued that some of the now, existing amendments do stray (to whatever degree) from the original, intended meaning. That's part of the very definition/purpose of "amendment"...

Quote:
the process of altering or amending a law or document (such as a constitution) by parliamentary or constitutional procedure
As I said before, that's the crux of the discussion, the degree of interpretation rather than an absolute. In other words, it's a combination of original, intended meaning and the perception of the applicability of that meaning to 'current' circumstances. As I've said, it's why even Originalists don't typically produce decisions of 'pure' Originalism and it's why Scalia said that the text is where one starts, not ends.

Simply rewording the same argument that I reacted to earlier...

Quote:
Originally Posted by TrappedinCalifornia
It's not debatable except for the ambiguities and those ambiguities are... as we know... something more than minor quibbles. Again, Heller was a 5-4 decision and even Originalists disagree on some of the specifics. Insofar as an exhaustive process, bear in mind that many courts, including SCOTUS, and even the 1982 Senate Subcommitee on the Constitution have provided volumes of documentation on the subject. That's without going into the library-filling publications on the topic. Yet, there still exists no consensus as to the actual, specific, intended meaning beyond a general understanding, even among those of us who are dedicated pro-gun supporters.
...doesn't give it more credibility or logical soundness or convey an absoluteness to any interpretation of original, intended meaning. Instead, it comes across for what it is; an attempt to make the message seem more palatable/acceptable rather than adapting the content of the message so as address the substance of the concerns. All it does is bring us right back to the same place; i.e., a general understanding which was conveyed, not a specific by which even we operate on this site, let alone within the Judiciary and society-at-large.

Quote:
Originally Posted by kcbrown
...It seems to me that this is where the "living Constitution" people part ways with originalists and, I would argue, with the people who originally wrote and ratified the Constitution...
It's not where they 'part ways.' Where that occurs is in the degree of interpretation and to what purpose. Even Originalists often do not adhere, strictly, to original, intended meaning.

Quote:
...Originalists generally agree only on certain very broad precepts that serve as the fundamental underlying principles of constitutional interpretation: specifically, that the "writtenness" of the Constitution necessitates a fixed constitutional meaning, and that courts that see themselves as empowered to give the Constitution some avowedly different meaning are behaving contrary to law. Originalists have been able to achieve agreement on these broad underlying principles, but they have often viewed as unduly narrow and mistaken the understanding held by the original originalists—the "framers" of originalism, if you will—as to how those principles must be put into action. And originalists disagree so profoundly amongst themselves about how to effectuate those underlying principles that over time they have articulated—and continue to articulate—a wide array of strikingly disparate, and mutually exclusive, constitutional theories. In this regard, originalists have followed a living, evolving approach to constitutional interpretation...
Thus, while they do assign 'original, intended meaning' more weight than do Living Constitutionalists who, too often, give it almost no weight at all in their decision-making or have an entirely different (often 'unique') understanding of it, even Originalists have their own form of "Living" interpretation. (It's why I've said that Obama and Hillary can say they 'support the 2nd Amendment' and not, actually, be "lying." It's that they have an entirely different understanding of what it means. It's also why Scalia noted that even he and Thomas often disagree over original, intended meaning.)

Quote:
Originally Posted by TrappedinCalifornia
...It's supposed to be about taking the most inclusive view of the individual right and balancing it against the rights of the group; but, 'favoring' the right of the individual. It's not about the scope of the right dictating the exercise of the right. It's about not allowing the group to dictate limitations on the exercise of the right to the point of obviating the scope of the right...

...each 'side' gets something or everyone ultimately ends up with nothing. In other words, 'compromise' has become a dirty word precisely because it is no longer viewed as a compromise so much as "we/they get what we/they want and you or I might be left with... something."...

It was the 'art' of compromise we see in the Constitution. It's why the Constitution and the Bill of Rights lacks a certain amount of specificity. Both allow for flexibility to adapt to the times and the circumstances and the People. Such is actually the greatest strength of those principles...

...It's about We the People being willing to interact in the 'originally intended' manner; i.e., a degree of conformity which not only allows for individuality, but protects it. Such was the very purpose of the Bill of Rights...
In a sense, you make that very argument and dismiss it in favor of something more definitive...

Quote:
Originally Posted by kcbrown
...But the interpretive goal comes first...

Additionally, because the Constitution was written and ratified by a body of people, those individuals obviously could have had different ideas about the meaning of what they were ratifying. One would hope that at the end, the understanding they reached was essentially the same between them...
As I have argued, they did. Unfortunately for the sake of your argument, the 'understanding' they arrived at was not only a compromise so as to begin the process, but was something less definitive than you (or even I, at times) would prefer.

Quote:
Originally Posted by kcbrown
They certainly had conversations amongst themselves and I think it's reasonable to expect that they came to some common understanding of something.
Bear in mind that common understanding of what they had to work with isn't synonymous with common agreement over what needed to happen or how things needed to be refined; the Civil War and the Constitution of the Confederate States being, perhaps, the most extreme example among myriad instances of something being derived from those 'conversations.'

Quote:
Originally Posted by kcbrown
Figuring out what to do about the differences in that understanding, when attempting to understand the Constitution, can be enormously difficult, and there will most certainly be substantial disagreement on what to do about it. I frankly don't have a good answer to that except to say that whatever understanding we come to should at least, as much as we can manage, match the understanding that was common to all of the people involved, if there is any such common understanding at all (if there's not, then that just makes things even more difficult).
This is why, I think, you're going to have to address the broader picture rather than simply the specific of the 2nd Amendment as it does not stand, isolated, from the People and the People are (society is) decidedly a different group now than they were then; being more numerous and more diverse. It's actually, I suspect, part of the reason the Justices we rely on when it comes to the 2nd Amendment are also States' rights advocates.

Quote:
Originally Posted by kcbrown
So hopefully the above is a better argument for why we should have "originally intended meaning" as the primary (if not singular) goal for our understanding of the Constitution, and why we should have overwhelmingly good reason for departing from that, if we are to be intellectually honest in that endeavor. Note, however, that this is just an interpretive goal. How best to reach that goal is a much larger topic that might well fill volumes when all is said and done.
Now you're changing the substance of the argument rather than simply altering the wording. Why we should adhere to original, intended meaning wasn't your OP argument. Instead, it was...

Quote:
Originally Posted by kcbrown
My claim is that the proper meaning of the 2nd Amendment, and any given part of the Constitution in general, is that which its authors originally intended, and that this, combined with the nature of the document it resides in (in particular, its primary and secondary audiences), dictates the methods that one must use to determine that meaning. To wit:

The proper approach is the "original intended meaning of the authors" approach. This is so because the Constitution is a written work that communicates meaning, and is no different than any other written work in that respect.
In other words, originally, you were arguing for a definitive meaning and how to arrive at one. Now, you are making a case for using original, intended meaning without definitively declaring the what and how. That's good. But, you still need to decide whether a more definitive (if possible) meaning assigned to the 2nd Amendment is more functional than a focus on a reiteration of, a reeducation toward, and a refocusing on the broader original, intended meaning... a degree of conformity which not only allows for individuality, but protects it.

As much as anything else, that's been the difference between our two arguments beyond the Devil's Advocate role I've been playing here. You wish to focus on and set parameters for specifics. I argue that a reestablishment of those values which are shared rather than a focus on invidious differences would accomplish our goal in a more effective and longer-lasting way. Such is why I cautioned that conformity means the imposition of limitations and those limitations need to be based in shared concerns, not imposed by a faction, even the majority. In the same way, restrictions on the limitations must be based in shared concerns, not imposed. It is my contention that in doing so, you will more likely achieve the 'minimizing' of State power, while 'maximizing' individual liberty (the exercise of rights); noting the plural of rights, not any single right.

Just something to think about.
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Old 12-04-2021, 11:44 AM
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Originally Posted by TrappedinCalifornia View Post
Be careful. The courts would claim their role is to interpret the LAW, including the Constitution.

...

While I grasp such is what you believe to be addressing (creating a limitation on what Government can do via its powers), bear in mind that you are perilously close to, once again, dictating an untrue premise to work from based on (manipulating) a personal interpretation into a perspective different than that held by the Government (not to mention many legal authorities) we were Constitutionally provided.
That's a fair point. I've altered the wording of that paragraph to, hopefully, more accurately reflect the more agreed-upon view.

That said, the perspective I'm proposing and arguing for might actually be a departure from that held by the government and other legal authorities. I honestly can't say on that. It is what it is.

I do realize that the greater the departure from what is generally accepted, the more persuasive the argument needs to be.
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Old 12-04-2021, 3:25 PM
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Originally Posted by TrappedinCalifornia View Post
That's not why I said it was written. What I said is that's what we ended up with; i.e., a 'compromise' that could be agreed to by the delegates. Remember, what was signed was the result of the process of communication you just described, not the original, intended meaning of any single delegate or drafter.
Yes. And this is something I attempted to account for in the argument I put forth.

For person to person communication, the question of whose originally intended meaning to ascertain has a clear answer: that of the speaker. But the Constitution is a set of rules that were ratified both on an individual rule basis and as a whole, and there was surely a lot of debate about what they were attempting to achieve, how to achieve it, and how to state it. Many people were involved in that process. So of those people who were involved, whose originally intended meaning should one attempt to ascertain? That's the real question.

I'm inclined to, as a first pass at least, say "all of them" or, at least, the author(s) and all of those who voted in favor of ratification. If one can determine that, then one can at least see how and where they differed from each other. But, of course, that also raises the question of what to do with those differences. That's something I don't have a good answer to, at least at the moment. Maybe I'll be able to figure out a good answer to that in time.


Quote:
The reason it was placed in written form is, in essence, explained by the White House today...

In other words, it was written to create the 'legal foundation' to ACT in creating a new Government and, thus, a new society which encompassed more than just the delegates or a select portion of the population at large. Which is, sort of, what you appear to have in mind...
More or less. But that doesn't exactly explain why it had to be in written form. Surely such a legal foundation could have been verbal, no?

The advantage of having it in written form is that, as long as the readers of it adhere to the same rules, you get much more consistency in the interpreted meaning both across space and across time than you would if everything were verbal.

But how would you get that consistency, and thus that advantage, if those who are interpreting the written words insist upon substituting their own preferred meanings for that which was intended?

What this tells me is that if you expect that people who read your words are going to just use whatever meaning they wish anyway, then there's hardly a point in writing the words down to begin with. You may as well just communicate them verbally, if you communicate at all, since they'll just use their own preferred meaning and thus do what they want anyway.

Put another way, it seems to me that the very act of writing something down for others to read implies the expectation that the reader will come away with a meaning that, to the degree possible, matches the meaning you intended your words to have. The existence of the amendment process implies (or, at least, strongly suggests) that the originators expected readers to feel bound by the meaning they intended what they wrote/ratified to have.


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However, that ability to act, legally, is not the same as a 'final product;' which is precisely why there was a process for amending it and certain things were left a bit... less than specific... including the Judiciary, the rules of the Senate, etc.
That's true. But it's not clear to me how this might affect the overall argument I'm attempting to make.


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Which is a major part of what you are up against and why I keep harping on what you are attempting to label "original, intended meaning." Your focus is on a portion of what was originally intended, not the entirety of it and, as I said, that portion does not stand in isolation or exist in (or even came into existence from) a vacuum.
Well, in my defense, "meaning" covers an awful lot of ground. But as you note later, I'm not arguing a definitive what or how here. Once we get to that, then ensuring that what we get is the entirety of "originally intended meaning" will of course be necessary.


Quote:
That is YOUR interpretation of the amendment process, one I and most others on this site share. However, it is not the ONLY, 'valid' reading of that process
I'm not sure I follow. What I was attempting to comment on was the purpose for the amendment process being there in the first place, and specifically the implications of its presence on apparent intentions of those behind the Constitution as regards the "preferred meaning" of the Constitution.

A different way of saying it is: if one can just interpret the Constitution however he wishes, or even in a way that differs from the meaning understood by those who ratified it (or those who amended it, depending on whether or not the part being interpreted has been amended), then what non-nefarious purpose could the amendment process possibly serve? After all, you don't need to change the Constitution if you can get the meaning you want merely by interpreting it to get a meaning that differs from the one intended by those who are behind the language in it.


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and, in fact, it could be argued that some of the now, existing amendments do stray (to whatever degree) from the original, intended meaning.
Oh, that is most certainly true, and it does highlight some lack of precision in my argument. What I probably should have said is "originally intended meaning of the pre-Amendment Constitution". Not necessarily so much for the purpose of "accuracy" but, rather, for the purpose of simplicity and illustration.

But what you say here also underscores the point I'm attempting to make. Which is that the purpose of the amendment process is to change the meaning of the Constitution from the one it was originally intended to have by those who originally ratified it to the meaning that those who amend it intend it to have. There's no point in doing that if those who would otherwise need to see it amended already interpret it, or have convinced the courts to interpret it, to mean what they wish.

And in a way, relatively recent developments underscore this. Ever notice how the prohibition of alcohol was imposed through the 18th Amendment and repealed by the 21st Amendment, but the prohibition of drugs was imposed without any such Amendment? This tells me that the courts used to adhere to the originally intended meaning enough to force those who supported prohibition to amend the Constitution to achieve their aim, but that modern courts don't, and because of that there's been no need for those who support drug prohibition to encode it into a Constitutional Amendment.


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As I said before, that's the crux of the discussion, the degree of interpretation rather than an absolute. In other words, it's a combination of original, intended meaning and the perception of the applicability of that meaning to 'current' circumstances.
Yes, that's certainly true in terms of the entire process that's involved. The way I see it is that this is essentially a two step process.

The first step involves arriving at a meaning of the Constitution.

The second step involves applying that meaning to current circumstances.

I'm only addressing a subset of the first here.


Those two things seem to be easily separable to me, at least in principle. But maybe your point is that they're intertwined in such a way that they can't be separated. If that's your point, then I don't yet follow why that is, except:

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It's not debatable except for the ambiguities and those ambiguities are... as we know... something more than minor quibbles.
Where there are ambiguities in the first step, one still has to choose a meaning in order to be able to perform the second step, so in that respect I certainly do see how they're intertwined. But I don't see how they'd be intertwined for those parts of the meaning where there's no real ambiguity. Furthermore, I see no way that one can determine where ambiguity exists in the first place without going through the process of attempting to determine, as much as possible, the originally intended meaning. So either way, I don't see how this changes the "originally intended meaning" goal at all.


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...doesn't give it more credibility or logical soundness or convey an absoluteness to any interpretation of original, intended meaning. Instead, it comes across for what it is; an attempt to make the message seem more palatable/acceptable rather than adapting the content of the message so as address the substance of the concerns. All it does is bring us right back to the same place; i.e., a general understanding which was conveyed, not a specific by which even we operate on this site, let alone within the Judiciary and society-at-large.
If the general understanding that you refer to is all that can be determined of the originally intended meaning, then so be it. We can only do what we can do. All I'm attempting to do in this latest argument is convince people of a preferred goal. How achievable that goal is will obviously depend on many things, and there will most certainly be disagreement as to what is a best fit for that goal.


Quote:
It's not where they 'part ways.' Where that occurs is in the degree of interpretation and to what purpose. Even Originalists often do not adhere, strictly, to original, intended meaning.



Thus, while they do assign 'original, intended meaning' more weight than do Living Constitutionalists who, too often, give it almost no weight at all in their decision-making or have an entirely different (often 'unique') understanding of it, even Originalists have their own form of "Living" interpretation.
That may be. I don't have access to the book you referenced so I can't read it, but it may be worth exploring why originalists have their own "living" interpretation (I don't know whether such an exploration would warrant a separate thread). I can understand why anyone might have such a thing with respect to ambiguities arrived at after an exhaustive attempt to ascertain originally intended meaning, of course, but apart from an attempt to impose their own preferred outcome, I don't understand why they would discard the originally intended meaning for one of their own choosing.


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As I have argued, they did. Unfortunately for the sake of your argument, the 'understanding' they arrived at was not only a compromise so as to begin the process, but was something less definitive than you (or even I, at times) would prefer.
Well, if that's what the "originally intended meaning" winds up being, then so be it. It is what it is.

What I'm arguing for is a goal, but in a way it's also a starting point. I realize that there will be ambiguity in what is found, that what is found could easily be incomplete. But there's a wide gulf between starting with the best you can do on that and building something that is consistent with it, versus discarding it partially or even entirely in favor of one's own preferred interpretation.


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Bear in mind that common understanding of what they had to work with isn't synonymous with common agreement over what needed to happen or how things needed to be refined; the Civil War and the Constitution of the Confederate States being, perhaps, the most extreme example among myriad instances of something being derived from those 'conversations.'
That is certainly true, but that would be a difference of opinion of what should have landed in the Constitution as opposed to what did land in the Constitution. The question here, with respect to what did land in the Constitution, is what the ratifiers' understanding was of it, because that is what I argue we should be attempting to determine.


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This is why, I think, you're going to have to address the broader picture rather than simply the specific of the 2nd Amendment as it does not stand, isolated, from the People and the People are (society is) decidedly a different group now than they were then; being more numerous and more diverse. It's actually, I suspect, part of the reason the Justices we rely on when it comes to the 2nd Amendment are also States' rights advocates.
Yeah, that could well be. But first things first. Arriving, to the degree possible, at a meaning of the 2nd Amendment as commonly understood by those who were involved in ratifying and agreed with that ratification seems to me to be a necessary first step.
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Old 12-04-2021, 3:26 PM
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Originally Posted by TrappedinCalifornia View Post
Now you're changing the substance of the argument rather than simply altering the wording. Why we should adhere to original, intended meaning wasn't your OP argument. Instead, it was...



In other words, originally, you were arguing for a definitive meaning and how to arrive at one. Now, you are making a case for using original, intended meaning without definitively declaring the what and how.
Yep. And there's a reason I did that: because you can't convince someone of the steps needed to achieve a goal unless you first convince them of the goal itself in the first place. I wanted to focus on the goal first, and to attempt to make a convincing argument for it, before moving forward. And I wanted to refine it further, with feedback from people here, so as to make it as convincing as possible. Such feedback could easily result in alteration of the goal.


Quote:
That's good. But, you still need to decide whether a more definitive (if possible) meaning assigned to the 2nd Amendment is more functional than a focus on a reiteration of, a reeducation toward, and a refocusing on the broader original, intended meaning... a degree of conformity which not only allows for individuality, but protects it.
Oddly, this may be where the specific question being answered comes into play. Things like permissible restrictions and the like, the circumstances they are permissible, etc.

That said, I like where you're going with this. If we can convince people of the necessity of the more fundamental principles, it should make for an easier time in dealing with the specific functional aspects of the 2nd Amendment.


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As much as anything else, that's been the difference between our two arguments beyond the Devil's Advocate role I've been playing here. You wish to focus on and set parameters for specifics. I argue that a reestablishment of those values which are shared rather than a focus on invidious differences would accomplish our goal in a more effective and longer-lasting way.
I certainly don't disagree with this. This isn't something that I realized you were arguing for, so I'm grateful that you made it explicit here. It helps, a lot.

So the question that naturally arises from it is how to reestablish those values. One way may be to show how they underpin the country as originally envisioned by those who founded it. I perceive understanding of the originally intended meaning as playing a significant role in this.


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Such is why I cautioned that conformity means the imposition of limitations and those limitations need to be based in shared concerns, not imposed by a faction, even the majority. In the same way, restrictions on the limitations must be based in shared concerns, not imposed. It is my contention that in doing so, you will more likely achieve the 'minimizing' of State power, while 'maximizing' individual liberty (the exercise of rights); noting the plural of rights, not any single right.

Just something to think about.
That would be ideal. I perceive that achieving it will be complicated at best. Part of the problem is that factions are composed of multiple people, so in a sense, the concerns of a faction are shared concerns ... just not shared universally.

But I think I follow you here, in that what you seem to be arguing for here is persuasion instead of imposition.

That said, is not what the courts, and the federal and state governments, do, imposition? If something is truly universally agreed upon, then you don't need a government for it at all, because people will just naturally act on it anyway. Government exists precisely because some people wish to (or, at least, perceive the need to) impose upon the rest. I certainly agree with you completely that persuasion is certainly preferred, but it should be noted that, in a way, the purpose of the persuasion here is to make specific imposition possible (be it imposition against restrictions or imposition through restrictions).
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Old 12-04-2021, 8:13 PM
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Originally Posted by kcbrown View Post
...I do realize that the greater the departure from what is generally accepted, the more persuasive the argument needs to be.
Bear in mind that, in many respects, you are 'departing' from the generally accepted role of the Judiciary when you say they dictate people's behavior rather than assessing and evaluating it against a standard set by the People's elected representatives. "Dictate" is still heavily implied in your revision when you claim the role of the courts is for "the purpose of deciding cases that ultimately (directly or indirectly) determine what people can and cannot do in the real world." Again, that's NOT the 'purpose.' The purpose is to assess/evaluate the actions of people as set against the regulations/laws put in place, theoretically, by the people via their elected representatives. Thus, your argument had better be quite persuasive and convincing in that the perception being created is that you are, essentially, ascribing more power to unelected judges than they currently have as the basis for your argument.

In a sense and from a certain perspective, such an understanding is understandable, but still not necessarily accurate. As a result, right out of the blocks, you make the argument vulnerable in that you are proposing to 'fix' a problem which, for many/most, doesn't exist. Instead, from another perspective, you are actually making what Gorsuch claims to be the desire of Living Constitutionalists the status quo as to why you are attempting to do what you're doing; i.e., "philosopher-king judges swoop down from their marble palace to ordain answers rather than allow the people and their representatives to discuss, debate, and resolve them." (See quote/citation above.) While that is the situation in many instances, it is not universally true and demonstrably so.

Quote:
Originally Posted by kcbrown
I'm inclined to, as a first pass at least, say "all of them" or, at least, the author(s) and all of those who voted in favor of ratification. If one can determine that, then one can at least see how and where they differed from each other. But, of course, that also raises the question of what to do with those differences. That's something I don't have a good answer to, at least at the moment. Maybe I'll be able to figure out a good answer to that in time.
It's been a fundamental problem with your argument all along. You have been attempting to create a 'snapshot' of an on-going process (pre-ratification through today) and utilize it as a static constant by which rights are scrutinized. The reason you don't have a 'good answer' as to what to do about those differences is that those differences have been and continue to be part of the process; with those differences and their variants having a fluid amount of influence over time. Again, that's precisely why a certain degree of flexibility was built into the Constitution and some things were left more 'amorphous' than definitively delineated.

Quote:
Originally Posted by kcbrown
More or less. But that doesn't exactly explain why it had to be in written form. Surely such a legal foundation could have been verbal, no?
No. One of the foundations of 'contract' law (and the Constitution is a contract) is that verbal agreements are worth the paper they are written on. It's also the very reason writing allowed human civilization to advance. As you say, it has to do with consistency of communication and adherence to what is in the 'contract.' The problem, however, is that, once again, you are still striving to ascribe an exactness that isn't present and never was intended.

Quote:
Originally Posted by kcbrown
...if you expect that people who read your words are going to just use whatever meaning they wish anyway, then there's hardly a point in writing the words down to begin with...
What the Constitution amounts to is an outline, not a complete text. As an outline, it offers a guide to what was yet to be agreed upon or what was to be altered or replaced. As I said, you are looking for fully, fleshed out specifics in a skeleton. That's why when you say...

Quote:
Originally Posted by kcbrown
...The existence of the amendment process implies (or, at least, strongly suggests) that the originators expected readers to feel bound by the meaning they intended what they wrote/ratified to have...
You are only stating a piece of the puzzle. Yet, you are treating it as the primary portion of your premise, which is why...

Quote:
Originally Posted by kcbrown
...it's not clear to me how this might affect the overall argument I'm attempting to make...

I'm not sure I follow. What I was attempting to comment on was the purpose for the amendment process being there in the first place, and specifically the implications of its presence on apparent intentions of those behind the Constitution as regards the "preferred meaning" of the Constitution...
It's why I told you that your argument only works so long as your audiences adopts your premises, your rules, your context, and your truth. To that end, you continue making the same, repetitive assertions and assuming/demanding their adoption so you may proceed. What I have been doing as a Devil's Advocate is not allowing you to get off the mark based on the idea of demonstrating that you have a long way to go in persuading others to adopt your premises/rules/context/truth. Frankly, it's the very reason various and competing judicial philosophies and historical interpretations exist.

Quote:
Originally Posted by kcbrown
But what you say here also underscores the point I'm attempting to make. Which is that the purpose of the amendment process is to change the meaning of the Constitution from the one it was originally intended to have by those who originally ratified it to the meaning that those who amend it intend it to have...
Again, that's only a portion. Another reason would be to clarify and expand upon that clarification. Think in terms of the incorporation process via the 14th Amendment; i.e., that the Bill of Rights not only applies to the Federal Government, but to the States as well. Isolating individual rights to just the Federal level was not necessarily the original, intended meaning and it needed to be made clear as the result of various machinations, including secession and the Confederate States. While there are many arguments that it was a further assertion (power grab) by the Feds, there are just as many arguments that it was a necessary 'balancing' resulting from a 'power grab' by the States.

What you are doing is attempting to use some of the results of a Constitutional process as a rationale without recognizing some of the other results. The reason, I suspect, is that, once again, you are looking for a definitive that has never existed and wasn't necessarily intended to exist. It's why, when you say...

Quote:
Originally Posted by kcbrown
I'm only addressing a subset of the first here.
...I keep pointing out that it's not as readily 'separable' as you contend. You are recognizing that 'ambiguities' exist, then dismissing them as largely irrelevant in light of the greater 'definitiveness' you wish to see, but doesn't necessarily exist due to the ambiguities. Yet again, you are asserting your readiness to proceed based on assuming/demanding that your audience adopt your premises, your rules, your context, and your truth. In a very real sense, you are putting the cart before the horse. You are reaching for a solution without, first, providing a convincing argument that a problem actually exists with the current system which can be 'remedied' by your 'fix.'

The issue is what I stated before. Every time "the System" isn't working in their favor or in a manner they deem acceptable, someone (not just you) wants to change "the System" so that it will function more 'correctly' (according to them). They will charge that "the System" isn't working and is in need of 'fixing,' being somewhat 'vague' in terms of their proposed 'fixes'... such as with your 'systemic restrictions.' When 'resistance' is encountered, that resistance becomes their foil; not necessarily for generating greater specificity and better argumentation, but for engendering support for their 'cause.' Put another way, they tend to fall back on 'feelz,' just as does the Left. Such is all well and good, insofar as it goes, in that passion is needed to create change. When all is said and done, however, for change to happen, it must be specific and based, not so much in 'feelz,' but in an intellectually sound rationale; i.e., one that is both valid and true.

What I have been showing and you continue to dismiss is that you have considerably more work to do if you are going to persuade others to adopt your premises/rules/context/truth. You can't simply assert it to be and proceed. You must show it to be and that's a tall order, as I have shown you. It's not something you're going to be able to do in quick, "off the top of your head" tweaks to the language you've been using in the argument you've already presented. That's what the Left continuously attempts with regard to how they view 'messaging' and you see how well that works with 'our side' and how that reduces the discussion to slung epithets more than discourse over the substance.

Quote:
Originally Posted by kcbrown
...but apart from an attempt to impose their own preferred outcome, I don't understand why they would discard the originally intended meaning for one of their own choosing.
The very same reasons you are attempting to make your argument and changes. In your case...

Quote:
Originally Posted by kcbrown
...that would be a difference of opinion of what should have landed in the Constitution as opposed to what did land in the Constitution. The question here, with respect to what did land in the Constitution, is what the ratifiers' understanding was of it, because that is what I argue we should be attempting to determine.
...you are attempting to create a definitive from something which was deliberately less than definitive as the 'original, intended meaning' so as to proceed with your 'fix.' As you phrase it...

Quote:
Originally Posted by kcbrown
...But first things first. Arriving, to the degree possible, at a meaning of the 2nd Amendment as commonly understood by those who were involved in ratifying and agreed with that ratification seems to me to be a necessary first step...

...because you can't convince someone of the steps needed to achieve a goal unless you first convince them of the goal itself in the first place. I wanted to focus on the goal first, and to attempt to make a convincing argument for it, before moving forward. And I wanted to refine it further, with feedback from people here, so as to make it as convincing as possible. Such feedback could easily result in alteration of the goal...
But, that brings us to...

Quote:
Originally Posted by kcbrown
That said, I like where you're going with this. If we can convince people of the necessity of the more fundamental principles, it should make for an easier time in dealing with the specific functional aspects of the 2nd Amendment.
It should. But, it should also mean that there would be no need to create the types of 'systemic restrictions' you envision in that by a general consensus, the fundamental aspects would already be 'agreed' to in theory and in practice. In other words, there would be no need to 'rewrite' anything.

Quote:
Originally Posted by kcbrown
So the question that naturally arises from it is how to reestablish those values.
In the same way they have been eroded... education and application. Unfortunately, it's not a 'quick fix,' requiring commitment, consistency, and access. The tripwire would be where it becomes too Orwellian, something the Left has been tripping over to their own consternation and, as I noted, the consternation of those who are among the "in-between's" and those on 'our side.'

Quote:
Originally Posted by kcbrown
That would be ideal. I perceive that achieving it will be complicated at best.
It's a goal to be aspired to and, in fact, is what the Great Experiment is all about. It's never been about achieving the goal. It's been about the process of attempting to reach the goal and what we, as a People, learn from that process. Unfortunately, we have yet to learn... well. Which is why, in part...

Quote:
Originally Posted by kcbrown
...is not what the courts, and the federal and state governments, do, imposition? If something is truly universally agreed upon, then you don't need a government for it at all, because people will just naturally act on it anyway. Government exists precisely because some people wish to (or, at least, perceive the need to) impose upon the rest. I certainly agree with you completely that persuasion is certainly preferred, but it should be noted that, in a way, the purpose of the persuasion here is to make specific imposition possible (be it imposition against restrictions or imposition through restrictions).
Government exists for myriad reasons and what you are describing is only one aspect. In that context, is it 'imposition' ("to establish or apply by authority; to force into the company or on the attention of another") if it is something you agreed to of your own volition? As I've said, it's a fundamental part of why you run into resistance/issues by attempting to use the scope of the right to temporize restrictions on the exercise of the right in that, by default, you are attempting to say that any restriction is antithetical and forbidden; otherwise, the scope is not infinite or nearly so. As a pragmatic matter, such is not possible unless everyone agrees and, as we know, not everyone does or will agree on the details, just the generalities.

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Old 12-14-2021, 11:02 AM
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EDIT: Note that this message is not predictive. And in retrospect, I probably should have titled it "Should the 2nd Amendment mean what its author(s) originally intended?". This doesn't really change the content of my message. I describe below why the 2nd Amendment should mean what its authors originally intended. But courts are well known for ignoring the intended meaning of that which they decide upon, and I expect that to continue to be the case.


TrappedinCalifornia and I have been debating the question of the meaning of the 2nd Amendment and how it applies today. This deserves a thread of its own, so here it is. It may prove useful, too, to start fresh, so I'll start with a somewhat modified version of what I kicked off the original debate with.



My claim is that the proper meaning of the 2nd Amendment, and any given part of the Constitution in general, is that which its authors originally intended, and that this, combined with the nature of the document it resides in (in particular, its primary and secondary audiences), dictates the methods that one must use to determine that meaning. To wit:

The proper approach is the "original intended meaning of the authors" approach. This is so because the Constitution is a written work that communicates meaning, and is no different than any other written work in that respect.

The purpose of "history and tradition" is to inform us of the original intended meaning behind what the authors of the 2nd Amendment wrote. It is to be used only if that meaning cannot be determined more directly, specifically through the plain meaning of the words themselves as understood by the authors and their contemporaries, or through other more direct means, as outlined below.

Put another way, the proper interpretation of the Constitution is via the same methods we would use to properly interpret any communication, which is something like this (in this order):
  1. Use the plain meaning of the words used as they were defined at the time they were written. You do this because those meanings are almost certainly going to be the ones the authors had in mind because their intent was to communicate with others, and using any nonstandard (at the time) meanings would serve to obfuscate their intended meaning.
  2. Ask the authors directly what they meant, if possible, if the above is unclear or if there is good reason to believe the authors meant something else.
  3. Examine other works written by the same authors if asking them directly isn't possible.
  4. Examine the works of the authors' audience if the authors' other written works proves insufficient, starting with their most direct audience and working outwards towards their least direct audience.
  5. Examine the general traditions, history, etc., when none of the above is sufficient.

The above is "recursive", meaning that for any of the steps where the meaning of something more specific needs to be ascertained (for instance, a word or phrase), you execute the same set of steps starting at the beginning. Lather, rinse, repeat until you get a sufficiently unambiguous meaning for any given thing, and then apply that in the step you were in.

The reasons for doing the above are clear: the purpose is to identify the meaning the authors intended. And this is so because we do that for every communication, and for damned good reason: because whether you properly understand someone's meaning could easily make the difference between whether you live or die. Proper understanding of someone else's intended meaning is a survival trait. An example is the use of instructions to defuse a bomb. Get the meaning of the instructions wrong and you and/or others could easily die. This is true even if the bomb's construction differs from that which the instructions were written for, because you can't do a proper comparison of the two without properly understanding the instructions in the first place.

The methods we use to determine what someone else meant have been with us for millennia, essentially ever since our civilization arose. It is intellectual dishonesty of the highest order to insist that we must treat the Constitution any differently.


How does this apply to the 2nd Amendment, then? That much is obvious: the right shall not be infringed. It's right there in black and white, and the meaning of the term "infringe" is defined in Samuel Johnson's dictionary, and includes synonyms like "hinder". All that's left, then, is the scope of the right itself, and the minimum scope of the right to keep is also obvious from the context: the founding generation had just come out of a shooting war where every kind of privately owned arm they had proved instrumental in their effort to secure their liberty, ranging from the smallest of knives all the way to gunships. This means that no law which would have resulted in a ban on any of those weapons is valid in the face of the 2nd Amendment, because to argue otherwise is to argue that the founders would have agreed to a ban on the very arms they used to secure their liberty with, a proposal which is preposterous on its face, and amounts to an accusation that the founders were morons. More to the point, the 2nd Amendment has an explicitly stated minimum purpose, so it follows that no law may infringe on the right in such a way as to hinder the citizenry's ability to meet that stated purpose under any circumstances. That means, when read faithfully and with a proper understanding of the stated purpose of the right to arms, the 2nd Amendment protects private ownership of military arms on the part of the citizenry, namely anything they might need in order to remain free even in the face of a well-armed and well-armored malevolent tyrannical domestic government. It is no answer to say that the military itself would side with the citizenry. History is replete with instances where the exact opposite happened, most notably during the American Revolution itself, and the founders explicitly stated their distrust of standing armies (see, e.g., https://teachinghistory.org/history-...istorian/24671). As such, it is the founding generation's understanding that the government's military is, if anything, likely to be the force the citizenry is likely to go up against.

I've already dealt with carry as understood by the founding generation. It very clearly includes concealed carry, if only because concealed carry is the only way the founding generation could have kept their everyday carry firearms dry, and thus kept them from malfunctioning, in inclement weather.
Federalist 46 tells you everything you need to know about the 2nd amendment

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Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.
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Old 12-14-2021, 3:19 PM
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Originally Posted by curtisfong View Post
The mere fact that the language of law only looks like English, and the logic of law only looks like real logic should be a huge red flag to everyone.

If, as lawyers love to claim, the language of law is only understood by lawyers, and the logic of law is only understood by lawyers, they should come up with their own formal language, formal grammar, and formal symbolic logic, as scientists and mathematicians have done.

I don't think lawyers have the intellectual capacity to do either. Their only excuse is that such a thing may not be possible at all.
Someone tell all that to Madison - the one who came up with "words have meaning" and the meaning is what was adjudicated at the great cost of blood and treasure. The attorneys can suck it.
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Old 12-14-2021, 3:32 PM
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it is a strange amendment giving the affirmative right to possess an "item" none of the others do that which is why its extra special the thing is that it is not specific as to which "item" so it should be assumed to be all items used as arms swords,daggers,bows,crossbows,spears,clubs,firearm s
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Old 12-16-2021, 12:33 PM
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I can think of one example where interpretation would be appropriate.

In that time there were many groups of people that were not considered men.

So" all men were created equal" was not true,not until Lincoln.
That's not in the Constitution. It's an aspirational statement, in the Declaration of Independence. But yes, it's subject to interpretation.

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Old 12-17-2021, 4:34 PM
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Default Does the 2nd Amendment mean what its author(s) originally intended?

Does the 2nd Amendment mean what its author(s) originally intended?

Simple question and only requires a simple answer. Semantic ping pong, and political posturing aside.

YES IT DOES, AS DO THEY ALL.

Levels of scrutiny, was created by the courts tasked with PROTECTING THE CONSTITUTION. As political cover for their unconstitutional politicizing.

KOREMATSU v US IN 1944. IS JUST ONE GLARING F'UP. Where SCOTUS used their pretzel logic to sanction unconstitutional actions and the POWER of Gov. Over the RIGHTS of CITIZENS.

How many Americans today believe that FDR, and his military lackeys, didn't deny CITIZENS RIGHTS. When he issued EO-9066, in 1942?

FDR, and crew, used FEAR AND EMOTION, to set the stage for EO-9066. Just a LEFTISTs do the same with gun control today. The "WE MUST DO SOMETHING" mantra is used to bombard the public. In classic "Goebell's Doctrine" in action media blitzes.

Many US courts [9th Circus as example] are still refusing to DO THEIR DUTY. So they can FALSELY CLAIM JUSTIFICATION, USING SCRUTINY, in order to cater to their own POLITICAL AGENDAS. [Sidney Thomas for example]

A TURD IN A ROBE, IS STILL A TURD.
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Old 12-25-2021, 6:00 PM
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Quote:
Originally Posted by pacrat View Post
Does the 2nd Amendment mean what its author(s) originally intended?

Simple question and only requires a simple answer. Semantic ping pong, and political posturing aside.

YES IT DOES, AS DO THEY ALL.

Levels of scrutiny, was created by the courts tasked with PROTECTING THE CONSTITUTION. As political cover for their unconstitutional politicizing.

KOREMATSU v US IN 1944. IS JUST ONE GLARING F'UP. Where SCOTUS used their pretzel logic to sanction unconstitutional actions and the POWER of Gov. Over the RIGHTS of CITIZENS.

How many Americans today believe that FDR, and his military lackeys, didn't deny CITIZENS RIGHTS. When he issued EO-9066, in 1942?

FDR, and crew, used FEAR AND EMOTION, to set the stage for EO-9066. Just a LEFTISTs do the same with gun control today. The "WE MUST DO SOMETHING" mantra is used to bombard the public. In classic "Goebell's Doctrine" in action media blitzes.

Many US courts [9th Circus as example] are still refusing to DO THEIR DUTY. So they can FALSELY CLAIM JUSTIFICATION, USING SCRUTINY, in order to cater to their own POLITICAL AGENDAS. [Sidney Thomas for example]

A TURD IN A ROBE, IS STILL A TURD.
A tough question. What does the 2A mean now? SCOTUS has barely scratched the surface on what it means.
I suspect it's pretty far off. When the 2A was ratified it wasn't enforceable on the states. That's just for starters.
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Old 12-30-2021, 9:28 AM
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Originally Posted by DrjonesUSA View Post
That’s a very good point!
My contribution is this:

all of our founding documents are totally dedicated to outlining and enshrining some of the rights of The People - all human beings, but especially American citizens.

All of the rights listed in the BOR are INDIVIDUAL human rights.

The fascists would have you believe that the 1st and 3rd - 10th amendments (and all the ones thereafter) are individual rights, but the SECOND is magically and conveniently a “collective / group” right?



I think I mostly agree that “Shall Not Be Infringed” is about as damn clear as it can be.

I mean; how would you state “Shall not Be Infringed” in modern English?

It means what it means.

The only reason there are ANY questions about this whatsoever is because there are demons from hell walking around the earth who wish to do things that we would shoot them for, so they are trying their hardest to disarm us.
If I may add what Regressives in this country confuse this part of the Second Amendment "the security of a free state" as they want to refer to only states as in "California, Texas and what not . An not the country as a free state.

Of course that is only my opinion. I have looked at our country as a nation state so to speak.

States like New York, Oregon, Washington, California and other Democrat run state likes to use state's rights to trump individual rights that do not derive from government but as stated are natural rights.

I've even had some teacher tell me we should give up the 3rd Amendment as we should surrender that right. No right is up for negotiation. Once one goes the Communists (democrats) in this country will use that to eliminate the rest of them.

Our rights have been convoluted by politicians and lawyers to justify their own means at the sacrifice of liberty.

This is just my opinion and observation only.
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Old 01-02-2022, 4:34 PM
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The 2A is pretty short and easy to understand. Long posts about its meaning suggest a writer is trying to cinvince themself as to tge meaning of the 2A. My suggestion is to just go back and read the 2A over and over again.
HAHAHA I know... the 2A is there for us, the people, to defend ourselves against a tyrannical government in armed vicious and un-politically correct combat... THAT'S ALL AND THAT'S IT.. P E R I O D .....
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Old 01-07-2022, 8:24 AM
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I've even had some teacher tell me we should give up the 3rd Amendment as we should surrender that right. No right is up for negotiation.
I can't help but ask, what reason would a person use to support giving up the 3rd amendment?

This is the first time I have ever heard of someone having issue with the 3rd. Most people don't even know what it is.
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Old 01-09-2022, 2:54 PM
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IMO, the 2nd amendment is FAR today from it's original meaning and intent, many drastic events have occurred from then to now that have forced the government to put a tight gridlock on guns. It has painted a picture to the general public that "guns are bad and should be banned altogether" which obviously is not true, but all this I believe is more emphasized in states like California and New York.
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Old 01-10-2022, 7:44 PM
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LOTS of word dissections in this long thread.

IMO, I believe there would be fewer discussions and many fewer court cases, had the "drafters" (whatever that means) excluded the parts containing the word, "Militia... "
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Old 01-11-2022, 12:52 AM
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LOTS of word dissections in this long thread.

IMO, I believe there would be fewer discussions and many fewer court cases, had the "drafters" (whatever that means) excluded the parts containing the word, "Militia... "
The "drafters" knew exactly what needed saying. And they did it clearly and concisely. The problem arises when 200 years later a bunch of dicks try to INSIDUOUSLY change the definition of the words they used. In order to further their own leftist political agendas.

More contemporary examples of same ploy. Prior to 1993, going back 500 yrs to origin of English as a language.

The word "civilian" was defined simply as "OTHER THAN THOSE IN MILITARY SERVICE". In 1993, due to "common MIS-usage" changes supported by so many idiots misusing the word. WEBSTER"s added "OR POLICE" on the end of the true definition. Caving to the "Us v Them" crowd who purported that police were "militarized". A decade later, dictionaries added "OR FIREMEN" to the definition. Sooner or later, through common misuse, all civil service employees will be classified as "NON CIVILIAN". ......... POSTAL CARRIERS are likely next in line.

Prior to the early 2000's the word "GAY" was defined simply as "HAPPY-JOYOUS".
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Old 01-11-2022, 5:23 PM
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Originally Posted by pacrat View Post
...Prior to the early 2000's the word "GAY" was defined simply as "HAPPY-JOYOUS".
Actually, that got started well before the 2000's...

Generally speaking, most sources place the beginning of that word being directly associated with homosexual males in the 1920's or 1930's; with the predominant change throughout society happening in the 1960's and 1970's.

For example... HOW ‘GAY’ CAME TO MEAN ‘HOMOSEXUAL’

How did ‘gay’ come to mean ‘homosexual’?

Some place it as early as the 19th Century... When Did the Word ‘Gay’ Stop Meaning ‘Happy’ and Start Referring to Homosexuals?

Similarly, the language used in the Constitution and, in the context of this thread, is fairly well established as to meaning. The issue becomes one of intended meaning and how the same term(s) are used in today's communication. For instance, "the People," "militia," "shall not be infringed" all have 'plain meaning' to us as they did then; but, they are not necessarily entirely synonymous in that the plain meaning then isn't necessarily the plain meaning of today. It's precisely why Scalia went to considerable pains in Heller to establish what those meanings were and how they have been interpreted by the Courts over the years.

It's why I keep pointing to Scalia's interview with Wallace where he notes that there were limitations ("infringements") on the bearing of arms at the time of the Founding...



Which then, logically, brings up questions regarding what "shall not be infringed" was intended to mean as it was clear that, at the time, some infringements existed. Did it mean that all infringements were to be lifted and never put back in place, did it mean that existing infringements were permissible, did it mean what the Miller decision suggested...??? As others in this thread have stated, it's been a process and while originally intended meaning isn't as crystal clear as we often assume or would like it to be, neither is the originally intended meaning the Courts have used over the years.

Are those 'understandings' victims of parsimony and agenda? Certainly, to a degree. Yet, as I have repeatedly pointed out, the discussion in this thread isn't what the title of the thread or even the original OP appears to allude to; which is why kcbrown edited the OP. The discussion has to do with the processes by which meaning is, has been, and/or should be ascribed. Given that original, intended meaning isn't as clear as we'd like or many assume, it is subject to some interpretation.

The issue is how much interpretation, in what direction, and with what agenda. As I said earlier, the Law, and the Constitution in particular, should not necessarily be beyond the grasp of the general public and reserved for the self-styled 'elite' of the legal profession. While it is true, from a certain perspective, that being too literal is as problematic as being overly interpretive, that was the 'debate' kcbrown and I were actually engaged in; i.e., where is the balance point which favors individual rights, but allows for 'necessary' Government influence due to changes in society?

Just like "gay" no longer solely meaning "happily excited and/or keenly alive and exuberant, having or inducing high spirits," where it's more common meaning today is more closely linked to the LGBTQ community, the 'plain meaning' we see or want to see or that used to be may no longer be applicable or as readily understandable to the general public and hasn't necessarily been so for much longer than many realize. Does that mean something like the 2nd Amendment needs to be 'updated' to more modern usage of the language? No. But, it does mean that one needs to establish a 'leveling' or 'template' as to what was intended so that everyone is on the same page. Unfortunately, that means a certain level of interpretation is not only necessary, but will happen. Which brings us back to how much, what direction, etc.

This is what Scalia was hoping to adjudicate over a number of cases, with Heller being the first step and McDonald being the second; i.e., it's an individual right and that right is incorporated to the states. Unfortunately, over the last decade-plus, his hopes/intentions became stymied and, with his death, lay fallow until... we hope... Trump's appointees changed the balance on the Court. The problem now is whether the new Court will head the same direction Scalia appeared to be going or whether some new direction/agenda will take hold and where that will lead us.

Last edited by TrappedinCalifornia; 01-11-2022 at 5:25 PM..
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Old 01-11-2022, 5:39 PM
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...Prior to the early 2000's the word "GAY" was defined simply as "HAPPY-JOYOUS".
Quote:
Actually, that got started well before the 2000's...
I made the statement in relation to an approximate time that dictionaries caved, and acknowledged the improper usage as common practice. To show the intentional degradation of the language in order to fit political agendas.

Not an indication of any time line that started the degradation.
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Old 01-14-2022, 1:19 PM
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I can't help but ask, what reason would a person use to support giving up the 3rd amendment?

This is the first time I have ever heard of someone having issue with the 3rd. Most people don't even know what it is.
The person in question is a serving member in the military and a school teacher I know. She's far left idiot and never ever admits California does anything wrong it's all the Federal government's fault only when a Republican is in the White House.

The only reason to give one right is that once one is gone the rest will fall in short order.
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Old 01-14-2022, 7:27 PM
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Originally Posted by Wheellock View Post
I can't help but ask, what reason would a person use to support giving up the 3rd amendment?

This is the first time I have ever heard of someone having issue with the 3rd. Most people don't even know what it is.
I am totally with you! Who on earth would want anyone, including a soldier, cut into pieces in their house without permission???



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Old 01-17-2022, 1:22 PM
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The person in question is a serving member in the military and a school teacher I know. She's far left idiot and never ever admits California does anything wrong it's all the Federal government's fault only when a Republican is in the White House.

The only reason to give one right is that once one is gone the rest will fall in short order.
So she just wants a free place to live? That is some very limited thinking, is her name Karen?
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