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

[kcbrown]

No, I am not making that claim. Please do not put words in my mouth.

Read the first few words of the text of the 2A, the militia clause. That may (if you believe Miller) make that right a collective right, which applies to members of the militia (yes, that interpretation way over-simplifies Miller).

The right itself is and has always been an individually-held right that serves multiple purposes, some of them collective in nature. You are conflating the (partially) collective nature of the militia purpose with the nature of the right itself. They are not the same thing. Moreover, the purpose named in the 2nd Amendment (the security of a free State) is both collective and individual in nature, since the collective isn't free unless the individuals within it are also free. And finally, the militia itself has its arms through the individual ownership of arms, and that alone makes the right to keep and bear those arms operative at the individual level and thus makes the right an individual one even when the instant purpose of the use of those arms is collective in nature.

The right to free speech also serves some collective purposes (e.g., to make it possible for the body of the people to learn something critical for the purpose of acting in concert or for expressing its collective will, as it does through voting for instance), but that doesn't make the right to free speech any more of a "collective right" than the militia purpose makes the right to arms a "collective right".

Because the right itself is a preexisting right, its nature as an individually-held one is also preexisting.


Consider, too, that if you have the right to life, then you automatically get the right to arms as a direct consequence, for it is only through an operative right to arms that you have any reasonable chance of prevailing against someone who is determined to take your life, most especially if you would be substantially less well-armed than your attacker in the absence of such a right. Preservation of life as a matter of right is an inherently individual thing, and that automatically makes the right to arms an individually-held one irrespective of all else. A right is no right unless one can successfully insist upon it (at the very least most of the time) in the face of those who would deny to you that which the right addresses. As an example, your right to life would be no right at all if you were almost certain to fail to defend it in the face of an attacker due to you being forbidden from having the necessary arms.

[curtisfong]

Read the first few words of the text of the 2A, the militia clause. That may (if you believe Miller) make that right a collective right

Bullpoop.

That is fabricated out of whole cloth. All it means is that not only can SCOTUS make up nonsense, you can too.

SCOTUS can determine what the constitution means

Which both obviates and makes irrelevant that

the text of the law and constitution that SCOTUS interprets can be changed by the governed, through procedures such as legislation and amendment

... since at any time SCOTUS is free to completely ignore all of it in a way that you think is "functioning as intended", no matter what contorted, flawed, inconsistent, partisan reasoning they rely on.

The 2A is the only right among the first 9 that has a collective clause applied to it

I do not accept the militia cause does any such thing. You know many do not. So stating it as incontrovertible fact may satisfy yourself, and others hostile to the right, but it will not get you anywhere with those that disagree. You'll have to find firmer common ground. This only harms whatever effort you are making at consensus.

Miller may have given us the "common use" test, which is handy for gun rights advocates but it is clearly beyond flawed (in ways already discussed here in depth, regarding the recursive effects of law on what "common" is), and there is very little in Miller that I find convincing at all... let alone the fact that it was concluded with Miller in absentia. The whole thing is a sham.

Furthermore, the claim that rights are given "by god" is nonsense, as god is not a party to civil or constitutional law. In particular not since the establishment clause.

As an atheist, I agree, but in this case, substitute "god" with "universal morality" (see also Kohlberg), and we no longer agree.

The right itself is and has always been an individually-held right that serves multiple purposes, some of them collective in nature. You are conflating the (partially) collective nature of the militia purpose with the nature of the right itself. They are not the same thing. Moreover, the purpose named in the 2nd Amendment (the security of a free State) is both collective and individual in nature, since the collective isn't free unless the individuals within it are also free. And finally, the militia itself has its arms through the individual ownership of arms, and that alone makes the right to keep and bear those arms operative at the individual level and thus makes the right an individual one even when the instant purpose of the use of those arms is collective in nature.

The right to free speech also serves some collective purposes (e.g., to make it possible for the body of the people to learn something critical for the purpose of acting in concert or for expressing its collective will, as it does through voting for instance), but that doesn't make the right to free speech any more of a "collective right" than the militia purpose makes the right to arms a "collective right".

Obviously I am in kcbrown's camp here, and your characterization of collective/individual does not ring true to me at all. My take is, Miller's "collective right" is a right the majority of the population thinks is too dangerous to deign to "give" as a privilege (vs affirm a right :P) to individuals. That is to say, minorities.

[kcbrown]

While I already argued against the notion of regarding the right to arms as a "collective" right, I thought I'd respond to this separately.

The 2A is the only right among the first 9 that has a collective clause applied to it.

In what way is it a "collective" clause? Because the "free State" can refer to a group of people (i.e., a "collective") that are free (a "free polity" as Scalia described it in Heller)? Because "well-regulated militia" refers to a subgroup of the people with particular characteristics (and/or act in some coordinated fashion)?

Has it occurred to you that "the people" is itself a "collective", and thus by your implied argument here, every right that "the people" hold could be regarded as a "collective" right if mere mention in the text of a group that has it or needs it is sufficient to make the right a "collective" one?


I think it would be constructive if you would elaborate on the basis from which you claim that the 2nd Amendment has a "collective clause" in it. Surely it's more substantial than the above?

And the 10A is the only one that describes state's rights.

The 10th Amendment doesn't talk about states' rights at all. It talks about powers. There's no mention of rights in the 10th Amendment whatsoever.

[advocatusdiaboli]

While I already argued against the notion of regarding the right to arms as a "collective" right, I thought I'd respond to this separately.
In what way is it a "collective" clause? Because the "free State" can refer to a group of people (i.e., a "collective") that are free (a "free polity" as Scalia described it in Heller)? Because "well-regulated militia" refers to a subgroup of the people with particular characteristics (and/or act in some coordinated fashion)?

Has it occurred to you that "the people" is itself a "collective", and thus by your implied argument here, every right that "the people" hold could be regarded as a "collective" right if mere mention in the text of a group that has it or needs it is sufficient to make the right a "collective" one?

I think it would be constructive if you would elaborate on the basis from which you claim that the 2nd Amendment has a "collective clause" in it. Surely it's more substantial than the above?

The 10th Amendment doesn't talk about states' rights at all. It talks about powers. There's no mention of rights in the 10th Amendment whatsoever.

A prefatory clause separated from the seceding clause by a semicolon means the two clauses are not dependent on one another. The prefatory clause is provided to add context but does not control meaning.. Basic grammar.

Further, there is a constitutional attorney (licensed to present to the Supreme Court of the US) who goes into the nuances of the Second Amendment at length in a YouTube video I recommend highly. it is the best detailed summary of 2A I have ever heard. His channel is The Four Boxes Diner and he should be far more well-known.

[TrappedinCalifornia]

Looks like you're back! Awesome. Here's hoping your family emergency worked out well in the end. Family issues can be the most frustrating to deal with ... and the most fulfilling. I'm really hoping this one turned out to be the latter, even in the face of the former.

We'll see. For the moment, what I had them do in relation to the recalcitrant bank seems to have worked, at least for now. Let's just say I was able to show for their meeting when they turned over the paperwork and was amazed at how 'abusive' the one individual was in relation to a notarized document and how that individual didn't 'recognize' the signature and, thus, it would have to be analyzed to determine... Uh... What part of notarized is not sinking in? (I personally oversaw the notarization, where the notary met with the individuals, checked their ID's, and explained the paperwork they were signing.)

But, that kinda, sorta brings us to...

Someone in a completely different venue pointed me at an article that I think you might find interesting. You might even have already seen it. While it talks about the Commerce Clause, it has an excellent section on interpretation: https://scholarship.law.georgetown.e...context=facpub

Let me know what you think...

I think that piece is a good example of what's been happening in this thread and exemplifies the problems we're having with modern day jurisprudence. Remember what I pointed you to back in Post #96 in relation to a Constitutional Convention?

States Likely Could Not Control Constitutional Convention on Balanced Budget Amendment or Other Issues

I think the quotes from Scalia and Burger about sum it up...

...A number of prominent jurists and legal scholars have warned that a constitutional convention could open up the Constitution to radical and harmful changes. For instance, the late Justice Antonin Scalia said in 2014, “I certainly would not want a constitutional convention. Whoa! Who knows what would come out of it?” Similarly, former Chief Justice of the United States Warren Burger wrote in 1988:

[T]here is no way to effectively limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda. Congress might try to limit the Convention to one amendment or one issue, but there is no way to assure that the Convention would obey. After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda...

Recall the very first response you received to this thread (Post #2)...

Most of the Bill of Rights are condensed versions of the ideas put down in the Federalist Papers. At the time this stuff was written the fine art of political double speak had not been invented so just read what it says and take it at face value - without thoughts of a hidden agenda.

https://guides.loc.gov/federalist-papers/full-text

Then look to the piece you linked to with regard to the section entitled: ORIGINAL MEANING AND INTERPRETATION...

...As I have explained elsewhere," "original meaning" refers to the meaning a reasonable speaker of English would have attached to the words, phrases, sentences, etc. at the time the particular provision was adopted. It is originalist because it disregards any change to that meaning that may have occurred in the intervening years. It is objective insofar as it looks to the public meaning conveyed by the words used in the Constitution, rather than to the subjective intentions of its framers or ratifiers. By contrast, "original intent" refers to the goals, objectives, or purposes of those who wrote or ratified the text. These intentions could have been publicly known-or hidden behind a veil of secrecy. They could and indeed were likely to be in conflict...

As you took note, I summed it up with...

Thus, if the arguments on all sides come down to interpretation, the issue becomes the degree of interpretation rather than an absolute...

Unfortunately, such discourse, inevitably, becomes repetitive as interpretation largely lies in agenda...

As our entire exchange as shown and even you, grudgingly acknowledge (despite your attempts at denial), original, intended meaning is not always as crystal clear as you (or I) would like, is not always absolutely ascertainable, and there are processes (agree with them or not) by which interpretations are derived (meaning they aren't, entirely, 'arbitrary' [at least not in every or even in most circumstance(s)], even if they may seem to be at times). In fact, given the very lack of clarity (to whatever degree), often necessitating pages within a decision to construct an agreed upon meaning (How many pages in Heller did Scalia dedicate to establishing what the majority agreed to as the original, intended meaning?), which is then not necessarily universally agreed to (remember that even Scalia acknowledged that he and Thomas weren't always in agreement regarding original, intended meaning; concurring opinions) but simply accepted within the confines of the question posed and often disagreed with (dissents) in a given case, it can and has been argued that SCOTUS is acting in exactly the manner they declare... as an 'arbiter'... a person with power to decide a dispute; a person or agency whose judgment or opinion is considered authoritative...

What it boils down to is found in the attempts of the author of the piece you linked to with... original intention originalism and original meaning originalism, along with textualism and all the other "ism's" which now make up the scope of judicial interpretation. It's similar to our exchange regarding your use of Johnson's dictionary (Post #204) where the definition you utilized for "state" was truncated to support your own agenda. In that sense, as per your linked piece, you were no longer engaging in interpretation, but construction...

...It is important to keep in mind that originalism is warranted as a theory of interpretation-that is, as a method of determining the meaning of the words written in the Constitution. For better or worse, knowing the meaning of these words only takes us so far in resolving current cases and controversies. Due either to ambiguity or vagueness, the original meaning of the text may not always determine a unique rule of law to be applied to a particular case or controversy. While not indeterminate, the original meaning can be "underdeterminate."" Indeed, because the framers frequently used abstract language, this will often be the case. When this happens, interpretation must be supplemented by constitutional construction-within the bounds established by original meaning. In this manner, construction fills the unavoidable gaps in constitutional meaning when interpretation has reached its limits...

In a very real sense, it's what MountainLion described as...

...What kcbrown is trying to do, over and over, is to use the text (and origin and interpretation) of the constitution as an argument for how his favorite agenda (more gun rights) must be the correct agenda...

Such pretty much encapsulates what we are up against with today's Judiciary. It's become a 'game' where the goal isn't to 'find the Truth,' but to persuade toward the adoption of agenda, even if that adoption is only short-lived. As a result, it's become a question of how thick a weed growth does one want to get lost in. In a similar vein, what I see your link as is a continuing effort by you to find a 'nutshell' into which you can place your argument so as to have 'authority' to point to in your justification of that argument.

Yes. Many of his 'explanations' are similar to what I have presented. The difference is in the where he takes them. In his case, the agenda is openly declared...

...There is then an important distinction between determining the original meaning of text and construing that meaning, where it is vague or ambiguous, according to the original intentions of its drafters or ratifiers. In what follows, I present what I think is the best evidence of the original meaning of the Commerce Clause. How that meaning, once established, is to be construed is a different matter that I may touch upon in passing, but is not the primary focus of this Article...

In our case, it is a focus on the 2nd Amendment, a subject he touches on to support his own argument related to the Commerce Clause...

...A "well-regulated" militia is not a prohibited militia but one that is well drilled... James Madison described a direct parallel between the regulation of the militia and the regulation of commerce when...

...citing Hamilton regarding the first part of that parsed quote...

This is implicit in Hamilton's observation that:

To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people and a serious public inconvenience and loss.

Federalist 29 (Hamilton), in Rossiter, ed, The Federalist Papers at 184 (cited in note 61).

That's not a 'judgment' as to the correctness of his argument. It's an 'observation' of his use regarding a portion of History in furthering his own argument; an argument which Scalia agrees with in Heller as it is the traditional understanding of the meaning of "well-regulated."

...Finally, the adjective “well-regulated” implies nothing more than the imposition of proper discipline and training...

What it does do, however, is reinforce my reference to Carr's What Is History?... from Post #225 above...

...Just like when someone advances the claim of "knowing History." What they are typically positing is that they have been able to piece together a belief of what "was" and not a realization of what "History" actually is. As Edward Hallett Carr attempted to warn 60 years ago...

...Facts can be changed or manipulated to benefit those relaying them, something we are acutely aware of today. During Carr’s lifetime, Stalin’s regime destroyed documents, altered evidence and distorted history. With this is in mind, it is the continued misrepresentation and misuse of fact, deliberate or accidental, that Carr interrogates in What is History? He encourages any student of history to be discerning: “What is a historical fact? This is a crucial question into which we must look a little more closely”.

Carr begins his interrogation by analysing how the “fact” is prepared and presented by the historian who studies it. He does so by dividing facts into two categories: facts of the past and facts of the present. A fact of the past – for example, “the Battle of Hastings was fought in 1066” – is indisputable but basic. A fact of the present is something a historian has chosen to be a fact: “By and large, the historian will get the kind of facts he wants. History means interpretation.”...

As Carr notes, "History" is a process which is constantly being altered by those who interpret it based on subjectivity, agenda, and surmises/inferences regarding what is 'fact.' Just as with 'original intent,' what we THINK we know is largely a product of interpretation based on incomplete source material mixed with various agenda in the recording/retention of the source material we do have; something I noted on the first page of this thread...

...That is the essential argument often raised when it comes to: "The proper approach is the "original intended meaning of the authors" approach." As Edward Hallett Carr noted in 1967 in his book What Is History?, historical facts are actually interpretative choices by historians and that those interpretations are the result of standards from the time of the historian, not necessarily exclusively the standards of the time being interpreted. Remember, simply because one cites a 'primary source' doesn't mean it is the only 'primary source' from that period (even if it might be the only primary source available now) and such a source doesn't always exemplify how things were "understood by the founding generation" as their understanding 'evolved,' even in their lifetimes. (Remember, this was 'new' to them as well, even if it was based, for them, in their own version of 'history and tradition' as it reflected their interpretation based on their own circumstances and standards.)...

...

In a very real sense, as I noted above and in the preceding quote, what is typically being posited is the ability to piece together a belief of what "was" as justification for what they wish to have. As your linked author expresses it...

...The most persuasive evidence of original meaning-statements made during the drafting and ratification of the Constitution as well as dictionary definitions and The Federalist Papers-strongly supports Justice Thomas's and the Progressive Era Supreme Court's narrow interpretation of Congress's power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.'...

This all assumes, of course, that a court is bound by the original meaning of the Commerce Clause. I have argued elsewhere why it should be, so long as it professes a commitment to a written constitution. ' Moreover in recent years there has been a marked movement on the part of constitutional theorists in the direction of original meaning, at least to provide the starting point of constitutional analysistm-in which case, the content of the starting point surely matters...

In other words, much of the piece you linked to vis a vis "interpretation" has been covered in this thread to one degree or another. Interesting? Sure.

cont'd...

[TrappedinCalifornia]

Which brings us to...

...Meanwhile, I still haven't looked at those videos you posted (sigh). I've also been pondering your description of your stance. I'll come back to all of that once I've gone through everything, but thought I should at least welcome you back and point out something that I thought you might be interested in.

As you ponder, realize that I have presented virtually nothing which didn't used to be an inherent part of how the Constitution was taught in K-12 education. In other words, it represents "history and tradition," not something unique to my understanding. Or, as curtisfong phrased it...

...To wit; TiC summarized a few simple things you'd think everyone might (potentially) universally agree on here...

But none are even close to being universally agreed on...

As I said in my very first post to this thread, the 'debate' we were having was over the processes by which meaning is ascribed; i.e., you were pursuing what you understand/prefer in the guise of 'originalism' and I was playing Devil's Advocate by demonstrating that the 'absolutism' you were attempting to introduce simply doesn't exist, even for originalists. In that sense, you were projecting how you would prefer to see meaning determined and I was observing the problems associated with that view. Thus, 'responding' to my take on the 2nd Amendment is 'going off into the weeds.'

As I said to you before, YOU are the one proposing a concept based on years of having promoted it. Thus, YOU are the one who has put forward what is to be critiqued. Thus, YOU are the one seeking feedback, not me (or other respondents). Yet, you are and have been declaring, implicitly and explicitly: "If I can't critique the critique, I'm not going to play because it's not fair."

That's not the type of 'conversation' (albeit, discussion) you are seeking at this point. Right now, you're still trying to work out what YOU believe or, perhaps more accurately, where you want to see things go, how, and why. What you keep running up against is exactly what I have been presenting; i.e., the "history and tradition" which, heretofore, has served us.

Has it served us "well?" I think we all have a 'scale' we measure that against. Clearly, you do not think so or why else would you desire a change? The problem is that you seem to feel it necessary to 'prove' why it's not working for us to bolster your argument for what you feel will work for you. Yet, in the meantime, your own position is 'evolving'...

...A lot has happened in this thread since I started it, and a lot of realizations have come to me as a result of it (sometimes it just takes a good head-beating to get someone to realize something, and that's the case here. )...

Has this 'evolution' been, at least in part, a result of this discussion? I would hope so. Otherwise, what's been the point?

Remember what I said to you in Post #130... Persuasion is only possible if you are willing to be persuaded. By critiquing the beliefs of others, you automatically put them on the defensive; i.e., you make them less persuadable. By putting your own arguments out there, listening to the feedback, and refining those arguments based on that feedback, you take a risk, but you also leave the field more open to persuasion once you have come to whatever conclusion/belief you feel is appropriate.

Put another way, MY understanding of the Constitution and the 2nd Amendment isn't the issue here. At least at this point. YOUR understanding of both is. Part of that has been attempting to make you see what you've actually been promoting, such as the inherent contradiction or paradox you've been proposing of, essentially, having Government codify a natural right.

Anyway...

Thanks for the 'welcome back,' though I never really 'left.' The 'difficulty' was having the time to commit to unwinding complicated issues. As I said, it was a matter of putting the 'family matters' in their place and, hopefully, I've done so for now.

[kcbrown]

Such pretty much encapsulates what we are up against with today's Judiciary. It's become a 'game' where the goal isn't to 'find the Truth,' but to persuade toward the adoption of agenda, even if that adoption is only short-lived.

I have to wonder if it's in practice ever been any different. Did the courts of the founding era engage in a search for "the Truth", or did they attempt to persuade towards the adoption of an agenda, or perhaps a bit of both?

And what exactly is "the Truth" when it comes to interpretation, or even the result of it, anyway? Part of what this thread has caused me to realize is that there isn't a ready-made answer to that, and there may indeed not be an answer at all to it.

At the same time, I'm certainly not convinced that all interpretations are "equal" once they hit the real world. How to measure that? That, too, is a good question, and is likely itself a matter of perspective. This, I suspect, is where a shared set of values comes into play.

As a result, it's become a question of how thick a weed growth does one want to get lost in. In a similar vein, what I see your link as is a continuing effort by you to find a 'nutshell' into which you can place your argument so as to have 'authority' to point to in your justification of that argument.

Actually, I'm very surprised you said this. I offered it up in the hopes that you'd see the differences between what that author is promoting versus what I have been. In particular, what I've been promoting is "Originally Intended Meaning", which is different from both Original Intent and Original Meaning. Specifically (if I understand Barnett correctly), Original Intent attempts to determine the author's underlying reasons for what he said, and Original Meaning attempts to determine the meaning understood by the audience at the time, while my "Originally Intended Meaning" attempts to determine the meaning the author intended to convey.

I linked to it because I thought it would be interesting to see yet another interpretive perspective, and to provide some evidence that I'm at least beginning to recognize the multitude of interpretive perspectives that are out there. But mainly because I thought you might find it interesting and possibly even useful in some way.

As you ponder, realize that I have presented virtually nothing which didn't used to be an inherent part of how the Constitution was taught in K-12 education. In other words, it represents "history and tradition," not something unique to my understanding.

I wonder if you're older than I am, because I don't remember being taught any of this in K-12, and I'm almost 60 myself. That might be an indictment of the public school system even back then. Scary thought that it's even worse now, from what I've seen/heard.

Has this 'evolution' been, at least in part, a result of this discussion? I would hope so. Otherwise, what's been the point?

Oh, it very much has, much more so than any other discussion we've ever had.

Put another way, MY understanding of the Constitution and the 2nd Amendment isn't the issue here. At least at this point. YOUR understanding of both is.

Right. And the critique of it has been very useful indeed. It's shown some of the flaws of my thinking on the matter.

When a flaw is shown, that which is shown as flawed must then be discarded. That leaves a vacuum, something that demands replacement. What to replace it with?

That is where the understanding of others becomes really useful. If my views are flawed, then perhaps there are others that aren't as flawed. And seeing how you've been playing a Devil's Advocate role in all this, I thought perhaps that your perspective might at least provide some insights on which I could draw replacements from.

I don't intend to critique your perspective that you've provided, I intend to understand it so that I can adopt those bits and pieces that will hopefully strengthen my own perspective.

Thanks for the 'welcome back,' though I never really 'left.'

Well, it just isn't quite the same without your long, well-considered treatises in response to others, so I stand by my welcome.

The 'difficulty' was having the time to commit to unwinding complicated issues. As I said, it was a matter of putting the 'family matters' in their place and, hopefully, I've done so for now.

To replace one set of complicated issues with another, it seems! LOL. Hope this set of complicated issues will be fun, at any rate, and not as frustrating as before.

[kcbrown]

A prefatory clause separated from the seceding clause by a semicolon means the two clauses are not dependent on one another. The prefatory clause is provided to add context but does not control meaning.. Basic grammar.

Yep, I completely agree. MountainLion appears not to. It'll be interesting to see his justification for that.

Further, there is a constitutional attorney (licensed to present to the Supreme Court of the US) who goes into the nuances of the Second Amendment at length in a YouTube video I recommend highly. it is the best detailed summary of 2A I have ever heard. His channel is The Four Boxes Diner and he should be far more well-known.

https://www.youtube.com/watch?v=S5uV5aUxqVw

Just now saved the video. I'll check that out as well. Thanks!

[TrappedinCalifornia]

...while my "Originally Intended Meaning" attempts to determine the meaning the author intended to convey...

I saw the difference. But, as we discussed, there is no 'single author' of the Constitution. Maybe this will help... Original Intent, the View of the Framers, and the Role of the Ratifiers...

...The framers and ratifiers of the Constitution are dead, but their views are hardly irrelevant. That is not to argue that the courts should interpret the Constitution as rigidly as one might interpret a municipal ordinance. No one seriously advances that argument today. Yet there is a middle ground between rejecting any role for history and unthinking reliance on history. Uncovering original intent may be helpful and useful even if a strict view of history may not be controlling when it is read in context. Not all judges and commentators who look at history-as well as the other tools of judicial review such as text, structure, logic, and precedent-Will reach the same conclusions on every issue, but they at least will start at the same base line, and that base line helps confer legitimacy on judicial review and cautions the courts in its exercise.

The issues relating to original intent and the uses of history have created almost a cottage industry in the scholarly literature. In this Essay I cannot canvas all of the arguments, but I hope to set them in proper perspective and to contribute to the more recent debate by focusing on a single question: Whether the framers actually intended that subsequent generations not be bound by the original intent. This Essay begins by looking at the Constitutional Convention of 1787 and the distinction the framers drew between."private" intent and "public" intent...

History does not support the position of those noninterpretivists who claim that the framers and ratifiers did not intend the judiciary to look at original intent. Looking at original intent both helps legitimate judicial review and cautions the judges in its exercise. In The Federalist Papers Hamilton explained that if there is a conflict between a statute passed by Congress and the written Constitution, then "the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." ' The Constitution "is, in fact, and must be regarded by the judges as a fundamental law."' Yet he also cautioned the judges to exercise "judgment" and not uncabined "will. ' Judges have been trying to do that for most of our last two hundred years; their legacy has been a Constitution that has brought us stability without dictatorship, freedom without license.

Sound vaguely familiar? (See Post #97.)

I linked to it because I thought it would be interesting to see yet another interpretive perspective, and to provide some evidence that I'm at least beginning to recognize the multitude of interpretive perspectives that are out there. But mainly because I thought you might find it interesting and possibly even useful in some way.

As I said, it was interesting. What I was noting is that much of it has actually been touched on in this thread. Such reinforces the notion that the thread has been helpful in that, as you acknowledge, your vision is expanding beyond what you had previously perceived.

I wonder if you're older than I am, because I don't remember being taught any of this in K-12, and I'm almost 60 myself. That might be an indictment of the public school system even back then. Scary thought that it's even worse now, from what I've seen/heard.

Every institution is going to be slightly different. In my case, the instruction was based on even older precepts than was the 'current thinking' at the time in many places. Part of that was due to limited funding for new textbooks. Part was due to the personal take of predominantly older teachers. Part of it was due to the predilections of the parents (in those days, at least in my schools, parents had considerably more say and involvement in the curriculum).

...When a flaw is shown, that which is shown as flawed must then be discarded. That leaves a vacuum, something that demands replacement. What to replace it with?

That is where the understanding of others becomes really useful. If my views are flawed, then perhaps there are others that aren't as flawed. And seeing how you've been playing a Devil's Advocate role in all this, I thought perhaps that your perspective might at least provide some insights on which I could draw replacements from.

I don't intend to critique your perspective that you've provided, I intend to understand it so that I can adopt those bits and pieces that will hopefully strengthen my own perspective...

Thus, the 'nutshell of authority' I was referencing. As you've been warned by MountainLion and myself, there is no such thing as a 'flawless' interpretation. (Bear in mind that, as we discussed, an argument can be flawlessly logical, but not necessarily truthful.) If interpretation lies in agenda, that means every interpretation is premised, to whatever degree, in the 'logic' or 'rationale' of that agenda; thus, my reference to the premises one bases their interpretation (argument) on. No matter how scrupulous one's attempts, there will always be 'flaws' in that sense given that agenda largely lies in perspective.

Remember the old saying... If You Are Not a Liberal at 25, You Have No Heart. If You Are Not a Conservative at 35 You Have No Brain

As I alluded to earlier in the thread, you don't necessarily have to abandon your beliefs, but it is strongly advised that you check your premises.

Or, as another old saying goes, be careful not to throw the baby out with the bath water.

Well, it just isn't quite the same without your long, well-considered treatises in response to others, so I stand by my welcome.

To replace one set of complicated issues with another, it seems! LOL. Hope this set of complicated issues will be fun, at any rate, and not as frustrating as before.

It makes for an interesting intellectual exercise; particularly when attempting to remain 'neutral.' But, as was said early on regarding Picard vs. Kirk, in the time it takes Picard to explain things, Kirk would have just shot 'em. It's why the audience, at the early showings of Star Trek: Generations, went bonkers at this point in the movie given the juxtaposition...



Interestingly, to me, it suggests that while I had a similar reaction to that of the audience (Soran... now ya'll gonna get the whole can of...), what many in the audience tend to forget is that Kirk had his own 'moments' of protracted soliloquy throughout the series and movies. Such was actually Roddenberry's 'original intent' for the character of "Captain of the Enterprise" and Picard actually reflected that intent more closely than Kirk. However, at the time, audiences were not predisposed to such a character and much preferred the portrayal of Kirk.

What might that suggest about 'society' that the character of Kirk was 'killed off' to make room for new movies centered on Picard and that we now have a revival of Picard in a new series?

Awww... I'm making myself feel 'old.'

Perhaps an 'alternate ending' would have been a demonstration of 'good judgment' where parts of the original are used and kept, while giving nod to the future of the franchise. As an example...



Thus, the character of Will Riker...



What was the 'skipped' part in that video? The part where 'learning' took place and 'trust' was emphasized in terms of 'making the right choice'...



What did I say earlier about the Constitution being an ideal to be striven toward where what we learn as a society is the point rather than actually achieving the ideal?

[curtisfong]

It'll be interesting to see his justification for that.

Like most "objective" and "definitive" justifications of interpretation (of meaning, intent, and intent of meaning ), they're usually worked backwards from the desired result.

[MountainLion]

Sorry don't have time to read the last 10 posts, so here is just a short answer to a single question, namely whether the 2A describes an individual or a collective right ...

Yep, I completely agree. MountainLion appears not to. It'll be interesting to see his justification for that.

You're arguing with the wrong person. I don't actually believe that the 2A is a collective right. But I also do not believe that it is an individual right. I simply admit to not knowing. If I had an opinion on it, that opinion would not be relevant.

However: For about 50 years, between Miller and Heller, the majority of scholars and judges (in their decisions, which are the thing that really matters) considered it to be a collective right. Since Heller, the majority considers it to be an individual right, at least as far as the domain of Heller (keep inside the home) is concerned. This to me means that both the collective and the individual interpretation are plausible enough to have been the dominant paradigm for decades (Heller is now over a decade old). So anyone who claims to know for sure that it is one or the other needs to face the uncomfortable question: why are you disagreeing with lots of judges (in some cases justices) and scholars?

And as a disclaimer, before TrappedInCalifornia comes running again: I know I'm oversimplifying, which is in the nature of a forum post. If you want the whole unvarnished truth, just read the cases. And when I say "majority" above, I don't mean totality, I mean majority.

[kcbrown]

I saw the difference. But, as we discussed, there is no 'single author' of the Constitution.

I agree and do understand that. I wasn't sure how to convey the notion of an "author" with respect to the Constitution in a succinct fashion. It has people who wrote it and people who ratified it, in a back-and-forth process that ultimately resulted in the wording we see today.

To be honest, I've come to the realization that different interpretive approaches will have different strengths and weaknesses, thus making some "better" (more applicable?) than others depending on the specifics.

For instance, when faced with a document that ultimately has multiple authors and which has gone through ratification passes, the "intent"-based approaches are going to have big problems as you have mentioned. That leaves, among others, Original Meaning.

And even that may have problems. For instance, there may be differences in understood meaning depending on things like geographic location (perhaps "cultural location" might be a better term? I strongly suspect the United States at the time of the adoption of the Bill of Rights was not a monoculture, even if the various subcultures shared a lot of traits), degree of urbanization (or "ruralization"), etc. Such things would have to be at least considered.

There may be some ways to mitigate the weaknesses of some of the approaches. For intent-based approaches, for instance, it may be possible to at least determine the common intent, or perhaps a commonly understood meaning amongst those who were involved in the ratification process, or something similar to that, and one might then incorporate the result of that.

And, as always, there is the prospect of substantial uncertainty in all of it.

Thus, the 'nutshell of authority' I was referencing. As you've been warned by MountainLion and myself, there is no such thing as a 'flawless' interpretation. (Bear in mind that, as we discussed, an argument can be flawlessly logical, but not necessarily truthful.) If interpretation lies in agenda, that means every interpretation is premised, to whatever degree, in the 'logic' or 'rationale' of that agenda; thus, my reference to the premises one bases their interpretation (argument) on. No matter how scrupulous one's attempts, there will always be 'flaws' in that sense given that agenda largely lies in perspective.

That's certainly fair. At the very least I'd like to minimize the flaws to the degree I can. Also, hearing the perspectives of others might reveal something that I would find to be even more appealing to me than what I've currently adopted.

A great example is the bit you mentioned about the right being a preexisting one. I'd never really considered the implications of that on the "scope", but find myself drawn towards something like what you described, to wit: because the right is a pre-existing one, so too must its scope be. Now, it may be that you've said as much several times before, but it never really "clicked" in that way until I read your description of your own views on the subject.

Seeing the interpretations of others is something I'm beginning to find very useful. Certainly, critique of my own interpretation is also useful, but in a different way. I can improve the strength of my interpretation from both types of sources. Good stuff!

As I alluded to earlier in the thread, you don't necessarily have to abandon your beliefs, but it is strongly advised that you check your premises.

A wise approach indeed. I don't intend to abandon my beliefs except where some other more fundamental belief I hold, combined with what others have said, compels me to. For instance, I'm going to do my absolute best to not hold any internally-contradictory set of beliefs. I can hardly expect others to not be hypocritical if I'm hypocritical myself, after all, right?

What did I say earlier about the Constitution being an ideal to be striven toward where what we learn as a society is the point rather than actually achieving the ideal?

I suppose that ideals are, by their very nature, never achievable, but always to be striven towards. How can it be otherwise, when an ideal is, in essence, a form of perfection?

But yes, the reward is very much in the journey, at the very least as a result of the achievements along the way.

[kcbrown]

You're arguing with the wrong person. I don't actually believe that the 2A is a collective right. But I also do not believe that it is an individual right. I simply admit to not knowing. If I had an opinion on it, that opinion would not be relevant.

Interesting. That's perfectly fair.

But I disagree that your opinion would not be relevant. Inasmuch as it is discourse amongst people, and the resulting actions they take, that ultimately determine the course of events, it seems that your opinion would be as relevant as that of most other people. Of course, in our system, some opinions are more relevant than others, but even those opinions aren't final, and can be overridden by the opinions of those whose opinions are normally less relevant.

However: For about 50 years, between Miller and Heller, the majority of scholars and judges (in their decisions, which are the thing that really matters) considered it to be a collective right.

I suppose so. Honestly, I've not read the relevant decisions on that. If you happen to have some readily available citations, I'd love to follow up on them, and see what sorts of justifications they used to arrive at their conclusion on this.

Since Heller, the majority considers it to be an individual right, at least as far as the domain of Heller (keep inside the home) is concerned. This to me means that both the collective and the individual interpretation are plausible enough to have been the dominant paradigm for decades (Heller is now over a decade old). So anyone who claims to know for sure that it is one or the other needs to face the uncomfortable question: why are you disagreeing with lots of judges (in some cases justices) and scholars?

Now that is a perfectly reasonable question. A very good one, actually. I won't know how to answer it until I've read some of the decisions you're referring to.

I suppose, if I were to insist on arguing on the basis of authority, that I can say that I'm disagreeing with lots of judges/justices because other judges/justices have, and more recently at that.

My own reasons stem from what I see as the nature of collectives and what I perceive to be the nature of rights. Is it even meaningful in the slightest to claim that a collective has a "right", particularly when that collective is the majority in a majority-driven political system?

[TrappedinCalifornia]

...why are you disagreeing with lots of judges (in some cases justices) and scholars?

And as a disclaimer, before TrappedInCalifornia comes running again: I know I'm oversimplifying, which is in the nature of a forum post. If you want the whole unvarnished truth, just read the cases. And when I say "majority" above, I don't mean totality, I mean majority.

I haven't "run" much of any place for the last several years; but, there's no need to get into that. Let's just say I wasn't, quite, down to Tim Conway's little old man shuffle, but I still haven't got my stride back, yet.

To continue...

At this point, the problem isn't so much that you are 'oversimplifying.' It's that you are presenting things through a particular prism and it's a point of view which is not as broadly shared as you are making it out to be. We discussed Miller in Post #234 within the context of some of the problems. Simply because it was the ONLY case where SCOTUS deigned to 'construe' the 2nd Amendment, doesn't mean it was binding precedent, something which has been debated ad nauseum. (With the usual caveat that simply because SCOTUS does not deign to 'take' a given case or series of cases does not mean they actually agree with the holding[s] in said case[s] or the precedent/perceived precedent claimed.)

Thus, it would be more accurate to say that SOME judges/Justices and scholars have used Miller as something of a fig leaf; i.e., as noted in Post #234, there are several, plausible 'interpretations' of Miller. As a result and utilizing other sources, there has ALSO been considerable support behind the "individual right" theory and, frankly, that is the one which has been viewed as the more 'traditional' holding, even post-Miller. As I said in Post #232 in response to one of your previous posts...

...expanding the interpretation of the 2A to be an individual right...

I'd be cautious here. There are many, including myself, who would not describe it as an expansion of the interpretation, but a solidifying of the traditional interpretation as precedent. In fact, that's what Scalia went to great pains to document in Heller.

His efforts were similar to what the Senate Subcommittee on the Constitution did back in 1982...

...The conclusion is thus inescapable that the history, concept, and wording of the second amendment to the Constitution of the United States, as well as its interpretation by every major commentator and court in the first half-century after its ratification, indicates that what is protected is an individual right of a private citizen to own and carry firearms in a peaceful manner.

It's something Scalia went directly at in Heller...

United States v. Millerpostpost, at 4. And what is, according to JUSTICE STEVENS, the holding of MillerPostMillerpostMillerpostMillerMiller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons...

In short, the prism you are looking and presenting through is that of the dissent in Heller and you are falling prey to the very thing I warned you about earlier; i.e., Miller didn't do as much as many presume or suppose. Thus, in a meaningful way, YOU are the one who is actually "disagreeing with lots of judges (in some cases justices) and scholars" (depending on your point of view and the prism being used) in that the 'traditional' view has held it to be an individual right and...

For over 200 years, despite extensive debate and much legislative action with respect to regulation of the purchase, possession, and transportation of firearms, as well as proposals to substantially curtail ownership of firearms, there was no definitive resolution by the courts of just what right the Second Amendment protects...

Therefore, it was far from 'settled' as a "collective right," something incongruously and 'uniquely' altered by Heller. In that sense, as kcbrown just pithily summarized...

...I suppose, if I were to insist on arguing on the basis of authority, that I can say that I'm disagreeing with lots of judges/justices because other judges/justices have, and more recently at that...

[TrappedinCalifornia]

...For intent-based approaches, for instance, it may be possible to at least determine the common intent, or perhaps a commonly understood meaning amongst those who were involved in the ratification process, or something similar to that, and one might then incorporate the result of that...

I believe this is the source of Scalia's 'warning' not to confuse the reason for codification with the intent behind the Amendment. It's a 'trap' easily fallen into with the approach you are suggesting.

But yes, the reward is very much in the journey, at the very least as a result of the achievements along the way.

Which pretty much summarizes why I've adopted the role of Devil's Advocate in this thread. It's your journey of discovery (and, hopefully, 'achievements') vis a vis the 'ideal' you've been putting forth over the last several years.