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Now I lay me down to think

In my earlier postings about the Second Amendment, a commenter named "Mark" rather snidely put down my status as a "lay person" on matters Constitutional. He condescendingly suggested I read some Court rulings on the matter. "Mark" was taken to task by "Ed," and they got into a bit of a dispute. I'm not going to defend Ed or argue his points for him, but instead I'm going to discuss Mark's first comment directly.

It's painful to watch a lay person take a public stab at constitutional construction, even if I agree with the bottom line. Might I suggest reading several of the many appellate and Supreme Court decisions that parse the language of the Second Amendment and recount the intent of the framers?
Mark, here's a little tip for you: as I understand it, the Constitution was written (to steal a phrase from Abraham Lincoln) by the people for the people. It is the highest law in the land. It outlines the powers, obligations, and limitations of the government and the people. As such, it should be crystal-clear to any average citizen -- and, for the most part, it is. The Second Amendment is one example where I think they let their rigorous standards for clarity and precision slip -- and the fact that so many people are still arguing about it today is pretty solid evidence that I'm right.

But the days of such simplicity are gone. With lawyers now largely dominating the business of making laws, they've forced the laws to get more and more convoluted and obfuscated to the point where the average citizen hasn't a prayer of understanding most matters. In fact, they've gotten the tax laws so screwed up that if you ask the IRS what exactly they mean, you have a better-than-even chance of getting a wrong answer from the tax experts themselves -- and you're STILL on the hook if you follow their incorrect advice.

I say to hell with that. By forcing such perverse convolutions on our laws, the legal profession has essentially engineered itself a full-employment situation -- and at the public's expense. As a member of that public, I deeply resent that.

The United States Constitution is my birthright, along with the birthright of every American (and the non-birth right of every naturalized citizen). It is MINE, and I neither want nor need anyone to stand between me and it and tell me exactly what it means and doesn't mean. And if that person happens to be an overeducated, self-important, arrogant, condescending prat with a briefcase and a fancy piece of paper with "J.D." after his name, he can take his jurisprudence and shove them down his briefs.

Mark, I don't know if that description fits you (I'm presuming about the "J.D.," but it's a comfortable assumption), but if it does, all the better.

As I write this, I see Mark has written a followup directed to me:

To clarify my earlier comment to Jay: What I meant was that there is a huge body of writtings by the courts that provide great background and an analytical spring-board for launching his own opinions. Watching him try to re-invent portions of that wheel here was a little awkward, as occaisional missteps were made. That awkwardness could have been avoided by reading court opinions rather than the partisan talking points disseminated by both sides of the gun control issue. I did not mean for my comments to be a slam against Jay.

A smidgen better, Mark. The condescension is a smidgen less obvious. In return, I'll try to muffle my own.

Mark, if I might intrude on your lofty intellectual plane for a moment, let me clarify my own posting for you: it was not some layman's attempt at historical or legal analysis, struggling to reinvent the wheel. It was one citizen (of, if I dare say, above-average intelligence -- and I have the IQ tests to back it up) attempting to look at an essential part of the Constitution and try to decipher exactly what it means, without resorting to extensive research and tracking down obscure texts and citations.

The Constitution, like any work of writing, should stand on its own, without needing explanation or enhancement. In fact, it should do so more than anything else -- it is the essential document for all Americans, and no average American should need anything at all to help him or her understand it.

In Robert Heinlein's collection "Expanded Universe," he has a short story where a black woman is chosen as Vice-President, then ascends to the Presidency. She says that she knows she was chosen as a "token" and has no chance to win election on her own, so she just does whatever she thinks is right and to hell with the political costs. One of her issues is a "Plain English Amendment," which requires all federal laws and regulations to be understandable to anyone with a 10th-grade reading level.

(As I recall, she gets most of her proposals passed and is handily elected to her own term. This proves conclusively that Heinlein wasn't just indulging in fiction here, but fantasy.)

I'd like to see such a law passed, even if it set the comprehension bar at the level at which the Constitution is written. Among other obvious benefits, it would likely force thousands and thousands of lawyers to give up their practice and find HONEST work.

And if Mark is one of those so displaced by such a move, all the better.


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Comments (64)

I just graduated from law s... (Below threshold)
AT:

I just graduated from law school and am one week away from taking the bar exam, and I couldn't agree with you more! Let me give you another example of how the Supreme Court has muddled the Constitution so that no one can really understand it.

If a criminal defendant asserts his Miranda right to remain silent, a police officer can come back later and ask the defendant questions about the crime, so long as his right to silence is "scrupulously honored" (whatever that means). But, the Supreme Court has said that the right to remain silent includes the right to have counsel present at interrogation (in other words, the Court created a *Fifth* Amendment right to counsel, even though the explicit right to counsel is in the *Sixth* Amendment). If a defendant asserts this Fifth Amendment right to counsel, the police cannot ask the defendant any questions about any crime, unless the defendant initiates the conversation. This means that if the defendant asserts this right to an officer with a local police department, and then an agent with the FBI (who doesn't know about the assertion of the right) comes and starts asking questions, this is a violation of Miranda, EVEN IF the FBI agent gave the defendant his Miranda rights.

But wait, it gets even more confusing. If the defendant invokes his *Sixth* Amendment right to counsel (which is usually done at arraignment), an officer may not question the defendant about that crime, but *may* question him about other crimes.

What's aggravating is that some murderer gets off because a police officer missed some crazy made up Supreme Court nuance that even I don't understand after three years of law school.

Jay said:"The Seco... (Below threshold)
Mark:

Jay said:

"The Second Amendment is one example where I think they let their rigorous standards for clarity and precision slip -- and the fact that so many people are still arguing about it today is pretty solid evidence that I'm right."

You are exactly right. That, and the fact that language usage and regognized historical context seem to change over the centuries, is precisely why we have established rules of construction. That is why we try to put our best legal scholars on the Supreme Court so they can make sense of it, instead of leaving it to "every man." That is why every law student from an accredited law school takes at least one full year of consitutional law, and nearly all have constitutional issues that permeat their careers thereafter. That is why only a fool would make a constitutional argument in court without the assistance of a lawyer. That is why it is a good idea for writers to do some background research before displaying their ignorance in public.

Jay and Ed, say what you will about why the Constitution should be clear to all. But you admit, at least insofar as the Second Amendment is concerned, that it is not. Sorry, but I cannot be blamed for muddying that up; it was fucked long before I started law school more than 20 years ago.

Jay, my frustration with your post is similar to what an electronic engineer feels when lay people talk about watts when they mean volts, or amps when they mean ohms. They might get the light bulb screwed in properly, but to hear them discuss the process makes one cringe. It's tedius and embarassing to hear.

I don't care if your intellegence is "above average" as you state, or if you are a bona fide genius. That helps, but it does not provide the well-established analytical framework for interpreting an ambiguous constitutional amendment. A little research would help immensely, and it would steer you away from publically confusing ohms and watts.

You and Ed can call me arrogant for possessing a JD, though I don't believe you know enough about me to make the accusation. But consider this: How arrogant is it for someone untrained in the law to completely disregard the tomes of well-established and scholarly legal opinions on the topic? To suggest that you are as qualified as any Supreme Court justice or law professor, is to expose yourself as a colossally arrogant ass. I sincerely hope that is not what you meant.

The admendment isn't ambigi... (Below threshold)
John:

The admendment isn't ambigious. Atleast not when it was written. The wording used for that section has not held up over the past 200+ years. It is a perceived ambiguity.

As you turn back the clock and examine how the 2nd admendment was perceived, the ambiguity melts away and there's only one interpretation which wasn't disputed. That's the unqualified right to bear arms.

Mark, let me take one more ... (Below threshold)
Jay Tea:

Mark, let me take one more stab at explaining things. Apparently I wasn't properly obfuscatory and convoluted enough for you, but please adapt to our quaint local custom of speaking plainly.

One of the most valuable lessons I learned in college was that it was to never, never, NEVER piss off people like secretaries, receptionists, administrative assistants, and the like. They are not the ones who make the big decisions -- they are the ones who control access to those who make the big decisions. And winning over the gatekeeper is half the battle.

The Constitution is the single most important government document to any American. It should be the duty of every American to understand what it says and what it means.

What your profession has been doing has been to assert that only highly trained, highly educated professionals can properly "comprehend" exactly what it means, and we of the unwashed masses should defer to you. In other words, we should not learn and know for ourselves what our rights are and what the limits on the government are, but we should pay you to tell us.

This outrages me into high dudgeon. The legal profession is setting itself up as the gatekeepers to law and justice, exacting their toll from all who would seek that which is their birthright. They want people to consult with lawyers before making any and all decisions. They want them to go through lawyers before accessing any level or any branch of government.

In essence, they are trying to make themselves a part of the government -- an unelected, unaccountable part of the government that controls the average person's ability to seek justice, to seek redress of wrongs, or simply try to have their say.

My ire at the legal profession is based largely on this attempt to come between the people and their government, under the guise of "helping" us. What makes this most obscene is that the "help" is only required because of the incredible mess the lawyers have made of things. It's almost reminiscent of a Mafia "protection" racket -- "Youse seems to have gotten yourself into a bit of a jam here. I think I might be able to get youse out of it -- for the right price." -- never mentioning that the Jam" is of the extortioner's own devising.

And I never called you arrogant for possessing a J.D. I called you arrogant (as well as self-important, condescending, and a prat, for that matter) AND speculated that you possessed a J.D. -- not quite the same thing. If you can't comprehend that distinction, why should I trust your abilities to properly interpret the Constitution?

J.

Say what you will about the... (Below threshold)
Mark:

Say what you will about the legal profession--it has plenty of problems. But you're losing sight of something very important here. You, yourself, said the Second Amendmentis unclear. The legal profession did not create the ambiguity, activist judges did not create the ambiguity. The framers created that ambiguity, at least through the eyes of 20th and 21st Century readers. It may have been crytal clear when drafted, but it ain't now. If it were, you would not have devoted two posts to it before flaming me.

So, what is the task before us? Interpretation. There are rules on how to do that, and much work has been done. My point is this: Why not avail yourself of that work, and benefit from it? You will learn from it, and your writings will sound more thoughtful.

If you were to write about building a house, I suspect you would familiarize yourself with local codes, materials and building techniques before spewing opinions. If you were to write about growing crops, I suspect you would familiarize yourself with growing conditions, pests, etc. If you were to write about first aid for sports injuries, I suspect you would do a little studying first. The same should apply to constitutional interpretations.

I will not defend the legal profession here, except to remind you of a classic example of why constitutional interpretation often cannot be left to lay people. Read your buddy Rob's post on the Fourth Amendment and drivers licence checkpoints. Read his convoluted reasoning, his comparison of apples to aliens, and try to follow his red herrings to their moving targets. Read all the comments, and how every lawyer who posted clearly explained why his legal reasoning is wrong. Then imagine a world of Robs, all demanding they have "rights" that have no origin and were never contemplated by the framers. Where would we be then? Pure anarchy.

Hmmmm.1. "Jay and ... (Below threshold)
ed:

Hmmmm.

1. "Jay and Ed, say what you will about why the Constitution should be clear to all. But you admit, at least insofar as the Second Amendment is concerned, that it is not. Sorry, but I cannot be blamed for muddying that up; it was fucked long before I started law school more than 20 years ago."

I'm not the "Ed" from the other posts. My posts generally involve less logic and more invective. :)

Frankly "Mark" is completely off base here. I don't have a JD. What I have is 30+ years of computer programming and making a living off of a daily application of logic. And if it doesn't impress anybody; like I give a damn.

The Second Amendment:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Try to keep up folks.

The entire source for government regulation of firearms ownership is based entirely on the first part of the Second Amendment i.e. "well regulated". This confers onto the government the power to regulate firearms ownership, sales and purchases. This is the only part of the Constitution, other than the clauses involving inter-state commerce, that allows the government to govern firearms ownership. Please note the "Militia" part keeps getting screwed up because people think that, if they write enough bullshit someone will swallow it, won't happen here folks. Anybody remember Lexington & Concord? The Minutemen?

What the hell do you think they were? A Militia. That pre-dated the Declaration of Independence, the Constitution and the United States of America.

No duh.

The next phrase ", being necessary to the security of a free State" is simply a reasoned justification for the first phrase "A well regulated Militia", which is the operative part.

The next phrase "the right of the people to keep and bear Arms" confers the right to the populace, not some idiot idea like the National Guard. There was no National Guard at the time and wasn't for many decades later. Even up to, and past, the Civil War it was common for regiments to be raised from a single geographical location. The concept of a National Guard, i.e. non-state based, didn't apply until long after the Civil War and federalism overcame state-rule. But in any event the phrase "the right of the people to keep and bear Arms" explicitly, and extremely clearly, identifies the "people" which, for those of you too damn stupid to follow, is exactly the same as in "We the People" of the Declaration of Independence. I.e. the entity that has the right "to keep and bear arms" is "the people". you can't get much simpler than that.

And the last phrase concludes ", shall not be infringed.". Which is extremely simple. Combined with the first phrase it results in today's firearms law. Which states explicitly that the government, of varying levels, may regulate firearms but may NOT ban them completely. I.e. ", shall not be infringed.".

If the government tried to ban all firearms, then that would absolutely infringe on the right of the people to keep and bear arms.

Frankly only idiots get the Second Amendment wrong. It's the simplest, clearest and absolutely foolproof Amendment in the Constitution.

Which shows you how many damn fools there are out there.

Hmmmm.1. "You and ... (Below threshold)
ed:

Hmmmm.

1. "You and Ed can call me arrogant for possessing a JD, though I don't believe you know enough about me to make the accusation. But consider this: How arrogant is it for someone untrained in the law to completely disregard the tomes of well-established and scholarly legal opinions on the topic? To suggest that you are as qualified as any Supreme Court justice or law professor, is to expose yourself as a colossally arrogant ass. I sincerely hope that is not what you meant."

Again, I'm not that "Ed", just to remind people.

Frankly I am *more* qualified to interpret the Constitution than any judge or law professor.

I'm a goddamn citizen.

That makes me more qualified.

Don't like it? Don't give a damn.

Thank you Ed, glad I read t... (Below threshold)
Jim:

Thank you Ed, glad I read the comments before replying, as you saved me a bunch of time.

I have 24 years of IT experience, plus a degree in Computer Science (with the associated logic courses, as well as an MBA, just to add it in) I think I can parse the sentence logically as well.

I arrive at the same place as you do, or close as no difference.

And if the lawyers want to make something of our use of logic, remember that when some of us make logic mistakes, people can die, without recourse. If a lawyer screws up, there is always an appeal. Or more likely, we have minutes to fix a problem, as each minute costs thousands of dollars, rather then spend months figureing things out.

Oh, and some of us are also following the family business. My father retired after 30 years in this business before me.

And here's another little t... (Below threshold)
dchamil:

And here's another little tip for "Mark": The word "parse" does not mean "to scrutinize". It means to diagram the words in a sentence according to their parts of speech.

Hmmmm."One of the ... (Below threshold)
ed:

Hmmmm.

"One of the most valuable lessons I learned in college was that it was to never, never, NEVER piss off people like secretaries, receptionists, administrative assistants, and the like. They are not the ones who make the big decisions -- they are the ones who control access to those who make the big decisions. And winning over the gatekeeper is half the battle."

HAHAHA!!

That actually is pretty much how I did my career. I used to change employers a lot, did a lot of contract programming in my career, so my absolute first rule was to make the time to kiss up to the boss's secretary. There was always a couple daily tasks or pieces of software that drove her nuts. Always.

And I always took the time to develop solid solutions that solve those problems for her on my own time. And invariably those efforts paid themselves back a thousand-fold because the next thing you know you're doing work specifically for the boss and you jump from "average joe" to "superstar".

Good advice for anyone starting out in any business btw.

One of her issues is a "... (Below threshold)
joe:

One of her issues is a "Plain English Amendment," which requires all federal laws and regulations to be understandable to anyone with a 10th-grade reading level.

Reminds me of a provision of the Confederate constitution I noticed once:
"Every law, or resolution having the force of law, shall relate to but one subject, and that shall be expressed in the title."

That is parallel to what Jay Tea is saying. Congress, made up mostly of lawyers, passes complex laws that are understandable only to lawyers (who themselves argue over their meaning). These laws often relate, in a single bill, to many disparate subjects, forcing the President to either sign a good bill with some bad provisions, or veto it and incur the wrath of a Congress full of micromanaging lawyers.

Mark, the electrical engineering comparison doesn't wash. If I stick my wet thumb into a live light socket, I'll either die, get a hairdo like Einstein's, or both. No amount of argument will change that.

Your profession, on the other hand, is based on the shifting sands of the whims of judges. These sands were much more stable when laws were clearly written, but as the number of laws and regulations has increased exponentially, a clever lawyer or judge can pull the rug out from under a well-meaning citizen at any time--piously citing the law as they do it. And the citizen can't fight back without hiring his own lawyers. In short, the outcome of a given situation cannot be predicted. The law is supposed to give predictability, but lately, condecensing lawyers like you (and Supreme Court justices finding "emanations" and "penumbras" in the Constitution to explain why they just made up their latest decision) are clearly making it up as they go, dressing it in pretty words, and laughing at us behind our backs.

(Maybe those "emanations" and "penumbras" are on the BACK of the Constitution. Hey, someone go over to the National Archives and check......)

And ed and Jay Tea are righ... (Below threshold)
joe:

And ed and Jay Tea are right: Always be friends with the secretaries. They know what's REALLY going on.

In my dorm days, the maintenance guys were my buddies. I got stuff fixed FAST. Future lawyers blew the maintenance guys off as "lower-class." Their stuff got fixed on a slightly different schedule.

Ed, you proved my point and... (Below threshold)
Mark:

Ed, you proved my point and the concession by Jay Tea that the Second Amendment is not clear. Jay wrote two full posts on the topic, and you posted yours. You two arrived at slightly different places, by taking different routes. It's not black and white, and neither is the path. None of these posts would exist if it were that simple.

Certainly, citizens are free to interpret the Constitution however they please. Just don't expect your homespun interpretations to get you out of jail or stike the jackpot for some perceived discrimination. Relying on your own interpretations when the stakes are high is as dangerous as relying on your home-spun cancer remedies or home-spun engineering calculations when you build that mansion on the hillside.

Citizens certainly do not need a license to interpret the Constitution, as long as they do not make the interpretation for others (practicing law without a license is a crime in every state). But like any other endeavor in life, whether it's do-it-yourself car repair, boat building, plumbing or, well, ANYTHING, it's wise to obtain the proper tools and familiarize yourself with accepted techniques for going about the task. Unfortunately, constitutional construction requires a little more than an 8th grade familiarity with English, and average logic skills. To assume it does not require a little homework is dangerously naive.

For the record, I am not arguing for or against gun control here. I'm only advocating a little homework for writers before they hand their hats on overly simplistic and naive analyses. There are full library stacks on the subject, and they are very helpful.

dchmil: I know that; that'... (Below threshold)
Mark:

dchmil: I know that; that's how I meant it. Read some Supreme Court decisions and you'll see they frequently do that.

Certainly, citizens are ... (Below threshold)
Tony:

Certainly, citizens are free to interpret the Constitution however they please. Just don't expect your homespun interpretations to get you out of jail or stike the jackpot for some perceived discrimination. Relying on your own interpretations when the stakes are high is as dangerous as relying on your home-spun cancer remedies or home-spun engineering calculations when you build that mansion on the hillside.

This proves your point Jay Tea. It's not the answer that's important to lawyers, but how you get to it. That's how they set up the perpetual employment for themselves. They say you may be right, but you need me to say it a special way for you.

Apologies if this has been ... (Below threshold)
Sue Dohnim:

Apologies if this has been mentioned before, but no one has to guess what the Framers meant by the Second Amendment, they wrote it all down in great detail.

Like what they thought the word "militia" meant, for instance.

Or you can study the words of sophists who somehow obtained seats of power in the highest courts of the land and declare them the kings and demigods that they so wished to be.

Voltaire could have been looking at Mark and the lawyers and judges whom Mark idolizes when he wrote:

"I possess a dignity and a power founded on ignorance and credulity; I walk on the heads of the men who lie prostrate at my feet; if they should rise and look me in the face, I am lost; I must bind them to the ground, therefore, with iron chains."

Thus have reasoned the men whom centuries of bigotry have made powerful. They have other powerful men beneath them, and these have still others, who all enrich themselves with the spoils of the poor, grow fat on their blood, and laugh at their stupidity. They all detest tolerance, as partisans grown rich at the public expense fear to render their accounts, and as tyrants dread the word liberty. And then, to crown everything, they hire fanatics to cry at the top of their voices : "Respect my master's absurdities, tremble, pay, and keep your mouths shut."

God forbid that an ordinary citizen should have full comprehension of the law and thus be able to follow it easily.

Tony, your interpretation i... (Below threshold)
Mark:

Tony, your interpretation is not supported by that paragraph--not at all. It's the wrong answer that will cause the mansion to slide down the hillside, or cause the cancer to consume the patient, or result in sanctions for filing a frivolous lawsuit.

Sue, once again my point ha... (Below threshold)
Mark:

Sue, once again my point has been proven. I wish Jay Tea took the trouble to read those papers. That's what I've been talking about all along. A little relevant homework works wonders.

Compare your link regarding the regulation of militias with Ed's interpretation of that phrase in the Second Amendment. They're vastly different, aren't they? Ed's citizenship and his computer programming logic didn't exactly lead him to the same conclusions as the framers, did it?

I have to laugh. How many people have posted about how crystal clear the amendment is, and how many different interpretations have they arived at?

Mark, I deliberately did NO... (Below threshold)
Jay Tea:

Mark, I deliberately did NOT read those papers. My intention was to see what I could determine by reading the Constitution and ONLY the Constitution. And in all your voluminous writings, you have yet to tell me where I am substantially wrong. You've mocked and denigrated the process I used, boasted of your superior qualifications, and in general been a prime schmuck about the whole matter. (So have I, in regards to you, but I'm a bit more candid about it.)

So, Mark, what is it that you find the most offensive? That someone without your superior credentials would have the arrogance to intrude on what you consider your bailiwick? That someone without your years of training and education would actually come up with the right answers? Or that people are ready, willing, and prepared to do for themselves what you and your colleagues are used to charging hundreds of dollars an hour for?

Sue, I know those documents exist. I've even looked at them in the past. But I have to repeat myself: all writing, in the end, must stand on its own and be entirely self-explanatory. And the United States Constitution should do this above and beyond any other piece of writing. My analysis was deliberately aimed at using no other sources than the Constitution itself to reach its conclusions -- and in all the wrangling since, no one has substantially faulted my conclusions. (Not even Mark, who apparently finds his financial future threatened by my little exercise.)

And not to sound arrogant, but I'm rather proud of that.

J.

Please, Mark, do enlighten ... (Below threshold)
Sue Dohnim:

Please, Mark, do enlighten us with your summary of the Framer's interpretation of the word "militia."

I haven't time to read all of your other posts on the subject, but the Framers' definitions and ideas about the defense of our nation are more in agreement with Jay's than yours. And of course, the Framers' notions radically differ from the gun-grabbers' socialist/fascist notions.

No, Jay Tea, I think you <b... (Below threshold)
Sue Dohnim:

No, Jay Tea, I think you should read the Federalist Papers. You'll find that Mark and his ilk are full of garbage and that you're fairly correct in your interpretations.

Mark, you struck upon the c... (Below threshold)

Mark, you struck upon the crux of the problem when you said, "imagine a world of Robs, all demanding they have "rights" that have no origin and were never contemplated by the framers."

Our rights do NOT have their origins in the constitution. The constitution is directed at government (specifically the federal government), not citizens. The framers intended to put at ease those who would never have signed the document for fear of an over-reaching federal government by severely limiting that government's powers.

Let me bring up a pesky little item:

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


That simply and effectively says that matters not specifically addressed by the constitution and its amendments are left up to the states or to the people. So much for needing to "find" rights within the constitution. Your assumption that the framers never intended for the rights of the people to extend beyond the scope of the constitution is exemplary of how the legal profession has perverted this eloquently simple document.

Hmmmm."Certainly, ... (Below threshold)
ed:

Hmmmm.

"Certainly, citizens are free to interpret the Constitution however they please. Just don't expect your homespun interpretations to get you out of jail or stike the jackpot for some perceived"

Here's a clue. Who decides trials? Juries. Made up by the people.

Who elects judges? The people.

Who appoints judges? Politicians, elected by the people.

Who wins this debate? Lawyers/law professors or the people?

Sue, I think you are assumi... (Below threshold)
Mark A.:

Sue, I think you are assuming unfounded things about my position on the Second Amendment. I don't think you have a clue about my ideas concerning the defense of our nation. But from the gist of your posts, you might be pleasantly surprised. I am NOT a gun control advocate, but I do support reasonable and responsible regulation. I do NOT harbor socialist/facist notions. I am a registered republican, bordering on libertarian, and a strong federalist. I own a gun. If you had read my posts, you would see that I read the Second Amendment as guaranteeing qualified rights (not absolute) to own guns.

Jay, I have not boasted about my credentials, and I am not lobbying for full employment of unnecessary lawyers. I agree that the legal system is pretty screwed up, and lawyers in general are far from my favorite people. However, I have yet to hear anyone suggest a viable alternative to the system we have.

You have accused me of many beliefs, attitudes and other things that you've pulled out of your ass--most, if not all, are unfounded. I have no idea who you imagine I am. I am simply one who is a little fed up with people publishing opinions on things they are not trained to analyze. Like any other discipline or profession in life, citizenship and an above-average IQ are not enough. Education and/or homework is necessary to do much of anything right. Constitutional interpretation falls in that realm.

My point was simple. One cannot interpret an ambiguous constitutional provision without following accepted rules of construction. In the context of the Second Amendment, you have to read the relevant Federalist Papers; Sue was kind enough to provide those links. But that's not the final word. One should also read a few opinions to learn first hand the frameword for interpretation, and how the amendment has been interpreted in the past. You can try to go it alone, but you risk sounding ridiculous. You took that risk, and, well, I called you on it.

End of story. If you feel compelled to write on other constitutional topics, I suggest familiarizing yourself with what others have written. Since the Supreme Court is has the ultimate word on constitutional interpretation, their opinions are a good place to start. Accept or reject whatever you want, but at least acknowledge the value of the research.

BoDiddley, you're right up ... (Below threshold)
Mark A.:

BoDiddley, you're right up until the last sentence. I don't make that assumption, I know better. My comment pertained to some ridiculous claims made by a guest blogger about rights he imagined were confered by the Fourth Amendment. In fact, those rights never existed, and the topic was clearly controlled by state law. Obviously state law directly conflicted with his imagined rights.

Ed, you're brilliant. Can you hear the sarcasm?

It would seem you all are r... (Below threshold)
brad:

It would seem you all are ready to give up the war to win a battle.

Who said the 2nd Amendment was hard to interpret? The meaning seems pretty clear to all of us. Could it be that there are some in our country that would like us all to BELIEVE that the 2nd Amendment REQUIRES interpretation, parsing, analyzing? Why would THEY want US to believe this? Aren't THEY sowing the seeds of doubt into which THEY can reap successively greater harvests of change?

If the Framers could be faulted it is in crafting an amendment into which doubt could be sown by the Huns of illiberty. Surely there is no doubt as to what the simple sentence means. We don't need to know what a militia meant to the Framers, it's irrelevant to the object of the sentence: that "the right to keep and bear arms shall not be infringed." To be sure, if you WANT to find a lack of clarity, a confusion of meaning, it is possible; but that would be true in anything written in English. In Animal Farm the pigs attacked the meaning of the words in the rules not the rules.

When someone says the 2nd Amendment is vague, laugh at them! Our Framers knew exactly what they wanted to say and the meaning of what they said rings loud and clear right down to these modern days. That some try to twist a different meaning from the words is a testimony to their duplicity; that the 2nd Amendment has stood the assault is a testimony to the wisdom of the Framers.

I'm on my last drink, and I... (Below threshold)
Mark:

I'm on my last drink, and I have one more post. It just occured to me that Tony somehow crystalized my problem with Jay's posts on the topic. I have no idea how he pulled it from the paragraph he attributed to me, but he nailed it.

In the world of persuasion, the path to the conclusion is crucial; it is at least as important as the conclusion itself. Without following the proper paths, the conslusion is absolutely worthless. Tony blames that on lawyers, but its origins are in science, math, the philosophy of logic.

A conclusion is only as good as the validity of the syllogism it is perched upon. Challenge the validity of a premise or the accuracy of a supporting statement of fact, and the conclusion crumbles--even if it happens to be empirically correct.

In mathematics, one might know the ultimate result. But if faulty calculus leads to an errant equation designed to explain that result, the result is rendered worthless.

In the world of persuasion and public opinion, people attack the foundations. If support for arguments are unsound, the whole effort is discredited. One's assertion might be true or valid, but it is of no use whatsoever. There is no reason to buy into an argument that does not hold water.

Ok? Following me so far? Lousy support will cost you the legal argument in court. It will cost you the bid to build the bridge. It will create an infinite loop in the computer program. It will cost you support for waging war. It will cost you the support of public opinion. The reasoning must compel the desired result, or the result will always be discredited.

In my opinion, political bloggers, especially those with readerships as vast as Wizbang, have a responsibility to found their opinions on sound, well established, principles. If holes can be chipped into the foundations, the idiot KOS Kids and DU morons are spoonfed too much fun. Why provide them with ammo? You even lose credibility among your following.

You know what I'm talking about. Wizbang and the other conservative blogs seem to spend far more time chipping away at the faulty reasoning of liberal blogs, the MSM and idiot politicians than they do contradicting ultimate opinions. There is a reason for that.

That is my problem with Jay's series of posts on the topic. I essentially agree with his conclusion, but the path that led him there is subject to fatal attacks from many sides. If he were to take his arguments to the Supreme Court, I question whether my ability to retain my gun would be preserved. It can be very dangerous to be right for the wrong reasons.

Therefore, I would urge any do-it-yourself constitutional constructionists to do some homework--it can't hurt. I would encourage extra homework if you intend to publish your work on such a popular blog. To do otherwise risks undermining a controversial cause, and is extremely irresponsible. Obviously, that is counter productive.

So Tony, thanks for somehow divining this point from my paragraph that could not have led you there. You must have found it between the lines of my other spewings.

As long as we have a Suprem... (Below threshold)
brad:

As long as we have a Supreme Court that is originalist in it's findings we are safe, arguments notwithstanding. A Court that wishes to legislate, or determine U.S. law from some source other than the Constitution is a threat to all our liberties and will not be deterred by arguments nor constrained by the Constitution.

The 2nd Amendment is not vague. The value of a clear understanding, being necessary to a proper debate, the right of the posters to an education shall not be infringed.

The preeminent case is U.S.... (Below threshold)
Brian:

The preeminent case is U.S. v. Emerson (2001) out of the Fifth Circuit. With it, the fifth circuit became the first of 11 circuits to recognize a so-called "individual" right to gun ownership. Even if you don't have a "J.D.", I recommend reading it, because it is very, very well written. In fact, I'd call it something of a masterpiece of Constitutionalism--it looks at the text, the historical context of the amendment, and judges the disparate readings from there.

Mark, your very first state... (Below threshold)
Jay Tea:

Mark, your very first statement on this issue was "It's painful to watch a lay person take a public stab at constitutional construction, even if I agree with the bottom line."

With that one sentence, you set the tone: you are an expert, I am not, and my attempt to discuss the matter was so bad that it caused you pain.

What you fail to grasp is that I was not ATTEMPTING to make a legal argument. I deliberately limited my tools to logic, grammar, and context in my attempt to interpret the 2nd Amendment. My whole point was to see what someone presented with the Constitution, without any enhancing documentation, could make of it -- and, by your own admission, I came to the same conclusions your finely-trained, highly-educated, decidedly-superior mind came to.

You see, Mark, the vast majority of Americans are not lawyers or inmates (two classes of people with ready access to legal libraries). And the Constitution was written for all of us, not just lawyers and felons. It ought to be accessible to all of us, and I think it is.

And if lawyers view that as a threat to their financial future, so be it.

And as far as my "responsibilities" to Wizbang readers: I have never presented myself as an expert on anything, and have no intention of ever doing so. I give my opinions, but I almost always give evidence to support them and describe the process by which I come to my conclusions. I try to make it as "transparent" as possible, to minimize my own significance in the argument. I want and expect the readers to look at every piece I write on its own, without having to resort to "we can trust him -- he's an EXPERT."

If you have problems with my arguments, just say so. But don't think you can weaken my arguments by "shooting the messenger" and dismissing me as a "layman," you're doing nothing but wasting your time. I embrace my "layman" status on most every topic.

J.

Only two interpretations of... (Below threshold)
LJD:

Only two interpretations of the Constitution: Those that support individual rights, and those that take them away. The document was written to support individual rights, so....

Let's hang all the lawyers and be done with it. We don't need complicated legislation, or complicated tax code for that matter.

Even the most plain of word... (Below threshold)
Veeshir:

Even the most plain of words can be twisted, somehow this, Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof has been taken to mean that a choir group can't use a public school room for their meetings.
Words mean what the people twisting them want them to mean.

Mark wrote:<i... (Below threshold)
Sue Dohnim:

Mark wrote:
In the context of the Second Amendment, you have to read the relevant Federalist Papers; Sue was kind enough to provide those links. But that's not the final word.

See that part I bolded? It's bullshit.

Until the Congress changes the Constitution, what's there is the final word. The men who wrote it also explained to the public what they wrote and why they wrote it. Those explanations are important to us today because they provide a shield against the dialectical voodoo that inevitably springs forth from tyrants and their henchmen.

Whether those tyrants wear suits, pantssuits, "power" dresses, robes, or frocks, does not matter.

LJD wrote:
Let's hang all the lawyers and be done with it. We don't need complicated legislation, or complicated tax code for that matter.

I agree completely and would be right there beside you with rope if so many of my relatives weren't in the profession.

Mark, I know by now that yo... (Below threshold)

Mark, I know by now that you probably won't get the point of the debate, but I'll try from one more angle, just in case there's hope.

You assert that anyone who has not done extensive research on the numerous and elaborate legal opinions and decisions regarding the constitution should avoid writing upon the topic.

I (and others), on the other hand, believe that those decisions and opinions are the problem. The Constitution is not a difficult document to understand, and a basic understanding of history that includes the values and concerns of both the framers and the representatives of the several states is sufficient for comprehension of the document's intent.

There it is, in a nutshell:
You: focus on legal opinions and decisions.
Me: focus on the document itself.

I know there are many readi... (Below threshold)
Mac Lorry:

I know there are many reading this blog who can better argue the pro and con of the following logic and verify the specific court cases. If the logic stands, then it seems there are two independent means of arriving at the individual right to keep and bear arms.

-------------------------------------------------

Some years ago I heard there was a ruling by the Supreme Court to the effect that a Constitutional right also guarantees the means to exercise that right. The purpose of the ruling was to protect abortion clinics. The logic was that the Constitution gave women the right to abortion and that that individual right protected the means (abortion clinics) of exercising that right.

It seems the Constitution guarantees the right to life, although it doesn't specifically state it. What it says is that’s it's vary purpose is to “...promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity...” Welfare was defined at the time as “health, happiness, or prosperity” and it's not posible to be healthy or partake of the blessings of liberty if you are dead.

If a person has a Constitutional right to their life, then it follows that they have a Constitutional right to self-defense, which from the abortion clinic ruling suggests the means of self-defense are also Constitutionally protected. Recent court rulings that police are not required to defend a specific individual requires that the means of self-defense must be able to be held privately. From the above logic I get to the individual right to keep and bear arms for the purpose of self-defense, all apart from the second ammendment.


[email protected] Mark A.... (Below threshold)
ed:

Hmmmm

@ Mark A.

"Ed, you're brilliant. Can you hear the sarcasm?"

Not really. This is **blog**. Sarcasm requires more wit and vinegar, and around here is an actual art form. Frankly that comment doesn't even register at all.

Shakespear was right.... (Below threshold)
Outlaw_Wizard:

Shakespear was right.

Da_Wiz Sends

Bullfrog, I do get your poi... (Below threshold)
Mark:

Bullfrog, I do get your point to the about activist courts, and I agree with that. But anyone who thinks the four corners of the Constitution provide all the information we need for its interpretation is severely naive. Just look at the posts of everyone above who claim the Second Amendment is obvious. Then compare their individual treatments of the part about militias. We have as many different interpretations as we have people who declared it "obvious." That should tell you something.

Jay, lets look at the path that led you to your relatively uncontroversial conclusions. But first, keep in mind one of the first rules of construction: EVERY WORD AND PUNCTUATION MARK IS PRESUMED TO HAVE A MEANINGFUL PURPOSE. No, Sue, that is not found in the Constitution, nor is it found in the Federalist papers. One must look elsewhere to find this universal tenet of construction.

The amendment begins with, "A well regulated Militia, being necessary to the security of a free State. . ." What in the hell does that mean? Is it clear within the four corners of the Constitution, or must we look elsewhere? If so, where do we look? Should we look to the 20 years of legal opinions? Should we look to the Federalist Papers? Not according to Jay, he is comfortable divining the reason from between his ears. Why? Because he is a citizen.

Jay boldly blurts:

"this is a truly oddball phrase that sticks out of the Bill Of Rights like a sore thumb. It's purely an exhortatory and explanatory phrase. No other Amendment bothers to explain WHY such a right is acknowledged -- they are presumed to be, to coin a phrase, "self-evident." Only in the 2nd Amendment did the Founding Fathers feel it necessary to give a rationale for a Right. I am curious why they felt the need to do so here and only here, but the only Law is the Constitution itself -- other documents can provide guidance, but they have no legal weight."

Well, that's all nice and creative Jay, but it doesn't honestly address the framer's intent, and there is no authority for your proposition whatsoever. You looked outside the Constitution only far enough to make shit up here. You essentially swept that mound of verbage conspicuously under the rug rather than dealing with it head on. But it facilitated your analysis because you were then free to deal with the second half:

"the right of the people to keep and bear Arms, shall not be infringed."

Well, that's a no-brainer, isn't it? Especially if one intends to pretend the first part no longer exists.

But wait, you go even farther: You qualify the right to own guns here:

"Now, just like other rights, the government can and should impose certain restrictions on the exercise of the 2nd Amendment. They can restrict certain arms (such as fully automatic weapons, for example). They can set certain places and areas as "off-limits" to those bearing arms -- I think schools, bars, and government offices are certainly reasonable starting points. And they can impose harsh penalties on those who violate the laws."

Please tell me, where within the four corners of the Constitution did you find that? You didn't. What is the source of the state's authority to control guns? Did you make it up? Not exactly, you looked around yourself and saw that is close to reality in the 21st Century. But where did those qualifications come from? I thought your point is the Constitution was so clear that everything needed by any lay person is contained within it's four corners?

So, by ignoring half of the Second Amendment, and by acknowledging that States somehow have the ability to regulate guns, Jay arrived at a conclusion similar to mine. But any skilled lefty anti-gun zealot could ressurect the portion Jay ignored so fast he would be wringing piddle from his panties in a heartbeat. And how can one honestly claim the Constitution is a do-it-yourself document when he can't even find authority for the states to regulate guns. How do you reconcile that with the Second, Jay?

So, is the Constitution really "obvious" and "self contained?" I challenge Jay or anyone else to compare and contrast the Fifth and Fourteenth Amendments. To whom do they apply, and what do they mean? What is "due process?" Please, someone enumerate all the due process guarantees clearly set forth in the Constitution. What is "equal protection?" Do the Fifth and Fourteenth contain any overlap? Remember, please limit your analysis to the four corners of the Constitution. And, please refrain from making stuff up like Jay did.

Are you done? Do you still claim the Constitution is self contained and obvious? Not even the most conservative "strict constructionist" would make such a fatally naive claim.

So, Jay, I apologize for ruffling your feathers about the "painful" portion of my initial post. But surely you know the spirit in which I meant it. I assume every one of us is skilled at some craft or profession, and we have our own methods and language for communicating the things we do. I suspect we all have heard lay people attempt to talk the talk, while confusing terminology or skipping vital steps that lead from Point A to Point B. How many times have you watched a newscast or seen a television show that touches on your area of expertise? How many times have you cringed when you heard your field butchered? Well, that's where I was coming from.

Oh, and one more comment for BoDiddley: I was a little too generous in agreeing with you earlier. If constitutional rights do NOT emanate from the Constitution, then where in the hell do you suppose they originate?

Typo alert: I meant to say... (Below threshold)
Mark:

Typo alert: I meant to say 200 years, not 20.

Mark said:"Since t... (Below threshold)
A Different Mark:

Mark said:

"Since the Supreme Court is has the ultimate word on constitutional interpretation..."

No. Simply no. The Supreme Court is not superior in that regard to the other two branches of the government. The three branches are co-equal. All of them must in the course of their duties interpret the Constitution.

For a clue on this, read the Constitution. Lawyers and judges like to think that they have the final word, but that's simply not the way our government works. The Courts cannot interpret the Constitution on any old whim; they are subject to the co-equal checks and balances of the other two branches.

-a different mark

I will not defend the le... (Below threshold)
MikeB:

I will not defend the legal profession here, except to remind you of a classic example of why constitutional interpretation often cannot be left to lay people.


Somehow bad logic applied by someone with a J.D. is better than bad logic applied by 'lay people'?

The constitution and its supporting documents, the Federalist Papers, were intended to be read and understood by 'lay people'. After all, there were no self-righteous J.D.'s at the time to tell the 'lay people' that they need to look them for 'interpretation' based on what other J.D.'s thought.

- MikeB

To A Different Mark:<... (Below threshold)
Mark:

To A Different Mark:

Really? Please, tell me which branch of the government routinely stikes down acts of the legislature for being unconstitutional. Which branch is ultimately charged with holding executive actions to constitutional scrutiny? Get it? That's the court's role in the checks and balances.

Yes, the three branches are co-equal, but they are charged with different roles. Just as a VP of Marketing might be co-equal to the VP of Finance on a corporation's organizational chart, the VP of Finance certainly is not permitted to control marketing policy, and the marketer is not permitted to make the financial calls.

To the caustic Sue, I overlooked one of your nuggets of wisdom, where you called "bullshit" when I suggested the Federalist Papers are not the only source for interpretation. I wonder where the brilliant Sue would turn when she finds the Federalist Papers silent on an issue, or when the papers are contradictory?

Please, people. There is much more to this than many of you know. There is a reason we have the judiciary branch, and the Supreme Court. There is a reason many people spend their entire lives studying this stuff. There is a reason lawyers and philosphers have been studying these very concepts for many centuries before North America was even discovered by the Europeans. This stuff did not begin with our constitution; rather our constitution is a relatively recent, and simplistic, codification of principles that have been at play since at least the Greek times. Despite best efforts, it is not all self-evident. It cannot be, by sheer virtue of its scope.

Good one, Mike B. No lawye... (Below threshold)
Mark:

Good one, Mike B. No lawyers were around when the Constitution was drafted? That's rich.

For the record, there were lawyers in the country for at least 150 years before we had a constitution. Moreover, we had a body of common law, developed by lawyers and judges in England, that was many centuries old before the Mayflower landed. That body of common law is the foundation for most of our laws today.

So Mike B., why not crawl back under your rock and steep in your own ignorance.

See... this is why there ar... (Below threshold)
LJD:

See... this is why there are so many good lawyer jokes... Just like the advertisement for the investment management company that says "You wouldn't operate on yourself would you? Then why manage your portfolio?"

A sad trend in our country is that such "professionals" work very hard to COMPLICATE the law, the tax code, etc. It's great job security. Why the hell would such a capitalist WANT you to do it for yourself? I'm not suggesting people should represent themselves, but it is clear that a client with enough money can get a lawyer to argue ANY position for them. Hence all of the appropriate nicknames.

Now back to the Constitiution. The 2nd was written explicitly to PROTECT gun ownership. Read into it what you want, but it was absolutely NOT written to LIMIT gun ownership. Period. Think about it. If the militia already had guns, why would there need to be an amendment to protect their right to carry them? What "other" militia would enforce taking them?

There is a slippery slope in arguing what types of guns, who owns them, where they can be carried. This is the anti-gun lobby's pathway to a ban.

If I am a law-abiding citizen, who is a responsible gun owner; responsible for my actions; where it is unlawful to kill any one; where it is unlawful to be negligent and allow my weapon to fall into unfriendly hands; then why can't I have whatever kind of gun I want, without providing any reason?

Mark: So, is the Constituti... (Below threshold)
Jim:

Mark: So, is the Constitution really "obvious" and "self contained?" I challenge Jay or anyone else to compare and contrast the Fifth and Fourteenth Amendments. To whom do they apply, and what do they mean?

First, I went and got copies of these two amendments from the online Cornell Law Library. I hope this printing of them is satisfactory?

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Mark: What is "due process?"

To do this I started by going and getting all amendments with a numeral less than 14 that I think applied and pasting them here (Again from the Cornell Law Library):

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment XIII

Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2. Congress shall have power to enforce this article by appropriate legislation.

Mark: Please, someone enumerate all the due process guarantees clearly set forth in the Constitution.

I have underlined (underlining mine) quite a few due process guarantees that are set forth in Amendments 6, 7, 8, and 13.

Mark: What is "equal protection?" Do the Fifth and Fourteenth contain any overlap? Remember, please limit your analysis to the four corners of the Constitution. And, please refrain from making stuff up like Jay did.

Well, I will go for the obvious overlap.

Rebellion against the United States was always considered a crime. The 14th Amendment was written post Civil War, to spell out some things that were not clear before. Like the fact that anyone that had participated as a Confederate (i.e. Rebelled against the United States) would not be allowed to hold high public office.

The 5th Amendment relates in that the person who would need be convicted of said crime before the 14th Amendment would be applicable. (This is the reason John Kerry is still allowed to serve in the Senate, while he has committed Treason, he was never tried and convicted of it.)

I also see nowhere in any of these Amendments where “equal protection” is ever mentioned. There are several other amendments that define that things like Race, creed, sex and age may not be used to discriminate, but equal protection is a generic term, never used in the amendments. I do not have a copy of the constitution with me (I have one at home, but not here at work) to check.

I will leave it to others to do further dissection, now that I have supplied the copies of these amendments.

Thanks, Jim. You missed pr... (Below threshold)
Mark:

Thanks, Jim. You missed probably about 98 percent of the protections provided to citizens by the 5th and 14th Amendments. Why? Because they are not spelled out in the body of the Constitution.

"Without due process of law" appears in the 5th and in Section 1 of the 14th. The body of work concerning those five words, both in the Federal context, and state, consume entire wings of vast libraries. The elements of due process that have been afforded by those two amendments comprise a very long list. God help anyone with a constitutional issue who is armed merely with the language of the constitution.

Similarly, this phrase is found in Section 1 of the 14th: "nor deny to any person within its jurisdiction the equal protection of the laws." Similarly, that phrase alone accounts for buildings full of scholarly work, and many non-controversial rights emanate therefrom. But most are not even mentioned in the body of the Constitution.

Furthermore, much controversy, confusion and actual overlap stems from the inclusion of "due process" in both amendments, and "equal protection" extends the complications. This is not easy stuff, and it is probably not clear even to most lawyers.

Sadly, there is no way in hell I would expect a lay person to get it, or be able to make much use of it. Don't blame me for creating the system, I didn't. I'm stuck with it just like every other US citizen.

Just like every other aspect of a capitalist society, every field is evolving toward greater specialization. Remember when most people could repair the V8 automobiles of the 60's and 70's? Now specialized computer diagnostic equipment and training is needed. Same with computer programming. Same with medicine. Same with construction. Everything is becoming more complicated. Law has always been complicated, and it is growing more so. I would love to hear thoughtful suggestions on how to reverse the trend, but from Wizbang posters, I expect nothing more insightful than "kill the lawyers."

To all the posters on this ... (Below threshold)
John:

To all the posters on this 2nd amendment thread (including Jay Tea) who disagree with Mark the lawyer: You are either being disingenuous and hypocritical, or you are complete idiots. I don't know which.

Here's a challenge for you all: Next time you're charged with a crime relating to gun control (like not carrying a license, not concealing or concealing, or too automatic or too many rounds,) wave a copy of the constitution and assert to the judge that the local or state law is unconstitutional and use the "Jay Tea Defense" with regard to the 2nd amendment.

You won't. You'll call someone like Mark to make the argument for you.

If I want to read posts about Rob Lowe, moon cheese or why it's a pain in the ass it is to de-ice my windshield, I'll check out Wizbang. For reasoned, intelligent discourse on matters constitutional, I'll stick with Volokh.

Clowns.

Mark wrote:<i... (Below threshold)
Sue Dohnim:

Mark wrote:
But first, keep in mind one of the first rules of construction: EVERY WORD AND PUNCTUATION MARK IS PRESUMED TO HAVE A MEANINGFUL PURPOSE. No, Sue, that is not found in the Constitution, nor is it found in the Federalist papers. One must look elsewhere to find this universal tenet of construction.

Ah. Do you know what we have here, people? We have a postmodernist, Frankfurt-School-befuddled buffoon. Derrida et al would be proud of such a semantically delusional devotee of "construction" and more importantly "deconstruction."

Mark then wrote:
To the caustic Sue, I overlooked one of your nuggets of wisdom, where you called "bullshit" when I suggested the Federalist Papers are not the only source for interpretation. I wonder where the brilliant Sue would turn when she finds the Federalist Papers silent on an issue, or when the papers are contradictory?

Where would I turn when the Federalist Papers are silent on an issue? If you show me an issue covered by the first Ten Amendments on which the Federalist Papers are silent, I'll tell you.

Where would I turn when the papers are contradictory? If you show me where the papers are contradictory, I'll tell you.

Face it, Marxist, you've bellied up to Gramsci's bar too often to have any brain cells left. Just keep bowing and scraping to your black-robed high priests and remain the mental midget you are. They'll take good care of you. Eventually.

John wrote:<i... (Below threshold)
Sue Dohnim:

John wrote:
You won't. You'll call someone like Mark to make the argument for you.

Calling Mark for anything other than a slip-and-fall case at the Qwik-E Mart would be ill-advised.

As for you, your idea of intellectual stimulation is probably a Pauly Shore movie marathon. You'd better run out to Blockbuster before the other smelly basement-dwellers snap up those precious DVDs you crave.

If anyone has a taste for i... (Below threshold)
Mark:

If anyone has a taste for incoherent strings of contextually meaningless and inapplicable buzz words, see Sue. Similarly, if you love to hate for the pure sake of hatred, she's willing to accomodate.

I suspect the dementia is irreversible, Sue. You are doomed to the existence of a true moron.

Hey! Turns out there more ... (Below threshold)
John:

Hey! Turns out there more than two types of posters on this thread who fancy themselves as defenders of the populace against them hi-minded lawyers. In addition to the disingenuous hypocrits and the complete idiots, we have a third: Idiotic disingenuous hypocrits, in other words, Sue.

I'm happy to stoop to her level of name calling instead of arguing the topic of this thread.

So, um, bite me, you uneducated twit!

Damn, I momentarily stooped... (Below threshold)
Mark:

Damn, I momentarily stooped to Sue's level.

Sue, if you had actually read and even superficially comprehended anything I've said in this thread, or Jay Tea's Part II thread concerning the Second Amendment, you would see that your last post is nothing but a hateful series of non-sequiturs. I have not said a damn thing that would lead any reasonable person to conclude that I subscribe to the philosphies of Derrida, Gramsci, or Marx. The truth is far from it. In fact, I explicitely told you I am nearly the opposite of a socialist.

However, I DO subscribe to the tenets of constitutional interpretation that were used by our very first Supreme Court, and all succeeding courts. Variations of these tenets were in place in the colonial courts, the courts of England, and examples before those. There have been a few misuses over the years, but by and large, the tenets are sound even if the results sometimes are not, in my opinion.

So, I suggest you try to follow along, and comment only in areas where you have relevant knowledge. I do not profess to know everything, and I am open to guidance and correction. But if you intend to act like an ignorant bitch, then shut the fuck up.

I'd like to take a mild exc... (Below threshold)
Phil:

I'd like to take a mild exception to Ed's posting at July 19, 2005 09:09 PM in which he says:

The Second Amendment:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Try to keep up folks.

The entire source for government regulation of firearms ownership is based entirely on the first part of the Second Amendment i.e. "well regulated". This confers onto the government the power to regulate firearms ownership, sales and purchases. This is the only part of the Constitution, other than the clauses involving inter-state commerce, that allows the government to govern firearms ownership.

The regulation of the militia is given explicitly in the body of the Constitution in Article I, Section 8, Clause 16 where we see [The Congress shall have Power] "To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"


The key point is that the Second Amendment conveys no authority on government, but is a further elaboration of rights enjoyed by the people.

Coming later than the Constitution, conflicts between this amendment and the body of the Constitution must adhere to the Second Amendment. As such, the Congress has the powers to regulate interstate commerce, but not so as to infringe the right of the people to keep and bear arms. Congress may provide for organizaing, arming and disciplining the Militia, etc., but not in a way to infringe the rights of the people to keep and bear arms.

So, a provision requiring the people to own a rifle suitable for militia use should be legal, but saying that the people may not own such a rifle would be an infringement. A provision requiring each militia person to have 50 rounds of ammo suitable for militia purposes locked safely away in the home would be legal, but to pass a law that a person could not have another 50 rounds with some loaded in his firearm, if safety would so require in the judgment of the militia person, would be an infringement. A provision requiring the militia person to assemble on Saturday morning with his militia rifle on the village green would be legal, but a law saying the person could not carry his militia weapon (or other firearm) for reasons of perceived danger would be an infringement.

Moreover, the militia has a duty to the general government which the states cannot interfere with by the Constitution. Since the support of the militia, in the eyes of the Constitution, requires the right to keep and bear arms with out infringement and since state regulation infringes almost every aspect of firearm ownership and carrying, it is clear that almost every aspect of those regulations are usurpations.

Does that mean we can ignore those regulations -- not hardly. There are plenty of lawyers and judges to put us in jail. But, we know what is right.

It takes a VERY educated pe... (Below threshold)
Doug:

It takes a VERY educated person to twist the meaning of a VERY simple sentence into something so far away from it's obvious intent. A bit of research will show that those who wrote the Constitution meant that the Second Amendment IS, in fact, an individual right. I'm tired of politicians and lawyers debating what the meaning of 'is' is. Like the song says, 'Ol Billy was right.'

What all here seem to mis... (Below threshold)
J. Hoser:

What all here seem to miss is (1) The Constitution clearly has language providing for the keeping and bearing of arms as an individual right.

(2) The legislative houses of the various colonies made it perfectly clear they wanted further, concrete, guarantities of state and individual soverignity before they would ratify the Constitution.

(3) thus the Bill of Rights is not, in any way, shape or form an enumeration of rights ceded by federal authority. They are statements of prohibitions and limitations that all governmental authority may not transgress except under the most rigorous control and egregious circumstances. >JH

Doug, I don't agree with yo... (Below threshold)
Mark:

Doug, I don't agree with your first sentence. Just look at the discrepancies between every single gun-wielding person here who tried to explain that "very simple sentence." As Jay Tea suggested, the Second Amendment is pretty awkward. Whether you are for or against gun control, that has to be acknowleged and dealt with honestly.

NOW, BEFORE YOU FLAME ME, read this: Fortunately, your second sentence is right on. If one looks beyond the language of the amendment and does the proper research (yes Sue, the Federalist Papers are indispensible here, even if they are not the entire story), most, if not all, rational thinking people will reach the same result. I also agree with your third sentence, with the caveat that you need to acknowledge the necessity of those who try to keep the assholes honest.

J. Hoser, I'm not sure I understood a single word you tried to spell, er, uh, say. I'm sure you meant well. Pass the bong.

Uh...I don't know if you al... (Below threshold)
Brian:

Uh...I don't know if you all know this, but the Federalist Papers were all published before the Bill of Rights had been drafted. They also argued against the appending of a Bill of Rights for two reasons: 1) superflous (a government of limited powers wouldn't deign to govern in areas beyond those powers, and 2) confusing (i.e., gives the impression that the People have limited rights).

Ergo, you've all just been FLAMED!!!

I kid, I kid. Federalist No. 46 is the one you want for unmitigated praise of a fully armed populace (if you read US v. Emerson...).

Mark:Good ... (Below threshold)
MikeB:

Mark:

Good one, Mike B. No lawyers were around when the Constitution was drafted? That's rich.

I stated no such thing. My point was simply that the target audience for the work (the Constitution and the Federalist Papers) was not a bunch of self-righteous lawyers so that unwashed masses could turn to them for interpretation, but rather the unwashed masses themselves.

So Mike B., why not crawl back under your rock and steep in your own ignorance.

Wow.. Color me convinced! What a fine illustration of the low standards of the ABA when someone who calls himself a lawyer can't do better than resorting to such a juvenille attack. A pity really.

- MikeB

Mark, MikeB, Jim and oth... (Below threshold)
Mac Lorry:

Mark, MikeB, Jim and others:

An individual right to keep and bear arms can be derived from the Constitution and current court rulings apart from the second amendment.

At least that's my ignorant opinion. I posted this yesterday, but it got lost in the flames. I'm hoping some more knowledgeable folks can take a look at my logic below and see if it holds water. If not, no lose. If it does, this could be an important legal argument.

-------------------------------------------------

Some years ago I heard there was a ruling by the Supreme Court to the effect that a Constitutional right also guarantees the means to exercise that right. The purpose of the ruling was to protect abortion clinics. The logic was that the Constitution gave women the right to abortion and that that individual right protected the means (abortion clinics) of exercising that right.

It seems the Constitution guarantees the right to life, although it doesn't specifically state it. What it says is that’s it's vary purpose is to “...promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity...” Welfare was defined at the time as “health, happiness, or prosperity” and it's not posible to be healthy or partake of the blessings of liberty if you are dead.

If a person has a Constitutional right to their life, then it follows that they have a Constitutional right to self-defense, which from the abortion clinic ruling suggests the means of self-defense are also Constitutionally protected. Recent court rulings that police are not required to defend a specific individual requires that the means of self-defense must be able to be held privately. From the above logic I get to the individual right to keep and bear arms for the purpose of self-defense, all apart from the second ammendment.

-Mac Lorry

Well, MikeB, your post soun... (Below threshold)
Mark:

Well, MikeB, your post sounded like a petty attack on me and my logic, and you do suggest there were no "self righteous" lawyers around at the time. If I smelled venom where non existed and reacted inappropriately, I apologize.

But to all those who love to think the Consitition was written for lay people, you're right in a sense. In fact, all laws are written "by the people" and "for the people." The Constitution was written by "the people," most of whom were lawyers. It was written "for the people" as a tool to be used by people trained in such matters, such as courts and lawyers.

In the late 1770's, it was Thomas Jefferson, a lawyer, who approached the college of William and Mary and requested them to start an academic law school so we could ween our reliance upon British-trained lawyers, or those trained on-the-job in the colonies. This was nearly ten years before the Consitution was drafted. Some of the first alumni actually had a hand in drafting it. Were these lawyers self-righteous? If you read some of their work, some might think so.

The (mostly) lawyers who drafted the Constitution created a thing called the Judiciary, with the Supreme Court at its pinnacle. One of the primary jobs of the judiciary is to interpret laws. In the states, this has always been an adversarial process where lawyers for each side present their research and arguments, while the court renders some opinion. From its inception, the process contemplated, and was designed around, the use of lawyers.

The Constitution was written in plain English to assist people in understanding it. In fact, most laws written since then are also in plain English. But it was always contemplated that lawyers would be necessary to sift through the huge body of conflicting laws to figure out which take precedence, and which apply to a particular set of facts. It was never contemplated that the Constitution, or law in general, would be a do-it-yourself endeavor for people who are untrained.

Again, I urge anyone who disagrees to simply read the posts above. We had one person claim that "well regulated militia" meant gun barrels need to be trued. One suggested "well regulated" empowered the state to regulate gun ownership. Jay Tea thinks the phrase is "oddball" and has no legal import.

If you would like to see more examples, just run down to your local traffic court. Traffic laws are as simple as they come, i.e., "thou shalt not run a red light." Go listen to the arguments of lay people and see how many absurd interpretations you hear. I had to do this recently to fight a bogus ticket, and I was apalled by the inability of people to (1) read, (2) comprehend, and (3) follow a simple linear thought in presenting their case. If the "unwashed masses" as YOU put it cannot interpret a red light provision of the vehicle code, then how can we expect them to handle something as complex as the Constitution?

John wrote:<i... (Below threshold)
Sue Dohnim:

John wrote:
I'm happy to stoop to her level of name calling instead of arguing the topic of this thread.

So, um, bite me, you uneducated twit!

You can't stoop when you're already a hunchback. You started the ad hominem with your very first post, drive-by dumbass. And I quote:

To all the posters on this 2nd amendment thread (including Jay Tea) who disagree with Mark the lawyer: You are either being disingenuous and hypocritical, or you are complete idiots.

And I can't bite what you don't have, Dickless McHalfwit.


Mark wrote:
I have not said a damn thing that would lead any reasonable person to conclude that I subscribe to the philosphies of Derrida, Gramsci, or Marx. The truth is far from it. In fact, I explicitely told you I am nearly the opposite of a socialist.

I don't care what you "explicitely" told me. You can claim to be anything you want; it doesn't make it so.

As for what philosophy you subscribe to, your error has been pointed out to you many times on this thread alone.

You believe that only a highly trained, indoctrinated elite (of which you claim to be a member) can understand the Second Amendment, thus by extension the Bill of Rights and the U.S. Constitution as a whole.

This is not the philosophy of someone "bordering on libertarian," as you put it. This is the philosophy of someone quite comfortable with Derrida's ideas of "deconstruction," Gramsci's "long march," and all they seek to accomplish.

Or possibly you're simply a product of that "long march." Comparing your lofty claims to your below-average prose leads me to the latter conclusion. Your inability to produce the Federalist Paper references I requested reinforces my conclusion to the point of certainty.

Stick to suing Apu for slip-and-fall, lightweight.

Sue:"Highly traine... (Below threshold)
Mark:

Sue:

"Highly trained indoctrinated elite?" Is that what lawyers are? Cool! I thought we were just ordinary people trained to work in a specialized field, called "law." Just as auto mechanics are trained to work in their specialized field. Just as CPA's are trained to handle their specialties. And seamstresses. And marketers. And musicians. And....

If what you say is true, then the framers, all judges (past the present), the legislature, and the legal profession as a whole is a slimey pile of socialists, and always has been. Congratulations, you simplistic twit.

Oh, and I decline to do your legal research for you. The law is rife with examples, but I am not inclined to waste my time for your benefit. I suspect you would benefit much more from the exercise than I would, so have at it. After all, isn't it your position that law should be left to everyone?

I suggest you return to hoarding canned goods in your fallout shelter, hand-load yourself a good stock of ammunition, and keep worshiping that poster of Timothy McViegh on your wall. You might as well fly that confederate flag while you're at it. You sound like a vigilante redneck who enjoys pulling trains for the local militia.

Damn, the stream-of-conscio... (Below threshold)
Mark:

Damn, the stream-of-consciousness I spew into this little blue box as fast as I can type--you know, the stuff I pass off as "below average prose"--could definitely benefit from proof reading and spell checking.

Above, I meant "past AND present" instead of "past THE present."

Mark the lawyer said:... (Below threshold)
A different Mark:

Mark the lawyer said:

Please, tell me which branch of the government routinely stikes down acts of the legislature for being unconstitutional. Which branch is ultimately charged with holding executive actions to constitutional scrutiny? Get it?

Regarding your first question, the Supreme Court can do so (strike down acts), and I never claimed it couldn't. But the Legislature is not limited to only enacting Laws (which are subject to judicial review). The legislature, with the States, can amend the Constitution without the Supreme Court's involvement. This is explicit in Article V.

In addition, the Court is not the ONLY branch which can judge Acts as being unconstitutional. The Executive branch can do so in certain cases as well, the most obvious being that the President is free to veto a Bill on the grounds that it is unconstitutional. Yes, this veto can often be overridden, but the power of the Executive to judge the Constitutionality of an Act of Congress is nonetheless quite real. There are even quite valid Constitutional theories which posit that the Executive branch can legitimately refuse to enforce a law which has been fully enacted. See for example, Johnsen, 63 Law & Contemp. Probs. 7 (Winter/Spring 2000)


Regarding your second question (Which branch is ultimately charged with holding executive actions to constitutional scrutiny? ), well, again, that depends. The Court has that power in some cases. However, if the Executive action in question was a high crime or misdeanor, then the Supreme Court has no jurisdiction to judge that action. Article I Section 3 grants that power solely to the Legislature, in particular the Senate.

Finally, consider the the President takes a Constitutionally mandated oath to "preserve, protect and defend the Constitution". Obviously he cannot do so if he is unable to make any judgment as to what the Constitution says.

Modern custom and precedent do indeed make the Supreme Court the judge of most matters Constitutional. But it is not the sole judge, and its say is not always final. These circumstances are laid out in the Constitution itself.

For a lawyer, you'd think you would be aware of this.

Oh, and regarding your third question (Get it?) ... Yes, I do. The first three words of the Constitution are "We the people". You may not like that, but there it is.




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