"Hawke" wrote in message
...

The question is whether the presumption on which the 2nd is
based
included
an individual right -- a pre-existing right that precedes the
Constitution.

There are those who BELIEVE the RKBA is an individual right, and
will
ultimately fight for that belief by any means necessary. In the
end,
the only rights we have are those that we fight for.

And if you win, are you prepared to agree that Roe v. Wade is
equally
good
jurisprudence?

Wether you like abortion or not, Rove v. Wade was based on perjured
testimony.

sigh So what does that have to do with the Supreme Court decision?
Perjury
is for the lower courts to deal with.

So I'll ask again, if you're willing to reach into the surrounding
history
of the 2nd to support an individual right, are you equally willing to
support the similar jurisprudence of Roe v. Wade?

The Supreme Court should deal with perjury in the Supreme Court.

But they don't, unless there's a constitutional issue raised by the
perjury
itself -- an unlikely possibility. So that doesn't answer the question.


And YES, I am willing to support an individual right in almost
everything. I see 2 problems with Roe v Wade; the Constitution does
not
give the Feds jurisdiction over medicine, and the issue of legal life
needs to be settled. It has always been at birth.

Well, that's what Roe v. Wade does, doesn't it?

If life legally
begins at conception, the Feds can institute a Vagina Police and charge
any woman that miscarries with manslaughter.

Nonsense. If she miscarries, that's an accident of nature, not something
that happens due to her volition.

They might also require
monthly pregnancy tests to assure they don't lose any future soldiers
or
bureaucrats. Do you want to give the Feds that power?

The people who might are the Christian right. g


The govt that has the power to give you what you want has the power to
take what you have.

Are we coining flimsy aphorisms, or deciding a legal issue?

It sounds to me that you agree that Roe v. Wade is a correct decision. If
you're willing to reach out beyond the words and history of the Bill of
Rights to find additional "rights," then there probably is no limit to
what
you could find. Or do you have a guiding principle for that?

The guiding principle created in Roe v. Wade is clever, logically
consistent, and perfectly rational. But it continues to stick in the craw
of
many people who don't like the decision. Likewise, the 2nd Amendment.

--
Ed Huntress


I think the examples of Roe vs Wade and the 2nd Amendment demonstrate how
the law and judicial construction are supposed to work. In the case of Roe
vs Wade you have a situation where the court has to extend the
constitution
to an event that was never contemplated by the founding fathers. Nothing
was
ever mentioned about abortion or reproductive rights in the constitution
and
there was virtually nothing to find in the contemporary writings either.

The status of abortion was that it was generally allowed, under law, under
religion, and even from common law, until the middle of the 19th century. If
you read the Roe case you'll find citations and footnotes aplenty to support
the fact that abortion laws didn't start to become absolute until around
1850. And yes, there were plenty of contemporary writings.

That's similar to the situation with guns, although gun control came later.
The "writings" favoring the individual right were not a part of the debates;
they were peripheral, much like those concerning abortion.

We've been fed a steady diet of quotations by the pro-gun groups for so
long, and so extensively, that it's not easy to keep it in perspective.

That means the modern court has to figure out how to decide what is
constitutional without any help from the law's creators. So they came up
with the penumbras and emanations ploy to find a right to privacy in the
constitution. It was constructed completely out of thin air but it worked
and that's what being a judge is all about. Making things work to bring
about a just outcome.

The trouble with the originalist interpretation is that you have no rights
except those that are explicit in the Bill of Rights. There is no such thing
as a "pre-existing right" to an originalist. BTW, the penumbras and
emanations doctrine has not been used in cases over the last few decades.
The battleground now is called "substantive due process."

The trouble with your interpretation, which has been called
"consequentialist," is that it has no limit. Both the "penumbras and
emanations" approach and the substantive due process interpretation can be
limited by the very philosophy that brings them into being. In practice,
though, those limits have clearly been breached.


The 2nd Amendment is exactly the opposite. It's a simple case, as I said
before, because it basically comes down to a yes or no answer. Did the
constitution mean that the right to bear arms was meant to apply to
American
citizens? That's a yes or no any way you slice it.

Well, first of all, it could only have applied to the federal government at
the time it was written. The federal government had no authority over rights
limited by the states. So your "yes or no" becomes "yes *and* no," at best.
d8-)

Unlike the court that
decided Roe, the current court can go back in history and find out exactly
what the lawmakers who made the law intended when they wrote it.

No, they can't. They can find out what some important voices had to say
about their feelings concerning it. They can't relate that directly to the
Amendment. All you can relate directly to the 2nd Amendment is the fact that
the authors were addressing the concern expressed by the anti-federalists,
which I have mentioned twice before.

It's also
similar to the 14th Amendment debate. Before it's adoption the thinking at
the time was that the constitution only applied to the federal government
and not to the individual state governments. That was a yes or no decision
too. Now it seems obvious that the 14th Amendment applied to the whole
country, but it was argued by some at the time that it did not.

It's not so obvious. The doctrine only appeared in 1925, with the Gitlow v.
New York case. And it wasn't "yes or no." It was sometimes yes, sometimes
no...but, over time, generally yes. But not always yes.

The 14th remains a battleground of constitutional theory.

It's the
same with the 2nd Amendment. Aside from all the legal arguments, it's
understandable from the plain language of the amendment that, like all the
others mentioning "the people", it does indeed mean the people when it
says
people and protects their individual right to bear arms.

But then why did they mess it up by prefacing the issue with a phrase about
militias?


If you only go back as far as early American history to understand what
the
2nd Amendment actually means you don't get a full understanding of what
the
people of that era believed.

What they believed and what they incorporated in the 2nd Amendment is the
subject of the debate, and over 100 years of jurisprudence that, at the
federal level, generally agrees that it was about militias.

If you go back to England and look at what they
thought about the right to bear arms you find that what the American
colonists believed came from an English tradition long before they came to
America. Tied in with the long historical belief of a right to self
defense
and to be armed as well as possible is the belief that this right is a
natural one, derived from a creator.

Without getting into the facts about common law, all that's to be said about
that is "that's nice." Do you think they also believed you have a right to
marry and have children? If so, why did they not write it into the Bill of
Rights?

With a long history of believing in the
right of the people to bear arms and to self defense the American
colonists
came here believing they had that right long before it was written down in
the constitution. You can find all kinds of writing from the time that
shows
this. Taken from a historical belief in this god given right it is very
clear that the consensus in early America was that all Americans had the
right to keep and bear arms, constitution or no constitution.

So what? What does that have to do with the Bill of Rights? If it was so
universal, why have Congress and so many states enacted restrictive gun
control laws?

If your answer it that it's because things changed, well, then, it's too bad
the Founders didn't make explicit what you believe everyone believed.

When the bill
of rights was added to the constitution it was believed that this merely
confirmed what everyone already knew, and as an added protection against
the
actions of tyrannical government which may come to power. This fear of our
own government was strong at the time and individually armed citizens and
no
t just an organized militia, was seen as the best protection against
tyranny.

Given all that, I maintain that this belief in the right to bear arms has
been held in common by the American people for as long as they have lived
on
this continent. So now we come to the legalisms and nit picking of the
lawyers about what each and every word means as if the whole sentence can
not actually be understood by the ordinary man.

I don't know many people, including experienced editors, who can give a
correct explanation of the nature of restrictions inherent in a nominative
absolute sentence. You have to really study it to know the issue. In fact,
there is an interesting (and arguable) amicus brief filed by grammarians on
behalf of the petitioner in this very case. g

After all the arguments have
been heard we come again to the choice of whether the constitution means
the
militia has a right to arms or whether the people have a right to arms. By
way of the historical beliefs of Americans regarding the topic of arms and
of their leaders' views on the subject only one conclusion is possible;
the
2nd Amendment is meant to protect the right of the people to bear arms.

That's a non sequitur. You may know what the historical beliefs are. What
you don't know is if that's what the founders were addressing in the 2nd. At
least partly, we know they were addressing something else.

The
court may listen to counter arguments and may decide that there is no
right
for individuals to have their own personal arms. But they would be wrong
if
they do. Looking back at the track record of the courts in the past I
wouldn't be surprised if they do decide it wrongly. Any court that could
affirm the Dred Scott decision could do anything and I wouldn't put it
past
the current group to come up with an equally bad decision. That's because
despite the quality of any legal arguments it will boil down to the
personal
policy preferences of the sitting justices. They will do whatever they
want
according to their political beliefs and then make complicated and
intricate
legal explanations for why they did what they wanted to all along.

Since you haven't raised a single argument opposed to the individual right
argument, even to shoot it down, it's likely you don't know what they are.
What you've written above could have come straight from the NRA, or from
Gunner's hard disk. g

If you want to understand a legal argument the first thing you do is spend
at least twice as much time studying the arguments opposed to your position
as you do studying those that favor it. Otherwise you'll walk right into a
trap.

You've walked into several here, and anyone well studied and well equipped
with the data would eviscerate most of what you say, because you don't know
what their counter arguments are. They're mostly tied up in the legal
issues. But this, after all, is a legal case.

As I said, this is not a history quiz. As I also said, I don't want to get
into a substantive debate over the 2nd. Now you can see why. I've heard this
exact line you're preaching for close to 30 years. The main problem is that
it's always been overwhelmed in actual federal court cases -- for good
reasons.

'Time to dig into those briefs for the petitioner, Hawke.

--
Ed Huntress