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.

Plenty of writings about abortion? Would those be found with all the
writings about sex in general? You know, all the stuff about sexual
activity, male and female sexuality, sexual psychology, attitudes, etc. I
question whether there was "plenty" of writing about abortion. In my
experience virtually everything having to do with sex was taboo until about
the 1960s. Laws on abortion may have come about in the mid 1800s but that
was a subject that was not discussed by "decent" people in those days.



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.

You know what they say about a blind squirrel, right? Even they find an
acorn now and then. The NRA and the pro gun groups are the same. Some times
what they say is right. Even though they are extremely partisan you have to
admit that at least some of the time they get it right.


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."

Well thank you very much. But that's not news to me. My point was that the
justices found a way to stretch the constitution to cover privacy rights.
They have been doing this for a long time and if they didn't the
constitution couldn't apply to all kinds of modern problems that never
occurred to the founders. But that is what they intended when they wrote the
constitution. They wanted it to be adaptable enough to handle what new
things came in the future. Originalists are nuts, by the way. They aren't
really "originalists" anyway. That is just a code word for right wing judge
and they are just as "activist" as any other justices.


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.

No, it does have limits. The limits are the ones the court sees fit to put
in place. It's no different with any philosophy or "school" of thinking.
They all have the same limits, the ones they put on themselves.
Unfortunately, the supreme court is the highest court and whatever they say
the constitution means is what it means. You can't go any higher than it for
an interpretation, unless you're crazy.



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-)

Actually, the federal government always had authority over the states
whether it chose to apply them or even acknowledge it had them. The
supremecy clause gives the power to the federal government over the states
in anything it truly wants. You can argue otherwise but in fact what the
feds say goes. This applies to the pre 14th amendment days too. They just
didn't know it at the time. 8-)



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.

As I recall, the 2nd amendment was not one that was much in conflict when
they were writing it. You aren't going to find a lot of writing about the
battle over the 2nd amendment because it was not really opposed by anyone
(if you can tell me which founder was against that amendment I'd like to
know). So if you can't seem to find contemporary writings saying what the
founders thought or meant when they wrote the 2nd amendment it was because
everyone thought the same thing and didn't bother discussing what was
commonly accepted. It was like everyone knew why they were putting in the
right to bear arms. The reasons I already said were so accepted that the
only reason it was put in was because of the fear of a foreign invasion or
domestic tyranny. Aside from governmental tyranny there was little reason
anyone had to fear of losing their natural right to own weapons. As to the
anti-federalists, you'll have to direct me to your sources that show they
were not pro 2nd amendment too. The reasons the anti-federalists were
opposed to the new constitution weren't about the 2nd amendment.



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.

I'm familiar with Gitlow, and the application of the 14th amendment to the
states is not a yes or no. It's a yes. The interpretation is that the
amendment applies the supremecy of the federal government over the states.
All the time. That doesn't mean there aren't some lawsuits that the states
win in disputes with the federal government. But the court's ruling on
the14th amendment means that the constitution applies everywhere all the
time.


The 14th remains a battleground of constitutional theory.

Not as far as to applying to the states as well as the federal government.


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?

Good question, and one I've heard discussed in the past. But even from
English experts I have heard that the first clause about the militias is
simply a modifier of the second clause. And it's the second clause that
gives the sentence it's real meaning. But as with all things legal it can be
debated. It reminds me of the Monte Python line about a book he supposedly
wrote titled How to Argue with Anyone.


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.

Is that a surprise? Why do you think the country's central authority takes
the position that the 2nd amendment is about militias and doesn't really
protect the people's right to own weapons? In other words, the 2nd amendment
doesn't really prevent the government from disarming the populace any time
it wants because there is no constitutional right for us folks to have guns.
Get real. This is a perfect ploy for the government to be able to protect
itself from an armed populace if it wants to. If you expect the government
to side with the people you're pretty naive. If the courts don't stand up
for the people's rights you better believe that the rest of the government
will take them away.


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?

Because they had no fear of having that right taken away. And they had just
fought the world's greatest empire for eight years. Fighting wars really
brings home the importance of weapons. The 2nd amendment was put right
behind number one because of it's key importance to guaranteeing freedom.
You know the saying "free men own guns". It's pretty true if you ask me.


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?

Because government doesn't like an armed population. Never has. The greatest
threat to it's survival is from an armed citizenry, and they know it. Every
chance it gets every government tries to disarm its people. There are few
exceptions in history. The US used to be one of them.

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.

Most people think they did. Most people, who aren't lawyers, think they
understand exactly what the 2nd amendment means. Pretty cheeky of them, huh?
They know why the 2nd amendment was written and they know what it means. The
Bill of Rights doesn't give any power to the people but it does restrict the
power of the government. Now the government would like to alter that
equasion.

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

We'll have to disagree here. See, I think the intent and the meaning of the
2nd amendment is perfectly clear and unambiguous. If it meant anything other
than it's obvious meaning that would eliminate it's reason for being. I
mean, if the people believed that the right to arms was important, and we
know that they did, then why wouldn't you put that critical amendment in the
bill of rights? To leave out and not legally protect such an important right
would be foolish and the founding fathers were anything but foolish.


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.

That's the argument some people are making. Like some people argue that Iraq
still has WMDs. If you can know what the beliefs of the founders was, and
what the public opinion was about arms, I don't know how you could not know
what they meant when they wrote such a short amendment. By the way, I don't
recall militias being of any importance in the debate on the constitution or
the bill of rights. If that is true then it's likely the 2nd amendment was
not about militias but was about the people. You have to understand that
when the document says people, that is what it means. When it says We the
People you know who it is talking about. When the 2nd amendment says the
people they mean the same thing. Of course you can argue otherwise.
Especially if you have read Monty Python's book. 8-)


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

Remember the story about the squirrel and the acorn? Actually, I do know the
arguments the other side puts up. I just don't think they hold any water. I
think the people making the arguments have a political agenda and are using
legal arguments and the courts to impose their views on everyone else.
Another reason why I don't use their arguments is that they simply are
meritless. Look, I've argued both sides of cases in moot court competition
so I know how to do a legal analysis. It's just that I know when one side
has a case and the other doesn't. In this case the anti individual right
side is the side that says the government has the power over the people
regarding weapons and can take them away whenever they see fit. At least
that is what happens if their side prevails. Now, if you think the founding
fathers would agree with that outcome then you really don't know anything
about the founding fathers.



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.

Thanks, but I've already had legal training. What you're not getting is that
people without a leg to stand on can and do take you to court and make the
most insane arguments. This is just such as case. I could argue the other
side for you but I'd be full of **** because I understand what the
underlying purpose of the 2nd amendment is. If you know that, then arguing
against it doesn't make any sense. This is a simple case as I said. If the
people have the individual right to bear arms then the government gets less
power over them and has to respect their power. If they don't the government
gets more power. I'm for the government having less but that's just me.


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.


I would Ed, but I already know what their argument is and I'm not buying it.
I'm saying no sale. It is an individual right. It was meant to be. It'll be
better for the public if the courts decide for the people once and for all.
If they don't it's just one more brick in the wall of democracy coming down.
That wall is getting pretty weak too.

Hawke