2nd Amendment ---- and other superfluous provisions
 

I have asked this question before and haven't gotten an answer, so I thought I would pose it in its own thread. Which clauses/provisions of the Constitution can be deleted without making a difference in how the Constitution is to be interpreted.

I think the best place to start is with the Bill of Rights, though there might very well be other places that contain entirely unnecessary language.


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1st Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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Anything that if deleted wouldn't change the way this Amendment is interpreted?

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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.

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Many think that "A well regulated Militia, being necessary to the security of a free State" could be deleted and nothing would change with the meaning of the Constitution (I am not one of those people)

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Third Amendment:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

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I think we're pretty safe that nothing is superfluous here, thoughts?

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Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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Again, I think every clause here has meaning/effect.

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Fifth Amendment:
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 offence 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.

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There might be a word or two hear that is unnecessary, but I don't see a whole clause that could be deleted w/out affecting how the clause should be interpreted.

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Sixth Amendment:
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 defence.

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Nothing here that I can see

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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 re-examined in any Court of the United States, than according to the rules of the common law.

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All of it seems important here

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

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Fairly tight, nothing superfluous here


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Ninth Amendment:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.


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A rule of how to Construe the constitution the removal of which could certainly change how the rest of the bill of rights is read

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Tenth Amendment:
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.


[/ QUOTE ]

I suppose this clause could be deleted as it states but a truism.

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So, it looks like in the Bill of Rights there is but one clause (perhaps 2) that is superfluous (that is if you believe one interpretation of the 2nd Amendment.)


If you have a point to make about the 2nd amendment thread, please make it there.

Edit: I changed my mind

Re: 2nd Amendment ---- and other superfluous provisions
 

Hoepfully to get this on the right track it does seem like the Bill of Rights was written "tightly" in that an attempt was made to keep ambiguity to a minimum. Also, IMO, given the history of inclusion of the Bill of Rights, it seems reasonable that the intention was to be very precise.

Re: 2nd Amendment ---- and other superfluous provisions
 

Since you can't seem to let this go....

If I research this will you answer my question? Will you tell me if there is a single documented quote saying the 2A is not an individual right during the 1700s and 1800s? I know you don't care about the history, the context, and the quotes stated by those who wrote the constitution but will you at least return the favor if I go through the effort of researching this?

Re: 2nd Amendment ---- and other superfluous provisions
 

[ QUOTE ]
Which clauses/provisions of the Constitution can be deleted without making a difference in how the Constitution is to be interpreted.


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The entire Bill of Rights. The Bill of Rights didn't change anything. The Consitution was a document of granting the federal government limited powers. They couldn't make laws concerning religion, the freedom of the press, etc. because it was never granted those powers in the first place. The Bill of Rights is nothing more than the political correctness of the late 1800s, and the drawbacks, predicted by some of the Founders, of including the Bill of Rights have proven to come true.

Re: 2nd Amendment ---- and other superfluous provisions
 

[ QUOTE ]

[ QUOTE ]
Tenth Amendment:
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.


[/ QUOTE ]

I suppose this clause could be deleted as it states but a truism.

[/ QUOTE ]

Of course, this the most thoroughly ignored and violated bit of the Constitution even with it being right there in plain text.

Re: 2nd Amendment ---- and other superfluous provisions
 

[ QUOTE ]
[ QUOTE ]
Which clauses/provisions of the Constitution can be deleted without making a difference in how the Constitution is to be interpreted.


[/ QUOTE ]

The entire Bill of Rights. The Bill of Rights didn't change anything. The Consitution was a document of granting the federal government limited powers. They couldn't make laws concerning religion, the freedom of the press, etc. because it was never granted those powers in the first place. The Bill of Rights is nothing more than the political correctness of the late 1800s, and the drawbacks, predicted by some of the Founders, of including the Bill of Rights have proven to come true.

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Wow, I completely missed the obvious. A lot of people at the time argued that the bill of rights was not needed because the constitution was a limiting document. Good one.

Re: 2nd Amendment ---- and other superfluous provisions
 

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it does seem like the Bill of Rights was written "tightly" in that an attempt was made to keep ambiguity to a minimum.

[/ QUOTE ]

LOL???? You might try reading Amendment 9.

Re: 2nd Amendment ---- and other superfluous provisions
 

[ QUOTE ]
Will you tell me if there is a single documented quote saying the 2A is not an individual right during the 1700s and 1800s? I know you don't care about the history, the context, and the quotes stated by those who wrote the constitution but will you at least return the favor if I go through the effort of researching this?

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I have no idea, nor is it much of a concern of mine (nor is it in any way on topic with this thread.) You don't need to "research" anything. Just look at the text (I've even copied a lot of it right in this post) and see if there are clauses that could be deleted without affecting meaning.

For me, I don't think there are any (with the possible exception of the 10th Amendment.) However, there are several if we take as gospel the way the Constitution has been interpreted to date.

Re: 2nd Amendment ---- and other superfluous provisions
 

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[ QUOTE ]
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Which clauses/provisions of the Constitution can be deleted without making a difference in how the Constitution is to be interpreted.


[/ QUOTE ]

The entire Bill of Rights. The Bill of Rights didn't change anything. The Consitution was a document of granting the federal government limited powers. They couldn't make laws concerning religion, the freedom of the press, etc. because it was never granted those powers in the first place. The Bill of Rights is nothing more than the political correctness of the late 1800s, and the drawbacks, predicted by some of the Founders, of including the Bill of Rights have proven to come true.

[/ QUOTE ]

Wow, I completely missed the obvious. A lot of people at the time argued that the bill of rights was not needed because the constitution was a limiting document. Good one.

[/ QUOTE ]

Thinking about it, my post was actually not entirely accurate as much of it restricts the states, requiring trial by jury, etc.. Some parts which only limit Congress though, like the First Amendment, are clearly redundant.

Re: 2nd Amendment ---- and other superfluous provisions
 

It was in the early 1800s that people first tried to interpret the 2nd amendment as an individual right. All of the discussion about it at the time of its proposed adoption concerned militias.

Re: 2nd Amendment ---- and other superfluous provisions
 

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The entire Bill of Rights

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Absent the Bill of rights, please explain how the Constitution would interpret the following:

An accused's right to a speedy trial;
The right to Grand jury indictment
The government's power to quarter troops in your home
Search Warrants
Right to a jury trial in civil cases
Cruel/unusual punishment

Re: 2nd Amendment ---- and other superfluous provisions
 

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it does seem like the Bill of Rights was written "tightly" in that an attempt was made to keep ambiguity to a minimum.

[/ QUOTE ]

LOL???? You might try reading Amendment 9.

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Seems clear to me.

Re: 2nd Amendment ---- and other superfluous provisions
 

[ QUOTE ]
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it does seem like the Bill of Rights was written "tightly" in that an attempt was made to keep ambiguity to a minimum.

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LOL???? You might try reading Amendment 9.

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Seems clear to me.

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Oh, the wording and meaning are clear enough in themselves, but name the rights in question. All of them :P

Re: 2nd Amendment ---- and other superfluous provisions
 

[ QUOTE ]
[ QUOTE ]
The entire Bill of Rights

[/ QUOTE ]

Absent the Bill of rights, please explain how the Constitution would interpret the following:

An accused's right to a speedy trial;
The right to Grand jury indictment
The government's power to quarter troops in your home
Search Warrants
Right to a jury trial in civil cases
Cruel/unusual punishment

[/ QUOTE ]

Yeah, I pointed out the flaw in my post before you did. [img]/images/graemlins/smile.gif[/img]

Re: 2nd Amendment ---- and other superfluous provisions
 

The 2nd ammendment is omewhat ambiguous. The right to "keep and bear arms" seems to imply that you have the right have guns in your house and also the right to serve in the militia and get military training. The part about a "well regulated militia" maybe implies that the ammendment isn't sanctioning an armed mob, but it could also be interpretted as reducing the right to keep arms or the right to bear arms in a militia. I don't think you can remove these words, as they are important to the interpretation of the ammendment.

Re: 2nd Amendment ---- and other superfluous provisions
 

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Some parts which only limit Congress though, like the First Amendment, are clearly redundant.

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Absent the First Amendment, could Congress create a law banning all (or severely regulating) all advertising of goods sold through the channels of interstate commerce?

Re: 2nd Amendment ---- and other superfluous provisions
 

Well, the 3rd amendment has never been interpreted by a court, and likely never will be, so you could probably remove several clauses from it without any effect.

Re: 2nd Amendment ---- and other superfluous provisions
 

[ QUOTE ]
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it does seem like the Bill of Rights was written "tightly" in that an attempt was made to keep ambiguity to a minimum.

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LOL???? You might try reading Amendment 9.

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Seems clear to me.

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Oh, the wording and meaning are clear enough in themselves, but name the rights in question. All of them :P

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The point is that the Constitution is not intended to be an enumerations of all rights that an individual has. If that was the case then any "right" not mentioned would be automatically in the purveyance of the government. My understanding is that Madison clearly did not want the Constitution to be interpreted this way i.e. as an enumeration of all rights that an individual possesses.

Re: 2nd Amendment ---- and other superfluous provisions
 

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Well, the 3rd amendment has never been interpreted by a court, and likely never will be, so you could probably remove several clauses from it without any effect.

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That there has been little interpretation of the Amendment says nothing about how much you can/cannot delete from the Constitution. Which clauses in particular could be deleted?

Could congress (absent the 3rd) quarter troops in times of peace?
Could the President in a time of war without Congressional authorization quarter troops?

Re: 2nd Amendment ---- and other superfluous provisions
 

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[ QUOTE ]
Well, the 3rd amendment has never been interpreted by a court, and likely never will be, so you could probably remove several clauses from it without any effect.

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That there has been little interpretation of the Amendment says nothing about how much you can/cannot delete from the Constitution. Which clauses in particular could be deleted?

Could congress (absent the 3rd) quarter troops in times of peace?
Could the President in a time of war without Congressional authorization quarter troops?

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The British had soldiers staying in people's houses and the colonials didn't like it. The US government hasn't really tried it, due to the 3rd ammendment and lack of need.

Re: 2nd Amendment ---- and other superfluous provisions
 

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Some parts which only limit Congress though, like the First Amendment, are clearly redundant.

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Absent the First Amendment, could Congress create a law banning all (or severely regulating) all advertising of goods sold through the channels of interstate commerce?

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No. "Severe" regulation isn't regulation at all, it's a blatant attempt by Congress to make themselves powers that don't exist.

Re: 2nd Amendment ---- and other superfluous provisions
 

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"Severe" regulation isn't regulation at all

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Gold.

Re: 2nd Amendment ---- and other superfluous provisions
 

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it does seem like the Bill of Rights was written "tightly" in that an attempt was made to keep ambiguity to a minimum.

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LOL???? You might try reading Amendment 9.

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Seems clear to me.

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Oh, the wording and meaning are clear enough in themselves, but name the rights in question. All of them :P

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The point is that the Constitution is not intended to be an enumerations of all rights that an individual has. If that was the case then any "right" not mentioned would be automatically in the purveyance of the government. My understanding is that Madison clearly did not want the Constitution to be interpreted this way i.e. as an enumeration of all rights that an individual possesses.

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Right, we both understand that, but just because you and I get it doesn't mean it's not confusing. My point is that many, many people out there find it damned confusing. This is clear from the fact that they DO treat "the Constitution is not intended to be an enumerations of all rights that an individual has."

Re: 2nd Amendment ---- and other superfluous provisions
 

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"Severe" regulation isn't regulation at all

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Gold.

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My best guess is that you're being sarcastic here. I'm guessing you prefer sarcastic one-liners to actually asking the questions that might help you understand something you obviously don't? Makes me realy eager to talk with you.

Re: 2nd Amendment ---- and other superfluous provisions
 

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I'm guessing you prefer sarcastic one-liners to actually asking the questions that might help you understand something you obviously don't?

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I don't have any question about your position. Any regulation you think goes too far is beyond the power of Congress, despite the specific provision in the Constitution expressly giving Congress the right to regulate interstate commerce (not "moderately regulate" or "regulate just a little" or "regulate until AlexM complains"...just "regulate.")

Re: 2nd Amendment ---- and other superfluous provisions
 

Incidentally, I think there is a very good argument that the Interstate commerce clause has been too broadly interpreted. That overbreadth does not, however, stem from an expansion of the word "Regulate"

Re: 2nd Amendment ---- and other superfluous provisions
 

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I'm guessing you prefer sarcastic one-liners to actually asking the questions that might help you understand something you obviously don't?

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I don't have any question about your position. Any regulation you think goes too far is beyond the power of Congress, despite the specific provision in the Constitution expressly giving Congress the right to regulate interstate commerce (not "moderately regulate" or "regulate just a little" or "regulate until AlexM complains"...just "regulate.")

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Nope.

Re: 2nd Amendment ---- and other superfluous provisions
 

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Incidentally, I think there is a very good argument that the Interstate commerce clause has been too broadly interpreted. That overbreadth does not, however, stem from an expansion of the word "Regulate"

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So... let's say Congress decides to "regulate" the sale of Coca-Cola by charging $100000 a can to carry it over state lines. You wouldn't consider this too broad an interpretation?

Re: 2nd Amendment ---- and other superfluous provisions
 

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So... let's say Congress decides to "regulate" the price of Coca-Cola by charging $100000 a can to carry it over state lines. You wouldn't consider this broad an interpretation?

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I would consider it a bad law, possibly counter to other provisions of the constitution, but NOT unconstitutional on the grounds that it is not a "Regulation" within the meaning of the Commerce clause's power to "regulate.

Re: 2nd Amendment ---- and other superfluous provisions
 

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Well, the 3rd amendment has never been interpreted by a court, and likely never will be, so you could probably remove several clauses from it without any effect.

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That there has been little interpretation of the Amendment says nothing about how much you can/cannot delete from the Constitution. Which clauses in particular could be deleted?

Could congress (absent the 3rd) quarter troops in times of peace?
Could the President in a time of war without Congressional authorization quarter troops?

[/ QUOTE ]

Deleting something from the amendment likely would change the meaning. My point is that the meaning doesn't really matter because the amendment, as long as it is there in principle, will likely never be invoked. e.g. You could change it to "No Soldier shall be quartered in any house, without the consent of the Owner" and it wouldn't change military practice.

Re: 2nd Amendment ---- and other superfluous provisions
 

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Deleting something from the amendment likely would change the meaning. My point is that the meaning doesn't really matter because the amendment, as long as it is there in principle, will likely never be invoked.

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You might be right. However, that goes beyond what I was trying to get at with this thread.

Re: 2nd Amendment ---- and other superfluous provisions
 

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So... let's say Congress decides to "regulate" the sale of Coca-Cola by charging $100000 a can to carry it over state lines. You wouldn't consider this too broad an interpretation?

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Okay, let's change it to $.00001/can. Is that a "regulation"? Do "regulations" only fall somewhere between the two extremes?

The framers of the Constitution were well aware of how to limit power using a "reasonableness" standard (as evidenced by the fact that there is a clause forbidding unreasonable searches and seizures) yet that wasn't done here. Why you are choosing to read into the plain meaning of the word "regulate" something that isn't there (but clearly could have been) is beyond me.

Re: 2nd Amendment ---- and other superfluous provisions
 

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The entire Bill of Rights

[/ QUOTE ]

Absent the Bill of rights, please explain how the Constitution would interpret the following:

An accused's right to a speedy trial;
The right to Grand jury indictment
The government's power to quarter troops in your home
Search Warrants
Right to a jury trial in civil cases
Cruel/unusual punishment

[/ QUOTE ]

Yeah, I pointed out the flaw in my post before you did. [img]/images/graemlins/smile.gif[/img]

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Actually, there was no mistake in your original post according to pre-14th amendment interpretation of the Bill of Rights. Prior to the 14th Amendment and incorporation, even the amendments that did not specifically mention the federal government were always interpeted to apply only to the federal government.

There was virtually no debate about this proposition because back then everyone understood the Constution to only apply to the federal government except in the few instances in which it explcitly mentions the states (such as Article I, section 10: "No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.") This interpretation was reinforced not only be the general idea that the US Constitution only applied to the federal goverment, but also by the fact that there are separate clauses which prohibit the same things. For example Article I, section 9 says: "No bill of attainder or ex post facto Law shall be passed." That clause speaks in general terms and does not limit itself to the federal government, but the framers still though it was necessary to explicitly prohibit the states from doing the same thing in a different section (the previously quoted Article I, section 10). So even several of the amendments in the Bill of Rights spoke in general terms, they were never applied to the states because they did not specifically mention the states.

It was not until the 20th century that the Supereme Court held that the rights against search and seizre, self-incrimination, etc. were protected from state violation through the US Constitution. Prior to that, those rights were only protected against violation by the states by similar provisions in state constitutions. Back then if someone claimed that they were victims of an illegal search and seizure by a state government, the Supreme Court would not even hear the case.

And even today, the right to a trial by jury in civil cases does not apply to the states, even though the jury clause makes no mention of the federal government. The grand jury clause of the 5th amendment also does not apply to the states. Many states do not have a right to jury trial in civil cases and do not have grand juries for many types of criminal cases.

Re: 2nd Amendment ---- and other superfluous provisions
 

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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.

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Many think that "A well regulated Militia, being necessary to the security of a free State" could be deleted and nothing would change with the meaning of the Constitution (I am not one of those people)

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Of course deleting that phrase changes the meaning of the amendment. Without it, the possibility would exist that a well regulated militia is not necessary to the security of a free state. However, such a deletion does not change the meaning of the phrase about the right of the people to keep and bear arms, because there is no relationship of contingency represented.

Re: 2nd Amendment ---- and other superfluous provisions
 

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Actually, there was no mistake in your original post according to pre-14th amendment interpretation of the Bill of Rights. Prior to the 14th Amendment and incorporation, even the amendments that did not specifically mention the federal government were always interpeted to apply only to the federal government.

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Perhaps you misunderstand the point...it has nothing to do with limiting the states.

Absent the bill of rights, could the FEDERAL government under its powers in the Federal Constitution (even pre-14th Amendment) do the following:

Impose torture as a sentence to a minor federal crime?
Indict someone for a felony without a Grand Jury?
Deny an accused a trial by jury?


Even beyond those obvious examples, the Bill of Rights allows for lines to be drawn in close cases --- for example where power to regulate interstate commerce might conflict with the notion of a free press or free speach. Where those conflicts arise (with the presence of the bill of rights) courts weigh the general power to regulate interstate commerce with the specific rights enumerated in the Constitution.

Re: 2nd Amendment ---- and other superfluous provisions
 

[ QUOTE ]
[ QUOTE ]
Actually, there was no mistake in your original post according to pre-14th amendment interpretation of the Bill of Rights. Prior to the 14th Amendment and incorporation, even the amendments that did not specifically mention the federal government were always interpeted to apply only to the federal government.

[/ QUOTE ]

Perhaps you misunderstand the point...it has nothing to do with limiting the states.

Absent the bill of rights, could the FEDERAL government under its powers in the Federal Constitution (even pre-14th Amendment) do the following:

Impose torture as a sentence to a minor federal crime?
Indict someone for a felony without a Grand Jury?
Deny an accused a trial by jury?


Even beyond those obvious examples, the Bill of Rights allows for lines to be drawn in close cases --- for example where power to regulate interstate commerce might conflict with the notion of a free press or free speach. Where those conflicts arise (with the presence of the bill of rights) courts weigh the general power to regulate interstate commerce with the specific rights enumerated in the Constitution.

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Elwood, my previous post was in response to Alex's claim that the original Bill of Rights applies to the states:

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Thinking about it, my post was actually not entirely accurate as much of it restricts the states, requiring trial by jury, etc.. Some parts which only limit Congress though, like the First Amendment, are clearly redundant.


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Whether or not the Bill of RIghts was necessary to restrict the federal government with limited powers is a separate issue.

Re: 2nd Amendment ---- and other superfluous provisions
 

"such a deletion does not change the meaning of the phrase about the right of the people to keep and bear arms, because there is no relationship of contingency represented."

But there is. The right to keep and bear arms was used, in the language of the time, to refer to a military/militia context. Besides, if no relationship between the two clauses were implied, they wouldn't have been in the same sentence. And the amendment was written with the intention of being inserted in the Constitution in the section that dealt with militias.

Re: 2nd Amendment ---- and other superfluous provisions
 

Note that when Thomas Jefferson wanted to insure an individual right to possess personal weapons in Virgina (a proposal that was rejected), he wrote the proposed law as:

"No free man shall be debarred the use of arms."

The "right to bear arms" was known to refer to militia activity.

Re: 2nd Amendment ---- and other superfluous provisions
 

A more complete version of that Jefferson quote: "No free man shall ever be debarred the use of arms. The strongest reason for the people to retain their right to keep and bear arms is as a last resort to protect themselves against tyranny in government."

Re: 2nd Amendment ---- and other superfluous provisions
 

[ QUOTE ]
"such a deletion does not change the meaning of the phrase about the right of the people to keep and bear arms, because there is no relationship of contingency represented."

But there is. The right to keep and bear arms was used, in the language of the time, to refer to a military/militia context. Besides, if no relationship between the two clauses were implied, they wouldn't have been in the same sentence. And the amendment was written with the intention of being inserted in the Constitution in the section that dealt with militias.

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context /= contingency

and

relationship /= contingency