2nd Amendment ---- and other superfluous provisions

[betgo]

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The militia was an important institution at the time the Constitution was drafted; it is not today.

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If the 2nd Ammendment says you have a right to be in the militia and keep a military weapon for militia use in your home, it is not clear that you no longer have the right to be armed because the government converted the militia in which most able bodied men served into the National Guard and Reserves, which are tied more closely to the regular militaty.

[John Kilduff]

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[ QUOTE ]
The militia was an important institution at the time the Constitution was drafted; it is not today.

[/ QUOTE ]
If the 2nd Ammendment says you have a right to be in the militia and keep a military weapon for militia use in your home, it is not clear that you no longer have the right to be armed because the government converted the militia in which most able bodied men served into the National Guard and Reserves, which are tied more closely to the regular militaty.

[/ QUOTE ]

I think this gets at the heart of the disagreement for which Andy is arguing the other side.

My view is that is can be expressed thus, logically speaking:

"A, therefore B"...does not imply that "if not A, therefore not B" (to claim that it does is a well-known logical fallacy, for which I forget the name).

Andy seems to be arguing that "A, therefore B" (militia clause, therefore right to bear clause) implies that "if not militia clause, therefore not right to bear clause"...which does not follow logically. It might suggest that to some, or to some extent (depending upon your reading of the times and context and intent), but it doesn't imply that or necessitate it.

edited: Thus, I disagree with Andy as to what he referred to as the "plain meaning" of the English as it is written in the 2nd Amendment. To me, "plain meaning" does not include drawing an unsupported logic conclusion or employing a logical fallacy in the interpretation. As Betgo noted above, what Andy is claiming is not clearly indicated.

[andyfox]

OK, we've beat this one to death. So I'll sum up my position and you can have the last word.

It is clear that the 2nd amendment was meant only to limit the government from infringing on weaponry insofar as it pertained to the militia. All discussion and debate at the time was carried on within that context: the militia, standing armies, and conscientious objectors' rights. Madison intended that what became the 2nd amendment would be inserted into the Constitution directly after discussion therein about militias. There was no anti-federalist groundswell for an individual's right to have weapons outside of military activity. In fact, colonial governments frequently passed legislation that infringed on personal arms ownership and usage. Bearing arms was understood at the time to refer to military activity; and the construction of a subordinate clause as a preamble to the main clause was understood to contain the meaning of a sentence. When Thomas Jefferson proposed a personal right to have weapons, he used completely different language--and that proposal was voted down by his fellow Virginia lawmakers.

Grammar and language usage was different then than now. Madison's original proposed amendment, with its semicolons, and the actual amendment, with its--to us--stilted language, is what has made for the debate over the years.

While I have an opinion on the subject, I am not commenting on the wisdom of people being able to own personal weapons or not. I am saying that interpreting the 2nd amendment as guaranteeing people the right to personal arms is dead wrong. A study of the historical record bears the militia interpretation out. I am interested to see, if the case reaches the Supreme Court, what it's most famous originalist--Justice Scalia--will have to say. Justice Thomas has already indicated, in a previous case, that he believes in the individual right interpretation.

You're a good man, Mr. Kilduff. Enjoyed the discussion.

[John Kilduff]

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I am saying that interpreting the 2nd amendment as guaranteeing people the right to personal arms is dead wrong. A study of the historical record bears the militia interpretation out.

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Perhaps so. Yet even if it does not guarantee individual right to bear, it also does not state that in the absence of militia needs, there would be no right to bear.

"Since A, therefore B" does not also mean "if not A, then not B" - either in Logic, or in plain English. This is perhaps the most pivotal point of our disagreement, and I don't recall you really addressing it.

It also relates to another point: that rights enumerated are not an exhaustive list of People's rights, and that rights not enumerated or guaranteed, as long as they are not prohibited, are permitted. So the fact that the militia clause may be the principal (or perhaps only, as you claim) reason for the guarantee of the People's right to bear, does not mean that in the absence of militia concerns, the People would have no right to bear. In any case, there is nothing in the 2nd Amendment that indicates that in the absence of militia needs, the People's right to bear would be truncated.

Since I don't recall you covering those two points much (if at all?) in the discussion, I won't mind if you briefly address them now (or summarize your responses to those specific points, as I may have missed or forgotten). I do believe I'm done at this stage, in either event.

It was indeed a pleasure, and thanks for the invigorating and informative discussion, Mr. Fox. Cheers, and best wishes.

[andyfox]

. . . has a thread of originalism.

[Zeno]

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I'm kind of surprised that nobody has yet taken me to task for arguing an original intent case here, when I have made it clear, in previous threads, that I don't believe there is any such thing as original intent, or that, if there is, it is almost impossible to determine.

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I hinted at this above in a previous post with my reference to a 'living document thread'. So I aimed the deadly arrow but did not shoot the caustic missile that I could have and thus cruelly impale you on the tree of hypocrisy. You are welcome, by the way. I decided to practice some Confucian restraint so as not to dissolve the bubble of civility that so surrounds the post in this thread.

I may be smirking right now, then again; I may not be.

-Zeno

[betgo]

I am a little confused as to why the 2nd Ammendment is in the Bill of Rights. What right was the 2nd Ammendment intended to ensure? Or is it just obsolete now that the government has decided is does not need a militia as existed when the ammendment was ratified?

[andyfox]

Antifederalists claimed the Constitution was dangerous without a Bill of Rights. Two of the dangers they foresaw were a standing army in peacetime and federal control of the militia. The Second Amendment was designed to address those two issues, especially the militia. In fact, ardent Antifederalists were bitterly disappointed by the amendment. "Centinel" (Samuel Bryan) said that the amendment did not restrain "the absolute command vested by other sections [of the Constitution] in Congress over the militia."

[AlexM]

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I am a little confused as to why the 2nd Ammendment is in the Bill of Rights. What right was the 2nd Ammendment intended to ensure? Or is it just obsolete now that the government has decided is does not need a militia as existed when the ammendment was ratified?

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Who doesn't need a militia? We still have a militia, it just isn't used. Ever adult male is the militia. Someday, that militia may well be needed.

[AlexM]

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The militia was an important institution at the time the Constitution was drafted; it is not today.

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It's more important today than it was then. They were done with their war against tyranny, but we have yet to begin.