2nd Amendment ---- and other superfluous provisions

[elwoodblues]

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.

[ QUOTE ]
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

[ QUOTE ]
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.


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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

[adios]

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.

[wacki]

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?

[elwoodblues]

[ 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.

[andyfox]

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.

[Zeno]

[ QUOTE ]
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.

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This brings back to mind a long ago thread about the constitution being a 'living document'.

But this would be interesting to explore further - Why the reinterpretation? [or was it a reinterpretation? I assume that would be your contention? (added in edit)] Has a backdrop the history of state and citizen militia and how they evolved throughout US history is interesting and may have some bearing on the subject Militias, [scroll down to read entries by sources], or not.

-Zeno

[andyfox]

According to historian Saul Cornell:

A profound change in the nature of American gun culture occurred in the early decades of the new [19th] century. Americans began sporting weapons designed primarily for personal self-defense. The expanding economy of the new century made a staggering array of these personal weapons readily available to consumers. In addition to pistols, there was a gruesome assortment of edged weapons, which were more reliable and hence more deadly than handguns. Sword canes, small daggers such as the dirk, or the fearsome knife that came to define the rough-and-tumble world of frontier life, the bowie knife rounded out the options available to those who wished to arm themselves with a dependable edged weapon. While many citizens outfitted themselves with these weapons, others recoiled at their countrymen's penchant for traveling armed and demanded that their legislatures take strong measures to regulate, and in some cases prohibit, this practice. The enactment of these early gun control statutes prompted a backlash that produced the first systematic defense of an individual right to bear arms in self-defense.

Kentucky passed the first law designed to curb the practice of carrying concealed weapons in 1813. Violation of the statues was punishable by a hefty fine of one hundred dollars. That same year, Louisiana passed an even more comprehensive act banning concealed weapons. Indiana adopted a ban on concelaed weapons in 1820. Said New York's Governor De Witt Clinton: "Our present criminal code does not sufficiently provide against the consequences which may result from carrying secret arms and weapons." In the ensuing decades, Georgia, Virginia, Alabama, and Ohio enacted laws against concealed weapons.

[andyfox]

Aymette v. State (1840), involved the constitutionality of a Tennessee law against bowie knives. The court said that the only weapons entitled to constitutional protection were those connected with the militia. Bearing arms, the court concluded, referred to an activity that was exclusively military in nature:

"A man in the pursuit of deer, elk, and buffaloes, might carry his rifle every day, for for forty years, and yet, it would never be said of him, that he borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk, or pistol concealed under his clothes, or a spear in a cane."

Although the court acknowledged that militia weapons were constitutionally protected, it accepted that the state could still regulate the manner in which these weapons might be kept or borne. Weapons that had little connection to military prepareedness were not given any constitutional protection. In the view of the Aymette court, the legislature enjoyed the widest possible latitude to regulate pistols or other weapons that had negligible value in promoting the maintenance of a well-regulated militia.
http://www.cs.cmu.edu/afs/cs.cmu.edu...te_v_state.txt

Two years later, in State v. Buzzard, the Arkansas Supreme Court held that the purpose of bearing arms was not to "enable each member of the community to protect and defend by individual force his private rights against every illegal invasion." Protection of this estimable right was intended to "enable the militia to discharge" their important public trust." http://www.guncite.com/court/state/4ar18.html

[AlexM]

You know, even if only apply the 2nd amendment specifically to "militia" it changes nothing.

militia:

3. all able-bodied males considered by law eligible for military service.

So... you're saying just men can own guns? That doesn't seem fair. [img]/images/graemlins/grin.gif[/img]

[andyfox]

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