The United States Constitution-a General discussion

I've noted that many topics we discuss here in the Senate often evoke with them debates about the interpretaion and application of the US Constitution. Consequently, I would like to provide an basis for general discussion (ie not relating to any one specific topic) regarding our supreme document.

I would also like to note that this topic is extrememly importnat to our Country for everyone. This is the ultimate power in our land, and it is of the utmost need that we interpret and apply it wisely.

To that end, I would like to open up discussion:

I believe the Const. is meant to check government's relatiohsip with the citizens. I also believe that the Const. encourages a limited central government with more emphasis on the States of the Union.

With that, I welcome all to this discussion of the US Constitution.

 

Oh goody, well this bein' the Senate, I look forward to some endless discussion on this one. I'd like to start a little discussion on a little topic called "Gun Control." Everyone thinks the Bill of Rights protects their right to own a gun, but if these people would read it for once, it specifically says, "In order to maintain a well armed militia." I don't think the Redcoats will be attacking anytime soon, and therefore, I don't believe we have any militias going at the moment. The closest things would be the National Guard or the Reserves, so if you want to use a gun, join one of those. (By the way, the NRA isn't a militia=)

 

Why discuss the Constitution? It is, after all, a living document that can be interpreted to mean anything.

 

Everyone thinks the Bill of Rights protects their right to own a gun, but if these people would read it for once, it specifically says, "In order to maintain a well armed militia." I don't think the Redcoats will be attacking anytime soon, and therefore, I don't believe we have any militias going at the moment.

Welcome to The Senate....

Sorry, all the amendments in the Bill of Rights cover individual rights. The right to keep and bear arms is one of those rights.

 

Actually the text of Amendment II is as follows:

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.

MindTrick's quote is not verbatim. Truth is, the amendment is entirely grammatical, so its not clear the relationship between the noun phrase, "A well regulated Militia, being necessary to the security of a free State," and the actual clause.

 

Hey, I got a question....

When did it become unConstitutional to offend or be offended?

 

Hey, I got a question....

When did it become unConstitutional to offend or be offended?

As it turns out, it never did. I find that people only use (interpret) the Constitution to further their own personal goals, and has become less for the common good, just as this particular ammendment has proven. Back in the day (when it was drafted), I'm sure everyone knew what it meant, and lived by it. Now, well, as you see, people use it to back up their own personal opinion.

And thank you for the correction of the quote, I was racking my brain to think of it, and was too lazy to look it up. I'll have to ask my wife, the English teacher, what she thinks about the structure/meaning of that sentence. Personally, I read it as one big phrase, suggesting that the right to bear arms is for the specific purpose of having a well regulated militia...but then again, that's just me.

 

Back in the day (when it was drafted), I'm sure everyone knew what it meant, and lived by it. Now, well, as you see, people use it to back up their own personal opinion.

Your example is not correct, so demonstrait your point in another way...

Try this, "life, liberty and the pursuit of happiness" is a quote from the framers of the Consitution. Knowing this, Abortion is unConstitutional under the First 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.

English teacher or no...pretty simple...

 

Constitutional debates can be best summed up by Master Kenobi...."from a certain point of view..."

So, let's take this sentence, tear it apart, and put it back together.
Original:
"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."
Rearranged to make sense:
"the right of the people to keep and bear Arms...shall not be infringed...[due to]A well regulated Militia...being necessary to the security of a free State"

Now, anyone who believes "Hey I can own a gun because the Bill of Rights says so," is only reading the "the right of the people to keep and bear Arms, shall not be infringed." But I would ask that same person, exactly of what "well regulated Militia" are you a member?

By the way, please don't take anything I say as argumentative - I just love to debate.

 

"the right of the people to keep and bear Arms...shall not be infringed...[due to]A well regulated Militia...being necessary to the security of a free State"

Love debate too!

Try this:

A well regulated malitia, which is necessary to the security of a free state, and the right of the people to keep and bear arms shall not be infringed.

Now, because all the other amendment in the bill of rights are individual rights, so the 2nd amandment is, as well, an individual right, IMO.

 

Here's my problem with saying it's for the "individual," instead of the country as a whole. By that mentality, that is saying thugs, murderers, and terrorists are all allowed to have guns...and I certainly do not think they care about the security of the free country.

 

By that mentality, that is saying thugs, murderers, and terrorists are all allowed to have guns...and I certainly do not think they care about the security of the free country.

You forefit your rights when you commit a crime. Fellons can't even vote in many cases. So they can niether carry guns.

Here in Phoenix, AZ we can (and do) strap on a holster and carry anywhere. Our crime is lower than all other major metropolitan areas.

 

Okay, think about this though. Let's say for argument's sake, that the literal meaning of the amendment is that one should only have a gun if he/she was a member of a national militia. If that were how it was interpreted and enforced, wouldn't we be a much better country if no one had guns accept the military? Mind you, I accept the fact that it's too late to take it literally since we'll never be able to get guns out of everyone's hands now...

 

If that were how it was interpreted and enforced, wouldn't we be a much better country if no one had guns accept the military? Mind you, I accept the fact that it's too late to take it literally since we'll never be able to get guns out of everyone's hands now...

There has always been the black market. It was too late from day one.

Look at the other part of the amandment:A well regulated Militia, being necessary to the security of a free State

Why is it necessary when we have a Federal Army? Because in a free state the government can become oppressive, and a well armed populus can protect itself from that Federal Army.

Sound kinda paranoid, but that is why that amandment is there and worded as such.

 

I don't see how one can interpret Amendment II to mean, the right to keep and bear only applies if you're in a militia.

But to answer your hypothetical, no, it's not a good idea for the citizenry to be unarmed even if you could guarantee that common criminals would also be unarmed.

Arms keep us safe from both criminals and a tyrannical government.

 

The Second Amendment is so grammatically confusing it's infuriatiating.

 

So then here's the question: Did the writers intentionally make it vague, or was it an error in their writing? After all, most of the Constitution seems pretty cut and dry.

 

Okay, think about this though. Let's say for argument's sake, that the literal meaning of the amendment is that one should only have a gun if he/she was a member of a national militia. If that were how it was interpreted and enforced, wouldn't we be a much better country if no one had guns accept the military? Mind you, I accept the fact that it's too late to take it literally since we'll never be able to get guns out of everyone's hands now...

US Code 10 311:

§ 311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are?
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

I am a memebr of the unorganized militia. I am an able-bodied male between the ages of 17 and 45, and am a citizen of the United States.

Strictly speaking, the military is not part of the militia.

Additionally, every other time that the Constitution says "the right of the people", it refers to a right on an individual basis.

Kimball Kinnison

 

So then here's the question: Did the writers intentionally make it vague, or was it an error in their writing?

I believe the wording is only confusing if you refuse to believe it addresses arming the citizens against the government.

Other than that it is pretty clear, IMO.

 

The wording is confusing because the English that is spoken in modern day America is not the exact same language spoken by the founding fathers.
The wording of the second amendment is a perfect example of this peculiarity.

The Second Amendment states two things.

1) A Well-regulated militia is required for the security of the free state
2) The right to bear arms shall not be infringed

The Second Amendment recognizes that a free state is only secure when a militia, as defined above, is armed.
In order to ensure this security the amendment states that the right to bear arms shall not be infringed. That means literally, the government cannot interfere with my right to bear arms.

One can make the assumption that you may only bear arms in the militia, which then sets the legal precedence for age limits on weapons in certain states.

Also, have you ever read the First Amendment?
It states that the CONGRESS shall make no LAW respecting an establishment of Religion.

The First Amendment says nothing of a separation of church and state.
The First Amendment does not prohibit the states from respecting an establishment of Religion.
It merely says that the Congress cannot pass a law doing so.

Same goes for the 15th Amendment.
It does not give blacks the right to vote; it merely states that the right to vote cannot be abridged based upon certain criteria.
That is why poll taxes and literacy tests were constitutionally legal.

Over the years the ?interpretation? of the framer?s ?intent? have obscured the actual amendments themselves.

The problem is that, while a magnificent document, the amendments themselves should have been more specific.

 

But Kimball, that's the 18th century definition talking, although you used twenty-first century words .

Seriously, how long has it been since we had a militia, unless the national guard qualifies.

It's been awhile since we've had this kind of discussion, and I'm glad to see it return.

Interpretation falls into several different schools of thought:

1) Modern Originalism-the 'strict constructionist' theory, looking at the original intent of the words to define all laws

2) Literal Originalism-looking at the words as they what they would have meant in the 18th century, ie the "right to bear arms" would mean only the right to bear the types of arms that existed at the time the Constitution was written, ie muskets

3) Modern Interpretation-basically, this is the "living document" theory, which says that the meaning of the constitution should be looked at through the prism of the changing of the times.

There's a lot more to this subject, but that is a brief overview.

More on my lunch break .

Peace,

V-03

 

But Kimball, that's the 18th century definition talking, although you used twenty-first century words wink .

Seriously, how long has it been since we had a militia, unless the national guard qualifies.

The militia has always been defined by Congress. That's under the "well regulated" part there.

We have always had a militia. As I posted above, the National Guard is the organized militia, and all able-bodied men between 17 and 45 constitute the unorganized militia.

The name used to identify them has changed, but the meaning behind it has not.

2) Literal Originalism-looking at the words as they what they would have meant in the 18th century, ie the "right to bear arms" would mean only the right to bear the types of arms that existed at the time the Constitution was written, ie muskets

That isn't quite true, as it used "arms", which simply has the definition of being weapons, rather than "muskets" (a specific type of weapon), or even the more general "guns".

In fact, it should be noted that there even existed rifles at that time (muskets are smoothbore, rifles added rifling).

Kimball Kinnison

 

I should add a few extra comments to Vaderize's description of the originalist philosophy. An originalist seeks to interpret the constitution so as to give it the understanding which a reasonable person would have gathered at the time it was adopted (or with respect to amendments, at the time the amendment in question was adopted).

The starting point for an originalist is always the text of the provision in question. In his (disappointingly short) book A Matter of Interpretation, Justice Scalia remarks that: "Words do have a limited range of meaning, and no intepretation which goes beyond that range is permissible". The rationale for this is that no reasonable person would have understood the constitution to have a meaning that goes against what its words fairly say.

The text, while the starting point, is not the ending point, however, because most of the constitution's provisions (particularly the Bill of Rights) are phrased very broadly. Originalism is not literalism or 'strict construction', of the sort that would, for instance, read the Double Jeopardy Clause as applying only to capital or amputation sentences (the precise wording being "jeopardy of life or limb", which, literally construed, would not apply to prison sentences).

Where the text is ambiguous, the originalist looks to contemporary historical materials to clarify its meaning. The shorthand for this is looking for 'original intent', and in some opinions Scalia and Thomas (the two originalists on the present Supreme Court) have phrased things in terms of "the Framers' intent". However, in A Matter of Interpretation Scalia repudiates 'legislative intent' in statutory interpretation, and he claims that he doesn't look for that in constitutional interpretation either. Rather, he looks simply for what a reasonable person would understand the words of the constitution to mean, taken in their historical context. Since, however, the Framers were (presumably) reasonable people, their writings and speeches can be consulted, not as evidence of what they intended, but as evidence of what any reasonable person would have been likely to understand the words to mean at that point in history.

This distinction is uninmportant in most cases. It is necessary to avoid accusing Justice Scalia of being inconsistent, since he has waged a campaign against the use of materials (e.g., committee reports and floor debates) showing 'legislative intent' for many years now as far as statutory interpretation is concerned. It may be important in explaining Scalia's vote in the flag burning case, Texas v. Johnson (1989); irrespective of whether the Framers intended the First Amendment to protect flag-burners, they enacted, and were understood to be enacting, a prohibition on government regulating the expression of ideas, and flag burning falls within that principle.

Contrary to popular belief, Justice Scalia and Justice Thomas do not have precisely the same philosophy and do not always agree. Justice Scalia places a lot of weight on tradition; where a particular provision is unclear, he says, it is very unlikely that it will prohibit a given practice if that practice has a long historical tradition supporting it. Justice Thomas, on the other hand, places more weight on the writings of the Framers. This difference came to light over anonymous political leafleting, in McIntyre v. Ohio Board of Elections (1995); Scalia held that anonymous leafleting is not protected by the First Amendment on account of the long history of laws banning it, while Thomas relied on the Federalist Papers which, of course, were written anonymously.

Of course, Scalia and Thomas are only important because they are two sitting Supreme Court justices. One must look to others (Robert Bork, for example) to gain a full view of the philosophy.

 

J-Rod,

"Here in Phoenix, AZ we can (and do) strap on a holster and carry anywhere. Our crime is lower than all other major metropolitan areas."

Let's compare Phoenix and San Diego, which both have populations of roughly 1.3 million. Taking our data from the 2001 FBI crime report averages for US cities, we see the following:

* Phoenix had more violent crimes (760 to 566 per 100,000)
* Phoenix had twice as many property crimes
* Phoenix had twice as many murders
* Phoenix had more forcible rapes
* In fact, Phoenix had higher crime rates in every category

To your credit, San Diego also allows its residents to "strap on a holster and carry anywhere." It appears, however, that Phoenix is not exactly a crime-free urban utopia.

 

Here in Phoenix, AZ we can (and do) strap on a holster and carry anywhere. Our crime is lower than all other major metropolitan areas.

LOL! You realize that Phoenix is the 10th most dangerous city in america for cities with more than 500,000 people right?

There goes your theory right out the window.

I'm all for the right to bear arms, but I think trying to defend that right by claiming to know what the writers of the 2nd amendment meant is pretty ridiculous. I think it's fair to say they had no clue what the future of weapons would be like, or even what the future for the military would be like. But would they have still held the same opinion of the 2nd amendment had they known what weapons would one day be like? Unfortunately nobody can really answer that.