Heller Struck Down

[Abbey Marie]

Hey Kath,
It's weird how your post, quoting mine, ended up posted before mine.

[LOki]

The fundamental principle of construction adopted in D. C. v. Heller was cherry picked by the five activists from United States v. Sprague, 282 U. S. 716, 731 (1931).

In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931)

--D. C. v. Heller

Which is exacly the same as Blackstone--your own little legal resource. Argument done.

Since the five activists believe that it is the controlling authority on the principles of Constitutional interpretation, let's take a closer look at the case of UNITED STATES V. SPRAGUE. Here's the paragraph from U. S. v. Sprague opinion from which the activists claim to have obtained the principle.

The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical, meaning; where the intention is clear, there is no room for construction and no excuse for interpolation or addition. Martin v. Hunter's Lessee, 1 Wheat. 30; Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419; Craig v. Missouri, 4 Pet. 410; Tennessee v. Whitworth, 117 U. S. 13; Lake County v. Rollins, 130 U. S. 662; Hodges v. United States, 203 U. S. 1; Edwards v. Cuba R. Co., 268 U. S. 628; The Pocket Veto Case, 279 U. S. 655; Story on the Constitution (5th ed.) § 451; Cooley's Constitutional Limitations (2d ed.) pp. 61, 70.

Again, consistent with your Blackstone--I will never get tired of this.

The Sprague Court was apparently articulating a rule of interpretation it derived from eight previous Supreme Court opinions, a section from Joseph Story's Commentaries and two page from Thomas Cooley's Constitutional Limitations. None of the sources citied in Sprague actually contain a sentence which reads, "The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary, as distinguished from technical, meaning; where the intention is clear, there is no room for construction and no excuse for interpolation or addition."

Which, of course is in complete agreement with your Blackstone, despite your as-of-yet to be revealed disagreement with their interpretation.

The rule espoused in Sprague doesn't exclude the application of other rules when the meaning of a word, term, phrase, clause or other element of language is still dubious after applying the meanings that are normally and ordinarily given to the words. This is just common sense, because many words have more that one normal and ordinary meaning. The word "right", for instance, is commonly used to signify over more than a half dozen intellectual ideas.

Is this your (activist) way of asserting that the term "right"--according to you and your Blackstone--in the US Constitution could validly describe some relationship to "left"?

The five activists, judging from their snub of the second element of the principle advocated by the Sprague Court, seem to hold the view that words which have more than one meaning don't need further interpretation, which is of course, absurd.

Absurd is the activist notion that "people" ould somehow not be construed as plural for "person", or "individual citizen."

The activists, unless they are as dumb as rocks, know that the Second Amendment contains words that are going to still be dubious after applying the normal and ordinary meanings. For example, the normal and ordinary meaning of the word "people" is "persons collectively or in general." Applying that meaning to the word "people" makes the Second Amendment mean "the right of persons collectively or in general to keep and bear arms shall not be infringed", which just don't sound right.

"Sounding right" is not the exact point--but the equvilancy of the terms is.

The activists don't want to be bound by any objective rules or principles when they ascertain the meaning of dubious words in the Second Amendment.

Speak for yourself...activist.

They want to be able to give free rein to their personal views and put meanings on the words that will produce the outcome their little activist hearts desire.

Again, speak for yourself.

You are obviously opposed to his interpretation, yet you have not revealed the exact problems you find with it.

You say he misuses "Right of the People" yet you do not offer a "proper" use; you similarly treat "milita" and "arms". Exactly and precisely how, in your opinion, is Scalia divergent from the "proper" contruction of the Amendment?

Quit being a pussy--submit a "proper" interpretation of the 2nd Amendment.

[Jagger]

Let's take a close look at the Court's interpretation of the the first clause of the Second Amendment. The words of the five judicial activists are in blue. My commentary is in red.



The Second Amendment provides: “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.” In interpreting this text, we are guided by the principle that

Commentary: The activists apparently recognize that rules of construction are necessary. I wonder if they will apply the rules that actually existed at the time the Constitution was being made?

“[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).

Commentary: That's probably not a bad rule. However, it wasn't one of the well established rules of construction at the time the Constitution was made. Is the Sprague Court going to be the supreme authority on which rules of construction apply to the U. S. Constitution. If so, why?

Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

Commentary: Where does that rule come from? Did the Sprague Court endorse that rule or did the five activist just make it up?

...The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, “Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief).

Commentary: Why did the five activists cite Tiffany as the authority for their "rephrasing" of the Amendment, and then rephrase it differently than Tiffany did? Why is the Sprague Court no longer the supreme authority on which rules of construction apply to the U. S. Constitution? If Tiffany is now the supreme authority on which rules of construction apply to the Constitution, should we apply Tiffany's other rules, such as the one that says, "the meaning of the constitution... must be ascertained by the application of such rules of interpretation...at the time the constitution was framed and adopted.

Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. See generally Volokh, The Commonplace
Second Amendment, 73 N. Y. U. L. Rev. 793, 814–821 (1998).

Commentary: At time the Constitution was made, there were well established common law rules of construction. Under those rules, other legal documents cannot be consider, unless the rules allow them to be considered.

Logic demands that there be a link between the stated purpose and the command.

Commentary: According to the well established rules existent at the time the Constitution was made, when the reason for a law terminates,so does the law. Is "a well regulated militia" still necessary for the security of the free state?

The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of
the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause

Commentary: Under the rules of construction existent at the time the Constitution was made, if the cause that moved the legislator ceases to exist, so does the law. Now that we rely on a standing army, is "a well regulated militia" still necessary for the security of the free state?

(“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.)

Commentary: The word "canons" doesn't mean "clergymen."

But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. See F. Dwarris,
A General Treatise on Statutes 268–269 (P. Potter ed. 1871) (hereinafter Dwarris); T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 42–45 (2d ed. 1874).3 “

Commentary: Why is Tiffany no longer the authority on rules of construction?

‘It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’ ” J. Bishop, Commentaries on Written Laws and Their Interpretation §51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165 (K. B. 1802)).

Commentary: Why are Dwarris and Sedgwick no longer the supreme authorities on the rules of construction.

Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.

Commentary: If you're not going to apply the well established common law rules of construction, you're just wasting your time.

[AllieBaba]

What should bother people is there were 4 Judges who ruled law abiding people do NOT have the right to defend themselves

It bothers me.

[Jagger]

Originally Posted by Jagger View Post
The fundamental principle of construction adopted in D. C. v. Heller was cherry picked by the five activists from United States v. Sprague, 282 U. S. 716, 731 (1931).

In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931)

--D. C. v. Heller

loki
Which is exacly the same as Blackstone

Show us where Blackstone said legal instruments are written to be understood by the voters or that their words were used in their normal and ordinary as distinguished from technical meaning?

[Little-Acorn]

So, do you think the Framers intended that we use a "forgive and forget" policy as I speculated in Post #96, when cops are responding to criminals in the act? Could the reason they made ABSOLUTELY NO EXCEPTIONS to the 2nd amendment's ban on govt taking away your right to own and carry a gun, was that they were relying on an early form of Jury Nullification for the extreme case that I decribed?

[Little-Acorn]

I have moved this subject ("reasonable restrictions"/jury nullification) to a thread all its own, since it is of fundamental importance.

[LOki]

Show us where Blackstone said legal instruments are written to be understood by the voters or that their words were used in their normal and ordinary as distinguished from technical meaning?

I have already, specificly, done this for you. See above.

[Jagger]

Is "a well regulated militia" still necessary, in 2008, for the security of the free state?

The fact that we don't have a militia any more is all the proof one needs that a militia isn't necessary.

[Rick OShea]

Jagger, there were not 5 "activist" Justices there were nine . . . The dissents agree with the majority that the right protected by the 2nd is an individual right. On that single point the opinion of the Court was unanimous; Breyer's dissent at pg 3 says:

"I take as a starting point the following four propositions, based on our precedent and today’s opinions, to which I believe the entire Court subscribes:

(1) The Amendment protects an “individual” right—i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred. See, e.g., ante, at 22 (opinion of the Court); ante, at 1 (STEVENS, J., dissenting). . . . "

The disagreement between the majority and the dissents lies in the scope of the protection of that right. The liberal side of the Court just thought the DC statute was a legitimate exercise of power using a new standard of scrutiny . . .

It was the dissent that is breaking new ground in constitutional interpretation, not the majority!

Instead of pushing this strained "Scalia is an activist violating the rules of interpretation," why don't you tell all of us why the individual right secured by the 2nd is of such a diminished status that it requires the application of this special lower standard of scrutiny proposed by the liberal Justices.

Explain why the individual right to arms is of a lower class than the rest of the rights protected by the Bill of Rights (remaining consistent with your iron-clad rules of constitutional interpretation of course).

[LOki]

The fact that we don't have a militia any more is all the proof one needs that a militia isn't necessary.

The fact that we don't have a miitia or a free state is all the proof that you're wrong.

[Jagger]

The States neglect their Militia.

--James Madison during the general convention of 1787 that drew up the U. S. Constitution

[LOki]

The States neglect their Militia.

--James Madison during the general convention of 1787 that drew up the U. S. Constitution

Yes...and...?

[Rick OShea]

Yes...and...?

Jagger is just confirming how illogical the theory is that the founders intended the RKBA of the people to be conditional on any organization or structure maintained by the states.

See, the "militia right" theory demands one accept that even in the face of such state inaction and neglect of the militia, the framers intended the federally secured RKBA be entirely dependent upon such rickety support in the states, . . . and that such state inaction and neglect would effectively negate the federal protection of the RKBA of the people!

I agree, such a theory is nonsense, knowing that the founders knew state militia structure could so easily be compromised.

Thanks Jagger!