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I'm genuinely sorry to have to intrude on what you clearly thought was a death blow to my argument, but Jefferson's views and mine are in unison.
Of course Jefferson and the rest of the founders recognized that the Constitution would not be a one size fits all solution to every problem for all time. They knew full well that as the times changed, so to would the Constitution have to adapt in order to better address the issues and problems of the modern era.... which is why they included Article V of the Constitution in order to allow for changes and amendments to be made.
They didn't set the government they formed in stone, but they also didn't say "here's a list of suggestions, interpret them in the way you feel is best suited to your era". They spelled out the legal framework you have to work within if you want to change the Constitution.
You need not be sorry or cute or anything else. "Intrude" away, but the Jefferson quote I added speaks for itself I think.
Just do me the favor of avoiding the straw man argument like this attempt again here, because no one is arguing, certainly not me, that our founding fathers said, "here's a list of suggestions, interpret them in the way you feel is best suited to your era."
No, that's ridiculous, and even suggesting such an "argument" demonstrates how far a field you must go from what is actually written and what Jefferson plainly explained as he did, because apparently you think this strengthens your argument some how.
Again, I leave it to you and Jefferson to work out that "gray area" he addressed very well. I am comfortable with all that Jefferson said about all this, and I don't think it hard to understand at all, either in the context of his day or the day he knew Americans in the future would be looking for answers and guidance not so plainly written in the Constitution.
I appreciate the arguments having to do with the context. In fact I have often made the point that the context in which the Constitution was written is part of the challenge when it comes to the context in which we address the changes and problems of today that were not part of the context in the late 1700s. I think that is what Jefferson was right to explain...
As I have said many times before, if you don't think the Second Amendment as a means to form militas and / or protect against tyranny makes a lot of sense in the "context" of today, there are options at your disposal. Article V of the Constitution explains how you would go about updating the Second Amendment to better fit the contrext of the 21st century. That is what you must do. What you can not do, is just "interpret" the Second Amendment to mean something other than it did when it was ratified, and that seems to be what you are advocating for, do correct me if I'm wrong.
As a judge, you are not to consider the context in which it was written as compared to today and then decide to change or "interpret" it different, essentially re-witing the law from the bench. As a judge, you are to consider a statute in the context it was written, period.
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I am asked to consider what the 2A says literally, and I have done that.
Yes, you choose to read and interpret the scope of the amendment in the narrowest terms possible and then claim that as long as you can still keep and bear a single shot .22 rifle, your 2A rights remain intact. This is a wholly disengenuous argument. Trust me, you're not the first to come up with it.
It doesn't pass the logic test. Suppose we apply the same standards to other amendments as well. Freedom of speech could be interpreted to only apply to people standing on soap boxes. Internet speech is not protected and you can be prosecuted for the things you say on the internet. Right to assembly could be limited to the hours of 3-5am and only in the middle of the nearest corn field, but you still have your rights. Sorry, no one being intellectually honest would make such a ridiculous argument.
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but I think all considerations are worthy, not off limits in any case. First problem, I think, when we consider context is what "well-regulated militia" means.
"Well regulated." Reads a good deal contrary to what most pro-gun folks want to argue.
We could go down this road if the Second Amendment said that you only have the right to keep and bear arms when in a militia, but it doesn't. As stated in Heller, and as a basic understanding of the English language would indicate, the prefatory clause, """A well-regulated militia being necessary to the security of a free state""" does not limit, nor expand the right enshrined in the operative clause, """the right of the people to keep and bear arms shall not be infringed."""
Put another way; A well-balanced breakfast being necessary to a nutritional diet, the right of the people to keep and eat food shall not be infringed. So who has the right to keep and eat food? The breakfast? Or the people?
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"Militia." Is a military force. I think that's a good deal what our National Guard is there for, certainly not what our group of every-day gun enthusiasts represents.
This is a moot point because again, the Second Amendment does not limit the right to keep and bear arms to those serving in a militia. And, the fact that we have a national guard now, doesn't change the fact that in the days of our founders, militia's were drawn up from the population and they were expected to provide many of their own supplies, hence the right of the people to keep and bear arms. It's true enough that militia's are no longer drawn from the population in the modern era, so again, you must change the Constiution to reflect this new reality, you don't get to just interpret in a new way.
Even so, Alexander Hamilton foresaw the National Guard, or as he called it, the Select Corps, and still thought it was to have to public armed. Please observe:
"""But though the scheme of disciplining the whole nation must be abandoned as mischievous or impracticable; yet it is a matter of the utmost importance that a well-digested plan should, as soon as possible, be adopted for the proper establishment of the militia. The attention of the government ought particularly to be directed to the formation of a select corps of moderate extent, upon such principles as will really fit them for service in case of need. By thus circumscribing the plan, it will be possible to have an excellent body of well-trained militia, ready to take the field whenever the defense of the State shall require it."""
"""The project of disciplining all the militia of the United States is as futile as it would be injurious. Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped""" Alexander Hamilton, Federalist 29
That last quote in particular is especially revealing, because not only does it liken "all the militia" to the people themselves,( so there goes the "gun rights only apply to the militia" argument } but it also suggests that the most reasonable aim concerning the people at large is to have them well-armed, WITHOUT the injurious project of training them all.
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2A makes plenty good sense in the context it was written back in the late 1700s. Agreed. However, these arguments by pro-gun enthusiasts in today's context just doesn't hold up as well as it did over 200 years ago,
Doesn't matter if they don't hold up today. The times have changed, yes, but the Second Amendment has not. Change it through Article V. if you like.
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. Not according to prevailing opinion and SCOTUS rulings anyway...
SCOTUS has ruled on my side. I noticed you didn't address the quotes from the bench that I gave you yesterday. I'll re-post the most relevant to your specific comment here...
"""Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad""" -Scalia
You need not be sorry or cute or anything else. "Intrude" away, but the Jefferson quote I added speaks for itself I think.
True enough, it does, but it does not conflict with my argument that the Constitution must be changed statutorily, not by interpretation.
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Just do me the favor of avoiding the straw man argument like this attempt again here, because no one is arguing, certainly not me, that our founding fathers said, "here's a list of suggestions, interpret them in the way you feel is best suited to your era."
Ah, but that is exactly what you've argued time and again. Your argument is basically that the Second Amendment made sense in the 1700's, but not so much in today's context, so it would be perfectly justifiable to interpret the 2A in todays context rather than the context it was adopted in. Is that not your argument?
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No, that's ridiculous, and even suggesting such an "argument" demonstrates how far a field you must go from what is actually written and what Jefferson plainly explained as he did, because apparently you think this strengthens your argument some how.
It doesn't strengthen my argument, but it doesn't detract from it either as you seemed to have thought it did when you posted it. Jefferson acknowleged the Constitution would have to change with the times, that's why a way to change it statutorily was provided in Article V.
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Again, I leave it to you and Jefferson to work out that "gray area" he addressed very well.
There's no gray area whatsoever. Jefferson's quote would have created a gray area if there were no legal avenue to change the Constitution by, but there is.... Article V.
Last edited by WhipperSnapper 88; 01-16-2016 at 06:48 PM..
As I have said many times before, if you don't think the Second Amendment as a means to form militas and / or protect against tyranny makes a lot of sense in the "context" of today, there are options at your disposal. Article V of the Constitution explains how you would go about updating the Second Amendment to better fit the contrext of the 21st century. That is what you must do. What you can not do, is just "interpret" the Second Amendment to mean something other than it did when it was ratified, and that seems to be what you are advocating for, do correct me if I'm wrong.
No, I'm perfectly okay with the 2A as is, as written, no worries there, not with me anyway...
As a judge, you are not to consider the context in which it was written as compared to today and then decide to change or "interpret" it different, essentially re-witing the law from the bench. As a judge, you are to consider a statute in the context it was written, period.
Best you take this up with the courts, not me. I don't at all agree that anyone who proposes gun-control legislation or any judge who deems that legislation constitutional is "essentially re-writing the law..." (and you are far outside what precedent and general acceptance about this understanding dictate).
Hard for me to seriously consider any of the rest when we can't agree about this fundamental premise.
No, I'm perfectly okay with the 2A as is, as written, no worries there, not with me anyway...
No, you just want judges to do what would essentially amount to re-writing the law from the bench through interpretation, a power they do not in theory have, instead of interpreting it in the way it was adopted by the people in 1791.
It was adopted as a provision to protect the right of citizens to keep and bear the type of arms necessary to form a militia and protect against tyranny. It should be interpreted that way today, and all gun laws should be judged in that context.
No, you just want judges to do what would essentially amount to re-writing the law from the bench through interpretation, a power they do not in theory have, instead of interpreting it in the way it was adopted by the people in 1791.
It was adopted as a provision to protect the right of citizens to keep and bear the type of arms necessary to form a militia and protect against tyranny. It should be interpreted that way today, and all gun laws should be judged in that context.
If only it were so easy to declare what is right or wrong in these regards, what is interpretation and what is not, but I have been a part of that debate in this thread, many others, and well beyond anything here in CD, and clearly, the final word, right or wrong, is not quite so simple, black or white.
I've done my best to point out why that is, and clearly it is the case, or we would not see this debate waged at every level of public discussion, from the debates for POTUS, the SCOTUS on down.
Forgive me if I also point out that precedent and prevailing wisdom is on my side when it comes to this issue, but I respect your right to hang on to your interpretations and beliefs as well, no matter how much I disagree with you.
Either way, no matter how you look at it, no doubt, you are far more frustrated with how things have proven out than I am. Unfortunately, I can't help you much with that either, no more than I can agree with you...
If only it were so easy to declare what is right or wrong in these regards, what is interpretation and what is not, but I have been a part of that debate in this thread, many others, and well beyond anything here in CD, and clearly, the final word, right or wrong, is not quite so simple, black or white.
It really is that easy if you are an honest person who is willing to accept outcomes that they may not like or personaly agree with in the pursuit of truth.
It only becomes complicated when you try to squeeze out of or invent against the Constitution that which best conforms to your own personal views.
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I've done my best to point out why that is, and clearly it is the case, or we would not see this debate waged at every level of public discussion, from the debates for POTUS, the SCOTUS on down.
We see these debates because of politics, nothing more.
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Forgive me if I also point out that precedent and prevailing wisdom is on my side when it comes to this issue, but I respect your right to hang on to your interpretations and beliefs as well, no matter how much I disagree with you.
It is? Do elaborate?
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Either way, no matter how you look at it, no doubt, you are far more frustrated with how things have proven out than I am. Unfortunately, I can't help you much with that either, no more than I can agree with you...
LOL, I can still go buy a handgun and carry it concealed ( in my right front poscket right now ) I can still go buy a semi-automatic AR15 or an AK47 with 30 round, 75 round, or even 100 round magazines. Hell, I can go buy a machne gun if I have the time, money, and am so inclined. The Supreme Court has twice in the last decade affirmed at the very least that individual citizens have a right to keep and bear arms, so.... no, I'm not at all frustrated with how things have proven out thus far, but you think that if it makes you feel better.
LOL, I can still go buy a handgun and carry it concealed ( in my right front poscket right now ) I can still go buy a semi-automatic AR15 or an AK47 with 30 round, 75 round, or even 100 round magazines. Hell, I can go buy a machne gun if I have the time, money, and am so inclined. The Supreme Court has twice in the last decade affirmed at the very least that individual citizens have a right to keep and bear arms, so.... no, I'm not at all frustrated with how things have proven out thus far, but you think that if it makes you feel better.
Great! Then we're all happy, because I have long been making the argument that our 2A amendment rights are still very much alive and well, despite all the gun violence and even though gun-control legislation has not only been considered but also made the law of the land, more than once. Despite all the misrepresentations of what Obama has promoted, past and present, along with many other more sensible gun-control measures, you seem plenty happy with the guns you have and can go buy, just as I am, just as I am sure the great majority of Americans feels.
So..., we're good so far and/or up until now, and maybe we need not continue the paranoid rhetoric that we have had to hear from the extremists ever since the first glimmers of gun-control legislation emerged.
A pleasure exchanging opinion with you. Now maybe onto what more we can do that makes sense rather than more nonsense, or maybe we should just watch the game...
Go Packers!
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Not wrong...
