Irrelevant and untrue.
Second Amendment
- Thread starter Jagger
- Start date
brett636
Well-Known Member
I say again..Prove it.
Catatonic
Nine Lives
See post 13
Quote:
Originally Posted by Jagger
That's a bogus quotation, dude, or at least it's been taken out of context and doctored up.
The guy is dissing himself ... nuff said.
Quote:
Originally Posted by Jagger
That's a bogus quotation, dude, or at least it's been taken out of context and doctored up.
The guy is dissing himself ... nuff said.
In 1789, the rules of legal interpretation dictated that words in a constitution were to be generally understood according to their usual and most known signification. The usual significations of the word "militia" were "standing force of a nation" and "train-bands."
A well regulated standing force being necessary for the security of a free state, the right of a free state to keep and bear arms shall not be infringed.
A well regulated standing force being necessary for the security of a free state, the right of a free state to keep and bear arms shall not be infringed.
wkmac
Well-Known Member
Brett,
Couple of items of further interest on the points you made.
Madison was known for many quotes from his years but a few that serve in the interest of backing up your point.
http://www.brainyquote.com/quotes/authors/j/james_madison.html
Our founding fathers has experienced even firsthand the abuse of emperical military powers as exist with gov't who have at their beck and call, standing armies. Jagger said the following which is very true:
Words and useage of the day must be taken into account to understand the context in which they were spoken off. Now that said the term militia in that period of 1789' context must be taken into account. The term army and navy existed but the framers used the term militia not only within the founding document but in broader context.
Militia is an older Anglo Saxon institution that was a prevelent ideal in old english Common Law. This Common Law became much of the backbone of the American Independence Movement and the writings on Common Law by Sir William Blackstone being a chief source of understanding. Sir Blackstone's Commentaries are available today in 4 volumes and well worth the investment as I have them in my own library. That said, Militia was considered the normal body of people in the common law context, freemen exercising their right to defend their own liberty. Saxon law and tradition date the idea of militia back many centuries and his historical footprint was never in dispute. As to the idea of able bodied men 18 to 45 years of age, this came into play via the Militia Act of 1903' and as a result of the dawn of the progressive era and post Lincoln unionism, the common law ideal was thus changed from the originalist ideals. Jagger IMO is arguing the post Lincoln/progressive central gov't ideal rather than a true Classical liberal founding ideal of the founding era and from that position alone Jagger is correct. But I'd differ strongly in using that context when discussing the ideas of the times of the late 1700's. And let me say this for the record, Jagger maybe right in the new modern thinking of the issue and both neo-cons and neo-libs do agree on this point but from a 18th century Classical liberal POV, this would be totally unacceptable to the foundational premise of the ideals of a free man.
Also using Madison, in Federalist #46, he speaks of a militia half a million man strong. The only conceivable way to arrive at that number in that time with the population of America being what it was, is to include all men (freemen) in that count above that of the so-called known standing army of that time (or rather lack of) and thus IMO another proof of the common law tradition being upheld. The militia ideal was further enhanced and added power to local control with that of the Posse Commitatus and combined with the common law principle of the Sheriff, he/she being the only true law official of the common law, just again IMO re-enforces this ideal of local control and the provisions against a federal level continous standing army. A modern day expression of this old principle is found locally in what are called Superior courts. These courts are the court of common law as opposed to State courts which in truth are enforcement courts for legislative regulation. The acting enforcement arm of Superior Courts are the police of the common law and that is the Sheriff and his deputies.
These old traditions of common law are well worth the time in study and understanding because they clear up IMO a lot of mis-interpretation or false doctrine being spread about as to original intent. The founding fathers ideal was one of limited federal gov't powers and most powers resting in the hands of the people at the State and local levels. Another important point to remember is that the Bill of Rights came about from hard opposition to the Constitution from Anti-Federalist folks like Patrick Henry. I also believe in the anti-federalist cause and that the Constitution should be abolished and we should return to the Articles of Confederation. The Bill of Rights purpose was to claim fears that a strong central gov't had been created to circumvent State and local powers held strong under the Articles of Confederation. The Bill of Rights purpose was to show that strong State and local control that existed under the Articles would continue to exist under the new Constitution and among those are the power of the people under the old Saxon tradition of freemen coming together locally for the expressed purpose of protecting their freedom and liberty. In order to achieve those means, the right of those men ie "people" to have at their desire the means to arm themselves at any time must be protected and never infringed. This also goes back to the Jeffersonian principle spelled out in the Declaration of Independence of the right to "Life, Liberty and Pursuit of Happiness" and if you understand the Physiocrat ideal of the day, you'll know happiness meant property. How does one exercised and protect one's right to life, liberty and property if one is never meant to have the means to protect one's interest?
Jagger has valid points in the modern context of the modern super state and the sad part is Jagger's position is further enhanced by the fact that so many folks support and encourage a much stronger and farther reaching central gov't in the area of security that even extends to the powerful surveillance state. The simple fact is, having applauding for a stronger central gov't with expanded powers abroad as well as domestic, the need now for an armed public to protect one's life, liberty and happiness is no longer needed. Our society whether democrat of republican has loudly stated that private risk of the individual is not acceptable and that risk should be one that is a public domain and therefore no man need stand alone.
In one respect, we could say we've made our bed so now we must live in it. I disagree with Jagger's originalist assertions but in the modern context, you guys may be upset because he/she is slapping you in the face with a diaster of your own doing!
Couple of items of further interest on the points you made.
Madison was known for many quotes from his years but a few that serve in the interest of backing up your point.
http://www.brainyquote.com/quotes/authors/j/james_madison.html
Our founding fathers has experienced even firsthand the abuse of emperical military powers as exist with gov't who have at their beck and call, standing armies. Jagger said the following which is very true:
Words and useage of the day must be taken into account to understand the context in which they were spoken off. Now that said the term militia in that period of 1789' context must be taken into account. The term army and navy existed but the framers used the term militia not only within the founding document but in broader context.
Militia is an older Anglo Saxon institution that was a prevelent ideal in old english Common Law. This Common Law became much of the backbone of the American Independence Movement and the writings on Common Law by Sir William Blackstone being a chief source of understanding. Sir Blackstone's Commentaries are available today in 4 volumes and well worth the investment as I have them in my own library. That said, Militia was considered the normal body of people in the common law context, freemen exercising their right to defend their own liberty. Saxon law and tradition date the idea of militia back many centuries and his historical footprint was never in dispute. As to the idea of able bodied men 18 to 45 years of age, this came into play via the Militia Act of 1903' and as a result of the dawn of the progressive era and post Lincoln unionism, the common law ideal was thus changed from the originalist ideals. Jagger IMO is arguing the post Lincoln/progressive central gov't ideal rather than a true Classical liberal founding ideal of the founding era and from that position alone Jagger is correct. But I'd differ strongly in using that context when discussing the ideas of the times of the late 1700's. And let me say this for the record, Jagger maybe right in the new modern thinking of the issue and both neo-cons and neo-libs do agree on this point but from a 18th century Classical liberal POV, this would be totally unacceptable to the foundational premise of the ideals of a free man.
Also using Madison, in Federalist #46, he speaks of a militia half a million man strong. The only conceivable way to arrive at that number in that time with the population of America being what it was, is to include all men (freemen) in that count above that of the so-called known standing army of that time (or rather lack of) and thus IMO another proof of the common law tradition being upheld. The militia ideal was further enhanced and added power to local control with that of the Posse Commitatus and combined with the common law principle of the Sheriff, he/she being the only true law official of the common law, just again IMO re-enforces this ideal of local control and the provisions against a federal level continous standing army. A modern day expression of this old principle is found locally in what are called Superior courts. These courts are the court of common law as opposed to State courts which in truth are enforcement courts for legislative regulation. The acting enforcement arm of Superior Courts are the police of the common law and that is the Sheriff and his deputies.
These old traditions of common law are well worth the time in study and understanding because they clear up IMO a lot of mis-interpretation or false doctrine being spread about as to original intent. The founding fathers ideal was one of limited federal gov't powers and most powers resting in the hands of the people at the State and local levels. Another important point to remember is that the Bill of Rights came about from hard opposition to the Constitution from Anti-Federalist folks like Patrick Henry. I also believe in the anti-federalist cause and that the Constitution should be abolished and we should return to the Articles of Confederation. The Bill of Rights purpose was to claim fears that a strong central gov't had been created to circumvent State and local powers held strong under the Articles of Confederation. The Bill of Rights purpose was to show that strong State and local control that existed under the Articles would continue to exist under the new Constitution and among those are the power of the people under the old Saxon tradition of freemen coming together locally for the expressed purpose of protecting their freedom and liberty. In order to achieve those means, the right of those men ie "people" to have at their desire the means to arm themselves at any time must be protected and never infringed. This also goes back to the Jeffersonian principle spelled out in the Declaration of Independence of the right to "Life, Liberty and Pursuit of Happiness" and if you understand the Physiocrat ideal of the day, you'll know happiness meant property. How does one exercised and protect one's right to life, liberty and property if one is never meant to have the means to protect one's interest?
Jagger has valid points in the modern context of the modern super state and the sad part is Jagger's position is further enhanced by the fact that so many folks support and encourage a much stronger and farther reaching central gov't in the area of security that even extends to the powerful surveillance state. The simple fact is, having applauding for a stronger central gov't with expanded powers abroad as well as domestic, the need now for an armed public to protect one's life, liberty and happiness is no longer needed. Our society whether democrat of republican has loudly stated that private risk of the individual is not acceptable and that risk should be one that is a public domain and therefore no man need stand alone.
In one respect, we could say we've made our bed so now we must live in it. I disagree with Jagger's originalist assertions but in the modern context, you guys may be upset because he/she is slapping you in the face with a diaster of your own doing!
The Constitution wasn't made to be interpreted according to quotes attributed to James Madison. It was made to be interpreted by applying the well established rules of legal interpretation.
The object of legal interpretation isn't to ascertain the context of the words. The object is to ascertain the will of the lawmakers at the time they made the Constitution.
Interpreting the word "miltia" isn't as difficult a problem as construing the word "people."
The term "militia" - like every other word, term, clause, phrase or sentence in the Constitution - should be interpreted by applying the rules of interpretation. The uses of the word by the founders in other documents or speeches is irrelevant and inadmissible, unless allowed by the rules of interpretation.
Irrelevant and inadmissible, absent a showing that the evidence is admissible under the rules of legal interpretation.
According to the rules of legal interpretation, the word militia is to be understood generally according to it's usual and most known signification, not what the word was considered to mean in the common law context. In 1789, the most usual signification of the word was "standing force of a nation: train-band." See 1787 edition of A Dictionary of the English Language.
PS: In 1789, the militia, under the laws of England, was comprised of "a certain number of the inhabitants of every county, chosen by lot for three years."
Huh?
I'm arguing that the Second Amendment should be interpreted according to the well established common law rules of legal interpretation existent at the time the Amendment was made.
Huh?
The Constitution wasn't made to be understood according to the way James Madison used words in Federalist #46.
brett636
Well-Known Member
oh, this is good stuff. You can continue to argue your BS point all you want, but the bottom line is this.
Of all the cases to go before the courts regarding the 2nd amendment most of them have concluded the 2nd amendment to be an individual right. Including, but not limited to the following:
• Parker vs. D.C., Fed (2007), confirmed an individual right to keep arms and overturning a handgun ban.
• U.S. vs. Emerson, 5 Fed (1999), confirmed an individual right requiring compelling government interest for regulation.
• Nunn v. State, 1 Ga. 243, 250, 251 (1846) (struck down a ban on sale of small, easily concealed handguns as violating Second Amendment).
• State v. Chandler, 5 La.An. 489, 490, 491 (1850) (upheld a ban on concealed carry, but acknowledged that open carry was protected by Second Amendment).
• Smith v. State, 11 La.An. 633, 634 (1856) (upheld a ban on concealed carry, but recognized as protected by Second Amendment "arms there spoken of are such as are borne by a people in war, or at least carried openly").
• State v. Jumel, 13 La.An. 399, 400 (1858) (upheld a ban on concealed carry, but acknowledged a Second Amendment right to carry openly).
Lets not forget the Heller case from this past summer. Everyone whose opinion matters has ruled that you are wrong. Give it up already. The 2nd amendment is an individual right, and nothing you can say will change that fact.
Of all the cases to go before the courts regarding the 2nd amendment most of them have concluded the 2nd amendment to be an individual right. Including, but not limited to the following:
• Parker vs. D.C., Fed (2007), confirmed an individual right to keep arms and overturning a handgun ban.
• U.S. vs. Emerson, 5 Fed (1999), confirmed an individual right requiring compelling government interest for regulation.
• Nunn v. State, 1 Ga. 243, 250, 251 (1846) (struck down a ban on sale of small, easily concealed handguns as violating Second Amendment).
• State v. Chandler, 5 La.An. 489, 490, 491 (1850) (upheld a ban on concealed carry, but acknowledged that open carry was protected by Second Amendment).
• Smith v. State, 11 La.An. 633, 634 (1856) (upheld a ban on concealed carry, but recognized as protected by Second Amendment "arms there spoken of are such as are borne by a people in war, or at least carried openly").
• State v. Jumel, 13 La.An. 399, 400 (1858) (upheld a ban on concealed carry, but acknowledged a Second Amendment right to carry openly).
Lets not forget the Heller case from this past summer. Everyone whose opinion matters has ruled that you are wrong. Give it up already. The 2nd amendment is an individual right, and nothing you can say will change that fact.
Why did you ignore all of the many cases that ruled there was no individual right to keep and bear arms?
wkmac
Well-Known Member
Jagger,
You speak of the term "legal interpretation" but sounds to me like what you are referring too is "judicial interpretation" but even that term like the former have a problem in a real legal sense. Neither exist in themselves as terms within law itself. Proof? First, I give you Bouvier's Law (both 1886' and 1914' additions) that are the law dictionary of Congress. Neither term appear within it's pages. What about the more common Black's law? Same applies here as well. But the one term that does appear that may suit towards you is "Judicial activism" and Black's Law sez the following, you don't mind if I pull my Black's Law down and quote directly from it do you?
Black's Law, 5th Edition, page 760, circa 1979'
A google search of the term "rules of legal interpretation" will in fact result in little direct website sources and the closest thing to you term is a website selling a book on "cardinal rules of legal interpretation" published by a company in Germany.
There is such thing as a legal interpretation but the courts in so doing rely upon legislative intent and language usage and construction. This also has to do with the language of the day. When the Bill of Rights was proposed, there were no federal courts in the sense we have today and America's body of judicial law as a matter of review on the federal level was little if any at all. They used language context and word meaning, intent (odd you discount the Federalist papers and writtings of say Madison when the courts routinely reference and even cite these sources as a matter of law in arriving at legal opinion) and in our case here in America, in matters beyond statutory law (legislative law) they use the common law which is according to Black's Law again:
Black's Law, 5th Edition, page 250, circa 1979'
A good case in point to understand the idea of common law would be common law marriage. Marriage has existed as an institution from time immemorial when men and women bound themselves together for the great family good. This through the years grew in custom and usage and in time as man developed religious institutions, marriage took on it more familar religious role but in this process, it was outside gov't that this institution carried forth. In America, this same process held sway until in the early 20th century over fear of interracial marriage, gov't instituted a marriage licensing process moving this common law institution into the realm of statutory law (legislative law) where it resides today. Gov't in effect circumvented a common law institution making in effect marriage illegal outside gov't sanction. Don't believe me? Look at the defintion of the term license itself.
Black's Law, 5th Edition, page 829, circe 1979'
Militia, like marriage, is an institution of long standing tradition that predates organized gov't as we know them. In the truest sense, militia is the original "common defense" of liberty and freedom and in out western traditions comes from centuries old Saxon customs. We didn't invent it as other cultures also have their own but the name itself "militia" is a western tradition. At the time of the revolution, we had no standing armies and thus our fighting force was made up of volunteers from local peoples who held those old Saxon customs near and dear. Along with that local law and tradition held sway and in some case there were amory houses that held arms for defense but it was left to the local community to decide how it would decide it's custom. Other communities never had such centrol provisions and it was left to the individual to prepare for himself. Regardless, this was the manner and force that fought a gov't standing army to gain freedom and it was this experience that embedded the dangers of standing armies in the minds of the founding fathers.
When it came time to setup a more functioning gov't beyond the article of confederation (big mistake IMO) a compromise was reached so to speak in that the President could call forth from the States, the militia (US Constitution, Art. 2 Sec. 2) but only on the condition that the Congress make a formal declaration of war (US Constitution, Art. 1, Sec. 8). One of the problems with the original Constitution minus the Bill of Rights was from the anti-federalist POV, there seemed to be a valid concern of creating a type of imperial central gov't similar to what they'd just fought to seperate from. The 2nd amendment both from a historical context and in light of the language of Art. 1 and 2 of the constitution must be understood.
In order to understand the meaning of the 2nd amendment, you have to understand the context, conditions and thinking at the times the amendment was proposed and ultimately drafted. Using Black's Law again, page 726 we find this under Intent of Law:
From what I see of your continous posts across many threads on the 2nd amendment, the real goal is not to advocate proper application of the 2nd amendment but rather to undercut it's real historical intent and that is a custom local in nature and practiced among freemen seperate of gov't. I think you want to try and undercut the true context as a preface for arguing fro a general elimination of arms among the general population. Most of that like is driven by an illogical driven fear of lack of security in the same illogoical manner of some here who fear a bunch of muslims.
The problem I see for many advocates (a number of them here) of an originalist view of the 2nd amendment (and do very well I might add) is while they argue and try to defend in original context, they take a purely modern view of military might of the central state and advocate for that as well. A standing army in itself negates the need for the original, historical militia (the real mechanism of common defense)and thus relegates the 2nd amendment to at best defending the right to go deer hunting every Nov. The militia is the freeman's answer to proper self defense and not some powerful military/industrial complex bent on it's mission of profit margins while being a facilitator of Hard Wilsonianism of global democracy under the hard hand of interventionism. I say exercised by both ruling political parties too.
If we continue the path we are on, the 2nd amendment in it's truest historical sense, is made irrelevent and thus becomes something that in time will be done away with. Under these conditions Jagger, your argument actually holds sway over others in many respects. Even locally now, the law in many cases prevents the citizen of truly defending himself/herself and property locally so we've shed this duty again to the State (gov't police) so of what use now is a free man acting in his own defense when called for? Again Jagger, your point is made for you.
Now go ahead and Huh! Duh! or whatever other things you want to do which again just proves my contention that your propose is purely anti-gun or in reality anti-freedom and anti-liberty. Let's just start calling it what it really is shall we.
You speak of the term "legal interpretation" but sounds to me like what you are referring too is "judicial interpretation" but even that term like the former have a problem in a real legal sense. Neither exist in themselves as terms within law itself. Proof? First, I give you Bouvier's Law (both 1886' and 1914' additions) that are the law dictionary of Congress. Neither term appear within it's pages. What about the more common Black's law? Same applies here as well. But the one term that does appear that may suit towards you is "Judicial activism" and Black's Law sez the following, you don't mind if I pull my Black's Law down and quote directly from it do you?
Black's Law, 5th Edition, page 760, circa 1979'
A google search of the term "rules of legal interpretation" will in fact result in little direct website sources and the closest thing to you term is a website selling a book on "cardinal rules of legal interpretation" published by a company in Germany.
There is such thing as a legal interpretation but the courts in so doing rely upon legislative intent and language usage and construction. This also has to do with the language of the day. When the Bill of Rights was proposed, there were no federal courts in the sense we have today and America's body of judicial law as a matter of review on the federal level was little if any at all. They used language context and word meaning, intent (odd you discount the Federalist papers and writtings of say Madison when the courts routinely reference and even cite these sources as a matter of law in arriving at legal opinion) and in our case here in America, in matters beyond statutory law (legislative law) they use the common law which is according to Black's Law again:
Black's Law, 5th Edition, page 250, circa 1979'
A good case in point to understand the idea of common law would be common law marriage. Marriage has existed as an institution from time immemorial when men and women bound themselves together for the great family good. This through the years grew in custom and usage and in time as man developed religious institutions, marriage took on it more familar religious role but in this process, it was outside gov't that this institution carried forth. In America, this same process held sway until in the early 20th century over fear of interracial marriage, gov't instituted a marriage licensing process moving this common law institution into the realm of statutory law (legislative law) where it resides today. Gov't in effect circumvented a common law institution making in effect marriage illegal outside gov't sanction. Don't believe me? Look at the defintion of the term license itself.
Black's Law, 5th Edition, page 829, circe 1979'
Militia, like marriage, is an institution of long standing tradition that predates organized gov't as we know them. In the truest sense, militia is the original "common defense" of liberty and freedom and in out western traditions comes from centuries old Saxon customs. We didn't invent it as other cultures also have their own but the name itself "militia" is a western tradition. At the time of the revolution, we had no standing armies and thus our fighting force was made up of volunteers from local peoples who held those old Saxon customs near and dear. Along with that local law and tradition held sway and in some case there were amory houses that held arms for defense but it was left to the local community to decide how it would decide it's custom. Other communities never had such centrol provisions and it was left to the individual to prepare for himself. Regardless, this was the manner and force that fought a gov't standing army to gain freedom and it was this experience that embedded the dangers of standing armies in the minds of the founding fathers.
When it came time to setup a more functioning gov't beyond the article of confederation (big mistake IMO) a compromise was reached so to speak in that the President could call forth from the States, the militia (US Constitution, Art. 2 Sec. 2) but only on the condition that the Congress make a formal declaration of war (US Constitution, Art. 1, Sec. 8). One of the problems with the original Constitution minus the Bill of Rights was from the anti-federalist POV, there seemed to be a valid concern of creating a type of imperial central gov't similar to what they'd just fought to seperate from. The 2nd amendment both from a historical context and in light of the language of Art. 1 and 2 of the constitution must be understood.
In order to understand the meaning of the 2nd amendment, you have to understand the context, conditions and thinking at the times the amendment was proposed and ultimately drafted. Using Black's Law again, page 726 we find this under Intent of Law:
From what I see of your continous posts across many threads on the 2nd amendment, the real goal is not to advocate proper application of the 2nd amendment but rather to undercut it's real historical intent and that is a custom local in nature and practiced among freemen seperate of gov't. I think you want to try and undercut the true context as a preface for arguing fro a general elimination of arms among the general population. Most of that like is driven by an illogical driven fear of lack of security in the same illogoical manner of some here who fear a bunch of muslims.
The problem I see for many advocates (a number of them here) of an originalist view of the 2nd amendment (and do very well I might add) is while they argue and try to defend in original context, they take a purely modern view of military might of the central state and advocate for that as well. A standing army in itself negates the need for the original, historical militia (the real mechanism of common defense)and thus relegates the 2nd amendment to at best defending the right to go deer hunting every Nov. The militia is the freeman's answer to proper self defense and not some powerful military/industrial complex bent on it's mission of profit margins while being a facilitator of Hard Wilsonianism of global democracy under the hard hand of interventionism. I say exercised by both ruling political parties too.
If we continue the path we are on, the 2nd amendment in it's truest historical sense, is made irrelevent and thus becomes something that in time will be done away with. Under these conditions Jagger, your argument actually holds sway over others in many respects. Even locally now, the law in many cases prevents the citizen of truly defending himself/herself and property locally so we've shed this duty again to the State (gov't police) so of what use now is a free man acting in his own defense when called for? Again Jagger, your point is made for you.
Now go ahead and Huh! Duh! or whatever other things you want to do which again just proves my contention that your propose is purely anti-gun or in reality anti-freedom and anti-liberty. Let's just start calling it what it really is shall we.
brett636
Well-Known Member
You mean the 3% of cases where it was ruled a collective right? Appears to be irrelevant since the majority of judges and courts have ruled the 2nd amendment is an individual right including the U.S. Supreme Court.
wkmac
Well-Known Member
Writ filed in the District of Columbia verses Heller with SCOTUS.
http://www.independent.org/pdf/research_articles/2008-03-07_halbrookbrief.pdf
The question before the court as per the writ:
Writ was prepared and written by Stephen P. HalBrook, Phd & J.D. who is also a senior scholar at the Independent Institute
http://www.independent.org/
Another question to ask is this:
If "the people" in the 2nd amendment are not "the people" in a general sense but are in fact a very specific group of people under the name of National Guard or some other regulated conscript with the gov't, then in contextual construction alone, this means "the people" in amendment 1 and amendment 4 is also not a general term but rather applies to a group of privledged citizens as a result of position enjoy these listed rights. Would this mean only members of the national guard being they are the people in the 2nd amendment are also the only ones to enjoy freedom to assemble and then in amendment 4 be secure in their homes and personal effects? I guess freedom of the press only applies to what the gov't mandates as being "of the press" so the more I read the Constitution from Jagger's construct, the more I see an authoriterian nightmare of medieval proportions.
Gee Jagger, and I thought Bush and Company were draconian tyrants but you're actually making them look good after all!
http://www.independent.org/pdf/research_articles/2008-03-07_halbrookbrief.pdf
The question before the court as per the writ:
Writ was prepared and written by Stephen P. HalBrook, Phd & J.D. who is also a senior scholar at the Independent Institute
http://www.independent.org/
Another question to ask is this:
If "the people" in the 2nd amendment are not "the people" in a general sense but are in fact a very specific group of people under the name of National Guard or some other regulated conscript with the gov't, then in contextual construction alone, this means "the people" in amendment 1 and amendment 4 is also not a general term but rather applies to a group of privledged citizens as a result of position enjoy these listed rights. Would this mean only members of the national guard being they are the people in the 2nd amendment are also the only ones to enjoy freedom to assemble and then in amendment 4 be secure in their homes and personal effects? I guess freedom of the press only applies to what the gov't mandates as being "of the press" so the more I read the Constitution from Jagger's construct, the more I see an authoriterian nightmare of medieval proportions.
Gee Jagger, and I thought Bush and Company were draconian tyrants but you're actually making them look good after all!
The Federalist No. 83
The Judiciary Continued in Relation to Trial by Jury
Independent Journal
Saturday, July 5, Wednesday, July 9, Saturday July 12, 1788
[Alexander Hamilton]
To the People of the State of New York:
[SIZE=+2]T[/SIZE][SIZE=-2]HE[/SIZE] objection to the plan of the convention, which has met with most success in this State, and perhaps in several of the other States, is that relative to the want of a constitutional provision for the trial by jury in civil cases. The disingenuous form in which this objection is usually stated has been repeatedly adverted to and exposed, but continues to be pursued in all the conversations and writings of the opponents of the plan. The mere silence of the Constitution in regard to civil causes, is represented as an abolition of the trial by jury, and the declamations to which it has afforded a pretext are artfully calculated to induce a persuasion that this pretended abolition is complete and universal, extending not only to every species of civil, but even to criminal causes. To argue with respect to the latter would, however, be as vain and fruitless as to attempt the serious proof of the existence of matter, or to demonstrate any of those propositions which, by their own internal evidence, force conviction, when expressed in language adapted to convey their meaning.
With regard to civil causes, subtleties almost too contemptible for refutation have been employed to countenance the surmise that a thing which is only not provided for, is entirely abolished. Every man of discernment must at once perceive the wide difference between silence and abolition. But as the inventors of this fallacy have attempted to support it by certain legal maxims of interpretation, which they have perverted from their true meaning, it may not be wholly useless to explore the ground they have taken.
The maxims on which they rely are of this nature: "A specification of particulars is an exclusion of generals"; or, "The expression of one thing is the exclusion of another." Hence, say they, as the Constitution has established the trial by jury in criminal cases, and is silent in respect to civil, this silence is an implied prohibition of trial by jury in regard to the latter.
The rules of legal interpretation are rules of common sense, adopted by the courts in the construction of the laws...
You must violate every rule of construction and common sense, if you sever it from the power of raising money, and annex it to any thing else, in order to make it that formidable power which it is represented to be.
--Edmund Randolph at the Virginia Ratification Convention in 1788
--Edmund Randolph at the Virginia Ratification Convention in 1788
Similar threads
- Locked
