[clue-talk] Heller

[Jed S. Baer]

On Tue, 01 Jul 2008 16:53:56 -0600
David Rudder wrote:

> Jed S. Baer wrote:
> > Seriously?
> >
> > The Constitution was written specifically to take power away from
> > elected officials, and to set limits on what laws could be passed.
> > There is no judicial "activism" in applying the way it was intended.
> > There was no denial of original intent at all, 
> 1(a) "The Amendment’s prefatory clause announces a purpose, but
> does not limit or expand the scope of the second part, the operative
> clause."
> 
> Translation: "We know the intent, but since they didn't specifically 
> forbid us from ignoring it, so we will".

Not at all. If you read the textual analysis, not only of the ruling, but
of the amici, you'll find a logical argument, not something as vacuous as
"oh, this sounds like what we feel it should be". Really, the linguistic
analyses were quite good on how the prefatory clause does not limit the
operative clause. Many people spent a lot of time on ascertaining intent.
You can too, if you'd care to read things such as the Federalist papers,
and other writings of the men involved.

The ruling was actually, "we know the intent, and this is what it is".
(I'll add that I think they missed it a bit, but only by being too
restrictive in what consitutes "arms".)

> > as the ruling clearly explained in its
> > textual analysis. State constitutions are of no interest, other than
> > guaging prevailing attitudes at the time of passage, which the opinion
> > noted. 
> 
> 1(c) "The Court’s interpretation is confirmed by analogous arms-bearing 
> rights in state constitutions that preceded and immediately followed
> the Second Amendment."
> 
> Translation: Well, the states say it's okay, and since that jibes with 
> our interpretation, we'll use them as the authority,

Again, they used the state constitutions to ascertain what was commonly
understood at the time of writing. That was, of course, only a part of
the textual analysis, which also included consideration of English Common
Law, which informed opinion in the colonies, and legal treatises from
respected scholars of the time.

> > Because D.C. is a federal district, not a state, and hence has no
> > state constitution, the federal one is the one that applies. As far as
> > the "we all know", well I, as well as many legal scholars, know what
> > the 2nd Amendment is all about, and is sure as heck doesn't allow the
> > sort of gun control the D.C. had implemented. It's just a shame that
> > it took so long to get it tossed out.
> >
> > Just curious, David, as to where you've gotten your opinion of what
> > "we all know" is.
> >   
> I went to school in New Jersey. I never studied the Louisiana 
> constitution in high school. In fact, I never read the New Jersey 
> constitution in high school. But, we read the US constitution. We've
> all read it. It's part of our basic education. That's the document we
> all know.

Reading it isn't the same as understanding it. How much time did the NJ
school district spend on textual analysis? Did you also read Blackstone,
Story, The Federalist Papers, Letters of Thomas Jefferson? (etc.) I'll
provide a few examples:

That the said Constitution shall never be construed to authorize Congress
to infringe the just liberty of the press or the rights of conscience; or
to prevent the people of the United States who are peaceable citizens
from keeping their own arms.
 -- Samuel Adams

The Constitution preserves the advantage of being armed, which Americans
possess over the people of almost every other nation ... (where) the
governments are afraid to trust the people with arms.
 -- James Madison

If the representatives of the people betray their constituents, there is
then no recourse left but in the exertion of that original right of self
defense which is paramount to all positive forms of government.
 -- Alexander Hamilton, Federalist No. 28

The best we can help for concerning the people at large is that they be
properly armed.
 -- Alexander Hamilton

A free people ought not only to be armed and disciplined, but they should
have sufficient arms and ammunition to maintain a status of independence
from any who might attempt to abuse them, which would include their own
government.
 -- George Washington

The strongest reason for the people to retain the right to bear arms is,
as a last resort, to protect themselves against tyranny in government.
 --Thomas Jefferson

A system of licensing and registration is the perfect device to deny gun
ownership to the bourgeoisie.
 -- Vladimir Ilyich Lenin

Ooops, how did that last one slip in there? :)

Oh, I have a whole bunch more.

> Saying "The US constitution forbids this type of control" is fine, 
> though I don't think it really does.

Except that the U.S. Constitution described a government of limited,
enumerated powers. I know, a whole bunch of people mistakenly believe
that that isn't true, and in a de-facto sense, it no longer is. The Bill
of Rights was a restraint on government. The 2nd Amendment doesn't grant
a right to keep and bear arms, any more than the 1st grants a right of
free speech. It recognizes the fundamental right to self preservation,
and the right to use implements in furtherance thereof, which exists as
the natural state of man, independent of government grant. This is part
of the Enlightenment philosophy. (And I'm guessing NJ public shools
didn't cover that much either.)

> Saying "The Louisiana constitution forbids this kind of control" isn't 
> so good, even if it really does.

Yeah, well as I mentioned previously, a couple state constitution
citations wasn't all that the court used. You've read it, you know that.

> > The D.C. city council deserved to be trod upon. They should be ejected
> > from office, IMHO, for so blatantly violating what is a fundamental
> > human right -- that of self preservation.
> >   
> *shrug* It's happened before. It was for smoking crack with hookers,
> IIRC.
> 
> But, the voters didn't throw these people out. That's how the change of 
> elected officials works in this country. You have an election.

I know how the process works. But I can dream, can't I?

> > But then I expected you to feel this way about it. :)
> >   
> Not at all. I'm actually a gun-owner's rights supporter. I'm just 
> appalled at the lengths this court will go through to justify their own 
> political agendas. As I said in my post, if they'd said "it's not right 
> to only allow the chief of police to give temporary licenses", I would 
> have been fine with it. It was a dumb law, plain and simple, and there 
> has got to be some *good* reason for throwing it out.

The only political agenda they held to was the primacy of the
Constitution. But I'm sure we won't agree on that.

> But, "but *Georgia* says it's okay!!!" isn't a legal argument.

Already covered that.

> Also, saying it's unconstitutional because "trigger locks make it 
> impossible to defend your home" is a lame argument. I haven't seen a 
> study which shows that trigger locks will actually prevent you from 
> protecting your home. I have, on the other hand, seen more than a few 
> which show that they dramatically reduce the number of accidental 
> deaths. Even if they do, the court can say "we can revisit this when 
> trigger locks meet a standard for effectiveness", but they didn't.
> 
> Can anyone send me a link to a study which proves, or even addresses, 
> the court's contention that trigger locks prevent you from protecting 
> your home?

I'm not aware of any specific study. To me, it's just common sense which
doesn't need further confirmation. Hey, if you want to choose to use
trigger locks, that's your decision. I don't care for having the
government force it upon me. As I've already stated, I have sufficient
evidence on hand that they serve me no benefit.

jed