29 January 2008

Of Commas And Unnecessary Dissection

Brother-in-arms Jude Cuddy has been pondering the Heller/Parker case, and considering looming legislation here in Ohio regarding No Duty To Retreat/Castle Doctrine philosophy.

His opinion, from Behind The Berm as always, is straight to the point:

"I ran across an NRA publication, "The Second Amendment Primer," that has a few direct comments that are particularly appropriate to the "Heller" case. Witness lately the cacophony of opinions on which way the court will rule. Emperical evidence suggests that the DC ban is unconstitutional, but we must work within the system to prevail upon others the folly of such draconian laws.

"It is interesting that there are already arguments about the placement of the comma, secondary or subsidiary standards, etc. All of the legal scholars have weighed in on the matter. However, no less an authority than Thomas Jefferson had this to say regarding the Constitution and the Bill of Rights:

"On every question of construction let us carry ourselves back to the time when
the Constitution was adopted, recollect the spirit manifested in the debates,
and instead of trying what meaning can be squeezed out of the text, or invented
against it, conform to the probable one which has passed."

"I see no reason or room to dissect the Second Amendment."
Amen, Brother.


Anonymous said...

I'm a lawyer and have studied history and the debate on both sides. Both sides can assert this quote supports their claim - it doesn't prove much.

Those that focus most heavily on "militia" and the paranoia of the founders that the national govt. would tyranically render the states powerless supports the claim that the 2A applies to states keeping their Nat'l Guard.

I personally don't think that's what the 2A means, but I don't draw much comfort or reassurance from this quote. I think there's something similar on the Brady website... :)

Brent Greer said...

Perhaps. This quote alone can be taken out of context. Taken with the larger writings of the Framers, one gets a very good idea that the 2A was truly the right to revolution. As you know, there was no National Guard back then, though the guard claims its history dates back to the days of the Minute Men.

I am not an attorney. Just a regular guy with a solid understanding of history and a bit of common sense taught by well grounded parents in the Midwest. The Framers were very clear on their intent. Even anti gun scholars are stating such today, but adding that in a modern world it is not "reasonable" (there's that word again) for individuals to have rights guaranteeing them the possession of "dangerously powerful" firearms, whatever that means.

Anonymous said...

I certainly didn't mean to come off haughty with the lawyer comment, just trying to establish a modicum of credibility... :) I hate lawyers as much as the next guy...

My only point was that the text of 2A includes "well-regulated militia." I think I have it figured out, and we defninitely agree in our conclusion, but many pro-gun zealots (I can't stand unthinking zealots, even those I agree with) won't even acknowledge the militia clause - that's just as intellectually dishonest as the gun-control folks ignoring the phrase "right of the people."

Not to turn this into snoozeville, but have you considered the incorporation principle, and whether even if it is a completely unqualified individual right, it is unquestionable that the framers never intended the Constitution to restrict state's rights in any way? The zealots that want to lynch activist judges can't hardly stomach the fact that it was activist judges that incorporated the bill of rights as applying to the states via 14A - which of course textually does no such thing.

You have such a terrific ability to communicate, you should consider doing a piece on incorporation, and explain how even if DC v Heller comes out right, that's a LONG way from invalidating any state gun laws. I assume you know that's why Heller was chosen as plaintiff, to avoid the incorporation issue, since DC is not a "state."

Ok, sorry for the ramble - great job as always!

Brent Greer said...

I had not thought about a piece on incorporation . . . you may have a point there. And no worries about any thinking of haughtiness -- none was taken.

You're right on not wanting to make this too dry. I try to keep it entertaining as well as educational. I don't deny the word militia in the 2A, its just that the present day meaning does not jibe with its meaning when the Constitution was drafted.

Let me think on what you've suggested a bit and I'll take a whack at it next week. Thanks for the suggestions and the dialogue! And thank you for writing!