Posted on 05/02/2003 10:50:39 PM PDT by Steve Van Doorn
How strange that it has been amended twenty-seven times, then, if it is so "impossible".
And yes, the fact that the Constitution can be amended means it "is" a "living" document.
LOL! Whatever Publius..
The fact of the matter is there's no sense in debating the "living constitution" with anyone because it's a myth. It's an urban legend on par with the "seperation of church and state"
The constitution can be amended, however. That's the only logical sense in which it can be called a "living" document.
You can do everything from Congressional powergrabs to Judicial activism and get around it, but that's all extra-constitutional and unlawful.
Baker|NV has been consistently maintaining that it is OK in legal documents to allow a word or phrase, in this case "the people," to have two or more different meanings in a legal document. He is wrong.
The following citation is from the dissenting opinion written by Judge Kleinfeld of the Ninth Circuit Court of Appeals in the case of Silveira v. Lockyer. Kleinfeld's dissent is in the form of an extremely scholarly dissertation on the meaning of the Second Amendment and while he spells out the historical and legal background of the 2nd, he metaphoricaly (and oh, so respectfuly) takes the majority of the 9th Circuit bench to the woodshed for their idiotic decision not to reverse themselves. Here is one section where he addresses Baker|NV's assertion that "the people" can mean something else in the 2nd than it does in every other place in the Constitution:
The panel’s holding that the right of "the people" with respect to weapons "was not adopted in order to afford rights to individuals" (39) but only so that "they would have the right to bear arms in the service of the state" (40) is logically absurd. This becomes clear if one interprets the phrase "the people" consistently, as sound construction always requires, (41) and applies the same construction to other amendments.
The First Amendment preserves "the right of the people peaceably to assemble." (42) The panel’s construction implies that no individual can sue in court for an abridgment of his or her right to assemble, because the right is reserved to the people acting collectively.
The Fourth Amendment preserves "the right of the people" to security from unreasonable searches and seizures. (43) The panel’s construction implies that no individual has a right enforceable in court to be free from unreasonable search and seizure, only "the people" as a collective. Because "the people" act collectively through their governments, the panel’s logic suggests that the right to free assembly and the right to be free from unreasonable searches and seizures are protected only when people are acting, in the panel’s phrase, "in the service of the state." That is not our country.
Notice the phrase: ". . . interprets the phrase "the people" consistently, as sound construction always requires. . ." which lays to rest Baker|NV wiggley desire to have "the people" mean "individual rights" everywhere but in the Second Amendment. Here is the citation for that concept:
(41) See, e.g., Dept. of Revenue of Oregon v. ACF Indus., 510 U.S. 332, 342 (1994) (noting the "normal rule of statutory construction that identical words used in different parts of the same act are intended to have the same meaning.") (quoting Sorenson v. Secretary of Treasury, 475 U.S. 851, 860 (1986)) (internal quotations omitted).
Kleinfeld then examined the concept that a "state" could have "rights" and further blasts holes in Baker|NV's assertions. The Judge writes:
The "collective rights" interpretation of the Second Amendment, that it confers a "right" only on state governments with respect to state militias, is a logical and verbal impossibility in light of the phrase "right of the people." As our Constitution is written, governments have "powers" but no "rights." People have both "rights" and "powers." And the Bill of Rights carefully distinguishes between the powers of the states and the rights of the people, never speaking of rights of the people when it means powers of the states.
The Tenth Amendment expressly draws both distinctions, between powers and rights, and between powers of state governments and powers of the people: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." (35) The Tenth Amendment reserves "powers," not "rights," to the state governments, and the Ninth preserves "rights" for "the people." By use of the word "or," the Tenth Amendment makes it crystal clear that "the people" are distinct from the state governments and hold some reserved powers that the state governments do not. The Ninth Amendment, speaking of "rights" rather than "powers," prohibits a construction that would deny unenumerated "rights" to "the people.
Again, the consistent interpretation rule requires that "rights" apply ONLY to the people... and not to the states.
Judge Kleinfeld also addresses the question of the "militia" quite extensively. His conclusion is as follows:
Thus, as used in law, the meaning of the word {Militia} has not changed significantly, other than to grow more inclusive. It is, and always has been, emphatically the case that militia members do not have to be "organized" in a "collective" state service, because the statute provides expressly for the existence of the "unorganized" militia. Members of the National Guard are in the "organized militia," and those not in the National Guard are also in the "unorganized militia." Various classes of persons are exempt from militia service, most notably the "organized fighting force," as the panel would put it, who are active "[m]embers of the armed forces." Thus, soldiers, as we now use the term, are generally not in the militia, and the rest of us are. Far from being an organized collectivity functioning as a fighting force, the militia is like the jury pool, consisting of "the people," limited, like the jury pool, to those capable of performing the service for which militias or jury pools are established. The militia is indeed "the people," as individuals and not as an organized collective body, and the Second Amendment expressly prohibits government from disarming the people.
As to Baker|NV's repetitious citing of the United States v. Miller as supporting the "collective rights" only as applied to the "militia", Judge Kleinfeld has actually read the case, unlike many other judges who have used it inappropriately. He includes his conclusions about that case in his dissent:
What is striking about the reversal in Miller is the great care the court took to limit its holding. Miller did not adopt the "collective rights" notion that only state governments as supervisors of the militia could possess arms, though the government had urged that interpretation on the Court in its brief. (108) Miller rejected the notion of a sawed-off shotgun as a militia weapon. It did not reject the right of individuals to possess arms. And Miller qualified even the rejection of sawed-off shotguns, by limiting the holding to a case where there was no evidence, and judicial notice could not be taken, of any "reasonable relationship" of sawed-off shotguns to militia use. Had the Court been of the view that the Second Amendment protected only the powers of the states to arm their militias, it would have accepted that argument from the government’s brief, and never would have reached the issue of the relationship of sawed off shotguns to militias.
The entire texts of the six dissenting judges of the Ninth Circuit Court of Appeals are available here:
There is a lot of powerful scholarship in these dissents.
Another excellent resource to counter the erroneous anti-gun venom of Baker|NV's Brady Organization database is the soon to be published exhaustive study entitled "The Supreme Court’s Thirty-five Other Gun Cases: What the Supreme Court Has Said about the Second Amendment" which is written by David B. Kopel, Adjunct Professor of Law, New York University School of Law. Professor Kopel researched EVERY comment made by ANY Supreme Court Justice in ANY case decided by the Court. He provides citations from decisions, dissents, dicta, etc., to attempt to discern the Justices' position on the Second Amendment. It is an eye-opener. His conclusion follows:
Conclusion
In addition to the oft-debated case of United States v. Miller,[299] the Supreme Court has mentioned or quoted the Second Amendment in thirty-one other cases, almost always in dicta. One of the opinions, Justice Douglas’s dissent in Adams v. Williams, explicitly claims that the Second Amendment is not an individual right.[300] Three majority opinions of the Court (the 1980 Lewis case,[301] the 1934 Hamilton case,[302] and the 1929 Schwimmer case[303]), plus one appeal dismissal (Burton v. Sills, 1969[304]), and one dissent (Douglas in Laird[305]) are consistent with either the individual rights or the states rights theory, although Lewis is better read as not supportive of an individual right, or not supportive of an individual right worthy of any serious protection. (And knowing of Justice Douglas’s later dissent in Adams, his Laird dissent should not be construed as supportive of an individual right). Spencer v. Kemna refers to the right to bear arms as an individual right, but the opinion does not specifically mention the Second Amendment, and so the reference could, perhaps, be to the right established by state constitutions.[306]
Two other cases are complicated by off-the-bench statements of the Justices. The 1976 Moore v. East Cleveland plurality opinion supports the individual right,[307] but in 1989 the opinion’s author, retired Justice Powell, told a television interviewer that there was no right to own a firearm.[308] In an 1820 dissent, Justice Story pointed to the Second Amendment to make a point about state authority over the militia (although this would not necessarily be to the exclusion of an individual right).[309] Justice Story’s later scholarly commentaries on the Second Amendment only addressed the individual right, and did not investigate the Amendment as a basis of state authority.[310]
Concurring in Printz, Justice Thomas stated that United States v. Miller had not resolved the individual rights question; the tone of the concurrence suggested that Justice Thomas considered the Second Amendment to be an important individual right.[311]
Twenty-six opinions remain, including nineteen majority opinions. Each of these opinions treats the Second Amendment a right of individual American citizens. Of these twenty-two opinions, five come from the present Rehnquist Court, and on the Rehnquist Court there has been no disagreement that the Second Amendment is an individual right.
Of course that fact that a right exists does not mean that every proposed gun control would violate that right; indeed, many of the opinions explicitly or implicitly endorse various controls, and, except for Justice Black, none of the authors of the opinions claim that the right is absolute.[312]
In the face of this Supreme Court record, is it accurate for gun control advocates to claim that the non-individual nature of the Second Amendment is “perhaps the most well-settled” point in all of American constitutional law?[313] The extravagant claim cannot survive a reading of what the Supreme Court has actually said about the Second Amendment. In the written opinions of the Justices of the United States Supreme Court, the Second Amendment does appear to be reasonably well-settled--as an individual right. The argument that a particular Supreme Court opinion’s language about the Second Amendment does not reflect what the author “really” thought about the Second Amendment cannot be used to ignore all these written opinions—unless we presume that Supreme Court Justices throughout the Republic’s history have written things about the Second Amendment that they did not mean.
While the Warren Court and the Burger Court offered mixed records on the Second Amendment, the opinions from the Rehnquist Court (including from the Court’s “liberals” Ginsburg and Stevens) are just as clear as the opinions from the Supreme Court Justices of the nineteenth century: “the right of the people to keep and bear arms” is a right that belongs to individual American citizens. Although the boundaries of the Second Amendment have only partially been addressed by Supreme Court jurisprudence, the core of the Second Amendment is clear: the Second Amendment--like the First, Third, Fourth, Fifth, Sixth, and Fourteenth Amendments--belongs to “the people”, not the government.
As you can see by the number of reference links, this is a LOOOONNNNNGGGGG article... but it is the best analysis I have seen. The article is soon to be published in the St. Louis Public Law Review. The draft is available here:
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