Posted on 05/14/2024 9:05:45 AM PDT by DeplorablePaul
Do you believe that militias were NOT intended to counter standing armies?
Do you believe that Americans were NOT expected to be armed to counter standing armies?
Do you believe that Americans were NOT expected to have the same arms as an army that might be leveled against them?
Do you believe that the Framers did NOT distrust the Commander-in-Chief's use of the army and that was NOT the purpose for renewing their funding every two years?
Do you believe that Congress offering letters of marque did NOT mean that Americans were allowed to privately own cannons?
-PJ
This judge is evil; she is deliberately violating the Constitution, the supreme law of the land.
This judge is an enemy of the United States.
Do you believe that when the 1st Congress passed the proposed 2nd amendment language "necessary to the security of a free state," that they were NOT talking literally about the several states fear of invasion from stronger states as discussed in Federalist #8, or from an invading army as discussed in Federalist #29, or from federal overreach as discussed in Federalist #46?
-PJ
Do you believe that when the 1st Congress passed the proposed 2nd amendment language "necessary to the security of a free state," that they were NOT talking literally about the several states fear of invasion from stronger states as discussed in Federalist #8, or from an invading army as discussed in Federalist #29, or from federal overreach as discussed in Federalist #46?
Neither the first congress, nor any other congress, has ever given effect to any words of any Amendment to the Constitution. Those are acts of the people of the States, voting upon the black letter text of the proposed Amendment. The good or bad intentions are not voted upon and they do not become part of the Constitution.
For the history of the 2nd Amendment, I recommend reading the Opinion of the Court by Justice Antonin Scalia in Heller. One short excerpt:
c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed....”
In proposing the 16th Amendment, did the Congress state an intent to create the Income Tax we now have? The stated intent was to tax the rich.
When they proposed a first income tax, less than 4% of the people were projected to be affected. In 1895, Chief Justice White wrote of the enacted tax, that tax-payers might believe the tax "to be wanting in wisdom" but it was not for the courts to correct "mistaken or unwise exertions" by Congress.
Amendment XVIThe Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census or enumeration.
That's what was ratified. The power to lay and collect taxes on income was not subjected to any limitations regarding who must pay, or how much, whether it was peacetime an emergency. Madison Avenue marketing statements of intent are not in the words of the Amendment. The stated intent to tax the rich is not in the Amendment. It matters not one wit what anybody's stated intent was. The actual text is what matters.
And so, I will not be indulging your attempt to psychoanalyze Congress to divine their stated intention, or their attempts at Madison Avenue marketing.
Scalia of Tribe:
He is correct that we both regard as irrelevant the intentions of the drafters....
Scalia:
I should concur in this result more readily if the Court could reach it by analysis of the statute instead of by psychoanalysis of Congress. When we decide from legislative history, including statements of witnesses at hearings, what Congress probably had in mind, we must put ourselves in the place of a majority of Congressmen and act according to the impression we think this history should have made on them. Never having been a Congressman, I am handicapped in that weird endeavor. That process seems to me not interpretation of a statute but creation of a statute.
Conroy v. Aniskoff, 507 US 511, 519 (1993), Scalia, J., concurring
The greatest defect of legislative history is its illegitimacy.We are governed by laws, not by the intentions of legislators. As the Court said in 1844: "The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself...." Aldridge v. Williams, 3 How. 9, 24 (emphasis added). But not the least of the defects of legislative history is its indeterminacy. If one were to search for an interpretive technique that, on the whole, was more likely to confuse than to clarify, one could hardly find a more promising candidate than legislative history. And the present case nicely proves that point.
Judge Harold Leventhal used to describe the use of legislative history as the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one's friends.
-PJ
So that would be a "yes?"
That would be that your argument is documented as legal nonsense that will not be entertained by a court, or by me.
It's a hot topic for a forum that's supposed to be a place for conservatives to discuss constitutional issues, and I find it informative that you don't wish to share your own personal beliefs on the matter, but you're certainly willing to jump into threads to cite rulings.
-PJ
I did share my opinion on 2A and the RKBA, and did so with you at great length. You refuse to respond to a discussion of actual law and desire to psychoanalyze congress and their intent, and make believe that the pre-existing right was created by the Constitution.
As I quoted from Heller, "The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed....”
The RKBA is not granted by the Conjstitution, nor is it in any manner dependent on the Constitution for its existence. It very clearly pre-existed the Constitution.
As I quoted Scalia stating of Tribe, "we both regard as irrelevant the intentions of the drafters...."
Or as I quoted from Scotus: "We are governed by laws, not by the intentions of legislators."
As the Right to Keep and Bear Arms existed before the Declaration of Independence, what it is cannot be dependent on the 2nd Amendment which makes no attempt to define it. It used the common law term, the right to keep and bear arms, as that was readily understood by the former colonists who enjoyed that precise right as British subjects prior to the Declaration of Independence. Just as the RKBA is not dependent on the Constitution for its existence, it is not dependent on the Federalist Papers either. The Federalist Papers were an anonymously published sales pitch to the people of New York encouraging support for adoption of the Constitution to give more power to the Federal government. The Federaists were the Hamiltonians. The Hamiltonians won. The opposition was to become known as the Jeffersonians. They did not win that one.
2A only refers to the right; it does not define it. The first law recognizing the right to keep and bear arms was in 1181, predating the Constitution by about six centuries. It underwent some changes during those six centuries, but the right as it existed in 1776 was brought forward into the nascent states.
I've said it:
What I posted to you from The Federalist regarding the militia of the people was written before the first 10 amendments were proposed and ratified. That's why there is no discussion of a "right to keep and bear arms" in The Federalist.
In terms of the Articles of the Constitution, it was assumed that the people would be armed; no Constitution "gave" the people a right to be armed when they already were armed.
The Framers assumed that self-defense was a natural right of being. What The Federalist discussed was expectations of how an armed people would behave as individuals, as militias of the several states, and when called up to serve the needs of the United States within the context of the proposed Constitution.
I posted from The Federalist various discussions of how an armed militia of the people would prevent a tyrant from using an army against the people, or how it would prevent larger states from ganging up on smaller states.
What I didn't post was additional discussions from The Federalist of how an armed people's militia of the states were expected to enforce Article I Section 10 Clause 3 and Article IV Section 4 protections against invasion on behalf of the United States.
As you can see, all of my citations regarding a militia of the people that come from The Federalist presumed that the people already had an inherent right to be armed prior to drafting the Constitution.
-PJ
The Framers assumed that self-defense was a natural right of being.
The Framers knew full well that their right to keep and bear arms came from the English law that was in effect in the colonies. Upon independence the former colonies, now states, did not slip into a natural state of lawlessness. They all, without exception, adopted the English Common Law.
Suggestions for your library:
David E. Young, The Founders' View of the Right to Bear Arms; A Definitive History of the Second Amendment, Golden Oaks Books, 2007, 270 pp.
David E. Young, The Origin of the Second Amendment; A Documentary History of the Bill of Rights 1787-1792; Second Edition, Edited by David E. Young, Golden Oaks Books 2001, 838 pp. [838 pp. of original source material]
Clayton E. Cramer, For the Defense of Themselves and the State; The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms, Praeger Publishers, 1994, 286 pp.
Clayton E. Cramer, Concealed Weapon Laws of the Early Republic; Dueling, Southern Violence, and Moral Reform; Praeger Publishing, 1999, 180 pp.
Here regarding the 1st, 5th, and 8th amendment protections and "endowed" rights.
This was a reply of 03/19/2024 to a post of CraigEsq correcting your misconceptions of the law. CraigEsq's lawyerly explanation was totally correct. You added my handle to the To line, but I played no part in the discussion or the thread. No replies.
Here regarding the 6th amendment and speedy trials.
The link goes to your 5/18/2024 post to Ben Dover, I had nothing to do with it. No replies.
Here regarding possible 3rd amendment expansion to include "eyes and ears" protection in the modern age.
The link goes to your post 5/11/2024 to who_would_fardels_bear. I had nothing to do with it. No replies.
Here regarding 5th amendment protections from illegal criminal charges.
The link goes to your post 4/25/2024 to MeganC. I had nothing to do with it. No replies.
FYI, the Plaintiff in the New York State case is The People of New York. It is a State, not a Federal case. The 5th Amendment regarding a grand jury indictment has never been incorporated against the States, there is no constitutional right to a grand jury outside of Federal chareges, and States routinely use a charging information, rather than a grand jury. However, in the Trump case, Bragg did opt to use a grand jury, see here.
Here and here regarding 8th amendment protections against excessive fines.
The first link goes to your post of 4/24/2024 to libstripper. I had nothing to do with it. No replies.
The second link goes to your post of 3/20/2024 to Macho MAGA Man. I had nothing to do with it. No replies.
What I posted to you from The Federalist regarding the militia of the people was written before the first 10 amendments were proposed and ratified. That's why there is no discussion of a "right to keep and bear arms" in The Federalist.
What you say is irrelevant. The Federalist, all of it, was published well after the RKBA was a defined provision of the law. Nothing a Founder, Framer, or Federalist said could change that.
"The right to keep and bear arms shall not be infringed" says nothing about Framers or Federalists. The Federalist was a partisan sales pitch, not a law.
There was no content about the definition of the RKBA because it was a well-defined pre-existing right in the colonies, all were familiar with it, and it needed no discussion to be understood.
They were there at the founding and the framing.
-PJ
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