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Logical inversions: Many prominent arguments today just don't make sense
WORLD Magazine ^ | 5/11/02 | Gene Edward Veith

Posted on 05/03/2002 9:35:57 PM PDT by Caleb1411

"'Logic!' said the Professor half to himself. 'Why don't they teach logic at these schools?'" Professor Digory in C.S. Lewis's The Lion, the Witch, and the Wardrobe was complaining about the fatuous reasoning of the children in the novel who did not believe in the existence of Narnia.

Today the problem is not just that logic is untaught. Many people, including some of the most well-schooled, do not believe in logic. How else to explain the almost comically bad thinking that passes for policy analysis of some of the most important issues of our day?

When the Supreme Court legalized "virtual" child pornography (see "Images have consequences," May 4), many of the nation's most prominent newspapers defended the decision. Portraying themselves as First Amendment fundamentalists, they editorialized that even the most offensive speech deserves protection; otherwise, all of our freedoms are in jeopardy.

And yet, nearly every newspaper that took this position also pushed for a campaign-restrictions bill that would limit political speech.

Do they believe the founders of the nation, when they drew up the Bill of Rights, intended to protect computer simulations of adults having sex with little children—and not protect American citizens expressing their political opinions in the course of electing their representatives?

And even if liberal journalists reject the "original intent" approach to constitutional interpretation, if we need to protect all speech no matter how offensive, then shouldn't this apply to speech that they find offensive, namely that of special-interest groups, lobbyists, and grassroots activists?

Or consider the cloning debate. Most everyone agrees that using cloning to produce a human baby is wrong and should be banned by law. But many people, including influential scientific groups, believe that "therapeutic" cloning, producing embryos whose stem cells and other genetic material can be used to treat disease, should be allowed.

In other words, it is wrong to use cloning technology to produce a living baby. But it is right to use cloning technology to produce a baby that is killed for its spare parts.

Surely, therapeutic cloning is more of a moral problem than reproductive cloning. The latter is wrong too, since it violates God's design in the natural order, which ordains reproduction by means of sex, an arrangement that results in the family, the offices of husband and wife, father and mother. But a cloned child would not be a soulless monster, just the twin of some adult, and would be entitled to all the rights and value of any other human being.

But to clone a child and to deny his rights and value by not letting him grow up, instead using him as a macabre medicine for sick adults—surely this is even more problematic morally. Indeed, a major reason why reproductive cloning is immoral is that it requires the production of scores of embryos before one actually "takes," with the other embryos then being destroyed.

Of course, conservatives are often accused of being similarly contradictory. How can you be against abortion, goes one charge, but be in favor of the death penalty?

But clear, logical thinking requires the ability to make distinctions. It is wrong to kill an innocent person. It may not be wrong for the state to kill someone who is guilty. A baby in the womb is not the moral equivalent of a convicted serial killer or an al-Queda terrorist.

The contradiction is really on the other side. How can you oppose the death penalty, but be in favor of abortion? How can you be against executing Oklahoma City bomber Timothy McVeigh, who murdered 168 innocent men, women, and little children, but be for executing, without trial, a baby who isn't even born yet and who hasn't hurt anybody?

Fallacies like these litter the field of public-policy discourse. Why is the American Civil Liberties Union so zealous for the First Amendment, but so indifferent to the Second Amendment? Aren't they in the same Constitution?

How can public-school teachers get away with saying that standardized tests encourage rote memorization and "teaching to the test" when the tests they are complaining about involve reading paragraphs, answering questions about them, and doing math problems, measuring reading and math comprehension, but not rote memory at all? And why is the ability to memorize a bad thing? Why do those who believe in euthanasia think suffering merits the death penalty? Hasn't it always been more despicable to kill a sick, helpless person than someone who can fight back? Don't sick people need to be cared for, not exterminated?

Mental clarity is generally a prerequisite for moral clarity. And being able to recognize bad thinking is necessary for citizens in a free society—otherwise, they will not remain free very much longer, but be at the mercy of the spin doctors and the demagogues.


TOPICS: Culture/Society; Editorial; Government; News/Current Events; Politics/Elections
KEYWORDS: abortion; cfr; childpornography; cloning; deathcultivation; deathpenalty; education; euthanasia; firstamendment; secondamendment; un
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To: Roscoe
These guys seemto think that anything they don't like just has to be unconstitutional.

You are far too kind. They are just children that use the "constitution" as an excuse to yell "you ain't the boss of me" at the adults.

221 posted on 05/06/2002 1:00:02 AM PDT by Texasforever
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To: Texasforever

CONSTITUTION OF THE STATE OF KANSAS

Article 8. -- MILITIA

§ 1: Composition; exemption. The militia shall be composed of all able-bodied male citizens between the ages of twenty-one and forty-five years, except such as are exempted by the laws of the United States or of this state; but all citizens of any religious denomination whatever who from scruples of conscience may be adverse to bearing arms shall be exempted therefrom, upon such conditions as may be prescribed by law.

§ 2: Organization. The legislature shall provide for organizing, equipping and disciplining the militia in such manner as it shall deem expedient, not incompatible with the laws of the United States.

§ 3: Officers. Officers of the militia shall be elected or appointed, and commissioned in such manner as may be provided by law.

§ 4: Commander in chief. The governor shall be commander in chief, and shall have power to call out the militia to execute the laws, to suppress insurrection, and to repel invasion.

222 posted on 05/06/2002 1:00:32 AM PDT by Roscoe
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To: Roscoe
Thank you so much!

I'm glad our esteemed attorney general doesn't think much of Ms. Stovall's reasoning. Think I'll spend a little time searching where else her brief shows up online. I'll get back to you.

223 posted on 05/06/2002 1:21:10 AM PDT by Woahhs
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To: Roscoe
Funny. It seems you gave me an accurate link for the above quote, but not for the original from post ninety-something. They are certainly parrallel in the list of precedents they cite, as would be expected from similar legal reasonings, yet I wonder if perhaps you might have inadvertanty erred about the source of your original quote and list of case law to me. Would you mind double checking that for me?

Thanks.

224 posted on 05/06/2002 1:57:42 AM PDT by Woahhs
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To: Texasforever
"God I love to see you guys beaten so badly you sputter."

God I love to see you applaud roscoe, who is busy defending the 'right' of states to grab guns.

You clowns are so eager to claim you beat someone in game playing debate that you lose all common sense and argue against your own inalienable rights.

And what makes your sputter claim so funny is roscoes obvious inablity to best anyone with his 'cite' tactic . -- It's a silly unwinnable dodge, employed by those who refuse to debate constitutional principles.

225 posted on 05/06/2002 8:24:02 AM PDT by tpaine
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To: Texasforever; roscoe
Excessive state restrictions on the right to keep and bear arms are bad policy. - [unconstitutiona] -

These guys seem to think that anything they don't like just has to be unconstitutional - Roscoe -

You are far too kind. They are just children that use the "constitution" as an excuse to yell "you ain't the boss of me" at the adults. - tex

-----------------------------------

Yep, selfstyled 'adults' like you two get yelled at when you twist the clear meaning of the constitution on its own supremacy & on gun rights.

Why do you do it? -- No one here knows. --- Its counterintutitive, -- a 'logical inversion', -- as you argue against your own rights. Weird.

226 posted on 05/06/2002 8:53:06 AM PDT by tpaine
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To: tpaine
Its counterintutitive

Historical facts trump ignorant intuition.

227 posted on 05/06/2002 9:24:54 AM PDT by Roscoe
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To: Woahhs
1. Cases v. United States, 131 F.2d 916 (1st Cir. 1942); United States v. Kozerski, 518 F.Supp. 1082 (D. N.H. 1982), aff'd 740 F.2d 952 (1st Cir. 1984); United States v. Tot, 131 F.2d 548 (3rd Cir. 1942); Eckert v. City of Philadelphia, 329 F.Supp. 845 (E.D. Pa. 1971), aff'd 477 F.2d 610 (3rd Cir. 1973); United States v. Johnson, 497 F.2d 548 (4th Cir. 1974); Love v. Peppersack, 47 F.3d 120 (4th Cir. 1995); United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971); United States v. Warin, 530 F.2d 103 (6th Cir. 1976); Quilici v. Village of Morton Grove, 532 F. Supp. 1169 (N.D. Ill., E.D. 1981), aff'd 695 F.2d 261 (7th Cir. 1982); United States v. Hale, 976 F.2d 1016 (8th Cir. 1992); Fresno Rifle and Pistol Club, Inc. v. Van de Kamp, 746 F. Supp. 1415 (E.d. Ca. 1990), aff'd 965 F.2d 723 (9th Cir. 1992); United States v. Oakes, 564 F.2d 384 (10th Cir. 1977).

2. Cases v. United States, 131 F.2d 916 (1st Cir. 1942); United States v. Kozerski, 518 F.Supp. 1082 (D. N.H. 1982), aff'd 740 F.2d 952 (1st Cir. 1984); United States v. Tot, 131 F.2d 548 (3rd Cir. 1942); Eckert v. City of Philadelphia, 329 F.Supp. 845 (E.D. Pa. 1971), aff'd 477 F.2d 610 (3rd Cir. 1973); United States v. Johnson, 497 F.2d 548 (4th Cir. 1974); Love v. Peppersack, 47 F.3d 120 (4th Cir. 1995); United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971); United States v. Warin, 530 F.2d 103 (6th Cir. 1976); Quilici v. Village of Morton Grove, 532 F. Supp. 1169 (N.D. Ill., E.D. 1981), aff'd 695 F.2d 261 (7th Cir. 1982); United States v. Hale, 976 F.2d 1016 (8th Cir. 1992); Fresno Rifle and Pistol Club, Inc. v. Van de Kamp, 746 F. Supp. 1415 (E.d. Ca. 1990), aff'd 965 F.2d 723 (9th Cir. 1992); United States v. Oakes, 564 F.2d 384 (10th Cir. 1977).

Exact.

228 posted on 05/06/2002 9:32:51 AM PDT by Roscoe
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To: Avoiding_Sulla
I admire your screen name. ;^)

Have you tangled with old Lucius himself on this site? lol

Few folks realize how the Sullan attempt to restore the old Constitution destroyed what was left of it and left the field open for the Triumvirate, and then...the 'Imperator'. ;^)

Res publica bump!

229 posted on 05/06/2002 10:18:50 AM PDT by headsonpikes
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To: headsonpikes; Lucius Cornelius Sulla
Oh my, yes. I've among the few, er, fortunate*, and am not proscribed.

In fact, he is frequently in my alert list when not the respondent. Like now.

And you've touched on where LCS and I differ. He stays resigned (albeit reluctantly) to seeing our civilization go the down the same path, leaving the ultimate outcome to God (what I imagine was not the dissimilar inclination of his namesake at his retirement, though "to the gods" instead).
He calls me an optimist. I say through God (absent from the honorable Republic and too late for the decadent Empire) we can still prevent the raw power seekers from culling the planet down to no more than half a billion.

Hence much of my posting makes extensive use of Pascal and Lewis -- both men who faced up to the horror they saw building in their time. They are good teachers if we listen.

It seems to me that Dictator LCS' failed attempts at restoring honor demonstrates that even among the most powerful there may still be Godliness that could be reached.

--------------
*hail to Felix

230 posted on 05/06/2002 11:28:14 AM PDT by Avoiding_Sulla
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To: Avoiding_Sulla
It is my belief that the parallels with late-Republican Rome will become ever more obvious in the coming decades.

We may be on the verge of an equivalent to the Social Wars. We must keep our wits about us to avoid proscription! ;^)

231 posted on 05/06/2002 11:37:51 AM PDT by headsonpikes
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To: semper_libertas
All of nature is a fight for life Av.
Humans as much as any plant, insect or mammal.
Well, that's different. I did not know you had joined with the gang. You know, those guys C.S. Lewis dubbed "The Conditioners."

You do not hold then with Gen 1:26?

Which places man above the lower species. Well, at least among the God fearing.

You've left that behind? I did not think so. Et tu semper_libertas? You are now in agreement with secular humanists? We are on top only because of our higher intellects? The same creed which by extension says: "Ergo, humans with higher intellects than other humans are, by right, higher up the food chain ." In that case -- worth the reminder to those who think this way -- even y'all hafta watch yer back. <g>

It stands to reason that the greatest affairs of man involve life and death decisions.
Human history is a history of men killing men.
You fear that the superior powers which govern us may be conspiring to kill us by the 100's of thousands.
[Actually, no. I say billions]

I disagree.
Slave owners go to great lengths to protect the lives of their slaves.

I cannot help but notice the grand success you've had preventing the evidence from penetrating this illusion.

Every 20th Century Tyranny from the Soviet Union to the Hutus in Rwanda found ways to abort, starve, torture, wholesale murder, cannon fodder, or dissappear vast tens of millions of its slaves.
China and Sudan still do; Zimbabwe is building up to it.
And all this with the tacit approval of the overarching controlling authorities at the U.N., rubberstamped by some in the U.S. Everything from "Atrocities? What atrocities? " to "We choose not to use the word genocide at this time."

Does that look the same as traditional protection of chattel slavery of which you refer?
Isn't it more inline with our experience of what happens when overpopulated herds are culled?

I most certainly could be wrong. I certainly hope that I am.
But what if I'm correct in my reading of what I see as overwhelming evidence?
Then your concerns over oligarchic statism -- what you see as gradually asserting itself ever more obviously, unmoved that more people figure it out, becoming ever more despotic -- ought rightly be a very real, and deadly, concern.

Well then, your personal choice over how you might or might not influence posterity is clearly at stake.

Cheers.

--Av

232 posted on 05/06/2002 2:13:41 PM PDT by Avoiding_Sulla
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To: headsonpikes
It is my belief that the parallels with late-Republican Rome will become ever more obvious in the coming decades.
I think the three of us mostly are in agreement.
LCS thinks it will happen faster than that. [insert link here]
I think the potential is there, and intentionally so. As LCS often points out, "the left is not about ideas, it is about power," and they are in the avante garde of the power seekers -- the pushers upon the bounds of whatever will be called on each succeeding day. "Progressives in action. Pardon our dust." :^)

We may be on the verge of an equivalent to the Social Wars. We must keep our wits about us to avoid proscription! ;^)
This is why I ask all my present and future friends to go through the pain of reading and absorbing C.S. Lewis' The Abolition of Man.*
(Given enough time, I may offer on FR my view of every passage in it. I've already a running start. 8^) )
Lewis shows us how and why so few of us have been schooled as thoroughly as one would suppose a truly benevolent society would wish.

Regards

--Av
------------------
*subtitled or Reflections on Education with Special Reference to the Teaching of English in the Upper Forms of Schools.

233 posted on 05/06/2002 2:51:34 PM PDT by Avoiding_Sulla
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Comment #234 Removed by Moderator

To: Avoiding_Sulla
I have only read excerpts from 'The Abolition of Man'.

On your advice, I will locate and read it. ;^)

235 posted on 05/06/2002 3:21:34 PM PDT by headsonpikes
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To: Roscoe
"The Second Amendment declares that it shall not be infringed, but this, as has been seen, means no more than that it shall not be infringed by Congress." - US Supreme Court, U.S. v. Cruikshank, 92 U.S. 542 (1875), Presser v. State of Illinois, 116 U.S. 252 (1886).

See also Cases v. United States, 131 F.2d 916 (1st Cir. 1942); United States v. Kozerski, 518 F.Supp. 1082 (D. N.H. 1982), aff'd 740 F.2d 952 (1st Cir. 1984); United States v. Tot, 131 F.2d 548 (3rd Cir. 1942); Eckert v. City of Philadelphia, 329 F.Supp. 845 (E.D. Pa. 1971), aff'd 477 F.2d 610 (3rd Cir. 1973); United States v. Johnson, 497 F.2d 548 (4th Cir. 1974); Love v. Peppersack, 47 F.3d 120 (4th Cir. 1995); United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971); United States v. Warin, 530 F.2d 103 (6th Cir. 1976); Quilici v. Village of Morton Grove, 532 F. Supp. 1169 (N.D. Ill., E.D. 1981), aff'd 695 F.2d 261 (7th Cir. 1982); United States v. Hale, 976 F.2d 1016 (8th Cir. 1992); Fresno Rifle and Pistol Club, Inc. v. Van de Kamp, 746 F. Supp. 1415 (E.d. Ca. 1990), aff'd 965 F.2d 723 (9th Cir. 1992); United States v. Oakes, 564 F.2d 384 (10th Cir. 1977).

Federal circuit court decisions have uniformly cited Cruikshank, Presser, and Miller as upholding the propositions that the second amendment is a limitation only on the power of the federal government as a protection for the states in the maintenance of their militia organizations against possible encroachments by the federal power, is not applicable to the states and thus is not a limitation on the power of the states, and is a guarantee of a collective right of the people to keep and bear arms rather than an individual right. See Cases v. United States, 131 F.2d 916 (1st Cir. 1942); United States v. Kozerski, 518 F.Supp. 1082 (D. N.H. 1982), aff'd 740 F.2d 952 (1st Cir. 1984); United States v. Tot, 131 F.2d 548 (3rd Cir. 1942); Eckert v. City of Philadelphia, 329 F.Supp. 845 (E.D. Pa. 1971), aff'd 477 F.2d 610 (3rd Cir. 1973); United States v. Johnson, 497 F.2d 548 (4th Cir. 1974); Love v. Peppersack, 47 F.3d 120 (4th Cir. 1995); United States v. Johnson, 441 F.2d 1134 (5th Cir. 1971); United States v. Warin, 530 F.2d 103 (6th Cir. 1976); Quilici v. Village of Morton Grove, 532 F. Supp. 1169 (N.D. Ill., E.D. 1981), aff'd 695 F.2d 261 (7th Cir. 1982); United States v. Hale, 976 F.2d 1016 (8th Cir. 1992); Fresno Rifle and Pistol Club, Inc. v. Van de Kamp, 746 F. Supp. 1415 (E.d. Ca. 1990), aff'd 965 F.2d 723 (9th Cir. 1992); United States v. Oakes, 564 F.2d 384 (10th Cir. 1977).

No, it's not. That's the problem with the tempermentally liberal. They want everyone to start at the point things support them. Invariably, if one looks just before where they want you to attend, you'll find the hole. It's also why they like precedent so much more than law: easier to hide.

Roscoe, I believe you are trying to pull a fast one. You'd have been smarter to just deny the original was a "cut and paste job."Do you see the sentence in quotation marks from post 93 ANYWHERE in post 218? As I've already acknowleged, the list of caselaw is parallel (perhaps your eyes are tired). Now as much emphasis on source as I have put in our discussion, why would you use anything but an EXACT quote as a rejoinder to my "baseless" contentions. So you have either removed the original statement from it's true supporting citations (you know, this isn't Barbie head swapping...people ignore you when you do this kind of thing), or you actually got the original quote from somewhere else as I contended from the outset, and have palmed off the second based on it's parallel list of caselaw.

Your last name wouldn't happen to be Carville would it?

236 posted on 05/06/2002 3:26:40 PM PDT by Woahhs
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To: Avoiding_Sulla; headsonpikes; Lucius Cornelius Sulla
erratum [insert what was omitted]

As LCS often points out, "the left is not about ideas, it is about power," and [I add] they are in the avante garde of the power seekers -- the pushers upon the bounds of whatever will be called [excess] on each succeeding day.

PS to LCS -- apologies for forgetting to include you in number233. Your ears must've been burning even in your sleep.

237 posted on 05/06/2002 4:08:36 PM PDT by Avoiding_Sulla
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To: Caleb1411
The problem most people have in using logic or attacking the 'logic' of another person is that they go about it in the wrong manner. Logic can be effectively used to reach just about any of the principles if logic. The point of attack should not usually be the conclusions of the opponents argument, but the PREMISES which are usually easily demonstrated to be false and therefore render their conclusions to be wrong.

CTD, professor of logicality.

238 posted on 05/06/2002 4:16:16 PM PDT by connectthedots
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To: headsonpikes
A helpful hint in reading it. Each of the three essays, 17 to 22 paragraphs long, is a transcribed lecture.

As such I found the book read easier when imagining a professor fully absorbed and animated in presenting his theses.
Imagine arm movements, eyebrow arches, grins and grimaces, rise and fall in tempo and volume. Doing this you may find it easier to read than did I the first time. His apparently repetitive examples, probably used to get across the essence of his meanings with as little uncertainty as possible, then becomes more enlivening and understandable. I imagine it must've been a kick hearing it.

239 posted on 05/06/2002 4:36:33 PM PDT by Avoiding_Sulla
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To: Texasforever;roscoe;tpaine
[Copyright © 1996 Cumberland Law Review. Originally published as 26 Cumb. L. Rev. 961-1004 (1996). Permission for WWW use at this site generously granted by Cumberland Law Review (www.samford.edu/schools/law.html) and the author. For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571.]

CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT INTERPRETATIONS OF UNITED STATES V. MILLER AND THE SECOND AMENDMENT

Brannon P. Denning[*]

[SNIP]

B. Cruikshank and Presser: The Second Amendment and the States

1. United States v. Cruikshank

Even if the Supreme Court overturned Miller, under existing case law states would still be free to regulate, to the extent permitted by various state constitutions, the right to keep and bear arms. Since comprehensive, nationwide gun control legislation is regarded as not politically feasible, many gun control advocates have concentrated their efforts at the state and local level. In places like New York state or Morton Grove, Illinois, gun control initiatives have been enacted. To what extent have courts held that the Second Amendment operates as a limitation upon state power? Unfortunately, the federal courts have employed reasoning from antiquated Supreme Court decisions--the foundations of which have been largely repudiated by modern Court decisions--in opinions addressing the Second Amendment's protection against state and local government attempts at gun control. Therefore, despite well over half a century of incorporation in which the federal courts have held almost all provisions of the Bill of Rights applicable to the states, the Second Amendment has not been applied to the states.[80]

Conventional wisdom holds that United States v. Cruikshank[81] settled the question of the Second Amendment's applicability to state governments.[82] However, in the haste to dispose of Second Amendment claims, the background against which the Cruikshank decision took place is ignored. Moreover, language in the opinion, as well as a half century of Supreme Court doctrine, calls into serious question the continuing viability of either the holding or the reasoning. Cruikshank, decided during Reconstruction, "was part of a larger campaign of the Court to ignore the original purpose of the Fourteenth (p.978)Amendment--to bring about a revolution in federalism, as well as race relations."[83]

Cruikshank originated in Louisiana where a sixteen count indictment was handed down against over one hundred individuals under § 6 of the Enforcement Act of 1870.[84] The indictment alleged that the defendants, inter alia, conspired to "hinder and prevent" two African-American citizens from exercising certain "rights and privileges."[85] Among the rights and privileges asserted were the "lawful right and privilege to peaceably assemble together with each other and with other citizens of the United States for a peaceable and lawful purpose"[86] and the right of "bearing arms for a lawful purpose."[87]

First, it is important to note that the Court's holding emphasizes that the guarantees in the Bill of Rights operate to restrain governments as opposed to individuals.[88] The necessary element of state action was missing. But in dicta, the portion of the opinion upon which modern lower courts tend to rely, the Court repeated the then-valid doctrine that the Bill of Rights does not apply to the states. Dismissing the First Amendment count, the Supreme Court found that despite the passage of the Fourteenth Amendment, the First Amendment to the Constitution "was not intended to limit the powers of the State governments in respect to their own citizens, but to operate on the National government alone."[89] Under the Court's construction, because the right of the people to peaceably assemble was neither "created" by the Constitution, (p.979)nor "was its continuance guaranteed, except as against congressional interference,"[90] the people must look to the states for protection of this right.[91]

The Court relied on much the same reasoning in dismissing the claim that the defendants conspired to hinder the complainants' right to "[bear] arms for a lawful purpose."[92] First noting that "bearing arms for a lawful purpose" was "not a right granted by the Constitution,"[93] the Court held that the Second Amendment's language "means no more than it shall not be infringed by Congress."[94] Concluding the short paragraph dealing with the Second Amendment, the Court stated that internal police powers were "not surrendered or constrained by the Constitution of the United States."[95]

The Supreme Court devoted exactly one paragraph in the entire opinion to the Second Amendment issue, an issue that was arguably ill-framed in the first place. Not only was there little analysis, but what analysis there was with regard to the First Amendment issue is now outdated when considered in light of the Supreme Court's incorporation decisions.[96] Yet, lower courts continue to cite this case for the proposition that the Second Amendment poses no obstacle to state gun control legislation, even if it amounts to an outright ban on certain types of arms. While lower courts have little choice but to apply Supreme Court precedent as it exists, the Court itself should revisit this decision, applying the criteria it has adopted for the incorporation of every other constitutional provision.[97](p.980)

2. Presser v. Illinois

The only other Supreme Court case that addresses in any detail the applicability of the Second Amendment to the states is the case of Presser v. Illinois.[98] In light of the development of subsequent Supreme Court doctrine, modern reliance on the logic of Presser, like that of Cruikshank, is anachronistic and begs for reexamination.

Presser was charged with violating an Illinois statute that made it a crime for "any body of men" other than "the regular organized volunteer militia of [Illinois], and the troops of the United States, to associate themselves together as a military company, or organization, or to drill or parade with arms" in the cities or towns of Illinois without a license of the Governor, who had unlimited authority to revoke that license.[99] In September of 1879, Presser and 400 fellow members of a society calling itself Lehr und Wehr Verein,[100] marched without gubernatorial license in the streets of Chicago.[101] Presser was convicted and fined ten dollars.[102]

Presser complained that this law of Illinois had the effect of depriving him of his Second Amendment right to keep and bear arms.[103] The Court answered that the right to gather as a group and hold armed parades was not included in the right to keep and bear arms and that "the amendment is a limitation only upon the power of Congress and the National government, and not upon that of the States."[104] The Court, of course, cited Cruikshank for support of this proposition.[105] Curiously, the Court, in dicta, suggests that to the extent that state citizens are also members of the national militia, state (p.981)regulation which prohibited "the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security" would not be sustainable, "even laying the [Second Amendment] out of view."[106] The Court did not explore that point further because it felt the Illinois statute in question was a valid exercise of the state's police power.[107] But the dicta of the case suggests, independent of the Second Amendment, that the state's right to restrict the lawful bearing of arms is not absolute. As one commentator notes,

[E]ven if the Second Amendment was not infringed by a state requirement of a license for private armed marches or even if it did not apply to the states, nevertheless, a right to keep and bear arms existed for "all citizens capable of bearing arms," and this right could not be infringed by the states.[108]

Subsequent courts have found it convenient, however, to ignore this loose thread left by the Presser Court.[109]

[80] See, e.g., Quilici, 695 F.2d at 269. In Quilici, the Seventh Circuit upheld an ordinance passed by the city of Morton Grove, Illinois that, in essence, banned the possession of handguns within the city limits. Id. at 263. In its decision, the Seventh Circuit cited Presser v. Illinois, 116 U.S. 252 (1886), as controlling. Id. at 269. The court held that Presser "plainly states that '[t]he Second Amendment declares that it shall not be infringed, but this ... means no more than it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the National government....'" Id. (quoting Presser, 116 U.S. at 265). For a discussion of Presser, see infra notes 100-10 and accompanying text.

[81] 92 U.S. 542 (1875).

[82] See Henigan, supra note 3, at 112 n.23.

[83] Cottrol & Diamond, supra note 3, at 347.

[84] The section made it a crime if

[T]wo or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen, with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, or because of his having exercised the same ....

Id. at 347 (citing 16 Stat. 141 (1870)).

[85] Cruikshank, 92 U.S. at 548.

[86] Id. at 551.

[87] Id. at 553.

[88] See Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right 159 (1984) ("The federal courts ... could not offer relief against defendants accused of conspiracy to deprive complainants of their freedom of action and their firearms, for these violations were common-law crimes actionable only at the local level.").

[89] Cruikshank, 92 U.S. at 552.

[90] Id.

[91] Id.

[92] Id. at 553.

[93] Id. Cf. Eckert v. Philadelphia, 477 F.2d 610, 610 (3rd Cir. 1973) (stating that "the right to keep and bear arms is not a right given by the United States Constitution"); U.S. v. Kozerski, 518 F. Supp. 1082, 1090 (D.N.H. 1981) ("It is well established that the Second Amendment is not a grant of a right but a limitation on the power of Congress and the national government ....").

[94] Cruikshank, 92 U.S. at 553.

[95] Id.

[96] See Gitlow v. New York, 268 U.S. 652 (1925) (assuming that the First Amendment operated as a restraint on state governments). Even though not all of the Bill of Rights has been applied to the states through the Due Process Clause of the Fourteenth Amendment, the extreme reliance of the Supreme Court's dismissal of the Second Amendment claim in Cruikshank upon their rationale for the dismissal of the First Amendment claim in the same case seems to preponderate in favor of at least a reexamination by lower courts of the Cruikshank decision's rationale.

[97] See Duncan v. Louisiana, 391 U.S. 145, 148-49 (1968). While the jury may still be out on whether the Due Process Clause of the Fourteenth Amendment was actually meant to incorporate the Bill of Rights, unless the Court is prepared to repudiate a doctrine it has developed over a half century of decisions, it ought to at least be consistent in its application of existing doctrine.

[98] 116 U.S. 252 (1886).

[99] Id. at 253 (quoting Ill. Mil. Code Art. XI (1879)).

[100] The Supreme Court's opinion notes that the group was incorporated under the laws of Illinois and stated its aim, in its charter, as having the purpose of "improving the mental and bodily condition of its members" that they may be qualified "for the duties of citizens of a republic." This goal it intended to accomplish through "knowledge of ... laws and political economy ... and ... in military and gymnastic exercises." Id. at 254.

[101] Id. U.S. at 254-55.

[102] Id. at 254.

[103] Id. at 264.

[104] Id. at 265.

[105] Id. "The ... proposition to the effect that Cruikshank held that the Second Amendment is not a limitation on the states ignored that Cruikshank did not involve state infringement of rights." Halbrook, supra note 88, at 160.

[106] Id.

[107] Id. at 265-66.

[108] See Halbrook, supra note 88, at 161.

[109] See, e.g., Quilici, 695 F.2d at 269.

[/SNIP]

I have no idea how to link this whole thing, I will e-mail if you send me a place to.

I love it when all of these "big government" haters get caught defending it. The irony is delicious.

Tex, what is the irony in an amendment that holds states to the same LIMITATIONS as the fedgov, boy. How is that "defending big government" Being a smug ass don't trump much you know. And I don't care how old you are, two years of experience repeated fourty times is still ignorence.

Site Cruikshank all you want. It is lousey case law based on Judicial racism and says more about you sweethearts than it does about RKBA.

240 posted on 05/06/2002 5:25:45 PM PDT by MileHi
[ Post Reply | Private Reply | To 216 | View Replies]


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