Why the Second Amendment has a preamble

Discussion in 'Gun Control' started by Galileo, Jul 22, 2017.

  1. Galileo

    Galileo Well-Known Member

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    "The U.S. Supreme Court deliberated on the meaning of the Second Amendment preamble when it decided the case of District of Columbia v. Heller. 8 In his majority opinion, Justice Scalia does not so much seek to understand the meaning of the preamble as to assert that it had, and thus continues to have, little meaning. Scalia severs the amendment into two parts—calling the preamble a 'prefatory' clause and the remainder its 'operative' clause. The rhetorical strategy of reducing the preamble to mere preface becomes clear when he writes, 'The former does not limit the latter grammatically, but rather announces a purpose.'....

    "Preambles had long existed in English lawmaking.... A preamble was supposed to narrow and clarify, not widen, a law....

    "Because the historical meaning of preambles figures so prominently in Justice Scalia’s opinion, it is important at this point to examine directly eighteenth-century preambles, which provide the correct context for the text in the beginning of the Second Amendment....

    "It is true that many preambles served only to justify the reasons for the assumption and exercise of sovereign power....

    "For American lawmakers, the preamble provided the wording necessary to serve the former colonists’ purposes of justifying their break with Great Britain and their assumption of sovereign power, as New York had done by quoting the Declaration of Independence. But other preambles were more than merely the justification clauses of Volokh’s argument. More importantly, preambles were explicit statements of purpose. The language of preambles was necessary to restrain the operative clauses....

    "Blackstone knew the problems of imprecision despite such aids, and therefore explained:

    " 'If words happen to be still dubious, we may establish their meaning from the context; with which it may be of singular use to compare a word, or a sentence, whenever they are ambiguous, equivocal, or intricate. Thus the proeme, or preamble, is often called in to help the construction of an act of parliament.' ....​
    "It was in response to this understanding of the effect of preambles that Jefferson worked to oppose the insertion of 'Jesus Christ' into the preamble of the Virginia Statute for Religious Freedom. Such language, he knew, would narrow the protections of the bill to Christians alone....

    "Scalia adds, 'In America "the settled principle of law is that the preamble cannot control the enacting part of the statute in cases where the enacting part is expressed in clear, unambiguous terms." '186 Though it may be correct to follow what the law has been since the mid-nineteenth century, a justice can not retroactively apply the rule to the eighteenth. John Jay, riding circuit in the 1790s, provides a far more reliable contemporary opinion: 'A preamble cannot annul enacting clauses; but when it evinces the intention of the legislature and the design of the act, it enables us, in cases of two constructions, to adopt the one most consonant to their intention and design.' "
    http://www.uclalawreview.org/pdf/56-5-7.pdf

    So it appears that Scalia did not have a very good understanding of the role that preambles played in 18th Century law when he authored Heller.
     
    Last edited: Jul 22, 2017
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  2. Rucker61

    Rucker61 Well-Known Member

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    So you contradict yourself. Typical.
     
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  3. Galileo

    Galileo Well-Known Member

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    So you troll. Typical.
     
  4. kazenatsu

    kazenatsu Well-Known Member Past Donor

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    What if we accept the entire Bill of Rights as an amendment unto itself? They were all passed at the same time, and were the first amendments to be made to the constitution. So the text in the First Amendment can be seen, in this light, as a preamble to the Second.

    "Congress shall pass no law..."
    It seems these amendments were all about Congress and the federal government, specifically the powers under the U.S. constitution (not necessarily the numerous and separate individual state constitutions).
     
  5. kazenatsu

    kazenatsu Well-Known Member Past Donor

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    Also if you look at the Second Amendment, it has three commas. Why is that?
    I think it was because it was saying that both the State militias and the people's right to bear arms was not to be infringed (under the U.S. federal Constitution).
    If there wasn't that last comma, it might be concluded that only the people's right to bear arms was being protected.

    When the text is talking about "the security of a free State", it is not talking about the entire country. State = individual states, like Virginia or Massachusetts.
     
    Last edited: Jul 22, 2017
  6. Hoosier8

    Hoosier8 Well-Known Member Past Donor

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    The left is so desperate to assert authoritarian control over the masses that any twisted interpretation of the constitution will do.
     
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  7. Turtledude

    Turtledude Well-Known Member Donor

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    quoting Saul Cornell generally dooms any attempt to engage in the revisionist anti individual rights nonsense that we saw there. Those anti gun professors never ever get around to examining where the federal government actually was delegated a proper power to restrict guns. They want to pretend that the original meaning of the second amendment was limited to a militia right but they accept the court created expansion of the commerce clause that is dishonest
     
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  8. Turtledude

    Turtledude Well-Known Member Donor

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    they also are inconsistent. you cannot make the second amendment fit with the bill of rights and the theory of natural rights (that the founders all bought into) by pretending that the second amendment was limited to a state being able to arm its own militia-a militia that could be federalized at the store of a pen. the gun banning academics engage in intellectual dishonesty and contortions and ignore the fact that if they really want to go by the original intent, then they must reject the bogus expansion of the commerce clause that ignored the clear language of the constitution and 140 years of precedent
     
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  9. Galileo

    Galileo Well-Known Member

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    Saul Cornell didn't write the article. This scholar did:
    http://law.wustl.edu/faculty/pages.aspx?id=3367
     
  10. vman12

    vman12 Well-Known Member Past Donor

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    You mean like when they take the "right to privacy" which is inferred, and use that to justify the "right to have an abortion"?
     
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  11. vman12

    vman12 Well-Known Member Past Donor

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    ....and then they ignore every other article on the topic of arms written by the founding fathers.
     
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  12. DoctorWho

    DoctorWho Well-Known Member

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    Gun Ban Avocados fail to distinguish between "The Militia" and "The People" and the reasoning behind it, People make up a Militia, not a full time standing Army, Farmers, Store owners, etc...... Could be called upon in a time of need, so, their Right to bear Arms as Citizens, could not be infringed so these could serve, in time of need, as the well Governed or well regulated Militia.

    Again, if the term; "The People" meant the Military,
    It would read;
    The Military / Militia shall bear Arms for the General defense of The People.

    There would be NO mention of Rights or infringement in regards to Military or Militia service, Rights pertain to ordinary citizens that could be called upon to serve as Militia, and free uninfringed access to Arms makes that possible.
     
  13. Galileo

    Galileo Well-Known Member

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    The members of the Constitutional Convention referred to themselves as "We the people". The militia was another form the people could take. The people could take many forms. The use of such a term strongly suggests the right is exercised collectively. The people exercise the right together in group (which is the militia) rather than individuals exercising the right in isolation.

    "Marc Kruman, exhaustively studying the state constitutions of this era, makes it clear that 'to speak of "the people" in late eighteenth century America was not to speak of an undifferentiated mass, but, in fact, to speak of towns and counties, for that was how the people spoke.'136 Such a view accords with the prevailing view of scholars of state government in the early republic: namely, that citizens believed in 'an identifiable and obtainable public good different from the aggregated interests of individuals.' "
    http://www.uclalawreview.org/pdf/56-5-7.pdf
     
  14. 6Gunner

    6Gunner Banned

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    Everything here shows why Galileo is utterly clueless as to the nature of Liberty and Freedom. His views are poisoned through the lens of a Marxist worldview. Every word is a rationalization of governmental control over the people; the very shackles the Founders fought so hard to throw off.
     
  15. yguy

    yguy Well-Known Member

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    What's missing, alas, is how the hell that follows from anything you posted.

    Then there's something wrong with that light, because that's clearly not what it is.

    So it was decided in Barron v Baltimore, but not on the preposterous basis you adduce.

    Actually the phrase refers to the states collectively, Who are, after all, the Owners of the Constitution.
     
  16. Rucker61

    Rucker61 Well-Known Member

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    Didn't the original draft of the 2nd read "The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person."

    If a preamble was so important, why didn't Madison write it that way in the beginning?
     
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  17. Texan

    Texan Well-Known Member

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    A well regulated militia, being necessary to the security of a free state,
    A militia that can function as a fighting force and knowing how to operate weapons being necessary to the security of freedom in America,

    the right of the people to keep and bear arms shall not be infringed.
    the right of the people to keep and bear arms shall not be infringed.

    "Well regulated" means to be in proper working order. It doesn't mean to be micro managed by the government and at the same time not infringing the right of the people.
     
    Last edited: Jul 23, 2017
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  18. Galileo

    Galileo Well-Known Member

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    "Well regulated" means regulated by the federal government. Article I of the Constitution grants that power.
     
  19. 6Gunner

    6Gunner Banned

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    No, that is a lie. "Well-regulated" in the Constitutional sense means properly equipped and functioning as expected; it was a phrase in common usage at the time of ratification. During the War of 1812 dispatches from the field praised the "fine regulation" of militia units, and they were praising their skill-at-arms, their esprit d'corps, and their courage under fire; NOT how well controlled by the government they were.
     
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  20. Turtledude

    Turtledude Well-Known Member Donor

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    the "scholar" cited Saul Cornell. that alone creates a high level of distrust for any of his conclusions. Cornell is a whore of the Joyce Foundation who is paid by that group to come up with anti gun nonsense
     
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  21. Turtledude

    Turtledude Well-Known Member Donor

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    another falsehood. Article One says nothing of private arms owned by private citizens
     
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  22. Texan

    Texan Well-Known Member

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    Then why was the right granted to "the people"?
     
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  23. Turtledude

    Turtledude Well-Known Member Donor

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    because they really wanted to mean "state militia" because down the road they really wanted Dishonest democrats like FDR to pretend that "commerce among the several states" really meant, "Congress shall have the power to ban whatever firearms its sees fit to ban, for whatever reason possible"

    clear?
     
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  24. Galileo

    Galileo Well-Known Member

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    Why do you ask? Are you implying that there is some kind of contradiction?

    "This desirable uniformity can only be accomplished by confiding the regulation of the militia to the direction of the national authority."
    - Alexander Hamilton

    What national authority was he talking about? The answer is in Article I of the Constitution. I'm not sure why some people here are even questioning this. This is a matter of settled law.
     
  25. Xenamnes

    Xenamnes Banned

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    Pray tell why does "the people" of the first amendment have a different connotation than "the people" of the second amendment? Why did the founders supposedly believe that freedom of speech, free assembly, and the practice of religion, were apparently more important to safeguard than the private ownership of firearms?
     
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