Reply #282: Sorry Charlie! [View All]

[Will E Orwontee]

The notion that the Bill of Rights is ABSOLUTE is absurd. Try yellling FIRE in a theater when there is no fire and see if the First Amendment protects you. Try telling a Church it can endorse Huckabee and still keep it's tax exempt status in the name of the First Amendment. The notion that there are no conditions or limits to a right in the Bill of Rights is absurd and not supported by 200 years of Constitution law.

First, you didn't come close to answering the question.

Second, no one is arguing for an absolute right interpretation, . . . Just that legitimate restrictions on the right to arms are found by examining the principles behind why the right was secured, not in any shifting, moldable misconstructions "interpreting" restrictions, qualifications and conditions from the lexicon of the provision itself.

The reason the framers considered the pre-existing right important enough to be constitutionally secured, (the "object" of the amendment) does impart some limitations on the scope or exercise of the right to arms, just as the "object" of the 1st Amendment legitimizes laws constraining our right to speak and publish. For the 2nd Amendment, the perpetuation of the militia concept is why the amendment exists, but the individual right to arms is the "means" to achieve that "object" and THAT is what is protected.

Just so we are using the same definitions; from Webster's 1828 Dictionary:

OB'JECT, n. 2. That to which the mind is directed for accomplishment or attainment; end; ultimate purpose.

MEAN, n. 3. Instrument; that which is used to effect an object; the medium through which something is done. In this sense, means, in the plural, is generally used,

To examine this in practice let's look at Aymette at 158:

"As the object for which the right to keep and bear arms is secured is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. "

Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

The above recognizes two separate entities. The "object" of the provision and the means to achieve it. The object is why the framers thought it important to secure the right, (which is not created by the provision, merely recognized and "secured" by it).

"The people acting in a body, for their common defence, . . ." is "the object for which the right to keep and bear arms is secured." The object, the overall intent of this state provision and the federal 2nd Amendment, can not be realized without the means to achieve it.

The lower federal courts have misread, misrepresented and misused Miller to create a complicated collective right interpretation from a simple collective object explanation. And that is what you are parroting . . .

This nation has, as an inseparable component an armed citizenry; no establishing statute or clause need be written to create it or the principles behind the militia concept. An armed citizenry is a fundamental maxim of our Republic and exists on a plane above the the grant of Constitutional powers and hence, untouchable by any entity created by (or operating under) the US Constitution. (See Presser)

PS - DId it ever occur to you that the Second Amendment means exactly what it says regarding state militias?

That's my entire argument! The 2nd has never been held by SCOTUS to illuminate any aspect of state militia powers; it does not speak to the states at all. I recognize and completely understand the "state's right" theory of the 2nd but when the actual issue of who controls the militia is examined the "state's right" theory is exposed for the fraud it is.

If the 2nd Amendment's action is to protect a state's militia from federal interference then the judicial record must be bursting with instances of states citing the 2nd and defeating federal demands of preemption and supremacy over their militia. Unfortunately for your side, the 2nd has never been looked to for guidance or, even more damaging to the "state's right" theory, has never been claimed by any state to provide any immunity from federal interference. (The 2nd was mentioned in one case by a Justice but only to unequivocally state it "offered nothing to the discussion at hand.") Any issues of federal / state militia power conflict have only been decided by referring to Art I, § 8 powers, never the 2nd Amendment.

Very, very strange given your claims of the Amendment's ambit of influence!