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  Nostalgia ain't what it used to be

Tuesday, 01 December, 2020

Hallelujah (Part I of II)

Date: 01 July, 2008

By: Chief

Imagehe Second Amendment is alive and well and I truly hope giving the gun grabbers peptic ulcers. Hah! The worthless scoundrels have it coming to them in spades.

This wonderful decision is due in no small part to Mr. Dick Anthony Heller, a citizen and resident of Washington, D.C., who originally brought the suit and Justice Antonin Gregory Scalia, who wrote the Supreme Court decision titled District of Columbia v. Heller (pdf) — the decision which preserves our Second Amendment.

I've got to tell you that I have only read the majority's part of the decision. I have not read the dissenting opinion. What is important is the Second Amendment is:

The Heller decision is also a very humorous read. Scalia's wit and eviscerating writing style can be found throughout the decision. Wow. It is a barn burner, to be sure.

So, with that said I believe it is about time to introduce you to some of the highlights — or low lights, dependent upon your point of view (Nancy Pelosi and similar ilk hate the decision) — of District of Columbia v. Heller for your reading pleasure. But before I do and in order to refresh some people's memory, here is our glorious Second Amendment:

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

Alrighty then, and without further ado, it is time to take a look at this tremendous decision. I shall leave out citations and instead insert "[ ]." It does make for easier reading.

Quoting Heller:

"The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause. The former does not limit the latter grammatically, but rather announces a purpose. The Amendment could be rephrased, 'Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed'. [ ]. Although this structure of the Second Amendment is unique in our Constitution, other legal documents of the founding era, particularly individual-rights provisions of state constitutions, commonly included a prefatory statement of purpose. [ ]."

As I wrote earlier — a preparatory clause followed by an effects clause. My, my, my. How about them apples? Common sense rules the day. I'm sure that must really piss Pelosi and the other gun grabbers to no end. Too bad for them.

"Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, 'A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed'. That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause ('The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence'. The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause."

Once again common sense will out. It is utterly amazing how our vaunted "free press" never seems to get this. Oh, I forgot, our "free press" does not like the Second Amendment. Indeed our "free press" does not like our Constitution — with the single exception of the First Amendment "free press" clause.

"JUSTICE STEVENS says that we violate the general rule that every clause in a statute must have effect. [ ]. But where the text of a clause itself indicates that it does not have operative effect, such as 'whereas' clauses in federal legislation or the Constitution's preamble, a court has no license to make it do what it was not designed to do. Or to put the point differently, operative provisions should be given effect as operative provisions, and prologues as prologues."

Too bad our politicians don't think that way. But obviously politicians don't think at all.

" 'Right of the People'. The first salient feature of the operative clause is that it codifies a 'right of the people'. The unamended Constitution and the Bill of Rights use the phrase 'right of the people' two other times, in the First Amendment's Assembly-and-Petition Clause and in the Fourth Amendment's Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology ('The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people'). All three of these instances unambiguously refer to individual rights, not 'collective' rights, or rights that may be exercised only through participation in some corporate body. [ ]"

What a concept — an individual right. Who would have thunk it?

"Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications [ ] and the Fourth Amendment applies to modern forms of search [ ], the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

In other words — get bent gun grabbers. I do love the "bordering on the frivolous" part. A knife in the gut. Scalia is, er, sharp.

"In any event, the meaning of 'bear arms' that petitioners and JUSTICE STEVENS propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby 'bear arms' connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. But it is easy to see why petitioners and the dissent are driven to the hybrid definition. Giving 'bear Arms' its idiomatic meaning would cause the protected right to consist of the right to be a soldier or to wage war--an absurdity that no commentator has ever endorsed. [ ]. Worse still, the phrase 'keep and bear Arms' would be incoherent. The word 'Arms' would have two different meanings at once: 'weapons' (as the object of 'keep') and (as the object of 'bear') one-half of an idiom. It would be rather like saying 'He filled and kicked the bucket' to mean 'He filled the bucket and died'. Grotesque."

Razor sharp wouldn't you say?

"JUSTICE STEVENS points to a study by amici supposedly showing that the phrase 'bear arms' was most frequently used in the military context. [ ]. Of course, as we have said, the fact that the phrase was commonly used in a particular context does not show that it is limited to that context, and, in any event, we have given many sources where the phrase was used in nonmilitary contexts. Moreover, the study's collection appears to include (who knows how many times) the idiomatic phrase 'bear arms against', which is irrelevant. The amici also dismiss examples such as 'bear arms . . . for the purpose of killing game' because those uses are 'expressly qualified'. [ ].

"(JUSTICE STEVENS uses the same excuse for dismissing the state constitutional provisions analogous to the Second Amendment that identify private-use purposes for which the individual right can be asserted. [ ]) That analysis is faulty. A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If 'bear arms' means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage ('for the purpose of self-defense' or 'to make war against the King'). But if 'bear arms' means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add 'for the purpose of killing game'. The right 'to carry arms in the militia for the purpose of killing game' is worthy of the mad hatter. Thus, these purposive qualifying phrases positively establish that 'to bear arms' is not limited to military use. [ ]."

Good God! Talk about a zinger. "Mad Hatter," "unknown this side of the looking glass" and my personal favorite "except, apparently, in some courses on Linguistics." I think what the good Justice Scalia was saying to the linguists was 'shut up — you are talking out your wazoo'.

The news though is that the Second Amendment is an individual right and in no way connected with military service. Get bent Pelosi, Reid, Kennedy and all other gun grabbers.

"[The] 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 by 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, [ ], '[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'. [ ]."

"[W]e find that they guarantee the individual right to possess and carry weapons." You have to wonder what part of that statement the gun grabbers fail to understand. I believe they understand it perfectly well. The gun grabbers merely want to take a right away from We the People. A right they do not like.

"There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment's right of free speech was not [ ]. Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause."

Okay, what are the limitations? Not many at all.

(Continue on to part II.)

[Ed. note: This story has been updated.]

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