Useful Piece re Heller

[ArmedBear]

This is good for understanding the 2nd Amendment, discussing it with others, and also for writing any letters you may wish to write.

It answers the question: "How do the two clauses relate, and what does the 'well-regulated militia' have to do with the 'right of the people'?"

http://www.cato.org/pub_display.php?pub_id=8920

 

[The Law]

A very good read!

 

[hugh damright]

Odd ... he seems to recognize that the first clause is a declaration of a principle of free government or republicanism, yet he continues to refer to it as a "subordinate clause" and an "introductory clause" ... although he does in one instance refer to the first clause as the "active liberty clause".

 

[ArmedBear]

"Subordinate clause" and "introductory clause" are terms of English grammar, not law, and AFAIK they are accurate descriptions of the clause as written in the language in the 1780s. We would use slightly different construction today.

"Subordinate clause" merely indicates that the clause is secondary to the "independent clause", which is the part of the sentence that can stand alone, with a subject and predicate.

E.g., take the following sentence:

Because she lives in a cold climate, Jane bought a long-haired dog.

Now "Jane bought a long-haired dog" is the independent clause, with a subject, verb and direct object. "Because she lives in a cold climate" is the subordinate clause in the sentence.

"Subordinate" does not necessarily mean "less important to the meaning of the sentence".

 

[One of Many]

You seem to be confusing the grammatical definition of the clause, with the political definition of the clause. The active vs negative clause is a political definition, whereas the dependent or subordinate or introductory clause is a definition based on grammar.

"A well regulated Militia being necessary to the security of a free State" is not a complete sentence, so it forms an adverbial dependent clause which modifies the independent clause. The independent clause "the right of the People to keep and bear arms shall not be infringed" forms a complete sentence. The dependent clause thus adds information to introduce and expand the topic being addressed in the independent clause; the dependent clause is subordinate to the independent clause that it supports. The dependent clause is not a restriction placed on the independent clause, rather it is an explanation of purpose for the independent clause.

 

[ArmedBear]

Re what One of Many and I wrote...

Note that a fairly large part of the "debate" over what the 2nd Amendment "really means" is dependent on grammar.

Now I use quotation marks because I don't think that something can be legitimately called "debate" when one side has fabricated its position. That can be shown by history, and is not simply my opinion about it. The "collective right model" simply did not exist until the 20th century. Contemporary writings, by people who helped write the Constitution as we know it, as well as the legal and popular understanding of the 2nd Amendment for the first 150 years of its existence, all point to a guarantee of an individual right.

Therefore, an argument for a "collective right" based on the meaning of the sentence is disingenuous at best.

 

[Leatherneck]

Worth repeating from the article (and Breyer's book):

More broadly, the republican philosophers worried that citizens who did not participate in the protection of their communities would become passive and dependent, and thereby lose virtues necessary to the survival of a free society.

Look around you, and what do you see today?

TC

 

[ArmedBear]

Them Founders wuz smart!

 

[romma]

The independent clause "the right of the People to keep and bear arms shall not be infringed" forms a complete sentence.

I think I slept during this period in high school!

 

[Standing Wolf]

Look around you, and what do you see today?

Cowards and lawyers, lawyers and cowards.

 

[hugh damright]

You seem to be confusing the grammatical definition of the clause, with the political definition of the clause.

I see what y'all are saying, within the context of the article in question ... but generally speaking, when people call the first clause a subordinate/introductory/preamblatory clause, my impression is that they aren't just talking about grammar, they are implying a political definition.

The dependent clause thus adds information to introduce and expand the topic being addressed in the independent clause; the dependent clause is subordinate to the independent clause that it supports. The dependent clause is not a restriction placed on the independent clause, rather it is an explanation of purpose for the independent clause.

This doesn't seem like a grammatical definition but rather a political one. It seems to assume that the real/main intent is to declare the personal RKBA, and that the first clause is just there to help explain or support this second/real/main/object clause. But politically speaking, the first clause stands alone, as representing a principle of free government. It is not there as an example of why the personal RKBA is needed, but rather it is there to declare a principle of free government. In fact, based upon the requests for the Second Amendment and the history of its origin, it kind of seems to me like, politically speaking, we could say that the first clause is independent, and the Second Clause is just there to support it.

The negative liberty aspect is in the Second Amendment's main clause: "the right of the people to keep and bear arms shall not be infringed." The clause derives from a long line of human rights philosophy about the right of individuals to defend themselves and their families.

Is this just conjecture? When Congress considered the amendment, did they discuss human rights philosophy about the right of individuals to defend themselves and their families? What did the State Conventions discuss when framing their requests for the amendment, and what did the State Legislatures discuss when ratifying it? It seems to me like in every instance the object was the collective defense, not personal defense against burglars.

 

[ArmedBear]

hugh, without the context of the Athenian democracy as a model (and in some cases an anti-model) for what the Founders wanted to do, and the philosophy of the Enlightenment, whose language pervades the Declaration of Independence and all other writings and discussions leading to the Constitution, one cannot have an honest discussion about the human rights philosophy of the framers.

Some things were "givens", and wouldn't have been discussed because there was no difference of opinion. I believe that the right to use deadly force in self-defense was a "given" in the human rights philosophy of the time and place. Thus, you need to look beyond the immediate discussions around ratification, because an undisputed principle would not have been restated. Before TV, I don't think that politicians made speeches before empty chambers about subjects not being debated, just to "go on record," as they do now.

That's Breyer's point.

 

[USAFNoDAk]

Armed Bear wrote:

Them Founders wuz smart!

I believe they were better predictors of what could be than old Nostradomis (sp?) was. Yet, he gets all of the notoriety. I agree with Armed Bear. Our founders were as smart as he was at predicting human behavior, at least.

 

[USAFNoDAk]

Romma posted:
I think I slept during this PERIOD in high school!
(Emphasis mine)

Or maybe you were in a COMMA, which rhymes with Romma.

 

[USAFNoDAk]

ArmedBear wrote:Some things were "givens", and wouldn't have been discussed because there was no difference of opinion. I believe that the right to use deadly force in self-defense was a "given" in the human rights philosophy of the time and place. Thus, you need to look beyond the immediate discussions around ratification, because an undisputed principle would not have been restated. Before TV, I don't think that politicians made speeches before empty chambers about subjects not being debated, just to "go on record," as they do now.


The Fourth amendment states:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The authors of the 4th amendment did not make any statements about tobacco use in the home, but I think it would have been their philosophy that the federal government had no power to regulate or ban tobacco use in the home. It was a given that tobacco use in the home would be a private affair, totally outside the control of the federal government, even if the authors never discussed tobacco use within the home when drafting the 4th amendment.

I would say that the federal government has no power to ban tobacco use in the home, even today. We could argue whether states could ban tobacco use within the home and they may be moving in that direction to protect the children. I would say that tobacco use kills many more people than firearm use does, and I'm not talking about criminal misuse. Banning handguns does virtually nothing to retard criminal misuse of handguns by criminals.

Thus, if people believe the federal government, or the states, can ban gun possession in the home by lawful citizens, then they must also believe that the federal government, or the states, can ban tobacco use and alcohol use in the home by lawful citizens. The latter two items are far more dangerous to our lives, our health, and our children, if one looks at the statistics. We already tried the ban on alcohol. I don't know if it was ever ruled unconstitutional for the feds to ban alcohol use. However, the chaos that ensued from their attempts to do so made it so that the feds eventually saw the errors of their ways. This led to so much violent crime that any perceived benefits to the public were soon swamped by the rising tide of criminal activity surrounding the prohibition on alcohol. I suspect the same might happen with firearms, should the feds ever go that far.

 

[txgho1911]

No argument or position will deter the swine whom would wear a loose slip and painted face.