News Flash: The Constitution Means What It Says

[GGReporter]

Justice Antonin Scalia`s majority opinion in yesterday`s Supreme Court decision in District of Columbia v. Heller is historic in its implications and exemplary in its reasoning.

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[Mick Jagger]

Originally Posted by GGReporter

Justice Antonin Scalia`s majority opinion in yesterday`s Supreme Court decision in District of Columbia v. Heller is ...exemplary in its reasoning.

Let's take a close look at the Court's interpretation of the the first clause of the Second Amendment in D. C. v. Heller. The words of the majority are in blue. My commentary is in red.



The Second Amendment provides: “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.” In interpreting this text, we are guided by the principle that

Commentary: The Court apparently recognizes that there are rules of construction and that they apply to the Second Amendment. I hope the Court applies the well established common law rules of construction existent at the time the Constitution was being made. There is an abundance of evidence in the documents generated during the making of the Constitution that the lawmakers assumed the rules would be applied to the Constitution being made.

“[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931); see also Gibbons v. Ogden, 9 Wheat. 1, 188 (1824).

Commentary: That's probably not a bad rule on interpretation. However, it wasn't actually one of the well established common law rules of construction at the time the Constitution was made. At the time the Constitution was made, the fundamental principle of legal interpretation, according to the great William Blackstone, was,

THE fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law was made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law.

The first general common law rule of interpretation, according to Blackstone, held that,

Words are generally to be understood in their usual and most known signification; not fo much regarding the propriety of grammar, as their general and popular use. Thus the law mentioned by Puffendorfl, which forbad a layman to lay hands on a prieft, was adjudged to extend to him, who had hurt a prieft with a weapon. Again; terms of art, or technical terms, must be taken according to the acceptation of the learned in each art, trade, and science. So in the act of fettlement, where the crown of England is limited “to the princefs Sophia, and the heirs “of her body, being proteftants,” it becomes neceffary to call in the affiftance of lawyers, to afcertain the precife idea of the words “heirs of her body;” which in a legal fenfe comprise only certain of her lineal defcendants. Laftly, where words are clearly repugnant in two laws, the later law takes place of the elder: leges pofteriores priores contraries abrogant is a maxim of univerfal law, as ell as of our own conftitutions. And accordingly it was laid down by a law of the twelve tables at Rome, quod populus poftremum juffit, id jus ratum efto.

I wonder if the Sprague Court going to be the Court's supreme authority on which rules of construction apply to the U. S. Constitution. I hope the Court doesn't just apply what ever rule will produce the outcome the Court favors. That would be judicial activism.

Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.

Commentary: Where does that rule come from? I don't see where the Sprague Court endorsed that rule. I hope the Court didn't adopt it just because it favors it.

...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.” See J. Tiffany, A Treatise on Government and Constitutional Law §585, p. 394 (1867); Brief for Professors of Linguistics and English as Amici Curiae 3 (hereinafter Linguists’ Brief).

Commentary: Now, I'm confused. I thought the Sprague Court was the authority on Rules of Constitutional Interpretation. The Court is now citing Joel Tiffany as the authority.

Why did the Court cite Tiffany as the authority for their "rephrasing" of the Amendment, and then rephrase it differently than Tiffany did?

Why is the Sprague Court no longer the supreme authority on which rules of construction apply to the U. S. Constitution?

If Tiffany is now the supreme authority on which rules of construction apply to the Constitution, should we apply Tiffany's other rules, such as the one that says, "the meaning of the constitution... must be ascertained by the application of such rules of interpretation...at the time the constitution was framed and adopted.

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. See generally Volokh, The Commonplace
Second Amendment, 73 N. Y. U. L. Rev. 793, 814–821 (1998).

Commentary: At time the Constitution was made, there were well established common law rules of construction. Under those rules, other legal documents cannot be consider, unless allowed by the rules.

Logic demands that there be a link between the stated purpose and the command.

Commentary: According to the well established rules existent at the time the Constitution was made, when the reason for a law terminates,so does the law. Is "a well regulated militia" still necessary for the security of the free state?

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

Commentary: Under the rules of construction existent at the time the Constitution was made, if the cause that moved the legislator ceases to exist, so does the law. Now that we rely on a standing army, is "a well regulated militia" still necessary for the security of the free state?

(“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.)

Commentary: The word "canons" doesn't mean "clergymen."

But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. See F. Dwarris,
A General Treatise on Statutes 268–269 (P. Potter ed. 1871) (hereinafter Dwarris); T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 42–45 (2d ed. 1874).3 “

Commentary: Why is Tiffany no longer the authority on rules of construction?

‘It is nothing unusual in acts . . . for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’ ” J. Bishop, Commentaries on Written Laws and Their Interpretation §51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165 (K. B. 1802)).

Commentary: Why are Dwarris and Sedgwick no longer the supreme authorities on the rules of construction.

Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.

Commentary: A textual analysis using the wrong rules of construction is worthless.

[Cyrano]

Mick, welcome to the forum.

But I have to ask you: Are you anywhere near making a point? I listened to the oral arguments in the Heller case, and admit taking great joy in hearing the lawyer who presented for DC repeatedly get his arguments slapped down by the Court. I also winced when Heller's lawyer stepped into the bear trap regarding firearms registration. I have read Scalia's decision is DC vs Heller from front to back and it's clear he explained what the Second Amendment means in simple language anyone with a high school education can easily understand. Just what do you want? It comes close to being the perfect rendering of a judicial opinion.

We need more justices who think as clearly and write as plainly as Scalia, not yahoos like Stevens and Breyer who can't read what is plainly written in the Constitution and stick to it.

[GlockMeister]

Hello and welcome to G&G.

As for your post, Why? Gun owners and most Americans have known the interpretation and meaning of the 2nd Amendment since the first day they read it.

FWIW, you might want to search the site/threads/forums before you post something? Because you're likely to find there's already a post or similar post on the subject already? I say this not to be a jerk, but only because I remember this one having several similar posts/threads shortly after the decision, if not also a few before the decision???

Also, in looking at Cyrano's post, and then re-reading the first few sentences of yours again, I'd also have to ask, are you trying to make a point, making a point or simply trying to mock or scoff at the court's decision? I ask because of the way some is worded and the way you started off?

Again, welcome to G&G, I am and we are always glad to have yet another member so passionate about the 2nd and who loves firearms of all shapes,sizes and calibers...Hopefully I'm wrong with my question above and I'll gladly give you the benefit of doubt...Until I read otherwise that is. lol

[Mick Jagger]

Originally Posted by Cyrano

Mick, welcome to the forum.

But I have to ask you: Are you anywhere near making a point?

The point is that there were well established common law rules of construction at the time the Constitution was made. In addition, there is an abundance of evidence in the documents generated during the making of the Constitution that the lawmakers assumed the rules of construction would be applied to the Constitution they we making.

Are you familiar with the common law rules of construction, my friend?

he explained what the Second Amendment means

I thought he job was to interpret the Second Amendment by applying the method of interpretation the lawmakers applied as they were making it.

Just what do you want?

I want the well established common law rules of construction applied to the word of the Constitution, because that's what the lawmakers probably wanted.

Are you familiar with the common law rules of construction existent at the time the Constitution was being made?

It comes close to being the perfect rendering of a judicial opinion.

Can you explain the methodology he used?

We need more justices who think as clearly and write as plainly as Scalia, not yahoos like Stevens and Breyer who can't read what is plainly written in the Constitution and stick to it.

Scalia proclaimed a great guiding principle of constitutional interpretation and then immediately used another one. That's not my idea of clear thinking? He also switched his authorities many times to get the outcome he desired. That is classic judicial activism.


Much of the language in the Constitution is ambiguous. What rules and principles do you believe should be applied to resolve ambiguous language in the Constitution?

[Mick Jagger]

Originally Posted by GlockMeister

Gun owners and most Americans have known the interpretation and meaning of the 2nd Amendment since the first day they read it.

That's real nice. However, the Constitution was probably adopted with the understanding it would be interpreted by applying the well established common law rules of construction existent at the time the Constitution was made.

Are you familiar with the common law rules of construction and the numerous references the lawmakers made to the rules of construction during the making of the Constitution?

you might want to search the site/threads/forums

That's how I found this thread.

...are you trying to make a point...

The point is that there were well established common law rules of construction at the time the Constitution was made. In addition, there is an abundance of evidence in the documents generated during the making of the Constitution that the lawmakers assumed the rules of construction would be applied to the Constitution they we making.

Are you familiar with the common law rules of construction, my friend?

Have you ever searched Madison's Notes on The Debates in the Federal Convention of 1787, the Federalist Papers, the Anti Federalist Papers and Elliot's Debates for "rules of construction", "rules of interpretation" and "maxims of interpretation?"

Again, welcome to G&G, I am and we are always glad to have yet another member so passionate about the 2nd and who loves firearms of all shapes,sizes and calibers...Hopefully I'm wrong with my question above and I'll gladly give you the benefit of doubt...Until I read otherwise that is. lol

I own or have legal custody of thousand of firearms. I also have personal opinions on the subject of individual rights. However, I don't interpret the Constitution according to my personal views. But hey, that's just me.

[Mick Jagger]

The States neglect their Militia.

--James Madison during the general convention of 1787 that drew up the U. S. Constitution

[GlennM]

Mick sounds a bit like Jon.

[Mick Jagger]

...the proem in the Second Amendment...was fully explained by the SCOTUS

We don't need the Constitution explained, dude. We need it honestly interpreted by applying the well established common law rules of construction the lawmakers, according to the historical evidence, most probably wanted applied to the Constitution.

Two of those well established common law rules of construction were invoked, by the great James Madison in Federalist No. 40 to, interpret "the act from Annapolis" and "that from Congress, in February, 1787" recommending what became the historic general convention that framed the U. S. Constitution.

The two rules of construction invoked by Madison date back to the time of Sir Edward Coke (1 February 1552 – 3 September 1634) and held that,

The one is, that every part of the expression ought, if possible, to be allowed some meaning, and be made to conspire to some common end. The other is, that where the several parts cannot be made to coincide, the less important should give way to the more important part; the means should be sacrificed to the end, rather than the end to the means.

When interpreting the Second Amendment, every word it contains ought to be allowed some meaning and made to conspire with the goal of a free state. What meaning should be given to the words in the first clause of the Amendment in order that they act together with the words of the second clause to achieve the goal of a free state?

[YankeeSpirit76]

Apparently you should have been seated on the court instead of the 5 justices that voted for the people...dude.

[sbowers5]

Mr. Jagger you obviously have an extremely high education, so why bother us low life gun lovers and defenders of this great country with desertations that most cannot understand or do not wish to decipher in to common lay person language, go argue your belief's before the supreme court and leave us to our own devices's. Just my opinion.
steve

[Mick Jagger]

The rules of construction, where the nature of the instrument (the U. S. Constitution) is ascertained, are familiar to every one.

--Joseph Story in Martin v. Hunter's Lessee

[Mick Jagger]

Originally Posted by sbowers5

Mr. Jagger you obviously have an extremely high education, so why bother us low life gun lovers and defenders of this great country with desertations that most cannot understand or do not wish to decipher in to common lay person language, go argue your belief's before the supreme court and leave us to our own devices's. Just my opinion.
steve

You can't defend the Constitution if you don't know what it means.

[sbowers5]

can and i do every day my friend and did for 20 years in the millitary.
steve

[TexasT]

Mick, you obviously look like a troll. Coming on the forum and going straight for action. Why don't you mosey on over to the intro section and announce your arrival and maybe talk a little bit about your guns.

[Mick Jagger]

Originally Posted by sbowers5

can and i do every day my friend and did for 20 years in the millitary.
steve

The military doesn't teach soldiers how to interpret the Constitution, dude. I know, because I served six years in Army Special Operations attached to a intelligence gathering agency .

[Mick Jagger]

Originally Posted by TexasT

Mick, you obviously look like a troll.

You're obviously a lesbian communist sympathizer.

[TexasT]

You're obviously banned.

[YankeeSpirit76]

Hey Mick, The framers of the Constitution didn't write it with the intent that only people who went to Harvard freakin law school could understand it! They wanted even ignorant blue collar folks like us to understand it also!
I don't have to know every little grammatical rule of the English language to pick up a book, read it in it's entirety, and yes....actually understand WTF I just read!

At the time the Constitution was written, all I know is that everyone was free to keep and bear arms, therefore, in my little brain, that tells me what was meant.
You are hung up on what they meant by "Militia". You seem to be snagged on the preamble (wow, I surprised myself with that big word!) Though I ( and I'm sure every low life on this site) bow to your overwhelming intellect, the truth is" WE ALL ARE THE MILITIA"-George Mason.
Everyone who can carry, and knows how to use a weapon in defense of his "State" or "nation" IS the Militia!
That's all we need to know. So if you still insist on razzle dazzling someone with your intellect and moral superiority....please take it somewhere else. Thank you....dude

[sbowers5]

6 years in intelligence is nothing compared to the 35 months and 10 days that i spent in viet nam and all the others that did the same so people like you and john kerry have the right to this kind of commentary, and I am not your DUDE jagger.
steve