Sunday, September 15, 2013

Classic repost: IGNORANCE IS GREG!

Greg Camp Sez: 1. You give us a link to statuatory interpretation, but fail to recognize that we're talking about the constitutional interpretation:

Well, Greg, it IS a legal document. And it was written to those rules.

That is a comment which is the equivalent of "why do I need to know grammar when I write?" or  "Why do I need to know the rules of chess?"

An even shorter simpler answer, Greg, anyone who watches crime TV shows knows more about the law and legal method than you do.
In analyzing a statute’s text, the Court is guided by the basic principle that a statute should be read as a harmonious whole, with its separate parts being interpreted within their broader statutory context in a manner that furthers statutory purpose. The various canons of interpretation and presumptions as to substantive results are usually subordinated to interpretations that further a clearly expressed congressional purpose.
 from Statutory Interpretation: General Principles and Recent Trends, Congressional Research Office, Order Code 97-589.

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803): said that

The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction…It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.

Rules of statutory interpretation regarding the proeme, AKA the first clause of the Second Amendment.
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. Of the same nature and use is the comparison of a law with other laws, that are made by the same legislator, that have some affinity with the subject, or that expressly relate to the same point.
That gets back to my comment that Article I, Section 8, Clause 16 expressly gives CONGRESS the power to ARM  the militia.  Looking at the document as a whole, the Civic Right (not my interpretation personally, but the one which was accepted until Heller threw the law into flux).

I also talk about a concept called desuetude, that is where laws become obsolete.  Many laws have sunset clauses written into them.

In the case of the Second Amendment, the first clause announces the purpose (from Adam Freeman's Clause and Effect) :
The best way to make sense of the Second Amendment is to take away all the commas (which, I know, means that only outlaws will have commas). Without the distracting commas, one can focus on the grammar of the sentence. Professor Lund is correct that the clause about a well-regulated militia is “absolute,” but only in the sense that it is grammatically independent of the main clause, not that it is logically unrelated. To the contrary, absolute clauses typically provide a causal or temporal context for the main clause.
The founders — most of whom were classically educated — would have recognized this rhetorical device as the “ablative absolute” of Latin prose. To take an example from Horace likely to have been familiar to them: “Caesar, being in command of the earth, I fear neither civil war nor death by violence” (ego nec tumultum nec mori per vim metuam, tenente Caesare terras). The main clause flows logically from the absolute clause: “Because Caesar commands the earth, I fear neither civil war nor death by violence.”
Diagramming the Second Amendment, one should end up with something that expresses a causal link, like: “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.” In other words, the amendment is really about protecting militias, notwithstanding the arguments to the contrary.

In his Rudiments of English Grammar (1790), Noah Webster writes that “a nominative case or word, joined with a participle, often stands independently of the sentence. This is called the case absolute.” Webster gives several examples, including, “They all consenting, the vote was passed.” He explains, “The words in italics are not connected with the other part of the sentence, either by agreement or government; they are therefore in the case absolute, which, in English, is always the nominative.” Grammatical independence, to Webster, is not about political self-determination, it's all about the nominative case. But he would acknowledge without hesitation that the vote would not have passed without the consent of the voters.

Webster’s readers would have had no difficulty recognizing that the Second Amendment also begins with an absolute. They would have studied the absolute in school, and they had probably been tested on it in a federalist-era version of No Child Left Behind.

Any educated federalist also would have learned in school that government, in grammar, merely refers to the case of a noun – its inflection as a nominative, dative, genitive, accusative (or, in the case of Latin, an ablative). As Robert Lowth, the author of the most widely-studied school grammar of the time, put it, “Regimen, or government, is when a word causeth a following word to be in some case, or mode.” For example, prepositions cause the following noun or pronoun to take the dative case. Or as the schoolbooks liked to say, prepositions govern the dative. That’s why we say, “Give the gun to me,” not, “Give it to I.”

Anyway, since the clause "a well regulated militia is necessary to the security of a free state" announces the purpose for the right, We need to go back to the citation from Blackstone regarding the “proeme, or preamble” since it is part of a larger section that consists of “observations concerning the interpretation of laws.” 1 Blackstone at 58. One of those “observations” was: “BUT, lastly, the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it. For when this reason ceases, the laws itself ought likewise to cease with it.” 1 Blackstone at 61.

Blackstone refers to this “when the reason ceases, the law ought to cease” principle several times in the Commentaries, which would seem to indicate that he considered it a fairly important interpretive principle. 2 Blackstone at 390-91 (discussing property interests in tame and domestic animals and noting “But here the reasons of the general rule cease, and ‘cessante ratione cessat et ipsa lex‘ [The reason of the law ceasing, the law itself also ceases]“), 3 Blackstone at 219 (discussing the law of nuisance, and noting “But, where the reason ceases, the law also ceases with it : therefore it is no nuisance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water.”), 4 Blackstone at 3 (noting that some aspects of Britain’s criminal law “seem to want revision and amendment” and explaining that “These have chiefly arisen from too scrupulous an adherence to some rules of the antient common law, when the resons have ceased upon which those rules were founded . . . “), 4 Blackstone at 81 (discussing the law of treason, and noting that the “plain intention of this law is to guard the blood royal from any suspicion of bastardy, whereby the succession to the crown might be rendered dubious: and therefore, when this reason ceases, the law ceases with it . . .”), 4 Blackstone at 330 (discussing the plea of a former attainder, and noting “But to this general rule however, as to all others, there are some exceptions; wherein, cessante ratione, cessat et ipsa lex.”).

In other words, the phrase "a well regulated militia is necessary to the security of a free state" is already the sunset clause written into the Second Amendment.

By saying that this clause is no longer applicable, you have said that the reason for the Second Amendment no longer exists.  Thus, the Second Amendment died roughly the time that Story said:
And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised,that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see.There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

That's why people like Greg and the Five fools want to see it neglected.  The problem is that The Second Amendment was pretty much an irrelevance well before it was written.  See Adam Smith’s Wealth of Nations, Book V, Chapter I (Of the Expences of the Sovereign or Commonwealth), PART I: 16-27 (Of the Expence of Defence) for a critique of the miltia system from 1775.

Anyway, Constitutional interpretation IS statutory interpretation.  It is a statute, one of the first drafted by congress.

Where does this leave us? As a well constructed sentence, the Second Amendment says this: the people have a right to bear arms, inasmuch as that pertains to forming a regulated militia to secure a free state. Nothing more, nothing less. What of the right to personal self-protection? Who knows! — the Second Amendment does not talk about that. The main clause, “the right of the people to keep and bear arms shall not be infringed”, cannot be read without the preceding absolute — otherwise the Founding Fathers would have omitted that absolute. (I take it as given that they included in the Constitution only those words that they thought should be there and be interpreted; that they didn’t insert window-dressing or fluff.) Moreover, assuming the Founding Fathers were rather well educated, none of them would have misunderstood the limiting condition that the initial absolute put on the concluding main clause. Importantly it sets the topic: the militia, not the individual. We can certainly hem and haw as to the meaning of individual terms in the Second Amendment — “militia”, “well regulated”, “the people”, “security”, “infringed”, “arms” — but we should be crystal-clear as to the grammar. If one thing is manifest, it’s that the initial absolute puts a limit on the applicability of the main clause; the latter cannot and should not be interpreted without the former.

It's just that something like that is above Greg's level of intellect.

And waaayyyyyy beyond Orlin's.

And while we're at it: Greg can reread this stuff  mikeb302000.blogspot.com/search?q=Statutory+interpretation

Not that he will grasp its significance.  Greg wants the law to say what he wants it to say:  not what it says.

20 comments:

  1. Cute how you edited a post after I commented on it, but didn't post my comment. By the way, you're insisting that the Second Amendment takes the form, if p then q. You do know, don't you, that when p is false, but q is true, the conditional sentence is true?

    And what you quoted from me--the word is spelled says, by the way--was in a discussion about different levels of law.

    When is Mikeb coming back?

    ReplyDelete
  2. A learned blockhead is a greater blockhead than an ignorant one. Ben Franklin

    orlin sellers

    ReplyDelete
  3. A repost that both compliments itself on its classic nature and spends a long time insulting a couple of commenters based on one statement that we are given with no context.

    As for the rest of this, it's the same old tripe you keep trotting out. You make claims like "the collective right was the standard interpretation until Heller" but then fail to back such statements up. The real reason is because the court was never asked to declare the nature of the right before Heller, so there's nothing to back up your quote.

    And most of the rest is your quoting and deliberate and obvious misconstruing of Blackstone, Story, a few others, and your butchery of your native tongue.

    We've heard it all before and it was shite when you posted it then.

    ReplyDelete
    Replies
    1. T., I think the idea that before Heller there was only the collective right has been backed up plenty. You just don't like it, especially since Heller was decided by one vote on the most corrupt Court that money can buy.

      Enjoy all your gun-rights victories because your days are numbered.

      Delete
    2. It takes a leftist true believer not to be able to read plain English, but you're right--our days are numbered. In about four bilion years, the Sun will head toward the red giant stage, probably making life on Earth impossible. Though by then, we may have found other places to be.

      Delete
    3. You know, between Laci calling armed citizens "good targets" for the po-po and you saying my/our days our numbered, y'all really don't give off the image of friendly guys who don't want to extract a pound of flesh.


      As for the "Collective Right" interpretation, please show me the cases where this is set forth. Laci seems to have gone away now that you're back, but he wasn't showing any proof anyway. All he offered was a bibliography of modern scholars who favor gun control, and a smattering of military history books and primary sources like "The Wealth of Nations" from which he was pulling information on how European armies were moving away from the militia idea.

      I've read most of the decisions touching on the Second Amendment (Federal and even the big state ones like Aymette), and it wasn't until Heller that the Court addressed the nature of the right explicitly. Before that, there are decisions that I think they got right, and many others where I think the Court made a bad call (such as excusing the actions of a white mob that disarmed and murdered a bunch of blacks). Only the dissents in Heller say anything that suggests a collective right.

      Had the court believed in a collective right, most of these cases would have been tossed for a lack of standing. Instead, the Court heard these cases and made their decisions, right or wrong, based on the individual right interpretation. Even the most wicked one of them, the one where the Court did nothing about the forcible disarmament and murder of a group of black men in Louisiana, assumed that the plaintiffs had an individual right to arms but limited this to a right against interference from the Federal Government, opening a door for the Klan, and later the Jim Crow laws, to disarm and persecute blacks with impunity until 1961 when Mapp v. Ohio began incorporating federal rights into the 14th Amendment--a process that continued for decades.

      If you (or Laci if he's still around) have any precedents I haven't seen which state that the right is collective or overrule any of these other precedents on that basis, I'd be happy to see them, but up until now all I've seen is weak rationalizations and broad statements that the individual interpretation is a 20th century invention. The rationalizations don't hold up, and the broad statements are demonstrably false since the Federal prosecutor and court in Cruikshank, the evil case I spoke of from the 1870's, assumed that the right was an individual one (it just came up with another way to nullify it by allowing the states to violate it).

      Delete
    4. In this context, "your days are numbered" means your days of enjoying lax gun laws. You knew that but pretended not to. That's why you're known as a liar.

      Delete
    5. I knew that was how you would claim to mean it, and it may be how You truly mean it; however, Laci's statement, which I'm sure you'll pass off as "Darwinian hyperbole" or some such excuse, does give off a more threatening vibe which reasonably taints our impression of you since you and he are so tight.

      As for your comment about my being a liar, I didn't pretend to be unaware of your meaning. I stated that you gave a bad impression when everything is taken together--a wise man would think about that, whether he decided to act on it or not. Instead, you twisted my words, pretended that I said that you DID intend a threat rather than that you were giving the impression of being threatening, and called me a liar on the basis of your own misrepresentation of what I said.

      Of course, this is par for the course lately as you and Jim have been having fun with this "Tennesseean Lies" schtick--in spite of the fact that my history has been to admit it when I'm shown to be wrong and correct myself if I misunderstand and thus misstate one of your positions.




      Aside from all of that, is that the only thing you took issue with, or do you have some evidence to show me an error in the bulk of my post?

      Delete
  4. Nicely tying together the various and pertinent parts, and defining how they fit together.

    Orlon fluff-for-brains likes to quote Benjamin Franklin, to cover up his glaring deficiencies of education. Here are a couple more quotes from old Ben that are applicable or descriptive of Orlon from ol' Ben.

    "Would you persuade, speak of interest, not of reason." Because reason is wasted on Orlon and his ilk.

    And in praise of education, from ol'Ben

    "The only thing more expensive than an education is ignorance."

    Franklin had great respect for intellect, and education.

    You Orlon fluff are the blockhead, but that's not so bad -- you're an insignificant blockhead.

    ReplyDelete
    Replies
    1. What do your comments say about you who took this time out of your day to insult Orlin who hadn't even commented on this post which attacked him as an afterthought?

      Delete
    2. Franklin also had a great deal of respect for liberty. Did you miss those passages?

      Delete
    3. Franklin also had respect for the rule of law. Something you have rejected in favor of people taking the law into their own hands. Something you stated you would do yourself. Traitor.

      Delete
    4. For the rule of just laws--or did you miss the part about Franklin's involvement in the Revolution?

      Delete
    5. Again, you and your gun decide which laws you will follow. YOU decide which laws are just and which are not! Welcome the anarchist, dictator, gun loon.

      Delete
    6. Jim,

      Please explain for us whether the War for Independence was justified or not, why, and how the founders determined that it was justified if it was. Then show us how Greg's comments--not your summaries, but his words, differ.

      Delete
    7. NRA Greg (the fake professor) wants me to follow what HE thinks are laws to be followed, or not.
      Sorry, I don't accept the ideas of a gun loon extremest, as to what are the moral, or legal laws to follow.
      I'll take the people's consensus (through voting legal representatives) as the law that should be followed. Those same representatives voted down reasonable gun control, and yes, I will follow their decision, instead of taking arms against the government because I disagree with their decision. I advise the same.

      Delete
    8. So, you've got no answer?

      Or am I to pull your answer from that comment and say that you think the War for Independence was justified because the majority voted for it and that trumps the rule of a King?


      Also, if you are only going to take the People's consensus, then what if the people voted, by a majority, to deport all Muslims from the U.S. under pain of death? Would you follow that law as well?

      Delete
    9. Gee, sorry I couldn't get back fast enough to reply to your bullshit, but I had to take a shit and did not want the stench of you to follow me into the bathroom. Now back to your NRA fantasy land.

      Delete
    10. So, that would be, "No Comment."

      Delete
  5. My dearest DG, thank you for your comments. They have turned my thinking around. I now believe you are descended from a monkey.

    your bestest pal,
    orlin

    ReplyDelete