To: ca-firearms From: Randall N. Herrst, J.D. Date: Thu, 15 Feb 2001 10:27:24 -0800 Subject: RE: CSC: [ca-firearms] Digest Number 172 Hi, Everyone! Just a few points of interest regarding the interpretation and later application of the 2nd Amendment. 1. The standard rule for interpreting the Constitution is that every word has a meaning and cannot simply be ignored. Our task is to figure out what the words mean. 2. Unlike the 1st Amendment, the prohibition on infringing the right to keep and bear arms is not effective solely against Congress, as you can see by reading the wording of both the 1st and 2nd. One could reasonably think that this means that NO government is allowed to infringe on the right to keep and bear arms. If the Founders had intended that only the Congress was prohibited, it could have said so. It could be argued that the 2nd does not require the 14th (the incorporation doctrine) in order to act as a limitation on the states. For comparison, ask your opponent if the right to be free from torture is NOT a limitation on states, counties and cities, so that they could do whatever they want to anyone in custody. You can create similar arguments for other features in the Bill of Rights. 3. What is "infringed"? Any restriction which "defeats, frustrates, or encroaches upon" the rights of another. By that definition, any firearms law that is not aimed solely at the violent, criminal misuse of firearms is unconstitutional. In other words, about 90-95% of all firearms laws currently on the books. 4. What is "well-regulated"? Hamilton, in Federalist 29, Paragraph 6 uses the exact term in a context that can only mean that the militia members must practice in order to become skillful or accurate. It has nothing to do with central government control. Furthermore, early American dictionaries and a few modern ones define "well-regulated" in the same manner, completely excluding any possibility of central government control. The Oxford English Dictionary (the most respected dictionary in the world) does not specifically address firearms or militia when it defines "well-regulated", but the concept of "skillful or accurate" is present, without any possible definition which includes central government control. Note: "well-regulated" is not the cumulative total of the meanings of the two separate words, it has its own unique meaning (similar to "high seas", "hot dog", and many other common combinations). 5. Read J. Neil Schulman's interview with English Grammar expert, Prof. Roy Copperud. This will show that the other side's structural reading (i.e., the "militia" is the important entity that possesses the right) is not the preferred reading, and in fact is NOT EVEN A POSSIBLE READING! 6. The concept of "collective rights" as applied to the 2nd Amendment has two major flaws. One, there was no such legal construct at the time the Bill of Rights was approved, and did not come into existence until 1905 in the Kansas Supreme Court case of Salina v. Blaksley. Two, if the right were a collective right of the "militia"/National Guard, then every single case ever filed would have been dismissed for lack of standing, since none of the plaintiffs or defendants were members of the "militia"/National Guard. The very first case to be dismissed (erroneously) for lack of standing was Hickman v. Block, in 1996 I suppose that means that no one understood the militia concept until 1996? 7. Finally, for now anyway, note that the right was possessed individually by the people (which is what we want and expect) and the dependent phrase regarding the "militia" was ONE reason why the Founders passed the 2nd Amendment. That phrase in no way limits the right, it simply explains one of the multitude of reasons for the right. If you read Halbrook's book, you will find that the Founders debated an earlier draft that stated, "..., the right of the people to keep and bear arms FOR THE COMMON DEFENSE shall not be infringed". That means that the Founders considered the concept of limiting the right, but specifically chose not to do so. I also find the 14th Amendment arguments compelling, but I also like to start with a solid foundation in history, ratification, vocabulary, and grammar. ------------------ Randall N. Herrst, J.D. The Center For The Study Of Crime Web site: www.studycrime.org Phone: (310) 715-2812