Alex, Alex, Alex...

Occasionally my faith in atheism is shaken. This is one of those times.

You could not be a more perfect opponent in this debate had an omnipotent deity answered my prayers. Your smug, insulting, intellectually superior posing (if it weren't so amusing) would offend anyone "on the fence" to the point that any message you might possibly have is washed out in its glare. I'll admit to being a bit condescending myself on occasion (OK, my wife says "a lot" and "often"), but you've elevated it to the level of art. You're not just a stereotypical superior liberal intellect stooping to educate the unwashed ignorant imbecile lumpenproletariat, you're the bleeding archetype. Bravo, sir, for what is a virtuoso performance, and it's on my stage! I'm archiving all of this for posterity.

Let me see... You admit:

Ok, so it seems that some (maybe just a few) now at least acknowledge the possibility that perhaps the question I answered wasn't the one they wanted to debate...

No, the question you answered was not the question I asked. Remember, I started out my response with "I'm not letting ANYBODY duck a question that easily"? But kept "hounding on the 'we don't know' answer" you gave because you were paying out the rope so fast that I just had to see what happened when it finally pulled up taut. You belittle both me and the commenters for being so dense, misunderstanding the obvious brilliance of your words:

...allow me to clear up a few points that seems(sic) hopelessly above the heads of those writing...

Let me sort that out for you, since you are hopelessly incapable of doing it yourself.

Allow me to illustrate this in a way so simply(sic) that even you might see it.

And you berate me, who invited you to begin this debate by asking this simple question; "What did the Second Amendment mean when it was ratified, and does it matter today?" for failing to ask the RIGHT question:

...you are not even answering the question you originally asked (or you didn't ask the right question in the beginning).

Said question, apparently being:

Either ask the right question (what do I think the original intent was) or admit your flawed logic...

Note, you didn't answer that question either until your third response, accurately (for once) entitled: "To answer the question NEVER asked." How good of you to admit that.

So, at the risk of being redundant, let me make sure I understand the conclusions reached by your overweening intellect:

(1) You didn't answer the question I asked.

(2) You admit the answer you did give initially also didn't answer the question I didn't ask.

(3) I was wrong because I let you get away with not answering the question I did ask.

(4) I was wrong for not asking the question I should have asked.

(5) You finally answered the question I should have asked (but didn't).

(6) You've yet to answer the question I actually asked.

And

(7) All of this is somehow my fault.

Then you have the testicular fortitude to claim that what you're doing is “heavy mental lifting." Obviously you've mistakenly entered the wrong stadium. What you're doing isn't mental weight-lifting, it's mental gymnastics. You really should be more careful. I would hate for you to sprain a frontal-lobe in the floor exercise of leaping around dodging my questions, or dislocate your corpus callosum on the rickety uneven parallel bars of flawed analogy.

Now, to change gears just a bit, I'll admit that I totally mischaracterized you. Mea culpa, mea culpa, mea maxima culpa. You are neither under the age of 30 nor were you educated in California. It never occurred to me that you might have been born and raised inside the D.C. Beltway - the only area in the nation where the only industry is government, where the only tool of government is lawmaking, and where the cliché that "when the only tool you have is a hammer, every problem looks like a nail" is made manifest. Especially since D.C. is the city where all handguns have been banned since 1976 (when you were seven years old), all long guns are required to be stored disassembled, and the city has subsequently on several occasions earned the title of "murder capital of the U.S.," most recently in 2002. Alexandria, Virginia (your home town?) - with considerably more lax gun laws - in 2002 had less than half the national average rate of homicide and other violent crime. Check the comparison stats for D.C. Shocking, those.

Nope, never saw that one coming!

So, you have a bachelor's degree from one pretty liberal school, and a Master's in business from an even more liberal school. Congratulations. In reading your replies I was immediately reminded of two jokes (stereotypes archetypes tend to lend themselves to humor.) The first:

A man is flying in a hot air balloon and realizes he is lost. He reduces height and spots a man down below. He lowers the balloon further and shouts: "Excuse me, can you tell me where I am?"

The man below says: "Yes, you're in a hot air balloon, about 30 feet above this field, drifting roughly North-Northwest at about five miles per hour."

"You must be an engineer" says the balloonist.

"I am," replies the man. "How did you know?"

"Well," says the balloonist, "everything you have told me is technically correct, but doesn't help me at all."

The man below says "You must be in management."

"I am," replies the balloonist, "but how did you know?"

"Well," says the man, "you don't know where you are, or where you're going, but you expect me to be able to help. You're in the same position you were in before we met, but now it's my fault."

The second:

A shepherd was tending his flock in a remote pasture when suddenly a dust cloud approached at high speed, out of which emerged a shiny silver BMW. The driver, a young man in an Armani suit, Ferragamo shoes, the latest Polarized sunglasses and a tightly knotted power tie poked his head out the window and asked the shepherd, "Hey! If I can tell you how many sheep you have in your flock, will you give me one?"

The shepherd looked at the man, then glanced at his peacefully grazing flock and answered, "Sure."

The driver threw the car into park, plugged a satellite phone into his laptop, checked his GPS coordinates and punched them in to a program that hacked into a Russian spy satellite and initiated a remote millimeter radar, optical wavelength, and infrared body-heat scan of the area. He downloaded the images into a custom analysis program that ran a complicated algorithm on the available data. While the computer was occupied, he sent some e-mail via his Blackberry and, after a few minutes, nodded solemnly at the responses. Finally, the little laser printer in his glove compartment spat out a 150 page double-sided full-color glossy bound report. He turned to the shepherd, waving the sheaf of paper, and pronounced “You have exactly 1,586 sheep."

"That's right. One of my sheep is yours," said the shepherd.

He watched the young man select an animal and bundle it into his car. Then the shepherd said: "If I can tell you exactly what your business is, will you give me back my animal?"

Pleased to meet a fellow sportsman, the young man replied “You're on!”

"You are a consultant," said the shepherd without hesitation.

"That's impressive," said the young man. "How did you guess?"

"It wasn't a guess," replied the shepherd. "You drive into my field uninvited, ask me to pay you for information I already know, answer a question I haven't asked, and you know nothing about my business. Now give me my back my dog."

It would be the height of irony if your livelihood was earned as a consultant. No, wait! A managing consultant!



You said:

I place a tremendous stock in words. In fact, my livelihood depends on them.

If you weren't aware, I'm an engineer. If I misunderstand a specification, misinterpret a regulation, fail to communicate clearly, or make a mistake in a calculation, people can be hurt or killed, property can be damaged or destroyed, or at a minimum large amounts of production can be lost. Words are crucial to me. So are rules. More is at stake than my mere livelihood.

Since you acknowledge that we've strayed far off track, let's try to get back on it. My original question, as I mentioned above, was:

What did the Second Amendment mean when it was ratified, and does it matter today?

Read that again, carefully. I assumed, with your prodigious mental powers, that'd you'd be able to comprehend such a simple sentence and actually address it. However, you misunderstood the question to be "What was the intent of the Founders?" You could have just as easily misunderstood it to be "What do you think was the intent of the Founders?" but you did not. Instead, you blamed me for not asking that question, while misunderstanding the question I did ask.

You state that while getting your MBA, you took some Law courses as well; "...I also snuck in a few Law School classes for good measure." That's good. Perhaps one of the courses you took was American Constitutional Law? The question I asked (though I see now I should have been more explicit) was "What did the law mean?" (All words of one syllable!) Surely you can understand this concept? The Second Amendment is a law - not a guideline, not a suggestion, not a mere bit of obiter dictum, but a LAW - and it's embedded in the document that provides the underpinnings of every law in the United States. Determining the meaning of this law is not an exercise of personal opinion. It is not an exercise requiring a séance to contact the spirits of the dead. It's an exercise in jurisprudence. I tried to steer you back to the idea in the opening paragraphs of my reply, but no, you twisted and tumbled, leapt and twirled away, hurling insults and instead mounted the bars and flipped bad analogies at me.

As I said, "...it was the job of the JUDICIARY to determine what the words meant - and they certainly didn't say 'Nobody knows.'" They made actual decisions on actual court cases. They studied the contemporary documents and law texts, and cited them as legally valid. Certainly their personal opinions entered into the question, but the fact remains that they interpreted the law. This is not an archeological dig. This is well documented history of a most explicit type: LEGAL history. I even pointed you at an excellent source, Cramer's For Defense of Themselves and the State, but you disregarded that, too. We can argue the merit of these decisions, certainly, but you've disregarded them completely.

I was trying to determine if you understood the judicial history of the Second Amendment. It seem apparent that you do not, that you don't care to, and that you consider that history irrelevant. You say:

I do believe that there is a basis, and underpinning of the law, that is formed by the constitution.

But then you turn around and say:

...the same words can have different meanings over the course of time.

Not. In. Law.

You must have missed that course.

Granted, it often (and recently, at an accelerating pace) works that way, but that is not how the law is supposed to work. As always with the slow students, we repeat the lesson until it is absorbed:

Rule of Law: The rule of law implies that government authority may only be exercised in accordance with written laws, which were adopted through an established procedure. The principle is intended to be a safeguard against arbitrary rulings in individual cases.

Stare decisis: The principal that the precedent decisions are to be followed by the courts. To abide or adhere to decided cases. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle.

What we're discussing here isn't (although I'm just as guilty of using the phrasing as you) "original intent," it's "original meaning." That's original legal meaning. It's all kind of tangled up in the word "originalism," but Professor Randy Barnett explains the difference well in his book Restoring the Lost Constitution: The Presumption of Liberty. What follows is a rather long excerpt, but it's important to the point and I'd appreciate it if you read the whole thing before blowing it off:

The received wisdom among law professors is that originalism in any form is dead, having been defeated in intellectual combat sometime in the 1980's. According to this story, Edwin Meese and Robert Bork proposed that the Constitution be interpreted according to the original intentions of its framers. Their view was trounced by many academic critics, perhaps most notably by Paul Brest in his widely cited article, "The Misconceived Quest for Original Understanding" and by H. Jefferson Powell in his article, "The Original Understanding of Original Intent."

Perhaps you've read them?

Taken together, these (and other) articles represent a two-pronged attack on originalism that was perceived at the time as devastating: as a method of constitutional interpretation, originalism was both unworkable and itself contrary to the original intentions of the founders.

The next paragraph essentially details the arguments you make - as someone said, we've heard all this before. You're hardly original (no pun intended.)

Then there's this:

Even those who get beyond the Brest and Powell criticisms still encounter two additional and seemingly insurmountable obstacles to originalism. If constitutions are based on popular sovereignty or consent, the framers and ratifiers of the U.S. Constitution represented only white males, not the people, and therefore could not legitimately bind those who were not parties. And even were the Constitution somehow binding when adopted, it was adopted by long-dead men who cannot rule us from the grave.

Moreover, a generation that countenanced slaveholders has not the moral legitimacy to rule us form the grave or from anywhere else.

Any of this sound familiar?

Because their intentions were racist and sexist, we are far from bound by them; we ought to loudly denounce and reject them. According to this view, not only was the Constitution not a product of consent, it was a product of original sin.

If ever a theory had a stake driven through its heart, it seems to be originalism. But despite the onslaught of criticism, the effort to discern the original meaning of constitutional terms continues unabated. Indeed, by some accounts it may be the dominant method actually used by constitutional scholars - even by those who disclaim originalism. As Jack Rakove observed after listing those constitutional scholars who have offered originalist arguments, "[b]ut in truth, the turn to originalism seems so general that citation is almost beside the point." And this movement has cut across ideological lines. "In recent years, the originalist premise has also been manifested in the emerging strain of broad originalism in liberal and progressive constitutional theory."

Though it is possible to characterize this intellectual movement as a shift, not to originalism, but to "textualism," this distinction is hard to maintain. Once the importance of text or "writtenness" is conceded, some version of originalism becomes much harder to resist. [T]he reasons why text is important are the same reasons that support some modest version of originalism and shift the burden of persuasion to anyone proposing to replace reliance on the text by some other method of interpretation.

--

Perhaps most important of all, however, is that originalism has itself changed - from original intention to original meaning. No longer do originalists claim to be seeking the subjective intentions of the framers. Now both Robert Bork and Antonin Scalia, no less than Ronald Dworkin and Bruce Ackerman, seek the original meaning of the text.

...Justice Scalia has written:

We look for a sort of "objectified" intent - the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of corpus juris.... Government by unexpressed intent is... tyrannical. It is the law that governs, not the intent of the lawgiver.

Whereas "original intent" originalism seeks the intentions or will of the lawmakers or ratifiers, "original meaning" originalism seeks the public or objective meaning that a reasonable listener would place on the words used in the constitutional provision at the time of its enactment.

--

This shift to original public meaning obviates some, but not all, of the most telling practical objections to originalism and can be very disappointing for critics of originalism - and especially for historians - when they read original meaning analysis. They expect to see a richly detailed legislative history only to find references to dictionaries, common contemporary meanings, an analysis of how particular words and phrases are used elsewhere in the document, or in other foundational documents and cases, and logical inferences from the structure and general purposes of the text. Nowadays, those presenting evidence of the true "subjective" intentions of the framers are often nonoriginalists seeking to rebut a particular "objective" original meaning offered by an originalist.

Now, here's a critical part:

Moreover, while some originalists still search for how the relevant generation of ratifiers expected or intended their textual handiwork would be applied to specific cases, original meaning originalists need not concern themselves with this, except as circumstantial evidence of what the more technical words and phrases in the text might have meant to a reasonable listener. This aspect of original meaning originalism is captured by Ronald Dworkin's useful distinction between "semantic originalism" and "expectations originalism." "This is the crucial distinction between what some officials intended to say in enacting the language they used, and what they intended - or expected, or hoped - would be the consequence of their saying it." For example, when a statute is interpreted, there is a difference "between the question of what a legislature intended to say in the laws it enacted, which judges applying those laws must answer, and the question of what the various legislators as individuals expected or hoped the consequences of those laws would be, which is a very different matter."

This is best exemplified currently by the now sunsetted 1994 "Assault Weapons Ban" that wasn't. The gun control groups wanted the law interpreted to outlaw the manufacture of evil black rifles, but what the law actually did was limit certain features. The gun control organizations complained bitterly about manufacturers using "loopholes" to circumvent the law, but what the manufacturers did, in fact, was comply with the letter of the law. The intent of the legislators is immaterial. WHAT IS WRITTEN, and what those words mean when written is what matters.

Similarly, when the Bill of Rights is interpreted, " 'semantic' originalism ...insists that the rights-granting clauses be read to say what those who made them intended to say"; whereas " 'expectation' originalism ...holds that these clauses should be understood to have the consequences that those who made them expected them to have." Dworkin concludes:

[I]f we read the abstract clauses of the Bill of Rights [and other rights-granting clauses such as the Fourteenth Amendment] as they were written - if we read them to say what their authors intended them to say rather than to deliver the consequences they expected them to have - then judges must treat these clauses as enacting abstract moral principles and must therefore exercise moral judgment in deciding what they really require. That does not mean ignoring precedent or textual or historical inquiry or morphing the Constitution. It means, on the contrary, enforcing it in accordance with its text, in the only way that this can be done.

Dworkin, like most on the Left, mischaracterizes the Bill of Rights as "granting" rather than guaranteeing rights that exist outside the Constitution, but that's par for the course. But we're not through yet!

Perhaps the shift to original meaning originalism should not have come as a surprise. For when one rereads Brest and Powell with the distinction between "original intent" and "original meaning" in mind, on finds that both critiques left considerable room for originalism to survive and flourish. True, Brest berated strict textualism along with strict intentionalism, though his criticisms here are more limited and less persuasive. But he left the door open, however reluctantly, to what he terms "moderate intentionalism" - in a passage that also reflects the closeness between textualism and originalism.

A moderate textualist takes account of the open-textured quality of language and reads the language of provisions in their social and linguistic context. A moderate intentionalist applies a provision consistent with the adopters' intent at a relatively high level of generality, consistent with what is sometimes called the "purpose of the provision." Where the strict intentionalist tries to determine the adopters' actual subjective purposes, the moderate intentionalist attempts to understand what the adopters' purposes might plausibly have been, an aim far more readily achieved than a precise understanding of the adopters' intentions.

--

Brest rejects moderate originalism, not because it is incoherent or impossible to achieve, but because it will not support many modern constitutional doctrines that Brest thinks are essential to the Constitution's efficacy and legitimacy.

This is the reason that many scholars oppose originalism. Not because it cannot be done, but because the original meaning of the text can be ascertained and they find this meaning to be inadequate or objectionable. They reject the meaning of the Constitution as enacted and wish to substitute another meaning that they contend is superior.

Thus do you wish to reject the meaning of the Second Amendment and wish to substitute another that you contend is superior.

So, let's take a minute or two to consider the corpus juris of the Second Amendment. (This is what's known as "evidence" as opposed to "opinion.") I asked a bit earlier if one of the courses you took was American Constitutional Law. One of the things often discussed in that course is St. George Tucker's multi-volume set Blackstone's Commentaries, the early 19^th Century review of American law. Tucker became a professor of law at William and Mary in 1800, and was appointed as a Justice of the Supreme Court of Virginia in 1803, the year his book was published. In 1813 he became a U.S. District Court judge. Tucker's book, also called American Blackstone, was the textbook for American Constitutional Law classes in its day. Tucker has this to say about the Second Amendment:

This may be considered as the true palladium of liberty. . . . The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game: a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.

Note, nowhere in that paragraph is the word "militia." Note also that Tucker emphasizes that, although England supposedly has a right to arms, that right is essentially negated by other legislation - the implication being that our law, not so limited, cannot be perverted in a similar manner.

Tucker named his book Blackstone's Commentaries because he was paying homage to the great English jurist William Blackstone's Commentaries on the Laws of England, published over the period of 1765-69. Blackstone had this to say concerning "the right of self defense" under the title "The Absolute Rights of Individuals:"

The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defense, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute I W. & M. st.2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

You'll note that Blackstone does not mention the word "militia" either. So English law (from which we get most of ours) gives at least lip-service to the right to arms, and our Second Amendment does more than that. There's more.

William Rawle, appointed U.S. Attorney for Pennsylvania by George Washington, in his book A View of the Constitution in 1829 wrote:

In the second article, it is declared that a well regulated militia is necessary to the security of a free state; a proposition from which few will dissent. Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before regular forces can be raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government. That they should be well regulated, is judiciously added. A disorderly militia is disgraceful to itself, and dangerous not to the enemy, but to its own country. The duty of the state government is, to adopt such regulations as will tend to make good soldiers with the least interruptions of the ordinary and useful occupations of civil life. In this all the Union has a strong and visible interest.

The corollary, from the first position, is, that the right of the people to keep and bear arms shall not be infringed.

The prohibition is general. No clause of the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both...

This right ought not, however, in any government, to be abused to the disturbance of the peace.

Now, I've provided you a couple of pieces of evidence concerning what the law meant. Let's see how it got applied.

First "the right to arms." From For Defense of Themselves and the State:

The first state supreme court decision on the meaning of "the right to bear arms" did not occur until more than thirty years after the Second Amendment's adoption - a long enough time for a younger generation of legislators to come into office with no direct knowledge of the Revolution, but a short enough time that a number of the Framers were still alive.

Kentucky had passed a law that prohibited the carrying of concealed arms, including "a pocket-pistol, dirk, large knife, or sword in a sword-cane unless when traveling on a journey." In Bliss v. Commonwealth (1822), a man named Bliss was charged with concealing a sword in a cane, and was convicted in a jury trial. Bliss appealed his conviction, arguing that the law violated a state constitutional provision "that the right of the citizen to bear arms in defense of themselves and the state shall not be questioned." While the law in question did not completely ban the carrying of arms - only the concealed carry of arms, "unless while traveling" - the Kentucky Supreme Court held:

That the provisions of the act in question do not import an entire destruction of the right of citizens to bear arms in defense of themselves and the state, will not be controverted by the court; for though the citizens are forbid wearing weapons, concealed in the manner described in the act, they may, nevertheless, bear arms in any other admissible form. But to be in conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form; it is the right to bear arms in defense of the citizens and the state, that is secured by the constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the constitution. If, therefore, the act in question imposes any restraint on the right, immaterial what appellation may be given to the act, whether it be an act regulating the manner of bearing arms, or any other, the consequence, in reference to the constitution, is precisely the same, and its collision with that instrument equally obvious. And can there be entertained a reasonable doubt but the provisions of the act import a restraint on the right of the citizens to bear arms? The court apprehends not. The right existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms... For, in principle, there is no difference between a law prohibiting the wearing of concealed arms, and a law forbidding the wearing of such as are exposed; and if the former be unconstitutional, the latter must be so likewise.

So, there's the initial jurisprudence, at least for the state of Kentucky, on what the "right to arms" meant there.

Now that I've explained to you in words of one syllable what the question actually was, and shown you how to cite actual evidence as opposed to flawed analogy, do you think you can take another run at the question I actually asked? Because my fingers are tired from all this typing, and I've got a lot of work to do around the house this weekend.

Next Post in the series.
Previous Post in the series.