Debate Round Three... Er, Four. Whatever.

Anyway, damn straight I'm serious.

Alex, as I said before, I'm not sure how old you are but you are most definitely a product of the modern leftist education system. I'm guessing a year of birth of 1975 or later. If older, a product of California's so-called school system.

Your last post is what I refer to as a "target-rich environment," but I have to say this up front: I no longer have any expectation of actually changing your mind. I accept that what you believe is what you believe, and damn any logic, evidence, or rhetoric to change that. Though I said in my last post that my purpose was "to get you to understand why we need that allegiance, and why disregard of it is the most grave error we can make," I want you to understand that, though I'd certainly like to shatter your firmly held illusions, your last post made it apparent that this is nearly an impossibility. The purpose now is to illustrate to others the widely divergent views you and I have in the brightest light possible so that those who have not been so indoctrinated or so educated can make up their minds which one of us is more in the right.

Let's begin.

You're still defending the "We don't know" comment, and while I admire the dogged determination therein, you're still desperately wrong.

This goes back, apparently, to the problem you have with understanding the purpose of LAW. I asked you in my last post:

I have to ask, upon what will you build a new edifice? If we cannot know what the Founders meant when they wrote and ratified the Constitution, if their words are meaningless to us now, why should the words you wish to replace them with have any more meaning?

I noticed you didn't address that question. Seeing as that is the heart of this debate (not Jefferson and slavery), I find that omission interesting. (Fear not! Verbose as I tend to be, I'll get to Jefferson et al. too.)

Wikipedia defines "rule of law" thus:

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.

Yet you insist that we can't know what written laws meant when written! Doesn't this render written law - all of it - meaningless? Or only the law written (and ratified) by people now dead? (Since we can't ask them.)

Sorry, Alex, but that thinking is incredibly flawed. Under that "logic" the rule of law has no meaning. Stare decisis (defined: the doctrine that a trial court is bound by appellate court decisions (precedents) on a legal question which is raised in the lower court. Reliance on such precedents is required of trial courts until such time as an appellate court changes the rule, for the trial court cannot ignore the precedent [even when the trial judge believes it is 'bad law']) is tossed out the window, and what you've done is render our nation not a republic, not a democracy, but a nearly chaotic anarchy of robed oligarchs who sit on law benches determining what the law means today. As Lewis Carrol put it in Through the Looking Glass:

"When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean - neither more nor less."

"The question is," said Alice, "whether you can make words mean so many different things."

"The question is," said Humpty Dumpty, "which is to be master - that's all."

Absolutely right. It's all about power, and who holds it. Note that the rule of law does not restrain the individual, but the government. It prevents the government from stepping out of bounds - a point you seem oblivious to. I'll come back to that later as well. (Just an aside: When I get going, I really get going. This is why I wanted to debate here on the blog as opposed to in Ian Hamet's comments. If you haven't figured it out yet, this is going to take a while, so I suggest you pour yourself a beverage or three, get yourself a snack, and get comfortable.)

For a system that started off with just the Ten Commandments, you discard those innumerable law schools and their vast law libraries most cavalierly. And then you depend on government (in your own words) "to try and iron out modern problems?" With what? Again, I ask: Upon what will you build your new edifice? If you were arguing from the Anarchist position I could understand, but you're not - you're advocating government, and thus law, as solution while stripping it of any validity.

Can you not see this dichotomy? Will you now address this question?

You used your avoidance of this question to blast right over my explanation of how we determine the meaning of the Second Amendment (and the rest of the Constitution). As one of the commenters to your piece put it so succinctly:

If one can't read a paper, and gain information from it about what the author means, when they expressly state what they mean in that text, then there is no arguement(sic). Litterally(sic). The fact that you are using text, to be read, to show other people what you think and mean, is the only demostration(sic) needed to falsify your statement.

(Thank you, Rand.) The men who voted to ratify the Constitution and the Bill of Rights voted on the words written in those documents - not some vague collective "single intent" of the "hundreds of people attending the state ratifying conventions." THOSE SPECIFIC WORDS. And those words have meaning to anyone who can read. The people who read and interpret those words for implementation as law, as I pointed out, are judges by and large, but they are also interpreted by members of the other two branches of government established by that very document that you claim "Nobody knows" the meaning of.

It is sophistry like yours that allows people to wrench any meaning they'd like into what is in reality a very simple document. It is sophistry being taught wholesale these days. Congratulations. You're an excellent example of type. Too bad you're not more rare.

Let us now consider Jefferson, slavery, et al. You wrote:

(Y)ou really do a huge disservice to both Jefferson and yourself in your next diatribe. Allow me to sort out what you have tangled up. Despite your attempt to say I know nothing of our founding fathers (or of Jefferson specifically) it is you who misses the underlying point. Here is a man who fully KNOWS the travesty of slavery (all the quotes and links you provide fully illustrate this) and yet still allows it when forming the basis of this land. It is one thing to use the “well, it is easy to see in retrospect but given the customs and culture of the time…” excuse, but you provide example after example that he knew full well that allowing this was an abomination, contrary to every belief he held to most sacred to heart.

So he “cops out” because the “political reality” is just too tough? Because the “Economic conditions” wouldn’t allow it? Man, if that is your idea of how to support the ideal you believe in the most, something you would die for, I don’t want to see how you’d treat ideas you are only moderately in favor of.

Interesting choice of words there: "the ideal you believe in the most, something you would die for..." If I recall correctly, when Jefferson wrote and then signed the Declaration of Independence he signed his name to a document that essentially meant his death if the thirteen colonies lost their rebellion, did he not? He then served as one of the principals in that very revolution, taking his life in his hands as a highly visible member of Virginia's House of Delegates, then later as governor of Virginia (chased out of Richmond in January, 1781 when the British invaded). I submit to you, sir, that the ideal he most believed in, the one he was willing to die for was not the ending of slavery, but the establishment of the Republic. THAT is what he risked his life for. THAT is what he wrote most passionately about. It was the destruction of this Republic that he feared the practice of slavery would cause, because slavery was so obviously wrong, and so thoroughly entrenched.

Your triumphant waving of the Sally Hemmings flag illustrates more than anything your indoctrination in the leftist mindset: "He fucked a slave! He's no better than a monster!" Yes, those old rich dead white men who founded this nation were all just evil Europeans best discarded in the trash heap of history like the documents they wrote.

...to say his mind was impervious to anything but the noblest of ideas is to ascribe to him a perfection that he (nor anyone else) would ever attain.

We can safely ignore them. They were nothing special. Nothing worth revering, nothing worth admiring.

I don't want to come off as a Jefferson basher...

Too late, sir. Too late. Ink's dry.

Let me expound for a moment on the question of slavery at the time of ratification of the Constitution. The Southern states, at that time almost wholly reliant on agriculture, depended on slave labor. You can hate it, but you must admit that fact. ANY attempt to outlaw slavery would have resulted in NO UNION of the thirteen colonies, and as Benjamin Franklin noted after the signing of the Declaration, "We must all hang together, or assuredly we shall all hang separately." (By the way, Franklin was an womanizer and adulterer, just so you don't think I'm attributing imperviousness to anything but the noblest of ideas and ascribing to him a perfection that he (nor anyone else) would ever attain.)

Everyone involved in the writing and ratification of the Constitution understood that if the thirteen colonies were not politically united, they would rapidly collapse into squabbling and be picked off by England or Spain or even France one by one. UNION was the key. Slavery would, they ALL knew, come back to raise its ugly head - but that was a problem they were willing to put off until later. So yes, that was political reality. You don't have to like it. Most of them didn't. They knew delaying the problem would make it that much tougher. You want a recital of those quotes? But your sneering at that decision doesn't render it any less necessary. That decision enabled the establishment of the nation you now call home; good and bad, warts and all. Anything else and you'd be living in a completely different world today, and not a better one.

You seem to think I consider the Founders as statues of unimpeachable alabaster perfection. Hardly. They were as imperfect as any group of men anywhere - but what they did is astonishing, historically unequalled, and it irritates me to no end how their ideas, their actions, their accomplishments are denigrated and rejected today because of their mere humanity. It is not I that holds Jefferson up to some unattainable moral perfection, it's you. You know all about Sally Hemmings, (admitting that it might not even have been Jefferson who fathered her child) but how much of Jefferson's writings have you actually read? He was a radical sonofabitch, even by today's standards. Read the writings of Thomas Paine. He was a real loser in life prior to the revolution, and died in poverty in 1809, but his words... John Hancock resigned from the Continental Congress in a snit over not being chosen commander of the Continental Army (and a good thing he wasn't, too.) He was vainglorious and flamboyant. John Adams and Ben Franklin didn't get along well. Adams disapproved of Franklin's habits. When elected vice-president, Adams called the position "the most insignificant office that ever the invention of man contrived or his imagination conceived." Not exactly "worthless as a pitcher of warm spit," but close.

But because these men chose union over the abolition of slavery, we're free to dismiss the Founding of this nation as immoral, illegitimate, and unworthy of admiration?

Fuck that.

Now, on to:

(M)y allegiance lies to my country first, above any document (even the constituion[sic]). And those that would have it backwards (exalting any document above the good of the nation) ultimately do more harm than good in the long run, as they fail to see the big picture.

Pot? Meet kettle.

The Constitution, sir, IS your country. It is the document that brought that country into existence, established the system of government under which we live, and regulates our day-to-day activity (far too much, these days). In short, it DEFINES our country. No wonder the Left wants to destroy it so badly. It is the contract under which we all live, a contract you denigrate and disparage as old and unknowable. It is those like you, who do not exalt that document who do more harm than good in the long run. As famously leftist law professor Alan Dershowitz so beautifully put it:

Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a public safety hazard, don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like.

I've got a cartoon up on my office wall. It shows a donkey in a hardhat swinging an axe at a tree from the left, an elephant in a hardhat swinging an axe at the same tree from the right. The donkey is labeled "War on Guns." The elephant is labeled "War on Drugs." The tree is labeled "Bill of Rights." The attack on the Constitution and the Bill of Rights is unending, and from all sides. I see it. I hate it. You apparently mindlessly applaud it.

Yes, I could be simple minded and just believe that all the answers to our complex legal challenges today lie in getting inside the heads of men from 200 years ago. Or I could believe that their intent is one factor in figuring out how to apply the law, but not the ONLY factor.

I addressed that, in detail. You blew it off. If the Constitution needs to be changed, we can change it, and we have - but you advocate ignoring it because it was written by corrupt old white men 200 years ago. Let's address your question,

Murder is wrong, absolutely- all the time, right?

There are laws against it, certainly. There's also something called "the right to trial by jury," Article III, Section 2, Clause 3 of the Constitution, the Fifth Amendment to the Constitution, and the Sixth Amendment of the Constitution. There is also the concept of Jury Nullification - a concept fully understood by the Founders, since one of the most famous instances of it occurred in 1735 in the trial of John Peter Zenger who was accused of sedition for publishing libelous pamphlets against the governor of New York. Against a stacked bench of judges, a jury of his peers refused to find him guilty.

Of course, Robert Blake got off too, but nothing's perfect. I guess the jury decided that Bonnie Lee Bakely needed killin'.

And we have that annoying little "double jeopardy" clause, too. (Fifth Amendment to the Constitution, again.) It's too bad that "nobody knows" what the Founders meant when they wrote those amendments, isn't it? I guess we can chuck the Fourth, Fifth, and Sixth Amendments out when we conclude that they just aren't up-to-date enough to deal with the "history, progress, case law, advances and changes society has undertaken since." I understand that England has dropped the requirement for unanimous jury decisions in murder trials, and is trying to do away with jury trials completely for some crimes. They're also trying to get rid of double-jeopardy protection. It seems that with their skyrocketing crime problems they're having too hard a time getting convictions. Gee, let's try that here! After all, the Constitution doesn't mean anything.

So now let's talk about the right to arms, since that's the topic we actually began with. You wrote:

I could struggle to balance a law written when arms were muskets against the rights of some mother in Cabrini Green who puts her kids to bed in the bathtub because that is the most bullet proof place in the apartment.

Er, Cabrini Green is in Chicago, isn't it? (Or, more precisely, wasn't it?) Chicago outlaws all handguns. Illinois restricts the ownership of firearms to holders of a state-issued "Firearm Owners ID" card. An FOID is required to purchase ammunition in that state. And still you say that a mother had to put her children in a bathtub to protect them against random gunfire?

Gun control really works, doesn't it? (Not to mention the idea of public housing as a panacea for the disadvantaged.) What law, I must ask, would have protected that woman and her children? A complete gun ban? Who would that have disarmed? Certainly not the hoodlums running around downtown Chicago blasting away. My recommendation to that mother would have been "move to Richmond, VA, where people are allowed to own guns. It's much safer." Sorry, Alex, but your example illustrates the illogic you've been steeped in. Guns aren't the problem, and treating them like they are isn't just useless, it's counterproductive.

You also wrote:

I could say, what are the principles that make the Second important enough to include in the bill of rights, and how do we balance those principles with the others? What is the reality of the law as it has evolved, through case law, regarding guns, crime, carrying arms, and the registration of weapons? Or, like you, I could just say “it means whatever they wanted it to, and that’s it- no more thinking on my part.”

Sorry, but I never said "it means whatever they wanted it to, and that's it- no more thinking on my part." That's more your schtick - "We don't know what it means, so we can make it mean whatever we want without thinking about WHY they wrote it." I've thought about it extensively, and read what the Founders, later legislators, and judges wrote about it. I can say with some certainty that you have not. If you'd like an excellent book to read on the topic (somewhat dry, but it's very, very thorough) I strongly recommend For Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms by Clayton E. Cramer. It exhaustively covers the case law concerning the right to arms that has arisen since the ratification of the Bill of Rights, in conjunction with the statutes that have been passed in that same time period. Very interesting. Cramer makes a very strong case both in this book and in his Supreme Court of Rhode Island-cited Kansas Journal of Law and Public Policy paper "The Racist Roots of Gun Control" that the "case law, regarding guns, crime, carrying arms, and the registration of weapons" has been historically about denying the right to arms to blacks and other minorities while preserving it for whites, in violation of the intent of the Second Amendment. It is only recently that these restrictions have been widened to attack the rights of everybody else - in violation of the intent of the Second Amendment. "Public Safety" you know.

Now let's discuss U.S. v. Miller, since you so helpfully brought it up. Yes indeed the Miller decision does state:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

What you neglect to mention (ignorance?) is that neither Jack Miller nor his compatriot Frank Layton was a member of an organized militia at the time of their arrest, nor were they planning on joining one. The court studied this question, as a matter of fact, spending the next several paragraphs of the decision discussing the militia in extensive detail. You fail to note also that the decision states, in plain English (though I suppose since it was written in 1939 and those Justices are now dead we can't really know what they meant) that their conclusion was made in the absence of any evidence. This was because neither Miller nor Layton had any representation before the Supreme Court. Only the U.S. was represented there.

However, had Miller & Layton been represented, it would have been quite simple to demonstrate that short-barreled shotguns have been used extensively in warfare, including during the Revolutionary, Civil, and First World Wars. But since no representation was present the Court was unable (not to mention, under Roosevelt, unwilling) to find in their favor. I suppose that had Miller and Layton possessed a 1917 Browning Automatic Rifle - also restricted under the 1934 National Firearms Act, and at the time part of the standard equipment of the United States Army and most National Guard units - the Court could have similarly dodged the bullet (pun intended) of having to judicially "find" that the Second Amendment did indeed guarantee the right to keep and bear that instrument, since no evidence of such would have been presented.

Miller isn't that great a case for your side, Alex. Taken to its logical conclusion the Second Amendment protects the right to keep and bear only weapons suitable for warfare, like automatic rifles.

Let me quote to you a recent dissent by a member of the Ninth Circuit Court of Appeals, where they've decided that the Second Amendment doesn't really mean anything:

I respectfully dissent from our order denying rehearing en banc. In so doing, I am expressing agreement with my colleague Judge Gould’s special concurrence in Nordyke v. King, and with the Fifth Circuit's opinion in United States v. Emerson, both taking the position that the Second Amendment secures an individual, and not collective, right to keep and bear arms.

The panel opinion holds that the Second Amendment "imposes no limitation on California's [or any other state's] ability to enact legislation regulating or prohibiting the possession or use of firearms" and "does not confer an individual right to own or possess arms." The panel opinion erases the Second Amendment from our Constitution as effectively as it can, by holding that no individual even has standing to challenge any law restricting firearm possession or use. This means that an individual cannot even get a case into court to raise the question. The panel's theory is that "the Second Amendment affords only a collective right," an odd deviation from the individualist philosophy of our Founders. The panel strikes a novel blow in favor of states’ rights, opining that "the amendment was not adopted to afford rights to individuals with respect to private gun ownership or possession," but was instead "adopted to ensure that effective state militias would be maintained, thus preserving the people's right to bear arms." It is not clear from the opinion whom the states would sue or what such a suit would claim were they to try to enforce this right. The panel's protection of what it calls the "people's right to bear arms" protects that "right" in the same fictional sense as the "people's" rights are protected in a "people's democratic republic."

Our circuit law regarding the Second Amendment squarely conflicts with that of the Fifth Circuit. It is inconsistent with decisions of the Supreme Court that have construed the Second Amendment and phrases within it. Our circuit has effectively repealed the Second Amendment without the democratic protection of the amendment process, which Article V requires.

The panel decision purports to undertake historical analysis. Historical context has its uses in understanding the context and purposes of any law, constitutional or legislative, but like legislative history, the use of history is subject to abuse. Where the historical scholarship is partial and tendentious, relying on it becomes like relying on legislative history: "entering a crowded cocktail party and looking over the heads of the guests for one's friends."

Much of the panel decision purports to be an attempt to figure out what the word "militia" means in the Second Amendment. But the panel's failure to cite the contemporaneous implementing statute defining the term demonstrates the tendentiousness of its analysis. The statute defining the militia, which in substance provides that the "militia" consists of all adult male citizens without regard to whether they are in any state or federal military service, has been subsequently altered to expand its coverage, but the federal militia statute remains in effect. Besides overlooking the statute, the panel somehow failed to notice that the United States Supreme Court, in United States v. Miller, held that the term "militia" in the Second Amendment meant, and means, "all males physically capable of acting in concert for the common defense." We are an inferior court, bound by this holding of the Supreme Court.

The panel opinion swims against a rising tide of legal scholarship to the contrary, relying heavily on a single law review article that claims "keep and bear" means the same thing as "bear," which itself means only to carry arms as part of a military unit."

About twenty percent of the American population, those who live in the Ninth Circuit, have lost one of the ten amendments in the Bill of Rights. And, the methodology used to take away the right threatens the rest of the Constitution. The most extraordinary step taken by the panel opinion is to read the frequently used Constitutional phrase, "the people," as conferring rights only upon collectives, not individuals. There is no logical boundary to this misreading, so it threatens all the rights the Constitution guarantees to "the people," including those having nothing to do with guns. I cannot imagine the judges on the panel similarly repealing the Fourth Amendment's protection of the right of "the people" to be secure against unreasonable searches and seizures, or the right of "the people" to freedom of assembly, but times and personnel change, so that this right and all the other rights of "the people" are jeopardized by planting this weed in our Constitutional garden. - Silveira v. Lockyer, Kleinfeld, dissenting

There's also this one from that same case:

The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose. Had they brought the same generous approach to the Second Amendment that they routinely bring to the First, Fourth and selected portions of the Fifth, they would have had no trouble finding an individual right to bear arms. Indeed, to conclude otherwise, they had to ignore binding precedent. United States v. Miller, 307 U.S. 174 (1939), did not hold that the defendants lacked standing to raise a Second Amendment defense, even though the government argued the collective rights theory in its brief. The Supreme Court reached the Second Amendment claim and rejected it on the merits after finding no evidence that Miller's weapon - a sawed-off shotgun - was reasonably susceptible to militia use. We are bound not only by the outcome of Miller but also by its rationale. If Miller's claim was dead on arrival because it was raised by a person rather than a state, why would the Court have bothered discussing whether a sawed-off shotgun was suitable for militia use? The panel majority not only ignores Miller's test; it renders most of the opinion wholly superfluous. As an inferior court, we may not tell the Supreme Court it was out to lunch when it last visited a constitutional provision. - Silveira v. Lockyer, Kozinski, dissenting

A literal interpretation of the Second Amendment that understands U.S. Code, Title 10, Subtitle A, Part I, Chapter 13, § 311.

Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

(b) The classes of the militia are —

(1) the organized militia, which consists of the National Guard and the Naval Militia; and

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

That last part means "you and me." Yessir, we're members of the militia, assuming we're able-bodies males of at least 17 years of age and not over 45. I guess under the "the reality of the law as it has evolved" that would also now have to include women, and people over the age of 45, wouldn't it? Otherwise we could claim age and sex discrimination.

The Constitution and the Bill of Rights are a single LEGAL DOCUMENT designed to restrain the power of government, because the Founders understood that power corrupts and attracts the corrupt. They designed a system that severely restricted the power of government, and made changes to the founding document difficult to ensure that changes would not be made lightly. And STILL many of them didn't believe that enough, and insisted on tacking on an explicit list of things that the government was not supposed to touch.

But touch them it has, because of people who believe what they have taught you. Touched first with a feather, now with a jackhammer. (Kelo v. New London, anyone?) And you're championing each crack, each chip, each hammerblow because you see government as a benign solution to "modern problems," and I see it as the cause of most of them.

Your turn. Take your time. I'm not going anywhere.

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