A new approach arguing against the 2nd

[TC95GT]

http://cfx.signonsandiego.com/uniontrib ... aplan.html

THE SECOND AMENDMENT
The language gives us no such right

With the U.S. Supreme Court agreeing to hear a case on the ownership of guns by private citizens, a debate that has been simmering will become hot. Here are two of many views of the long-controversial amendment.

By Jeffrey P. Kaplan
November 23, 2007

The Supreme Court is going to revisit the Second Amendment, for the first time since 1939.

The main issue in construing the Second Amendment has always been the relation between the first part, “A well-regulated militia being necessary to the security of a free state,” and the second part, “the right of the people to keep and bear arms shall not be infringed.” Let me try to shed some linguistic light on this, without suggesting that a linguistic analysis is the end of the story.

Grammatically, the first part is an “absolute clause,” meaning a tenseless clause modifying a main tensed clause. The relation between an absolute clause and the main clause it modifies can be of two flavors, roughly speaking “attendant circumstance” and “rationale.” Attendant circumstance absolute clauses just describe a circumstance or state that accompanies the fact or event described in the main clause. For example, “The crackers crunching, Charlie gobbled up his snack.” A rationale absolute clause states a reason, a cause, a precondition, or the like, for the main clause. For example, “The movie being rated R, little Fred's parents won't allow him to see it.”

To see how the absolute clause in the latter example is understood as providing a rationale for the main clause it modifies, imagine a conversation between little Fred and his parent. Little Fred has asked to see a certain movie:

Dad: The movie being rated R, you cannot see it.

LF: But it's rated PG.

Dad: Oh, OK, then, you can see it.

Now imagine a different version of this conversation:

LF: But it's rated PG.

Dad: Well, you still can't see it.

LF: BUT YOU SAID (shouting)

In the second version, little Fred is justifiably angry because he – understandably – took Dad's explanation (“The movie being rated R,”) as implying that without the absolute clause's condition, little Fred could see the movie. So the validity of the main clause of that utterance (“you cannot see it”) is conditioned on the truth of the absolute clause.

There can be no doubt that the Second Amendment's absolute clause is a rationale type, not an attendant-circumstance type. It contains being, like the little Fred example, and being-type absolutes are rationale types (with a couple of exceptions). Notice the contrast between “The crackers crunching, Charlie gobbled up his snack” and “The crackers being crunchy, Charlie gobbled up his snack.” The latter states a reason why Charlie gobbled; the former doesn't.

In addition, trying to contradict the relation of rationale results in a logical contradiction. There is no contradiction in “The crackers crunchy, Charlie gobbled up his snack, but the crackers crunchiness was not the reason Charlie gobbled up his snack,” but try adding the following clause to the language of the Second Amendment: “but a well-regulated militia being necessary to the security of a free state is not a reason that the right of the people to keep and bear arms shall not be infringed.” Logical contradiction results.

A connection of rationale between an absolute clause and a main clause requires that the absolute be true. Imagine an offer: “Today being St. Patrick's Day, I will buy drinks for everybody.” If the speaker is mistaken – it's not March 17 – the offer is invalid. This is relevant because the absolute clause in the Second Amendment is actually false: in terms of meaning, it is a general statement (technically a “generic” proposition) akin to “A lion is a carnivore” or “Puppies are playful.” You need more than a single counterexample to prove such general statements false. (One vegetarian lion does not disprove “A lion is a carnivore.”)

But if you think about it, there are, and historically have been, a great many free states whose security has not depended on a well-regulated militia, including most modern states, as well as many states from different periods of history. The authors of the Second Amendment surely believed that the absolute clause they wrote was true, but it actually wasn't, even then, because of its generality.

It may have been true that the security of the brand-new United States did depend on a militia, but that is not what the amendment says. Because the absolute clause is, strictly speaking, false, the footing on which the main clause of the Second Amendment depends disappears. The result is an amendment that not only now is moot, but always has been, in effect, void, at least in terms of its linguistic meaning.

The case can be made to construe it in terms of its writers' intentions instead of its meaning, but should a meaning that a constitutional sentence cannot literally bear be imposed on it, in order to honor its writers' intent? Maybe; there are cases of this in our legislative history. Constitutional “textualists” including Justice Antonin Scalia have opposed this, arguing that a constitutional provision's ordinary meaning should drive its interpretation, not non-textual sources like legislative intent.

Whichever approach the court takes next spring when it decides District of Columbia v. Heller, the linguistic meaning of the Second Amendment should be the starting point for the legal analysis. And that meaning provides no basis for finding a constitutional protection for individuals to keep and bear arms.
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Kaplan is professor and chair of the Department of Linguistics and Asian/Middle Eastern Languages at San Diego State University.

[DeanC]

...the linguistic meaning of the Second Amendment should be the starting point for the legal analysis. And that meaning provides no basis for finding a constitutional protection for individuals to keep and bear arms.

Therefore, it apparently only provides protection for the well-regulated militia to keep and bear arms, which would make it a very silly amendment. That would be something like a constitutional amendment protecting the rights of fire stations to keep water hoses on hand.

[hammAR]

I wonder if he, the good professor, would also be willing to do the same analysis on the 1st and 14th amendment..........................

By his analysis, Congress shall make no law respecting an establishment of religion does not equate to separation of church and state as used today to eliminate the use of the 10 commandments in government buildings, Christmas and other such religious holidays, and other such........................

[princewally]

http://www.firearmsandliberty.com/unabridged.2nd.html

[Schulman:] "(1) Can the sentence be interpreted to grant the right to keep and bear arms solely to 'a well-regulated militia'?"

[Copperud:] "(1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people."

[Schulman:] "(2) Is 'the right of the people to keep and bear arms' granted by the words of the Second Amendment, or does the Second Amendment assume a preexisting right of the people to keep and bear arms, and merely state that such right 'shall not be infringed'?"

[Copperud:] "(2) The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia."

[Schulman:] "(3) Is the right of the people to keep and bear arms conditioned upon whether or not a well regulated militia, is, in fact necessary to the security of a free State, and if that condition is not existing, is the statement 'the right of the people to keep and bear Arms, shall not be infringed' null and void?"

[Copperud:] "(3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as a requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence."

[Schulman:] "(4) Does the clause 'A well-regulated Militia, being necessary to the security of a free State,' grant a right to the government to place conditions on the 'right of the people to keep and bear arms,' or is such right deemed unconditional by the meaning of the entire sentence?"

[Copperud:] "(4) The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia."

[Schulman:] "(5) Which of the following does the phrase 'well-regulated militia' mean: 'well-equipped', 'well-organized,' 'well-drilled,' 'well-educated,' or 'subject to regulations of a superior authority'?"

[Copperud:] "(5) The phrase means 'subject to regulations of a superior authority;' this accords with the desire of the writers for civilian control over the military."

[Schulman:] "(6) (If at all possible, I would ask you to take account the changed meanings of words, or usage, since that sentence was written 200 years ago, but not take into account historical interpretations of the intents of the authors, unless those issues can be clearly separated."

[Copperud:] "To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: "Since a well-regulated militia is necessary tot he security of a free state, the right of the people to keep and bear arms shall not be abridged.'

[goalie]

********.

The amendments are ALL basically a list of what the government cannot do, as it recognizes the rights of the people. No amount of jibber-jabber regarding lignuistics is going to change the fact that the second amendment does not grant any rights whatsoever to the government or to the states, and neither does any other amendment.

[Pat]

********.

The amendments are ALL basically a list of what the government cannot do, as it recognizes the rights of the people. No amount of jibber-jabber regarding lignuistics is going to change the fact that the second amendment does not grant any rights whatsoever to the government or to the states, and neither does any other amendment.

Amen Bro.