I was just looking over the Heller opinion, and came across the debate between Justices Scalia and Stevens about U.S. v. Cruikshank, 92 U.S. 542 (1876). Here's what Justice Stevens's dissent argues, accurately quoting both Cruikshank and the majority (citations omitted):
In United States v. Cruikshank, the Court sustained a challenge to respondents' convictions under the Enforcement Act of 1870 for conspiring to deprive any individual of “‘any right or privilege granted or secured to him by the constitution or laws of the United States.’” The Court wrote, as to counts 2 and 10 of respondents' indictment:
“The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent on that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.”
The majority's assertion that the Court in Cruikshank “described the right protected by the Second Amendment as ‘“bearing arms for a lawful purpose,”’” is not accurate. The Cruikshank Court explained that the defective indictment contained such language, but the Court did not itself describe the right, or endorse the indictment's description of the right.
This is mighty odd (as the Heller majority stressed, in note 22). Cruikshank says, "The second amendment declares that it shall not be infringed ... by Congress." What is "it"? The only possible referent is "The right there specified," namely "of 'bearing arms for a lawful purpose.'"
Thus, substituting the referent, we see Cruikshank saying that "The second amendment declares that [the right of bearing arms for a lawful purpose] shall not be infringed ... by Congress." So Cruikshank definitely does describe the right protected by the Second Amendment.
Maybe I'm missing something here, but I don't think I am: It seems to me that the dissent just flatly misread Cruikshank, and in an important way -- and didn't correct this despite Justice Scalia's express and accurate response in footnote 22 of the majority.
So this is one reason I tell my students: Never rely on an intermediate source's characterization (or even quotation) of an original source; always read, quote, and cite the original source. (True, sometimes when the intermediate source is authoritative -- for instance, is a majority opinion -- its mischaracterization of an original source may itself create binding law. But the original source still says what the original source always said.)
Please.
Is independant of the rest. You are trying to say that the
Defines the second amendment. That is NOT what they are saying. They are saying that "The right...." is nonsense. None of the 10 grant rights. They recognize existing rights and say that congress can't mess with them.
Later most were incorprated and the state governments can't mess with them either.
When the second amendment is incorprated then the states will not be able to mess wiith it either.
The above speakes of
This shows that they are talking about INDIVIDUAL RIGHTs. States DON'T have pre-existing rights. The States only have POWERS granted to them by Constitutions.
Yet more support for individual rights version of the second amendment.
Because the Court was talking about a pre-existing right, not granted by the Constitution, which is only acknowledged in the Constitution for the purpose of preventing Congress from infringing it. The Second Amendment is part of the Constitution, and therefore can't itself be the pre-existing right that the Second Amendment protects.
I don't see where you have eliminated "the second amendment" as a possible referent for "it".
That's why the Court couldn't be referring to "the second amendment." Such a reference would be contrary to the entire thrust of that part of the opinion.
But it'd be entirely consistent with English grammar and usage.
Volokh's "only possible referent" fantasy is willful ignorance, nothing more. (emphasis added).
The emperor has no clothes.
The paragraph quoted here deals with the question of which government is limited by the Second: "it shall not be infringed by Congress" immediately followed by explanatory "[t]his is one of the amendments that has no other effect than to restrict the powers of the national government" may very well mean that "it" is the Second Amendment.
They can't even read the freaking Constitution for Pete's sake. Now you expect them to read something else? That's much longer? Please. "Living" Constitutionalism means you make it up as you go anyway, so why bother to read what was done in the past?
But I read this section of the opinion in blacker
as saying exactly the opposite of what Stevens is trying to prove.
Can anyone tell me whether I am wrong here(I suspect I am)?
Modus Ponens, your logic is terrible.
"It" can't refer to "the Second Amendment" because Amendments aren't normally said to be infringed or not infringed -- rights could be infringed, but not Amendments. (The government can violate the First Amendment, for instance, or infringe First Amendment rights, or perhaps even infringe on the First Amendment, though I'm skeptical about that, but it wouldn't normally be said to infringe the First Amendment.) "It" can't refer to "the right secured by the Second Amendment," since that phrase hasn't been used beforehand. And "it" can't refer to "a right granted by the Constitution" because that wouldn't make sense in context, either.
The only noun or noun phrase before "it" to which "shall not be infringed" could apply is "the right granted by the Constitution." Plus that reading would make the "it" in the fourth sentence match the "it"s in the third sentence and the "this" in the second sentence.
The Cruikshank Court said:
If the "it" in question refers to the Second Amendment, then the Cruikshank Court's language could be rephrased as:
That makes no sense. So, Eugene is right that the only logical referent is "the right in question."
I would imagine that people who would bear arms for an unlawful purpose might view this as an unreasonable restriction on their 2nd amendment rights. After all, the first thing a government would do if they were trying to restrict the use of arms is make such use "unlawful."
As stated in the First Amendment, the United States Congress is prohibited from restricting religion, speech, and protest, but these can be negotiated away by private parties (e.g. a Non-Disclosure Agreement, which restricts your free speech and subjects you to civil action for saying certain things).
The Second Amendment makes no such distinction, effectively prohibiting all parties from restricting the right of national and self defense.
Case law can be wrong, and can be overturned later. If the Constitution needs to be revised, so that only Congress is prohibited from infringing the right to keep and bear, then let's amend the Constitution.
United States Court of Appeals Second Circuit:
"... a finding that the Sixth Amendment has been infringed."
US v Fay, 350 F.2d 214 (2nd Cir. 1965)
http://www.usdoj.gov/osg/briefs/1990/sg900773.txt
Office of the Solicitor General:
"If, as respondents urge, the First Amendment is
infringed by the very fact that..."
Mr. Justice REHNQUIST:
"I cannot agree that the First Amendment is infringed by Arizona's regulation..."
Bates v. State Bar of Arizona
etc. etc. etc.
How exactly could the Second Amendment pre-exist the Constitution? In order for your interpretation to be correct, where "it" = "Second Amendment", then the passage would have to read as follows:
Does that look right to you?
No, it does not. However, this looks possible (emphasis mine):
The right there specified is that of ‘bearing arms for a lawful purpose.’ [First:] This [right] is not a right granted by the Constitution. [Second:] Neither is it [the right] in any manner dependent on that instrument [the Constitution] for its [the right's] existence. [And, finally, turning to the specific part of the Constitution alluded to by the phrase "bearing arms":] The second amendment declares that it [this amendment] shall not be infringed; but this, as has been seen, means no more than that it [this amendment] shall not be infringed by Congress. This [amendment] is one of the amendments that has no other effect than to restrict the powers of the national government.
Why turn to the specific part of the Constitution there? The Justice was discussing "the right" not the Second Amendment.
Moreover, where does the Second Amendment declare that "the Second Amendment" shall not be infringed? The only thing that Second Amendment declares "shall not be infringed" is "the right to bear arms", which it just so happens was the subject of the preceding three sentences in the opinion.
And what exactly would that mean in context with the rest of the paragraph? There's a right that predates the Constitution, and there's an Amendment that prohibits any violation of itself by Congress? How does that make sense?
OTOH, if you read it the way it was written, then the Second Amendment is properly introduced as the thing that incorporates the right being discussed, and which declares that such right shall not be infringed. Now the paragraph makes perfect sense. Yours does not.
Because this part could have been alluded to by the phrase "bearing arms" in the second and tenth counts of the indictment; and Waite wanted to cover all possible meanings of the two counts.
Moreover, where does the Second Amendment declare that "the Second Amendment" shall not be infringed?
When any right protected by an amendment is infringed, it is a common thing to say that the amendment is infringed.
And what exactly would that mean in context with the rest of the paragraph? There's a right that predates the Constitution, and there's an Amendment that prohibits any violation of itself by Congress? How does that make sense?
It may mean that, first, the right of ‘bearing arms for a lawful purpose’ is not granted by or based on the Constitution, and, second, the rights protected by a particularly relevant part of the Constitution limit only the Feds.
In other words, whatever the indictment says about "bearing arms" has nothing to do with the Constitution in general and with the Second Amendment in particular. Makes sense to me.
More broadly, as I mentioned, reading "it" to refer to "right" makes more sense given the flow of the paragraph (italics added):
“The right there specified is that of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent on that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government.”
It seems likely that the "it" in the fourth sentence is the same "it" that they were talking about in the preceding sentence, and the same "this" that they were talking about in the sentence before then. And that's especially so given that "The second amendment declares that the second amendment shall not be infringed" sounds so odd, and "The second amendment declares that the [right of 'bearing arms' for a lawful purpose] shall not be infringed" sounds (1) so normal and (2) so consistent with the actual text of the second amendment.
I see this as possible flow of the paragraph:
The indictment talks about the ‘bearing arms for a lawful purpose’. Let's see if it has anything to do with the Constitution.
The right of ‘bearing arms for a lawful purpose’ is not granted by or based on the Constitution.
But the second amendment to the Constitution does talk about bearing arms; let's look closely at the Second. The second amendment does indeed declare that it, the second amendment, shall not be infringed; but by whom? By whom the Second shall not be infringed? Only by the Feds, that's by whom.
The rhetorical pattern here is, again: The Second declares that the Second shall not be infringed –– so what? it's by the Fed's that it shall not be infringed, it is inapplicable to this indictment.
SCRIVENER: When any right protected by an amendment is infringed, it is a common thing to say that the amendment is infringed.
That's not the question. According to your reading of the opinion, the sentence states:
But nowhere in the text of the Amendment (or any Amendment, or even law that I am aware of) is there a declaration that the Amendment itself cannot be infringed. In fact this would be a complete tautology since which laws are written to be infringed? The very purpose of the Amendment is to spell out something that is protected. In the case of the Second Amendment, the thing protected, and that which it declares "shall not be infringed" is "the right to bear arms."
This has nothing to do with how common it may be to claim that an Amendment is infringed, but with what the substance of the sentence states under your interpretation. Your interpretation would have the Court stating something that is (a) obviously false, (b) irrelevant to the entire discussion, and (c) a tautology.
In contrast, a plain reading of the the sentence, paragraph and Amendment in question clearly resolves the issue in favor of "it" referring to "the right to bear arms." There is no reason to read the passage in such a way as to render it senseless unless you simply don't like what it plainly states.
If the Second Amendment provides a right only against the federal government, then by definition no one other than the federal government could infringe the right guaranteed by that amendment. So, it would make no sense to imply that it might be infringed by someone else but that the Second Amendment doesn't limit such infringements ("this, as has been seen, means no more than that it shall not be infringed by Congress"). Restrictions on carrying guns imposed by a state would not constitute an infringement of the Second Amendment right for which there is no remedy under the Second Amendment; there simply would be no infringement at all. The states could infringe the right to keep and bear arms without infringing the Second Amendment right, however, because the Second Amendment had not been incorporated. Thus, the most natural reading of the excerpt is that the "it" refers to the right to carry arms not the Second Amendment.
The argument that the "it" in question refers to the Second Amendment rather than the right to bear arms boils down, I think, to an argument that the Court did not say what it meant. That's always possible, but one would then like some evidence on that point, rather than merely pointing out the possibility.
I can't help but believe that if you showed this passage to 100 good writers who were ignorant of the intricacies of the Second Amendment debate and asked what the "it" in question referred to, at least 90 and probably 100 would identify the right of "bearing arms for a lawful purpose." Knowledge of what the Second Amendment actually says should actually buttress that conclusion, since the Second Amendment does explicitly refer to something being infringed -- "the right to keep and bear arms," not "this Amendment."
The 2nd states that rights protected by the 2nd shall not be infringed. When any right protected by an amendment is infringed, it is a common thing to say that the amendment is infringed. So, IMO, there is nothing wrong with saying that the 2nd states that the 2nd shall not be infringed.
Waite was simply emphasizing, that while the 2nd shall not be infringed it is only the Feds, in his opinion, that are capable on infringing the 2nd, therefore the two counts of the indictment must be quashed since the Feds were not the actors in that case.
Kingsley Browne:
I am talking not about my opinion on the matter, but rather about Waite's opinion on the matter, and everyone agrees that he stated that the 2nd restricts only the Feds -- he quashed the indictment, after all. We are discussing what else, if anything, he said about the 2nd in that opinion.
We know what he said. The question is what he meant. The question then is whether the most natural reading of what he said is what he meant or whether he meant something altogether different.
ShelbyC,
Please rewrite your comment more clearly. Confine yourself to simple sentences. Some have trouble comprehending.
Does your "it" refer to "wishful thinking" or "paragraph" ?
"It" is all so confusing :-)
"The 2nd states that rights protected by the 2nd shall not be infringed."
No, the 2nd states that rights shall not be infringed, and *you* are referring to those rights as "rights protected by the 2nd". But the 2nd doesn't refer to them as "rights protected by the second," rather the 2nd refers to particular rights which become accurately described as "the rights protected by the 2nd" by the fact that the 2nd refers to them.
Your argument rests on an equivocation, one a bit like saying that Oedipus intended to kill his father and marry his mother. When we analyze the intention, we have to admit that he intended to kill that man and marry that woman, but it is not a part of the awareness that made up his intention that the man can accurately be described as his father and the woman can accurately be described as his mother.
In short, just because you accurately describe an object that is referred to in a proposition uttered by someone else does not mean that your description of that object inters into the meaning of that proposition.
To whom do you analogize Oedipus in the Cruikshank discussion? To Waite?
Again, the two possible meanings of Waite's words are:
Per Scalia: The 2nd protects the right of ‘bearing arms for a lawful purpose’ from infringement by the Feds; but the defendant is not a Fed, so the indictment is quashed.
Per Stevens: The 2nd protects some rights from infringement by the Feds; but the defendant is not a Fed, so the indictment is quashed.
I do not see much Oedipal in this distinction.
(The latter case is even loopier, because P2 is just a generalization of P1, but you would need both to get your misleading claim at the beginning of your argument in the previous post [7.3.2008 9:40am], which leads to your even more tenuous claim that "the second states that the second shall not be infringed." The second states no such thing.)
P1 and P2 are Scalia's conclusions, not my premises.
The whole thing about Oedipus is that he had incomplete information. And I am still not clear at all to whom do you analogize Oedipus in the Cruikshank discussion? To Waite? What information had Waite been missing?
I'm not analogizing Oedipus to anybody. I'm analogizing you saying misleading things about the second amendment to someone who says misleading things about Oedipus.
P1 and P2 are the implied premises of your misleading claim that "The 2nd states that rights protected by the 2nd shall not be infringed." My point is that this is a very misleading -- indeed an equivocal -- claim. Reread my first post. It's not primarily a point about constitutional interpretation per se, but a more basic point about sense and reference.
I did not imply either P1 or P2, because insaying "the 2nd states that rights protected by the 2nd shall not be infringed" I did not imply anything about what these rights are; as opposed to P1 and P2 making assertions about what these rights are.
I think analogizing someone discussing Oedipus (a human being) to someone discussing the Second Amendment (a text) is a bit of a stretch in this context.
I think saying that the Second Amendment states something about the Second Amendment, when in fact it says something about the right to bear arms, is a bit of a stretch in this context.
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