How Was The Second Amendment Hijacked?

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The Second Amendment reads:

"A well regulated Militia, being necessary to the security of a free State, the
right of the people to keep and bear Arms, shall not be infringed."

The Second is the ONLY one of the Bill Of Rights to contain such an explanation for the protected right.

The Constitution is clear about the purpose and outlines of this well-regulated militia. The details were fleshed out in the Militia Acts of 1792. I suspect none of us belong to this Citizen's Militia... which are now the state National Guards... and even if we do, we're no longer expected to provide our own firearms.

One might think that would make this Amendment the LEAST subject to being misinterpreted or hijacked, yet this is exactly what's happened. So what happened.

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Pierpont
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I look forward to your overturning the precedent when you become a Supreme Court Justice.

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stuff
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Quote stuff:

I look forward to your overturning the precedent when you become a Supreme Court Justice.

Evasion by any other name. I take it you approve of bastardizing the Constitution as long as you can mold it to do as you want?

Let me guess, and you support some of Scalia's other views such as government has the power to do anything not prohibited.... and there are no rights other than enumerated rights?

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On the contrary, there are no defintions in the entire constitution, thus how could it possibly not be misinterpreted? The question is whether the 'people's right' is to have a well regulated militia, or if the 'people's right' was expressed in the people individually owning firearms and then partaking of the militia. That is point A:

1) The people should be able to bear arms
2) The militia bennefits from that.

As opposed to B:

1) The militia is regulated by the government
2) The militia regulations apply to arms people bear

So, if you look in the historical record, you see 'A'. No founder thought they should regulate any individual's arms. The idea would never occur to them. They were a much too optimistic lot. Nor could they have foreseen the development of the Colt 45 or automatic weapons.

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Dr. Econ
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Quote Dr. Econ:

On the contrary, there are no defintions in the entire constitution, thus how could it possibly not be misinterpreted?

My god, what constitution are you reading?

Article 1: "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;"

Article 2: "The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices, and he shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment."

The above certainly makes it easy to identify this well-regulated militia... unless you're saying some of the above articles have been amended. Clearly this constitutional Militia today are the state National Guards... NOT some ragtag bunch of nuts hiding in the mountains of Montana.

Your other error in logic is "the People" SOUNDS all inclusive but never meant everyone. It meant the Freemen of the day. Obviously the Framers didn't want slaves to be armed. Nor did they trust the People after Shays Rebellion. The Militia Acts flesh out the purpose of this well-regulated militia... and it's also clear that Congress MANDATED militia members to procure a suitable weapon whether they wanted one or not. So where's the "right" in that?

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During the War of Independence, Washington asked Congress to put state militias under his command. The states refused.

Once the Constitution was ratified and Washington became president, memories of the war and his overreaching resurfaced. In order to prevent Washington from federalizing the state militias, the House of Representatives approved the following amendment:

ARTICLE THE FIFTH.

A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.

"States," in this context, literally meant the original thirteen states, which still viewed themselves as sovereign political entities that required and were entitled to their own, independent military forces.

The House version was reworked by the Senate into its familiar version today.

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stuff
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Evasion by any other name.

There is no possiblity of reasoned discussion with some posters. Two, in particular, have responded to my posts with insults. Nothing is to be gained by further engagement of such posters.

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Really... another 2nd amendment jihad.

Is this sentence so hard to understand? Apparently so. Even some of its defenders don’t like how it is worded because it allegedly breeds misunderstanding. But the Second Amendment of the Bill of Rights is indeed a well-crafted sentence. By that I mean that its syntax permits only one reasonable interpretation of the authors’ meaning, namely, that the people’s individual right to be armed ought to be respected and that the resulting armed populace will be secure against tyranny, invasion, and crime. Someone completely ignorant of the eighteenth-century American political debates but familiar with the English language should be able to make out the meaning easily.

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What the Syntax Tells Us

How do we know that the “well regulated militia” is defined in terms of an armed populace and not vice versa? The syntax of the sentence tells us. Madison and his colleagues in the House of Representatives chose to put the militia reference into a dependent phrase. They picked the weakest possible construction by using the participle “being” instead of writing, say, “Since a well regulated militia is necessary. . . .” Their syntax keeps the militia idea from stealing the thunder of what is to come later in the sentence. Moreover, the weak form indicates that the need for a militia was offered not as a reason (or condition) for prohibiting infringement of the stated right but rather as the reason for enumerating the right in the Bill of Rights. (It could have been left implicit in the Ninth Amendment, which affirms unenumerated rights.)

All of this indicates the highly dependent and secondary status of the phrase. Dependent on what? The main, independent clause, which emphatically and unequivocally declares that the people’s right to have guns “shall not be infringed.” (Note: the amendment presupposes the right; it doesn’t grant it.)

Let’s go at this from another direction. Imagine that a Borkian inkblot covers the words “well regulated militia.” All we have is: “A [inkblot] being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” To make an intelligent guess about the obscured words, we would have to reason from the independent clause back to the dependent phrase. We would know intuitively that the missing words must be consistent with the people having the right to keep and bear arms. In fact, anything else would be patently ridiculous. Try this: “A well-regulated professional standing army (or National Guard) being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” That sentence would bewilder any honest reader. He’d ask why such unlike elements were combined in one sentence. It makes no sense. It’s a non sequitur.

Superfluous Commas

A word about punctuation: most reproductions of the Second Amendment contain a plethora of commas: “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” But according to the American Law Division of the Library of Congress, this is not how the amendment was punctuated in the version adopted by Congress in 1789 and ratified by the States. That version contained only one comma, after the word state which, by the way, was not uppercased in the original, indicating a generic political entity as opposed to the particular States of the Union. If the superfluous commas have confused people about the amendment’s meaning, that cause of confusion is now removed.

One need not resort to historical materials to interpret the Second Amendment, because it is all there in the text. Nevertheless, it is appropriate to point out that history supports, and in no way contradicts, that reading. Gun ownership was ubiquitous in eighteenth-century America, and the Founding Fathers repeatedly acknowledged the importance of an armed citizenry. They also stated over and over that the militia is, as George Mason, the acknowledged father of the Bill of Rights, put it, “the whole people.” Madison himself, in Federalist 46, sought to assuage the fears of the American people during the ratification debate by noting that an abusive standing army “would be opposed [by] a militia amounting to near half a million of citizens with arms in their hands.” That would have comprised the entire free adult male population at the time. There’s no question that at the center of the American people’s tacit ideology was the principle that, ultimately, they could not delegate the right of self-defense to anyone else and thus they were responsible for their own safety.

I see only 1 hijacker of the 2nd amendment...

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Cap I'm disappointed in you. :-) I saw Pierpont's post earlier this morning and resisted the temptation to feed his obsession.

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Quote stuff:

During the War of Independence, Washington asked Congress to put state militias under his command. The states refused.

Once the Constitution was ratified and Washington became president, memories of the war and his overreaching resurfaced. In order to prevent Washington from federalizing the state militias, the House of Representatives approved the following amendment:

ARTICLE THE FIFTH.

A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.

"States," in this context, literally meant the original thirteen states, which still viewed themselves as sovereign political entities that required and were entitled to their own, independent military forces.

The House version was reworked by the Senate into its familiar version today.

Leaving aside your questionable "history", you're quoting Madison's DRAFT of the Bill Of Rights... written AFTER the role for these well regulated militias was settled in the Constitution. Even if the House voted on it... it NEVER made it to the states. The ONLY version that matters is the one that was ratified by the states.

Now, do you have a point? Do you intend to address the question?

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Quote Capital1:

I see only 1 hijacker of the 2nd amendment...

Yup... the "research" generated by the paid flunkies of the gun industry and the NRA is quite amusing. The REAL syntax here is if Congress in drafting the Second WANTED to protect some unlimited right to own guns... they would have skipped all the militia crap and just have written the Second as they did the First:

CONGRESS SHALL MAKE NO LAW INFRINGING ON THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS.

They EASILY could have done that and refused. Doesn't that tell your something Einstein?

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Do you intend to address the question?

Mr. Kettle, meet Mr. Pot.

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Cap, while I admire your hermeneutics and literary criticism as a much more sophisticated piece of fishwrap for this idea that the rights of individuals own and bear arms is about individual personal protection and not how to arrange a citizen militia to repel invaders and preserve order.

What is absolutely NOT the intention of the Founders is to have an armed populace ready to challenge elected authorities. Nope, that piece of macho insecurity comes from another place than the words of the Constitution or the context in which it was drafted.

What we have questioned is not the right of hunters to hunt and shooters to shoot or for any responsible and qualified citizen to own civilian guns. As with the right to drive, the state has to have a good reason to deny anyone who is able to drive a car the license to do so legally. A really good reason. In that sense, driving is a right/privilege which you only lose when you abuse it or demonstrate a lack of competence.

Requiring gun registration and some demonstration of maturity and competence for public safety is not the same thing as takiing away anyone's guns who should have them. It presumes that citizens are going to be qualified unless they demonstrate otherwise. I presume the Founders would have eliminated the incompetent and unqualified from the well regulated militia as well.

The point has been made that their guns were hardly mass killing machines. It is quite something to make the Founders responsible for our public policy when so much has changed in the technology to increase its danger to civil life. We face a similar problem in the information age with what the press means. I hate Biblical Fundamentalism for many reasons, but among them because it makes the text rather than the inspiration of the Holy Spirit the way to knowing. I hate Constitutionalist 'originalists' like that fake Scalia, but he is not a real Fundy, just uses it when convenient. Nonetheless, the Founders would kick him in the ass for sticking these bad ideas on them.

drc2
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Quote stuff:
Evasion by any other name.

There is no possiblity of reasoned discussion with some posters. Two, in particular, have responded to my posts with insults. Nothing is to be gained by further engagement of such posters.

PKB Stuff. There's NO evidence yet in this thread you have done ANYTHING but post a snide personal comment and some irrelevant history. So were you referring to yourself?

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Quote mjolnir:

Cap I'm disappointed in you. :-) I saw Pierpont's post earlier this morning and resisted the temptation to feed his obsession.

I like Pierpont. Misguided... mostly wrong.... but passioniate.

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Quote Pierpont:

Yup... the "research" generated by the paid flunkies of the gun industry and the NRA is quite amusing. The REAL syntax here is if Congress in drafting the Second WANTED to protect some unlimited right to own guns... they would have skipped all the militia crap and just have written the Second as they did the First:

CONGRESS SHALL MAKE NO LAW INFRINGING ON THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS.

They EASILY could have done that and refused. Doesn't that tell your something Einstein?

If you hate the english laugage so much, just say so. We'll convert it you German if you like and in the process convert to say whatever you wish it to say.

Simple answer. Madison did it to Piss you off.

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How many times in one year must we discuss the Second Amendment? Just wondering so I can get ready for the new year. :)

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Quote drc2:

Cap, while I admire your hermeneutics and literary criticism as a much more sophisticated piece of fishwrap for this idea that the rights of individuals own and bear arms is about individual personal protection and not how to arrange a citizen militia to repel invaders and preserve order.

What is absolutely NOT the intention of the Founders is to have an armed populace ready to challenge elected authorities. Nope, that piece of macho insecurity comes from another place than the words of the Constitution or the context in which it was drafted.

I couldn't possibly disagree with you more. That was exactly thier intention. They just overthrew thier previous authories and I bet I can come up with several qoutes that implies that very thing,

“When the people fear the government there is tyranny, when the government fears the people there is liberty.”
Thomas Jefferson

“Experience hath shown, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.”
Thomas Jefferson

[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms.
---James Madison,The Federalist Papers, No. 46.

Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.
---Noah Webster, An Examination of the Leading Principles of the Federal Constitution (Philadelphia 1787).

I could probably do this all day. If you deem it nessessary.

What we have questioned is not the right of hunters to hunt and shooters to shoot or for any responsible and qualified citizen to own civilian guns. As with the right to drive, the state has to have a good reason to deny anyone who is able to drive a car the license to do so legally. A really good reason. In that sense, driving is a right/privilege which you only lose when you abuse it or demonstrate a lack of competence.

Requiring gun registration and some demonstration of maturity and competence for public safety is not the same thing as takiing away anyone's guns who should have them. It presumes that citizens are going to be qualified unless they demonstrate otherwise. I presume the Founders would have eliminated the incompetent and unqualified from the well regulated militia as well.

Guns are already regulated, to carry a gun outside your home requires registration, training and permitting. Just like your car analogy. You will have people that circumvent those laws and drive anyway. What you want to do is take away fast cars, because speeding kills.

The point has been made that their guns were hardly mass killing machines. It is quite something to make the Founders responsible for our public policy when so much has changed in the technology to increase its danger to civil life.

So what you are saying.... All our right we enjoy should be subject to current situation. Say you 1st amendment right to free speech. Since corporation abuse this, We should amend the 1st amendment to take away peoples rights to free speech.

Just don't get Peir started in on the 9th amendment.

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Quote Bush_Wacker:

How many times in one year must we discuss the Second Amendment? Just wondering so I can get ready for the new year. :)

4721. or is it 4722.

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Quote Capital1:

Really... another 2nd amendment jihad.

Is this sentence so hard to understand? Apparently so. Even some of its defenders don’t like how it is worded because it allegedly breeds misunderstanding. But the Second Amendment of the Bill of Rights is indeed a well-crafted sentence. By that I mean that its syntax permits only one reasonable interpretation of the authors’ meaning, namely, that the people’s individual right to be armed ought to be respected and that the resulting armed populace will be secure against tyranny, invasion, and crime. Someone completely ignorant of the eighteenth-century American political debates but familiar with the English language should be able to make out the meaning easily.

Nice claim. Tyranny is often in the mind of the beholder. Do you seriously believe the Framers would have agreed with Daniel Shays idea of a tyrannical government? You remember him. He led an attack of about 1000 men on then then new federal armory in Springfield Ma. Think they wanted those weapons for XMas presents for the kids back home. This was in the winter of 1787. That year ring a bell? Shay's Rebellion was one of the reasons the Constitutional Convention was called into session. And you're claiming the Framers would WELCOME large groups of armed civilians outside the control of the state governments? What part of WELL-REGULATED are you having problems with? And pray tell... WHERE in the Constitution is there ANY stated mission for these militias that they are free to go after some tyrannical federal government? Perhaps some of the anti-federalists wanted this, but WHERE IS IT IN LAW???

The Constitution was designed to give every party invited to write the document a check on everyone else. The Constitution also gives the FEDERAL government the power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;"

When the states surrendered that power, they forsake any states right they could use their militias against the federal government. But the Constitution papered over too many defects and the South essentially DID use their militias against the federal government in 1861.Gee... is THAT what you mean about fighting tyrany?

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Quote Capital1:
Quote drc2:

Cap, while I admire your hermeneutics and literary criticism as a much more sophisticated piece of fishwrap for this idea that the rights of individuals own and bear arms is about individual personal protection and not how to arrange a citizen militia to repel invaders and preserve order.

What is absolutely NOT the intention of the Founders is to have an armed populace ready to challenge elected authorities. Nope, that piece of macho insecurity comes from another place than the words of the Constitution or the context in which it was drafted.

I couldn't possibly disagree with you more. That was exactly thier intention. They just overthrew thier previous authories and I bet I can come up with several qoutes that implies that very thing,

“When the people fear the government there is tyranny, when the government fears the people there is liberty.”
Thomas Jefferson

“Experience hath shown, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.”
Thomas Jefferson

[The Constitution preserves] the advantage of being armed which Americans possess over the people of almost every other nation...(where) the governments are afraid to trust the people with arms.
---James Madison,The Federalist Papers, No. 46.

Before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States. A military force, at the command of Congress, can execute no laws, but such as the people perceive to be just and constitutional; for they will possess the power, and jealousy will instantly inspire the inclination, to resist the execution of a law which appears to them unjust and oppressive.
---Noah Webster, An Examination of the Leading Principles of the Federal Constitution (Philadelphia 1787).

I could probably do this all day. If you deem it nessessary.

Blah blah... ya, you can find select quotes... just as those who insist their quotes "prove" the US is a Christian nation even if the Constitution is entirely SECULAR.

Quotes don't matter much. SHOW US WHERE IN LAW THE MILITIAS WERE GIVEN THIS POWER TO ATTACK A TYRANNICAL FEDERAL GOVERNMENT.

It's NOT there. Deal with it. The federal government was given the power to federalize these militias to suppress rebellions or insurrections. Someone tried that once in 1861.

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Quote mjolnir:

Cap I'm disappointed in you. :-) I saw Pierpont's post earlier this morning and resisted the temptation to feed his obsession.

I have no obsession. What I see is pretty clear language in the Second... an EXPLANATION for why the federal government could not disarm these militias. It's the Gun Nuts who are obsessed with removing this militia context and rewriting the Second to to suit their purposes to become a near absolute right to own a weapon.

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Feb. 29, 2012 2:19 pm

Some of you are repeating the same arguments that have occurred in the last week on several different msg board posts since Newtown. And earlier in the year, it was here, in what started as a discussion of Maryland's gun permit laws, then morphed into an argument over whether the individual right to bear arms comes from the US 2nd or the 9th amendment, and then somehow turned into a discussion of slavery (?): Thom, this federal judge in Maryland appears to not know the history of the 2nd Amendment...he should listen to your show..

Thom has talked many times about how the US Constitution's 2nd amendment was copied from the original Pennsylvania constitution with some language removed, which accounts for the vagueness of the militia clause. Back in March I was not able to track down the text online that he has referred to, and don't exactly have the time to do it now. I wish Thom or someone else from the show would provide one.

This recent article spells out how things work in Israel and Switzerland, which seems to be closer to what the framers of our constitution intended: Mythbusting: Israel and Switzerland are not gun-toting utopias.

miksilvr
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Quote Bush_Wacker:

How many times in one year must we discuss the Second Amendment? Just wondering so I can get ready for the new year. :)

Ditto. It is fun though. Must resist...must resist...must resist temptation to feed Pierpont's obsession.

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Quote Pierpont:

Nice claim. Tyranny is often in the mind of the beholder. Do you seriously believe the Framers would have agreed with Daniel Shays idea of a tyrannical government?

Jefferson did. Or did the two famous quotes slip your mind. "“The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” & “I hold it, that a little rebellion, now and then, is a good thing”

To be fair... The government wasn't created yet. There was no constitution nor Bill of Rights.

What part of WELL-REGULATED are you having problems with?

The fact that they explicitly wanted NO standing army. And your poor english skills for the reason that passage is even listed.

But that is just beating a dead horse. AGAIN....

The Constitution was designed to give every party invited to write the document a check on everyone else

Sorry that sentence just makes me laugh...

The Constitution was designed to give every party invited to write the document a check on everyone else. The Constitution also gives the FEDERAL government the power "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;"

"But, say the gun controllers, what of that opening phrase, “A well regulated militia being necessary to the security of a free state”? Here’s where we have to do some syntactical analysis. James Madison’s original draft reversed the order of the amendment: “The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country.” Perhaps this version makes Madison’s thought more clear. His sentence implies that the way to achieve the well-armed and well-regulated militia that is necessary to the security of a free state is to recognize the right of people to own guns. In other words, without the individual freedom to own and carry arms, there can be no militia. As to the term “well regulated,” it does not refer to government regulation. This can be seen in Federalist 29, where Alexander Hamilton wrote that a militia acquired “the degree of perfection which would entitle them to the character of a well regulated militia” by going “through military exercises and evolutions, as often as might be necessary.”

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Quote Pierpont:

Blah blah... ya, you can find select quotes... just as those who insist their quotes "prove" the US is a Christian nation even if the Constitution is entirely SECULAR.

Quotes don't matter much. SHOW US WHERE IN LAW THE MILITIAS WERE GIVEN THIS POWER TO ATTACK A TYRANNICAL FEDERAL GOVERNMENT.

It's NOT there. Deal with it. The federal government was given the power to federalize these militias to suppress rebellions or insurrections. Someone tried that once in 1861.

I suppose you could believe that... If you hate English and an ingrained bias.

This analysis is seconded by two professional grammarians and usage experts. In 1991, author J. Neil Schulman submitted the text of the Second Amendment to A. C. Brocki, editorial coordinator of the Office of Instruction of the Los Angeles Unified School District and a former senior editor for Houghton Mifflin, and Roy Copperud, now deceased, the author of several well-regarded usage books and a member of the American Heritage Dictionary usage panel. Brocki and Copperud told Schulman that the right recognized in the amendment is unconditional and unrestricted as to who possesses it.

Asked if the amendment could be interpreted to mean that only the militia had the right, Brocki replied, “No, I can’t see that.” According to Copperud, “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.” As to the relation of the militia to the people, Schulman paraphrased Brocki as saying, “The sentence means that the people are the militia, and that the people have the right which is mentioned.” On this point, Copperud, who was sympathetic to gun control, nevertheless said, “The right to keep and bear arms is asserted as essential for maintaining the militia.”

English hater...

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Quote miksilvr:

Thom has talked many times about how the US Constitution's 2nd amendment was copied from the original Pennsylvania constitution with some language removed, which accounts for the vagueness of the militia clause.

Even if the Second was copied from another source, it would not necessarily mean the same. It would be operating within a different legal context where the militias might have more specific duties or the oversight might be different.

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Quote Capital1:[...]As to the relation of the militia to the people, Schulman paraphrased Brocki as saying, “The sentence means that the people are the militia, and that the people have the right which is mentioned.”[...]
Let's also throw a little Mason into the equation:

http://www.constitution.org/rc/rat_va_12.htm

"[...]Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man,[1] who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia.

SATURDAY, June 14, 1788

1. Sir William Keith."

Emphasis mine.

Two days later:

http://www.constitution.org/rc/rat_va_13.htm

"[...]Who are the militia? They consist now of the whole people, except a few public officers. [...]

MONDAY, June 16, 1788

[1. Elliot misprinted this as Monday, June 14, 1788.]"

Again emphasis mine.

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mjolnir
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Quote Capital1:
Quote Pierpont:

Blah blah... ya, you can find select quotes... just as those who insist their quotes "prove" the US is a Christian nation even if the Constitution is entirely SECULAR.

Quotes don't matter much. SHOW US WHERE IN LAW THE MILITIAS WERE GIVEN THIS POWER TO ATTACK A TYRANNICAL FEDERAL GOVERNMENT.

It's NOT there. Deal with it. The federal government was given the power to federalize these militias to suppress rebellions or insurrections. Someone tried that once in 1861.

Asked if the amendment could be interpreted to mean that only the militia had the right, Brocki replied, “No, I can’t see that.” According to Copperud, “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.” As to the relation of the militia to the people, Schulman paraphrased Brocki as saying, “The sentence means that the people are the militia, and that the people have the right which is mentioned.” On this point, Copperud, who was sympathetic to gun control, nevertheless said, “The right to keep and bear arms is asserted as essential for maintaining the militia.”

English hater...

Gee... another opinion presented as fact... while you ignore the clear language of the Second and the Militia clause.

There's no reason for the Second to be an all inclusive gun right since the Constitution, itself, was designed to protect rights. So we have to assume the right to have a gun ALREADY EXISTED before the Second was even written... at least for Freemen. The Second is something different than an individual gun right. To disagree is to again raise the question I asked last spring... where was this right to own a weapon in thsoe 3.5 years after the Constitution was ratified... and before the BoRs was ratified. Unless you're saying our rights DO come from government.

Logic hater!

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Pierpont
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Feb. 29, 2012 2:19 pm
Quote mjolnir:"[...]Who are the militia? They consist now of the whole people, except a few public officers. [...]

Ya ya, more quotes... while ignoring what was actually written into law.

YES, we KNOW these well-regulated militias were to be made up of "the People"... but that NEVER included everyone. The PEOPLE are the Freemen. Unless you're going to claim We The People intended to secure the blessings of liberty for Slaves. Oops... actually that's one of Cap's more amusing historical fictions. So are you suggesting the slave states would permit slaves to own guns? The Militia Acts are clear only able bodied WHITE MALES... between 18 and 45ish could join. This is a SUBSET of the People... a subset of the Freemen.

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Pierpont
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Quote Capital1:This analysis is seconded by two professional grammarians and usage experts.
So did anyone simply ask these "experts" if the First Congress really just meant a general right to own weapons OUTSIDE the militia context... why Congress even bothered putting that militia clause in the Second? They are plenty of other options if their intent was "congress shall make no law"...

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Pierpont
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In case anyone here hasn't read Garry Wills' classic article "To Keep and Bear Arms" from 1995, I really recommend it.

http://www.nybooks.com/articles/archives/1995/sep/21/to-keep-and-bear-ar...

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Blood
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Thanks for the link.

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mjolnir
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Quote Capital1:
Quote Pierpont:

Nice claim. Tyranny is often in the mind of the beholder. Do you seriously believe the Framers would have agreed with Daniel Shays idea of a tyrannical government?

Jefferson did. Or did the two famous quotes slip your mind. "“The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.” & “I hold it, that a little rebellion, now and then, is a good thing”

To be fair... The government wasn't created yet. There was no constitution nor Bill of Rights.

AGAIN, misc quotes are MEANINGLESS if those sentiments can't be shown to have been written into law. And Jefferson wasn't even at the Constitutional Convention, remember? He was in FRANCE!

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Pierpont
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Quote Blood:

In case anyone here hasn't read Garry Wills' classic article "To Keep and Bear Arms" from 1995, I really recommend it.

http://www.nybooks.com/articles/archives/1995/sep/21/to-keep-and-bear-ar...

Good read... thanks. It exposes the cynical echo chamber at work to promulgate this sloppy if not disingenuous Second Amendment "research". But then this is what ANY special interest group must do in a "democracy" to cloud the issue enough to move the debate to the terms that group wants. We've seen such propaganda at work with everything from tobacco to irresponsible tax cuts to toxic sludge to global warming to fracking.

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Pierpont
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@Pierpont Here:

http://www.thomhartmann.com/forum/2012/12/how-was-second-amendment-hijac...

you say

Quote Pierpont:[...]AGAIN, misc quotes are MEANINGLESS if those sentiments can't be shown to have been written into law.[...]
and that is very true. Here:

http://www.thomhartmann.com/forum/2012/03/thom-federal-judge-maryland-ap...

I link to you a picture of the very attempt to change the wording of the 2nd we have now, language the addition of which would have left the 2nd unambiguously as a "collective right" forever linked to the militia. That attempt was turned away by the Senate leaving us the language we have now, written into law.

"If instead of this: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." We had this: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms for the common defence shall not be infringed." To my mind the inclusion of those four words, "for the common defence" would have removed all doubt as to the intention of the amendment. The Senate tried and failed to add those words. Here is a link to a picture of minutes to the meeting: http://www.civilrightstaskforce.info/id21.htm The .gif is about halfway down the page."

Emphasis mine.

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mjolnir
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Quote mjolnir:

@Pierpont Here:

http://www.thomhartmann.com/forum/2012/12/how-was-second-amendment-hijac...

you say

Quote Pierpont:[...]AGAIN, misc quotes are MEANINGLESS if those sentiments can't be shown to have been written into law.[...]
and that is very true. Here:

http://www.thomhartmann.com/forum/2012/03/thom-federal-judge-maryland-ap...

I link to you a picture of the very attempt to change the wording of the 2nd we have now, language the addition of which would have left the 2nd unambiguously as a "collective right" forever linked to the militia. That attempt was turned away by the Senate leaving us the language we have now, written into law.

"If instead of this: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." We had this: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms for the common defence shall not be infringed." To my mind the inclusion of those four words, "for the common defence" would have removed all doubt as to the intention of the amendment. The Senate tried and failed to add those words. Here is a link to a picture of minutes to the meeting: http://www.civilrightstaskforce.info/id21.htm The .gif is about halfway down the page."

Emphasis mine.

You're argument is a red herring IF the right to own a gun was already considered a common law right... at least for Freemen. If that's the case then the Second was written to protect a DIFFERENT Right... that the militias not be disarmed.

The vehemence to fight for this right in the Second is only because of the historical neglect of the Ninth... mostly by the Right but Dems as well. So because of their own contempt of the Ninth, they are left to justify gun rights by bastardizing the Second.

So say the Ninth DID have a long list of common law rights... INCLUDING THE RIGHT TO OWN GUNS. Do you THEN think there'd be this desperation on the part of Gun Nuts to bastardize the Second?

I ask AGAIN... what was the legal status of an individual right for Freemen to own a gun in those 3.5 YEARS between the ratification of the Constitution and the Second Amendment? Are you claiming this right to own a gun never existed and had to be GRANTED to individuals?

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Pierpont
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Feb. 29, 2012 2:19 pm

I wonder how many times you've used the words "red herring " in the last week? Hardly ever any links backing your positions, only evasion, polemics, and bloviating diatribes. The effort to change the "individual right" inherent in the 2nd to a "collective right" tied to a militia by the Senate failed in 1789 and no amount of bold type is going to change that. I ask you again, as I did here:

http://www.thomhartmann.com/forum/2012/03/thom-federal-judge-maryland-ap...

"I have spent quite a bit of time researching sites that reference 9th Amendment rights and some do give lip service to a generalized "right to keep and bear arms" derived from the "natural rights of man". Some of the content is very good and fits with my own personal philosophy.

It is very hard to follow a persons train of thought in a forum context, at least for me, and this isn't a criticism of your stance. What sites do you follow to develop your philosophy concerning the 9th? "

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mjolnir
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Mar. 3, 2011 12:42 pm

Were it only about a "common law" right instead of an ideology and distortion of the frame of this text about a "well regulated militia." Let us accept the rationality of a culture and economy where a rifle was a food and farm tool and access to the Commons of the forest, let's say, would not be equal were only the Lords to have guns to hunt. We can add personal protection from predators, human and otherwise, particularly where wilderness and early settlements lacked the established law and order that was to come.

As we think about America's particular and peculiar gun culture, an interesting comparison is with Canada where gun ownership is like us but gun violence has not been. One factor at the onset is that the Mounties and Law and Order got to the Canadian frontier with the early settlements and not after they had to work things out in range wars and other shoot outs. Canadian "outlaws" are different than ours even if they can be equally nuts about government and city slickers.

Americans go "militia" and "personal protection" a lot faster than others, and this is about basic distrust of others. The romance of armed revolution and heroic patriots standing tall against those ready to sell out everything that matters appears in a clown parade of mythic cartoon images. Then it brings the horrors home. The idea of a sane discussion of our national insanity gets an occassional breath of life. Maybe it will be able to sustain a heartbeat for a change.

drc2
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Apr. 26, 2012 12:15 pm
Quote mjolnir:It is very hard to follow a persons train of thought in a forum context, at least for me, and this isn't a criticism of your stance. What sites do you follow to develop your philosophy concerning the 9th? "

From Madison, of course.

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution."

SOURCE: www.usconstitution.net/madisonbor.html#Sec5

Madison is, of course, referring to his DRAFT of the Bill Of Rights... and then the last clause in the 4th proposed amendment was:

"The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution."

SOURCE: http://www.usconstitution.net/madisonbor.html

When it comes to the Second, you confuse the economy of language with some substantial change in meaning. As we see above, Madison was hardly economical in his use of words.

Madison also wrote in a letter to Jefferson explaining why he didn't at first believe the omission of a Bill of Rights in the original Constitution was of much consequence:

"I have not viewed it in an important light --
1. because I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted."

SOURCE: http://www.constitution.org/jm/17881017_bor.txt

The construction of the Constitution was in keeping with the enlightened view of the day also reflected in the French Rights Of Man... "Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.

5. Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law."

http://avalon.law.yale.edu/18th_century/rightsof.asp

Though Jefferson purportedly had a hand in writing the RoM, it, of course, has no legal standing in US law. It merely also reflects the philosophy of Locke.

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You get most of your philosophical groundings for the 9th from one man's (Madison) inclusion of a "catch all" phrase in the "Bill of Right's"? Do we have a "smiley" for incredulousness? I have nothing against the 9th but as I've posted before it's like the magician's magic top hat. What can't you pull from it?

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mjolnir
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Quote mjolnir:

You get most of your philosophical groundings for the 9th from one man's (Madison) inclusion of a "catch all" phrase in the "Bill of Right's"? Do we have a "smiley" for incredulousness? I have nothing against the 9th but as I've posted before it's like the magician's magic top hat. What can't you pull from it?

So you DO believe our rights are a grant from government. So by your "logic" there were no gun rights for those 3.5 years until the BoR was ratified.

And so much for the Declaration of Independence... which, if course has no standing in law. But Madison's sentimets WERE ratified as an amendment. That has to mean something...

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Pierpont
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Quote drc2:Let us accept the rationality of a culture and economy where a rifle was a food and farm tool ...

Guns were much more than that. Some states required every able-bodied man to own a firearm for possible call-up by the militia.

I am not among those who believe people should be required to own firearms today. Requirement to own or not to own weapons seems to me to be an intolerable infringement on individual freedom.

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stuff
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Nov. 24, 2012 4:59 pm

Madison (and the Congress) only proposed the Bill of Rights. States ratified the Bill of Rights and made them Constitutional law. Who knows what the ratifiers thought those words meant.

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stuff
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Quote Pierpont:Logic hater!

Where? haven't seen any from you...

Gee... another opinion presented as fact... while you ignore the clear language of the Second and the Militia clause

I assumed the question was: What does the 2nd amendment mean. Who better to opine up that then a professional grammarians.

Let me guess.... you didn't like what they said so you dismissed them offhand.

There's no reason for the Second to be an all inclusive gun right since the Constitution, itself, was designed to protect rights. So we have to assume the right to have a gun ALREADY EXISTED before the Second was even written... at least for Freemen. The Second is something different than an individual gun right. To disagree is to again raise the question I asked last spring... where was this right to own a weapon in thsoe 3.5 years after the Constitution was ratified... and before the BoRs was ratified. Unless you're saying our rights DO come from government

You make my head hurt. you continually claim the 9th protects all rights. You certainly don't have too much complaint about freedom of speech, press, etc etc.... but you ASSume the 2nd was written narrowly.

**** you might get a chuckle out of this. I was just served a public records request from the City that someone wants a peek at my emails. He is not going to like what he finds. *****

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Capital1
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Jul. 31, 2012 7:38 am

I would like to pose an interesting and relevant question here, inspired by one of Stuff's posts.

What was the "Founding Fathers'" attitude toward pacifists and the Quakers? These groups would never fight for anyone, including their country. In light of their nonparticipation in war, including the revolutionary war, what would the effect be on how we should interpret or not interpret the 2nd admendment? How the Quakers were viewed should reflect how the Founding Fathers' viewed the 2nd itself!

micahjr34
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Feb. 7, 2011 4:57 pm
Quote stuff:

Madison (and the Congress) only proposed the Bill of Rights. States ratified the Bill of Rights and made them Constitutional law. Who knows what the ratifiers thought those words meant.

Except those in the House and Senate already represent the states and both the House and Senate had to approve the proposed amendment with a 2/3 supermajority. So it's hardly any mystery what these proposed amendments meant. But feel free to play this game... which, I suspect in your mind applies only to the Ninth, not the perfectly clear Second, right?

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Pierpont
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Feb. 29, 2012 2:19 pm
Quote micahjr34:

I would like to pose an interesting and relevant question here, inspired by one of Stuff's posts.

What was the "Founding Fathers'" attitude toward pacifists and the Quakers? These groups would never fight for anyone, including their country. In light of their nonparticipation in war, including the revolutionary war, what would the effect be on how we should interpret or not interpret the 2nd admendment? How the Quakers were viewed should reflect how the Founding Fathers' viewed the 2nd itself!

That's an interesting question. My, admittedly, limited understanding of the issue is that Madison tried to accommodate conscientious objection in the 2nd but was rebuffed. Here is an interesting read on the subject:

http://castle.eiu.edu/historia/archives/2011/2011Carnahan.pdf

In general I believe they left it to the States up untill the Civil War.

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mjolnir
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Quote Capital1:
Quote Pierpont:Logic hater!

Where? haven't seen any from you...

Gee... another opinion presented as fact... while you ignore the clear language of the Second and the Militia clause

I assumed the question was: What does the 2nd amendment mean. Who better to opine up that then a professional grammarians.

Let me guess.... you didn't like what they said so you dismissed them offhand.

Ya, who argue over commas instead of ask themselves the more OBVIOUS questions of why even bother mentioning the well regulated militia if it's IRRELEVANT to just protecting an individual right. It's the grammarian's equivalent of arguing how many angels can dance on the head of a pin.

I've already given my reasons which go back to 1789 not the 1990s. The right to own a firearm was ALREADY secure... at least for Freemen so there was no reason to restate that. But if there were so inclined, the Congress knew perfectly well any individual right could have been stated as the First... Congress shall make no law. The BoR is a FURTHER clarification of the restraints on the new government... and in this case the limits of its powers concerning the well-regulated militias.

There's no reason for the Second to be an all inclusive gun right since the Constitution, itself, was designed to protect rights. So we have to assume the right to have a gun ALREADY EXISTED before the Second was even written... at least for Freemen. The Second is something different than an individual gun right. To disagree is to again raise the question I asked last spring... where was this right to own a weapon in thsoe 3.5 years after the Constitution was ratified... and before the BoRs was ratified. Unless you're saying our rights DO come from government
Quote Capital1:You make my head hurt. you continually claim the 9th protects all rights. You certainly don't have too much complaint about freedom of speech, press, etc etc.... but you ASSume the 2nd was written narrowly.

Gee, because it obviously IS narrowly written? Again, it's the ONLY one of the BoRs to contain an explanation for the right... to maintain the viability of these citizen militias.

**** you might get a chuckle out of this. I was just served a public records request from the City that someone wants a peek at my emails. He is not going to like what he finds. *****

Didn't you learn anything from your buddy Karl Rove? To get around the law he simply set up a private email network.

As for you, they might next want to know how much you drink. Then what! Better start deleting incriminating posts here!

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Pierpont
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Feb. 29, 2012 2:19 pm
So it's hardly any mystery what these proposed amendments meant.

I respectfully disagree.

There is no way that anybody can know today the intentions or motives or understandings of those who died in the past (or even those who are alive today). For one thing, Madison and Hamilton lied to Congress about the purpose of the Convention and then kept their deliberations behind closed doors. In my profession, talk is cheap. What counts is what people do, not what they think about what they are doing (they might not know why they do things themselves!).

The Federalist Papers was not an explanation of the Constitution but a polemic intended to convince conventioneers in New York to ratify the Constitution. The Constitution ws a "cake" baked by many different bakers, many of whom disagreed with each other about the document. There are no definitive interpretations of the meaning of the Constitution except five out of nine justices of the Supreme Court in a written opinion at any particular time. If the Constitution was self-evident, we wouldn't need courts at all.

Anyway, who gives a sh*t what the Founders thought? We are the ones who have to live with the Constitution today, so what we think it means (and those five d*mn justices) is all that really matters.

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