Those Wacky Republicans

AAAintheBeltway · Apr 6, 2015

piezoe said:
Perhaps you've hit on a very important point. It makes no sense whatsoever that treatment of LGBT individuals should vary from State to State. What would make sense would be simply to amend Title VII of the Civil Rights Act of 1964 and add LGBT individuals to the federal EEOC non-discrimination statement. That would be consistent with the inevitable acceptance of gay marriages in all 50 States (once the Court puts this issue to bed.). Let's bring an end to this otherwise endless haranguing so we can move on to issues more important to the vast majority of us.
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A better idea would be to repeal the Civl Rights Act altogether.

However, I am reasonably sure if the homo nazis raise a big fuss, the spineless republicans will fold like lawn chairs and pass whatever they ask for.

AAAintheBeltway · Apr 6, 2015

piezoe said:
You raise good points with regard to how the second amendment could have been drafted to make the the preamble phrase a condition.

And I do respect Scalia's skillful use of language.

To turn your own and Scalia's arguments on their heads, why do you suppose the drafters of the second amendment bothered to include the preamble phrase at all, if the intention of the amendment was to protect the right to bear arms unrelated to service in the militia? That is in fact were Scalia might have drawn on his talents and twisted meaning to mean what he wants it to mean. He wasn't able to because the meaning of the introductory phrase is clear and unambiguous. He had only one option, and that was to get rid of the introductory phrase altogether by splitting the sentence in two at the comma. He did this so skillfully that he was able to get half of the eight other justices to go along with him. But in doing so he made a mockery of his claimed philosophy of originalism. Why? Because originally the Constitution read: "A well regulated Militia, being necessary to the security of a free State, the right of . . ."

To me the idea of originalism applied to a 200 plus year old constitution is and absurdity, it leads you to the same place the Bible, the Koran and the Torah lead you: to insanity! In a modern world what was believed centuries ago may now be understood to have been clearly false, or what made sense then may not necessarily make sense today. By his selective rejection of originalism in the Heller case, Scalia shows that his adherence to the philosophy of originalism is malleable. I can respect that! But why can't he just admit it instead of tirelessly asserting he is a "strict constructionist", when clearly he is not.

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Scalia might have chosen to leave the Amendment intact and argue that the State militias at the time were intended to defend the State's interest against federal encroachment, and that the equivalent applies today, where individual arms bearing is intended as a defense against federal encroachment, despite how ridiculous that may sound. There is excellent historical support for this view, and Scalia touches on it. But to take that path would have created another problem for Scalia. This had to do with what type of militia, federal or state, was being referred to in the Amendment, and that was historically unclear. Scalia touches briefly, in his opinion, on this point. It must be that Scalia recognized that there was a can of worms to be opened that could weaken his intended argument. He must have concluded that the best way to avoid opening the can was to jettison the introductory phrase altogether, which he did with consummate skill.
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Your whole argument rests on a fallacy, which is that the introductory clause was intended as a limitation, ie a condition. There is no evidence to suggest that is true, it was not compatible with practice and custom at the time and it does not comport with traditional principles of legal interpretation. You ignore the use of the term of art "people" in the affirmative grant of the right to keep and bear arms. People invarible was used to mean the citizenry.

Your interpretation would be reasonable if the clause read that the right of "militia members" to keep and bear arms shall not be infringed. Instead, it says the right of the "people."

BSAM · Apr 6, 2015

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.

Well, I'll be derned...IT DOES SAY THE RIGHT OF THE PEOPLE.

trendlover · Apr 6, 2015

Wallet said:
Was Planned Parenthood the only place they could go to get STD testing? I seriously doubt that. Around here there are several places besides the county health department that offer STD/HIV testing for free.

Lack of testing isn't what spreads HIV. If one is serious about getting tested they will do it Planned Parenthood or not.
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To Wallet poster. What is this from your quote?
[QUOTE="Wallet "Around here there are several places besides the county health department that offer STD/HIV testing for free"

My link talk about (rural) people

"Stauffer said if the Planned Parenthood facilities in Scottsburg and Madison, both in southwest rural Indiana, had received the funding they needed to stay open, they could have been a vital resource in preventing the current HIV outbreak."

BSAM · Apr 6, 2015

And it says "shall not be infringed".
So, I don't have to take all those classes and get all those permits to have weapons.
Well, I'll just be.

BSAM · Apr 6, 2015

I wonder if anybody else knows this.

piezoe · Apr 6, 2015

AAAintheBeltway said:
Your whole argument rests on a fallacy, which is that the introductory clause was intended as a limitation, ie a condition. There is no evidence to suggest that is true, it was not compatible with practice and custom at the time and it does not comport with traditional principles of legal interpretation. You ignore the use of the term of art "people" in the affirmative grant of the right to keep and bear arms. People invarible was used to mean the citizenry.

Your interpretation would be reasonable if the clause read that the right of "militia members" to keep and bear arms shall not be infringed. Instead, it says the right of the "people."
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Scalia agrees with you.

dbphoenix · Apr 6, 2015

Wow. Constitutional scholars. Right here at ET. Wow.

Wallet · Apr 6, 2015

trendlover said:
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To Wallet poster. What is this from your quote?
[QUOTE="Wallet "Around here there are several places besides the county health department that offer STD/HIV testing for free"

My link talk about (rural) people

"Stauffer said if the Planned Parenthood facilities in Scottsburg and Madison, both in southwest rural Indiana, had received the funding they needed to stay open, they could have been a vital resource in preventing the current HIV outbreak."
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I live in a rural area, i.e. "COUNTY" HEALTH DEPARTMENT..... and FYI, that was Planned Parenthood's decision to close those centers, they could have found money from their more populated areas - maybe cut some abortions in "those" areas to pay for STD testing in rural areas..... bottom line Planned Parenthood's main goal isn't STD testing .... it's birth control - any way they can.

piezoe · Apr 7, 2015

AAAintheBeltway said:
Your whole argument rests on a fallacy, which is that the introductory clause was intended as a limitation, ie a condition. There is no evidence to suggest that is true, it was not compatible with practice and custom at the time and it does not comport with traditional principles of legal interpretation. You ignore the use of the term of art "people" in the affirmative grant of the right to keep and bear arms. People invarible was used to mean the citizenry.

Your interpretation would be reasonable if the clause read that the right of "militia members" to keep and bear arms shall not be infringed. Instead, it says the right of the "people."
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You've made good arguments that seem sound to me anyway. But that pesky word 'militia' is still in the introductory phrase.

Actually my own argument is a little different from what you state. Its that the introductory phrase specifies a reason,i.e., to be able to raise a militia, rather than a condition -- we both agree that as the Amendment is written, it is not a condition. Since the stated reason no longer exists, however, IMO the Amendment is obsolete. However the primary thrust of Scalia's argument was that the right to bear arms is an inalienable right, and inalienable rights cannot be obsolete.. Scalia based his argument on English law.

I believe Scalia dissected the sentence for more than one reason. One reason I stated earlier, i.e., to dispense with any argument that bearing had necessarily to do with service in a militia. The other reason, was, I believe, because leaving it intact might have somewhat weakened his inalienable right argument, i.e., the right looks somewhat less inalienable with the reason stated. If the right is inalienable you are born with it, and a reason need not be stated, nor should you even need an Amendment to protect such a right -- but it's not a bad idea!