Eric Posner’s Spot-On Summation of Antonin Scalia’s Supreme Court Tenure: Scalia was the consummate hypocrite.
Scalia tried to transform the art of hypocrisy into a science. He failed.
Scalia tried to transform the art of hypocrisy into a science. He failed.
Bev, I like those justices that say if its not there, its not constitutional. But, do support the idea that the constitution is designed to make changes, and the way changes are meant to be made.
An interesting review, to say the least. In my own question regarding Scalia’s reference to the Federalist Papers, as an indication of his originalist bona fides, Warren was good enough to draw my attention to Scalia’s reference in Heller v DC. So in searching that rather long and detailed written opinion I did find one (possibly there are more that escaped me in the detail) which is to Federalist 46, but rather truncated at that. It occurs in the section entitled 2. The Prefatory Clause, as a source reference, “The Federalist No. 46, pp. 329, 334 (B. Wright ed. 1961) (J. Madison) (“near half a million of citizens with arms in their hands” Keeping in mind that Scalia was assigning the Prefatory Clause to the inconsequential status of an introduction with little evidentiary weight on the meaning of the 2nd Amendment, the reference to #46 as provided seems supportive. Read the whole of Madison’s argument and one soon finds that just the opposite was the intention of that author.
“Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it. Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.”
So given that few people would take the time to search out original source references it is very easy to take a phrase, a paragraph, a few words, etc. out of context and use the brief to support an opposite conclusion. Let’s just say that Scalia was an original addition to the Court. That doesn’t mean he was always honest in his original decision making, unless its his original ppoint of view that he intended to put forth.
Just search the Heller decision for the phrase “Federalist No.” and you will find twenty-seven references.
I do not at all see how Scalia took anything out of that context. What you quoted certainly seems to support the individual right.
If you get the chance to read the first paragraph of Fed 46 you might realize how poorly Stevens’ contention ( “The history of the adoption of the Amendment thus describes an overriding concern about the potential threat to state sovereignty that a federal standing army would pose, and a desire to protect the States’ militias as the means by which to guard against that danger. But state militias could not effectively check the prospect of a federal standing army so long as Congress retained the power to disarm them, and so a guarantee against such disarmament was needed”) fares with regard to Fed 46.
RESUMING the subject of the last paper, I proceed to inquire whether the federal government or the State governments will have the advantage with regard to the predilection and support of the people. Notwithstanding the different modes in which they are appointed, we must consider both of them as substantially dependent on the great body of the citizens of the United States. I assume this position here as it respects the first, reserving the proofs for another place. The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents. (end quote)
Stevens contention fails completely when one considers Federalist 28 in which Hamilton examines the relative ability of the people to resist tyranny in state government versus resisting tyranny in the proposed federal government.
Lastly the second amendment makes no mention of the right of the states (which is why Hickman was tossed aside), nor is the right of the people to keep and bear arms plausibly a purely collective right (which is why Silveira was also tossed aside even by the Heller dissenters), and so Stevens was left to insist on a limited individual right which the 9th circuit had rejected out of hand in Silveira.
Scalia may have had his faults, but his arguments in Heller are not among them. Scalia should have hit back even harder at the mendacity of the Heller dissenters.
If men were angels, no government would be necessary…
I agree with Posner that Scalia wasn’t always consistent in adhering to Originalism as he espoused it. But that is no reason to cast it aside. Just as we ought not abandon the idea of good government because very often our elected officials fail to adhere to its principles, we ought not toss aside Originalism because even its chief proponents fail on occasion to adhere to it.
I also agree with Posner’s assessment that Scalia failed to remove politics from the court. But I cannot agree that he made things worse. Scalia is certainly responsible for his own failings, but not the failings of others. For example, he did not cause four justices of the Supreme Court to declare in NFIB that the Commerce Clause empowers Congress to regulate each person’s economic decisions, nor did he cause those four and one other justice to declare the PPACA Mandate a tax. Those justices own that nonsense themselves, just as Scalia owns the nonsense he sometimes spouted.
if we want good government we have to be always vigilant to keep our elected officials on the straight and narrow. It is the same with the courts. We the people ought to be more critical and more insistent that justices follow their ideals more closely rather than cheering for outcomes. We get more blatantly political decisions because that is what we seem to want. In a democratic society, the people eventually get what they ask for, and if we want Congress to have the power to regulate each persons economic decisions we will get that too. But it won’t be Scalia’s fault, no matter how mocking his tone in dissent.
Just two decisions?
If Federalist #46 is to be accepted as the basis for disregarding the
prefatory clause, as Scalia is using it how is that seen to be consistent with Madison’s specific reference to the words militia, officered by men, fighting for their common liberties, united and conducted by governments, as noted in this part of his discussion?
“To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.”
It is Scalia who brings the Federalist #46 to support his contention that bearing arms is an individual action and not subject to the prefatory description of the purpose of the Amendment. Clearly, however, Madison is talking about militias and men acting as a group under an officer corp and directed by a government.
In support of Jack’s point it is worth noting that the word well ‘regulated’ in 18th century terms would be better phrased in 20th-21st century terms as ‘well drilled’.
Which is to say trained to work in formation under yes an officer corp and not as some sort of ‘Wolverines!’ ragtag commando.
Or the use of surveillance by the government instead of what it is; spying.
“If Federalist #46 is to be accepted as the basis for disregarding the prefatory clause….”
But he does not disregard it. That is why he wrote (citing the Miller(1939) decision), that the Second Amendment protects those arms which have some relation to a well-regulated militia. So your fowling piece might not be protected, but your AR-15 would be. A 9mm or .45ACP handgun would be, but perhaps not a .500S&W revolver. A .50 BMG certainly would be useful to a militia, as they are to a standing army, but a double-barrel .700 Nitro Express, not so much.
Aside from that, the State governments’ neglect of their duty to regulate the militia does not in any way take away the rights of the people. Also, federal law is clear that most able-bodied men are part of the “Reserve Militia”. https://deadguyquotes.files.wordpress.com/2010/03/milita-act-of-1903-transcribed.pdf
Just for fun, let’s posit that there is no Second Amendment.
In the Constitution, what authority do the States give the U.S. Government do impose restrictions on firearm ownership by individuals?
From reading the post so far, those who wrote the federalist papers knew that all governments had a tendency for over extension of their power over the populist. Thus an armed populist was a deterrent.
An example of this is limiting right to carry in parks. Where you need protection from not only others but an increase of animal life.
Before someone says no one has a chance against the state or federal government……….look to the east where we are engaged for the longest war in our history against a populous that we disagree with.
Warren, You, like Scalia before you, are stretching to interpret what Madison wrote and, worse yet, what Madison meant by what he had written. Scalia’s legal skill seems more to be his ability to cull through the history of issues and pick out words and phrases that support his predetermined conclusions. A genuine scholar reviews the details of what has been said regarding an issue and draws conclusions from the perponderance of the evidence found therein.
Well, Jack, do you have any evidence that the authors of the Constitution and the Second Amendment did NOT want the people to be armed?
You know very well that that is not the focus of the issue. The point of the 2nd Amendment is to assure that within the context of, “A well regulated Militia, being necessary to the security of a free State,…..” The states can then legislate what laws they may see as reasonable to meet the intention of that Amendment. Scalia’s interpretation of the Amendment containing two independent clauses, the first placing no limits on the reading of the second, “…the right of the people to keep and bear Arms, shall not be infringed,” is simply not supported by Federalist #46.
As noted above, Scalia does a good job of searching in the archives for support of his personal and ideological interpretation of the issue before him in Heller v DC. He was cherry picker, par excellence. He used a tome’s worth of words and citations in his effort to separate the two clauses and subjugate the importance of the first, what he calls the “prefatory clause,” to the second, the operative clause. ” The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.”
However, the document itself, that is the original text of the Amendment contains no such words of relative weight of the two clauses, nor does it contain the word individual. The word chosen was, and remains, “the right of the people….” A tome’s worth of words is what one uses when the house is built of straw and needs a bit of concrete obfuscation some times referred to as original intent. But then one is into subjective interpretation, which is exactly what Scalia claimed was not his case.
“The point of the 2nd Amendment is to assure that within the context of, ‘A well regulated Militia, being necessary to the security of a free State,…..’ The states can then legislate….”
Your assertion falls apart in right there. When written, the 2nd Amendment had no impact on the States whatsoever.
“The word chosen was, and remains, ‘The right of the people….'”
Where else does PEOPLE mean STATE GOVERNMENTS?
You seem to have not read the entire part about whether particular arms have a relation to a well-regulated militia, either in Miller, or in Heller, or in my comments above.
Quote from wiki.
“In the twenty-first century, the amendment has been subjected to renewed academic inquiry and judicial interest. In District of Columbia v. Heller (2008), the Supreme Court handed down a landmark decision that held the amendment protects an individual right to possess and carry firearms. In McDonald v. Chicago (2010), the Court clarified its earlier decisions that limited the amendment’s impact to a restriction on the federal government, expressly holding that the Fourteenth Amendment applies the Second Amendment to state and local governments to the same extent that the Second Amendment applies to the federal government. Despite these decisions, the debate between various organizations regarding gun control and gun rights continues.”
To the Troll,
First, your comments on this thread are irrelevant. Second, the Heller decision itself is not evidence of its own correctness. That would be a tautology and not good logic. In regards to Miller, how does this statement from the Scalia decision support the idea that laws which restrict the right to bear arms are in contradiction to the 2nd Amendment? “”Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.”
That is yet one more example of Scalia’s skill at turning a phrase to his own advantage (or interpretation). As noted previously, with enough word salad one can obscure any truth and support any concept. It’s something like saying that the sky is not blue. It only looks that way because of a presence of blue in the spectrum of sunlight.
You accuse Scalia of “cherry picking”, but also accuse him of using “a tome’s worth of… citations.”
So, please, show me some evidence that the authors of the Constitution and the Second Amendment meant that it was so that the States could form militias, and meant that if a State decided it didn’t want one, it could ban firearms.
Jack, the wiki quote supports that the second amendment applies to states as well of the Fed. Supporting also that Warren’s position that people in this case also means individual.
Selective reading is not going to change the law.
“So, please, show me some evidence that the authors of the Constitution and the Second Amendment meant that it was so that the States could form militias, and meant that if a State decided it didn’t want one, it could ban firearms.” Warren, aka Idiot.
The Amendment doesn’t say either of those things. It simply says that “the people’s” right to keep and bear arms shall not be infringed, but it introduces that right in the context of the need for a “well regulated militia.” That does not require states to ban firearms, but it does allow for the limitation on keeping and bearing arms if the state sees fit to do so in some manner that does not interfere with participation in a regulated militia. The Amendment itself answers your ignorant question in spite of any tortured logic to deny the simple and original language in which it is written. And yes, Scalia was good at tortured logic supported by a plethora of cherry picked ideas, some of which were often taken out of context. There’s nothing all that original about that technique. And yet further evidence is that Scalia managed to put his own tortured logic ahead of many decades of established legal precedence for gun control within each individual state.
“Where you need protection from not only others but an increase of animal life.”
This is just silly. I’ve been going to national parks for over four decades. You don’t need a firearm to protect yourself from others or animals in national parks. National parks are some of the safest real estate in the country.
“This is just silly. I’ve been going to national parks for over four decades. You don’t need a firearm to protect yourself from others or animals in national parks. National parks are some of the safest real estate in the country.”
What were the number of wild life attacks just in past year in California, a very heavy populated state. Do we even keep records of missing people in parks or even know the number of people in forest at any given time? Some of us never accidents shall we say there is no need to take precautions.
National parks are some of the safest real estate in the country. A gun will not prevent you from dying from a fall, from drowning, from a fire or from exposure. Lethal animal attacks are extremely rare, and many or most would not have been prevented by a gun (you do know that a wounded bear or mountain lion can still kill you, right?).
It is silly to believe that you will be safer carrying a firearm in a national park. You are in far more danger driving to and from the park, and your little ammosexual prosthesis won’t prevent auto accidents, either.
“A gun will not prevent you from dying from a fall, from drowning, from a fire or from exposure.”
Perhaps, but if I hear three gunshots in a row in a National Park or Forest, I’m going to alert the authorities. That is a universal distress signal, and carries a lot farther than a whistle. Furthermore, I will be able to reply with four shots, to let that person know that he has been heard and help is on the way.
Last word, from me on this thread that is. We can all see from the last half dozen or so comments how a troll, Warren, with some inane assistance from Beene, can degenerate a conversation. It’s gone from a discussion of Posner’s article about Scalia to statements about the need for a gun in a national park to protect oneself from wild animals. That is the essence of the troll. When the straw begins to burn around the argument just shift gears to another seemingly related aspect of the issue. Those comments add nothing of value to the conversation, but have some value in identifying the means by which a troll tries to obfuscate, capture and finally misdirect a conversation when the weight of his/her evidence begins to float because it is filled with hot air.
I hereby apologize for feeding the troll.
I wish more people would just stop talking to them.
Regarding your response at February 18, 2016 12:54 am
Madison reminded the adversaries of the Constitution that the Federal and State governments are the agents of the people. Madison stated this plainly in the opening paragraph and again later when he says that bedsides “the advantage of being armed” the people also “possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force…”
Stevens turns Madison’s view on its head by insisting the people are merely agents of the various states with a “right” to bear arms only in service of their state. Stevens view falls apart completely when considering Hamilton’s Fed 28 and the fact that the state constitutions also contained right to bear arms provisions which were meant, among other things, to keep in awe those who are in power and to maintain the supremacy of the laws and the constitution.
“A genuine scholar reviews the details of what has been said regarding an issue and draws conclusions from the perponderance of the evidence found therein”
So what do you make of justice Stevens unwillingness to consider the early state court decisions? Could it be that even the most narrow early state court decision, Aymette vs Tenn, did not support Stevens “only in service of the state militia” malarkey and in fact stated plainly that the right to keep arms suitable for warfare was the unqualified right of the citizens. Or could it be that the earliest state court decision, Bliss vs. KY, found for an individual right to keep and bear arms that was far more broad than the Heller court’s interpretation?
The prefatory clause (A well-regulated militia, being necessary to the security of a free state) does not carry the weight you and Justice Stevens wish it to, but that does not mean that anyone is disregarding it.
Moreover, the framers were not illiterate, had they wanted to qualify the right of the people to keep and bear arms they certainly could have. Instead they combined the two remaining (the CO provision had been dropped) independent clauses from Madison’s draft by rewriting the “well-regulated militia” language as an absolute clause, thus producing the final form of the amendment. The prefatory clause provides a rationale for the non-infringement of the right of the people to keep and bear arms, but it does not qualify the subject (the right…) of the main clause.
Ever serve and carry a weapon?
Oooock. At run’s suggestion I ventured over to this thread, which I had studiously avoided since I realized this afternoon when i checked the thread that it had been hijacked by folks who think the end-all-and-be-all of originalism, such as it is, is Second Amendment interpretation.
Sorry, but it isn’t. Not even remotely.
“It’s gone from a discussion of Posner’s article about Scalia to statements about the need for a gun in a national park to protect oneself from wild animals.” Yup.
Sigh, whimp . . .
I thought I was done with this thread, but along comes Hansberry with this brilliant thought, “….but it does not qualify the subject (the right…) of the main clause.” By what mental telepathic means do you come to that conclusion? The main clause? How about the secondary clause? I didn’t read anything in the Amendment itself that actually identifies the weight of the two parts of the sentence. And this, “…had they wanted to qualify the right of the people to keep and bear arms they certainly could have.” And they did by having the prefatory clause as a definition of the context for the secondary clause.
What to make of this? “So what do you make of justice Stevens unwillingness to consider the early state court decisions?” I thought discussion was about Scalia’s majority decision. Why bring the discussion around the bend to argue against the minority decision? Steven’s writing of that opinion is virtually irrelevant. And then the argument comes full circle, “So what do you make of justice Stevens unwillingness to consider the early state court decisions?” Early state court decisions are not party to the original thinking that went into the writing of the Constitution. So much for originalism. That’s the danger of relying on a tautological argument to support an invalid premise. It comes back at some point to bight the butt that produced it. To wit, the words say what I say they say because I read those words to say what I think they say.
People why don’t we end this thread with who cares what such a minor scholar (Eric Posner), of evil goals, like eliminating the First Amendment and even make viewing material the government disapproves a crime.
In the end who cares what Posner has to say about a renowned jurist like Scalia.
“Stevens view falls apart completely when considering Hamilton’s Fed 28 and the fact that the state constitutions also contained right to bear arms provisions which were meant, among other things, to keep in awe those who are in power and to maintain the supremacy of the laws and the constitution. ”
So in your view, the second amendment exists as an explicit protection of the right to armed sedition?
No Joel, right to bear arms provisions were meant, among other things, to keep in awe those who are in power and to maintain the supremacy of the laws and the constitution.
If you are going to criticize Scalia for intellectual dishonesty, you have to do better than strawmen arguments. No one said anything about sedition but you.
“No one said anything about sedition but you.”
Wait. Son in order for me to be able to use a word, someone else has to use it first? Talk about straw men!
“to keep in awe those who are in power and to maintain the supremacy of the laws and the constitution. ”
To use or threaten the use of arms against “those who are in power” is sedition, Mike: conduct or speech inciting people to rebel against the authority of a state or monarch.
To claim, as you have here, that the words of the Constitution were meant to authorize bearing arms for seditious purposes is ahistorical.
You said “I didn’t read anything in the Amendment itself that actually identifies the weight of the two parts of the sentence.”
Does grammar confuse you? The prefatory clause is a dependent clause and is written as absolute construction. Absolute construction does not modify the subject of the independent clause. This is neither left or right politics, it is just grammar. The framers might have written the second amendment with a qualification on the right of the people to keep and bear arms, but they did not. They did however include a rationale for the non-infringement of the right guaranteed, which is found in the prefatory clause.
Your second paragraph reads as though you also do not want to consider the early state court decisions when interpreting the meaning of right of the people to keep and bear arms. Odd that the Supreme Court in US v. Miller relied on Aymette v. TN for the meaning or “arms” and looked as well to the meaning of that right in the various state constitutions. I guess that court was just as mistaken as the Heller majority in surveying early sources. Who was it that said genuine scholars review “the details of what has been said regarding an issue and draws conclusions from the preponderance of the evidence found therein?”
It is ahistorical only to those who have not read any history.
I quoted from Aymette vs. TN (“to keep in awe those who are in power and to maintain the supremacy of the laws and the constitution. ”), the same early state court decision on which the Supreme Court relied on in US v Miller.
There are very many sources for the same view, including Federalist 46 discussed earlier, Federalist 28 and 29, Tench Coxe’s newspaper articles explaining the Bill of Rights, other early State court decisions, and recognized commentators.
But there is one source that you might listen to -the Heller dissenters! Stevens claimed that the only reason for the second amendment was to defend the states from possible federal tyranny. If the states were to defend themselves from federal tyranny, would that not be insurrection?
Just curious, which decision do you believe to be the “end all, be all” of originalism?
Heller was an easy case to decide on Originalist grounds or otherwise, so I agree with you that it is not the most instructive Originalist decision. It is however very instructive on the politicization of the court.
Over the last three decades, deniers of an individual right to keep and bear arms have argued State Rights (Hickman), Collective Rights (SIlveira) and in Heller the dissent argued for a limited individual right interpretation, a position which was rejected out of hand in Silveira.
The only interpretation the deniers have not embraced, aside from the standard model, is the Political Rights interpretation of Aymette. That is because the political rights interpretation guarantees the right to keep arms suitable for warfare to the individual citizen, and states that while the right to bear arms can be heavily regulated, it cannot be denied altogether.
The political left gave us Hickman, then revised that holding in Silveira. Then the most left leaning judges on the Heller court ignored Silveira’s central contention that the right was Collective and there was no individual right whatever protected by the second amendment and thus no standing for an individual to make a second amendment defense. Each of these steps was a purely political attempt to deny the obvious.
Definition of milita “Although the Framers debated over whether a militia was an
organized military force conscripted by the government as
opposed to a body composed of the entire yeomanry of the people,
the opinions of delegates to the Federal Convention and citizens
during the formation of the Constitution and the Federal Bill of
Rights reveal that a “militia” was considered to be what was
traditionally the unorganized body of the people of each state,73
specifically, farmers, mechanics, and laborers.74 Indeed, the right
to keep and bear arms was considered “the birthright of an
73 FEDERAL CONVENTION AUGUST 18, 1787
74 ARISTOCROTIS, THE GOVERNMENT OF NATURE DELINEATED OR AN EXACT
PICTURE OF THE NEW FEDERAL CONSTITUTION (April 15, 1788),
“Does grammar confuse you? The prefatory clause is a dependent clause and is written as absolute construction. Absolute construction does not modify the subject of the independent clause. This is neither left or right politics, it is just grammar. The framers might have written the second amendment with a qualification on the right of the people to keep and bear arms, but they did not. They did however include a rationale for the non-infringement of the right guaranteed, which is found in the prefatory clause.” Hansberry
It took me a while to find a reference to the grammatical quality of our Constitution which was independent of any actual Constitutional arguments or cases. Virtually every reference is rather to some legal argument before the Court. And who would want to trust grammatical accuracy to a lawyer? Well this was an interesting find, see below, and keep in mind that the author, who title the web site Dr. Grammarius does hold advanced degrees in the subject matter. In “Grammar and the U.S. Constitution” the author specifically makes reference to the 2nd Amendment as being particular problem. “The Worst Amendment of All?
Let me take one final example of poor language by the hallowed Framers of the Constitution (they are always spoken of with capital letters). This instance consists of a sentence that is not only grammatically abominable, but has generated a hellish controversy that plagues us today as citizens. It continues to bedevil the Supreme Court, which is stuck with the job of interpreting it. This is the Second Amendment.” The discussion of the problem with the grammatical structure of the sentence is clear cut, but takes several paragraphs to describe as it is complex. There is more than one flaw in the ointment. it is interesting. http://www.drgrammarius.com/2013/08/08/grammar-and-the-u-s-constitution/
And since we’re fixated on the importance of original intent and adherence to the rules of grammar, (that’s a prefatory clause, here comes the secondary/primary/objective clause) one might want to read this 80 page article written by Christopher Boyko, a sitting US District Court Judge in Ohio. He wrote it as a Master of Law dissertation. Interesting and though I don’t agree with some of his conclusions, I do wonder how Citizens United could pass his test of Constitutionality. I don’t remember the Constitution making any references to the rights of corporations.
That’s a point that Greenhouse made in her article, if I remember right, and a point I’ve made here at AB a few times. Funny how the First Amendment doesn’t mention a free-speech right of corporations. But … whatever.
I do think this kind of stuff is finally behind us. But, oh brother, just in the nick of time. There is one case the Court heard argument on a few weeks in which the Fab 5 was about to require that only people qualified to vote be counted in legislative apportionment. Sorry, kids; your congressman and state representative don’t actually represent you after all. It’s official!
Dr Grammarius confirmed the obvious, the prefatory clause of the second amendment is absolute construction.
But Dr Grammarius couldn’t quite bring him/herself to say that absolute construction modifies the subject of the independent clause, as that would be an outright falsehood.
When the facts are on your side, argue the facts. You and Dr grammarius are banging the table. But it makes little sense to claim to be hopelessly confused about the meaning of the second amendment while at the same time claiming to know with absolute certainty that the Heller majority was wrong.
“But Dr Grammarius couldn’t quite bring him/herself to say that absolute construction modifies the subject of the independent clause, as that would be an outright falsehood.” Hansberry
A falsehood according to Hansberry, but that is itself a falsehood according to every description of an absolute phrase that I could find. This is but one clear example.
“Absolutes have traditionally been called nominative because the absolute construction begins with a noun phrase as its headword. Nevertheless, they function adverbially as sentence modifiers. Some [absolutes] explain reasons or conditions for the action described in the main clause; others . . .describe the manner in which the action of the main clause is performed.”
(Thomas P. Klammer, Muriel R. Schulz, and Angela Della Volpe, Analyzing English Grammar, 5th ed. Longman, 2007)
That was quite a long diversion from the topic at hand. I do not know why Boyko thinks the grammar of the first amendment supports his claim. It does not appear so to me.
Consider: Congress shall make no law respecting an A of B, or prohibiting the C of B.
There is nothing of the structure of the above sentence that forces any relationship among A and C apart from the obvious that they both relate somehow to B. The grammar does not force the relationship Boyko presents in his Venn diagram; rather that relationship is based on Boyko’s understanding of both A and C, and the relationship between them
Consider: Congress shall make no law respecting the growing of wheat, or prohibiting the consumption thereof;
As I see it, Boyko’s grammar argument is more akin to the “militia only” argument in that he insists that since A and C are in the same locality (separated only by a comma rather than a semi-colon in the first amendment), they must have some close/limiting relationship. They may or they may not, but the sentence structure does not answer the question.
With regards to the structure of Second Amendment, it has the form:
X being the case, Y shall not be infringed.
The prefatory clause “X” above does not modify “Y”, instead it provides a rationale for the non-infringement of Y.
In other words, the fact that a well-regulated militia is asserted to be necessary to the security of a free state does not limit “the right of the people to keep and bear arms”. That right existed aside from the second amendment and the text of the amendment places no qualifier on that right. The purpose of the prefatory clause of the second amendment cannot be to qualify the right of the people to keep and bear arms because absolute construction does not modify the subject of the main clause. Instead the purpose of the prefatory clause is to provide a reason for the non-infringement of the right. Providing a rationale for the action which takes place in the independent clause is the normal function of absolute construction so that the meaning of the prefatory clause (whether it modifies the right or merely provides a reason for the non-infringement of the right) is dictated by the sentence structure/grammar in a way that cannot be said for the first amendment.
You ought to be able to grasp the difference between modifying the entire main clause (a “sentence modifier”) and modifying the SUBJECT of the independent clause, but I’ll help you out with some all caps.
As I said earlier, the prefatory clause of the second amendment is written as Absolute construction, and the function is to provide a rationale for the non-infringement of the right. That is perfectly in keeping with your cite, whether you can grasp it or not.
Please show some authority who claims absolute construction modifies the subject of the independent clause.
I really do not understand how anyone could disagree with the Citizens United decision. The ruling was not a constitutional issue, but an interpretation of law, so this is simply nonsensical: “I don’t remember the Constitution making any references to the rights of corporations.”
The law itself is very clear:
U.S.C. Title 52, Chapter 301, Subchapter 1:
§ 30101. Definitions
When used in this Act:
“(11) The term ‘person’ includes an individual, partnership,
committee, association, corporation, labor organization, or any other
organization or group of persons, but such term does not include the
Federal Government or any authority of the Federal Government.”
When the LAW says that a corporation is a person, do not get angry at the judges who interpret the law to mean exactly what it says.
Now, I don’t like the ruling any more than anyone else here. I think that only those registered to vote in a particular election should be able to contribute to the candidates in that election. But, based on the law as it is written, Citizens United was correct. To fix the problem, however, we only need to get the LAW changed, not the Constitution.