From: kevin@rotag.mi.org (Kevin Darcy)
Subject: Re: democratic platform
Organization: Who, me???
Date: Tue, 28 Jul 1992 03:12:12 GMT

In article <1992Jul27.002750.18791@news.acns.nwu.edu> asbestos@nwu.edu (Michael A. Atkinson) writes:
>kevin@rotag.mi.org (Kevin Darcy) writes:
>
><Snip>
>
>>Thanks for doing my work for me. The majority of the people for whom this
>>vaunted universal RKBA is being cited are not "troops", in any common-sense
>>meaning of the term.
>
>>Q.E.D.
>
><Snip>
>
>>>Furthermore, the
>>>first clause of the Second Amendment is *not* a restrictive clause,
>>>it merely states the reason for the second clause--which acknowledges
>>>an unlimited right to keep and bear arms.
>
>>It is a long-standing rule of statutory construction that the meaning chosen
>>for a given law should acknowledge that every phrase therein has SOME sort of 
>>contributory meaning to the whole. In this instance, one cannot read the first
>>clause of the 2nd as being non-restrictive UNLESS one is prepared to interpret
>>it as redundant idle chit-chat, and therefore to break the established rule. 
>>This rule is usually waived in the case of mere preambles or "mission 
>>statements", of course, but the 2nd Amendment doesn't qualify as either of 
>>those. I therefore see no reason to refrain from applying the rule in this 
>>case.
>
>Goddam, I am actually agreeing with Termie on something.
>
>Kevin, you seem like a reasonable fellow, so see if this grabs you:
>
>"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."
>
>A well regulated militia, being necessary to the security of a free state.
>Well, we've already seen in this thread that well regulated means well
>armed and trained.  But this amendment does not actually call for anything
>until after this 'preamble' or 'mission' statement: "...the right of the
>People, to keep and bear arms, shall not be infringed."

When I said "preamble or mission statement" I meant something that was fairly
clearly identified as such, NOT something embedded in the same sentence as
actual legislation. It's not valid to arbitrarily call things "preambles"
just because they don't fit one's agenda.

Here's another little tidbit for you to think about:

	Expressio unius est exclusio alterius.  A maxim of statutory 
	interpretation meaning that the expression of one thing is the
	exclusion of another. Burgin v. Forbes, 293 Ky. 456, 169 S.W.2d
	321, 325; Newblock v. Bowles, 170 Okl. 487, 40 P.2d 1097, 1100.
	Mention of one thing implies exclusion of another.  When certain
	persons or things are specified in a law, contract, or will, an
	intention to exclude all others from its operation may be 
	inferred.  Under this maxim, if statute specifies one exception 
	to a general rule or assumes to specify the effects of a certain
	provision, other exceptions or effects are excluded.

(Black's, 5th Ed.)

>>Like I said, I'd be fairly sympathetic to a universal RKBA, but I just don't
>>think the 2nd is up to the task as written. Please propose another Amendment, 
>>instead of trying to twist the 2nd to your political agenda. Constitutional
>>revisionist tinkering tends to make me uneasy...
>
>I am hardly a revisionist (although I speak only for myself).  I can tell
>you this:  nowhere in the Constitution is the Congress or the Executive
>empowered to infringe the right to keep and bear arms.  And as we all know,
>the Gov't must be specifically empowered to do something, in order to do
>it.  

Agreed. I think there's an excellent 9th/14th Amendment case to be made for
the RKBA. I just don't think the 2nd succeeds in doing so _ipso facto_.

								- Kevin