From: lkk@panix.com (Larry Kolodney)
Newsgroups: misc.legal
Subject: Re: Literal Constitutionalism (was: NY State...)
Date: 8 Apr 92 03:26:00 GMT
Organization: PANIX Public Access Unix, NYC

In <1992Apr3.123944.29758@athena.mit.edu> wdstarr@athena.mit.edu (William December Starr) writes:


>In article <1992Apr3.022433.18990@panix.com>, 
>lkk@panix.com (Larry Kolodney) said:


>"A well regulated Militia, being necessary to the security of a free
>State," is a preamble, and therefore has the same relationship to
>the Second Amendment that

>       "We the People, of the United States, in Order to form
>    a more perfect Union, establish Justice, insure domestic
>    Tranquility, provide for the common defence, promote the
>    general Welfare, and secure the Blessings of Liberty to
>    ourselves and our Posterity, do ordain and establish this
>    Constitution for the United States of America."

>has to the main body of the Constitution itself -- it's nice, it
>serves as a general statement of intent, but it doesn't override the
>clear and plain meaning of the "active" wording of the document.


While its hard to see how a clause of an adverbial phrase of a single
sentence can be considered a preamble, even granting you that
position, it doesn't prove your point.

The whole debate about the second amendment concerns the
interpretation of the phrase "the right to keep and bear arms."  In
order to interpret this phrase, its perfectly legitimate to use the
adjoining language in the rest of the sentence (just like it is
perfectly legitimate to make use of the principles embodied in the
preamble of the Constitution (or Declaration of Independence) as a
guide for interpreting the meaning of other laws, and constitutional
provisions.  

This later kind of interpretation goes on explicitly and implicitly
all the time, when reference is made to our republican form of
government, or the the inherent rights of individuals.



>The framers may have thought that a well regulated militia would be
>a good thing, and they may have felt that way so strongly that they
>decided to take the effort of saying something about it in the
>Constitution itself, but like it or not what they said when they
>were laying down the law was that the right of the ***people*** to
>keep and bear arms shall not be infringed.  

And how do you know they were not refering to "the people" in a
corporate sense, that is, in the sense of "the people banding together
for common self defense."?


And like it or not, if
>you don't like the law they wrote the only legitimate, legal way to
>change it is via a Constitutional amendment.

Uh huh.  Is that why Brown v. Board of Ed overruled, sub silentio,
Plessy v. Furguson?  

Law is nothing but the currently fashionable interpretation of the
words which are written in law books.

The legitimacy of the judicial process depends of the interpretation
of those words being convincing to a enough of the population so that
judicial decrees are respected.

If the currently fashionable interpretation of the 2nd amendment were
completely outrageous and inconsistent with American's vision of what
their society should be about, it would change.  Until then, YOU are
the one who must "like it or not."

-- 
larry kolodney:(lkk%panix.com@nyu.edu) 
_(*#&)#*&%)@(*^%_!*&%^!)*&#+!*&$+!?&%+!*&^_)*&#%)*&^%#+&
The past is not dead, it's not even past.   - Wm. Faulkner