Organization: Computer Science Department,  Stanford University.
Newsgroups: bit.listserv.politics
Date:         Mon, 16 Nov 1992 19:14:09 -0800
From:         Andy Freeman <andy@SAIL.STANFORD.EDU>
Subject: Re: guns and linquistics

>the kid said:
>
>the question is not one of english usage or one of original intent...
> 1) the founding fathers were not english professors and standardized use of
>the english language as in the "how to write" texts which this "expert" makes
>was not used by the people who wrote the constitution...   further, we are
>talking about LAW, not a graded paper....  the proper person to talk to about
>this issue, an issue of CONSTITUTIONAL LAW, is not an linguist, but rather,
>those judges and justices who deal with constitutional law and civil liberties
>on a regular basis.

And what basis should those "experts" use?  If the author's word
meanings don't count, then whose do and why?  If the author's
arguments used to pursuade people to vote for the amendment don't
count, then what were they voting on?  Note that we can change authors
whenever we want, so it isn't like we have to ignore the authors to
change the document.

> 2)  the constitution is a LIVING document, made to be changed as times
>change...

Absolutely, but that doesn't tell us how it should change, let alone
justify a particular change.

The issue boils down to "should constitutional issues be subject to
language change or should changes be made via the formal amendment
process?"  When answering, think about the word "trial" and ask
yourself what you think the 6th should mean.  (Suppose it comes to
mean "combat".  Does your "living document" theory imply that 6th
means that the champions must meet in public in front of the
defendent, who can have witnesses to document the state's low-blows.
Mine doesn't.)

>I do not have the sources handy, but I can get them.... to the best of my
>knowledge, THREE separate cases of second ammendment rights have gone before
>this country's supreme courts, two at the federal level, and one at the state
>level, Texas to be exact...

Nope, there are many more cases.  Those are the biggies, but it isn't
clear that they're all that relevant given the 14th amendment.
Moreover, none of them actually addressed the "does the 2nd amendment
protect an individual's RKBA".  The closest (which isn't one of those
cases) was "does the 2nd protect a felon's RKBA"?  (It doesn't.
Interestingly enough, felons can't be punished for failing to register
their guns, btw, courtesy of the 5th.)

>and in all cases the verdict was that the second ammendment does not give
>citizens a private right to bear arms, and that the right to bear arms is
>confered only in order to maintain state and federal militias...

So much for the kid's knowledge.  He should read the decisions and the
relevant literature.  My favorite pointer into it is Cottroll's
article in the dec 91 georgetown law review.  Other people really like
Levinson's article in the dec 89 yale law review.  "Radicals" and
those interested in nukes might appreciate Scarry's May 91 article in
the University of Pennsylvania law review.  Then you get to chase
cites.

Suppose that there was no mention of free speech or press in the 1st
amendment, but that the following had been added between the 1st and
2nd amendments.  It happens to grant every one of the gun-controller
arguments about the 2nd amendment, but is concerned with a different
issue.

    "Well-educated civil servants, being necessary to the power of govt,
    the right of the people to keep and read books shall not be
    infringed."

Would that restrict govt control over books and reading?  No?  What
were you telling me about the 2nd again?

-andy
--
UUCP:    {arpa gateways, sun, decwrl, uunet, rutgers}!cs.stanford.edu!andy
ARPA:    andy@cs.stanford.edu
Comments: Gated by NETNEWS@AUVM.AMERICAN.EDU