Interpreting the 2nd Amendment: Literalism and Intent in Gun Laws

[Al68]

Now if you can find me any quote any where in an authoritative text which states the incorporation doctrine regards depriving persons of their 'liberty' "without due process", please ante up.

How about the "due process" clause itself:

...nor shall any State deprive any person of life, liberty, or property, without due process of law.

There is simply no logical way to interpret that clause to mean that due process is even relevant unless someone is being deprived of their life, liberty, or property.

Which of the following statements sound like the effective result of this ruling:

A) No State shall deprive any person of life, liberty, or property, without [STRIKE]due process of law[/STRIKE] respecting their right to bear arms.
B) No State shall deprive any person of [STRIKE]life, liberty, or property,[/STRIKE] their right to bear arms without due process of law.

Is it not obvious that A) incorporates the right to bear arms into the definition of due process while B) incorporates it into the definition of liberty in the "due process" clause?As far as Thomas' opinion, it's what I pointed out earlier: his disagreement about the due process clause is based on the fact that he accepts the primary argument of the plaintiffs, so that the privileges or immunities clause and the due process clause together effectively read: "No State shall make or enforce any law which shall abridge the right to bear arms of citizens of the United States; nor shall any State deprive any person of their right to bear arms without due process of law".

In that context, it's silly to argue that the second clause, rather than the first, was violated by the gun ban. The rest of the majority just didn't think it was "necessary" to accept the primary argument, and it's not strictly necessary for this particular case, but Thomas, being who he is, decided whether to accept the primary argument based on its merits rather than whether it was necessary to resolve this particular case.

 

[Gokul43201]

Interesting, Gokul. I think I disagree. I'll take

"As a free society depends on the ability of the people to criticize the government they construct, Congress shall make no law abridging the freedom of speech, or of the press."​

as my example.

Suppose it was demonstrated that a free society did not depend on the ability of people to criticize the government they construct. For example:

• The Machines from Asimov's "The Evitable Conflict" run the world, rather than human leaders.
• Two mutalistic societies form, each criticizing the government of the other but not their own.

etc. (One need not live in such a society -- it need only be possible.) If *any* such society is found to be possible, then under your interpretation the amendment would have no force. But I think this is counter to the intent.

Your thoughts?

I completely missed this post - I haven't been following the thread closely, and assumed that mheslep was the only participant engaging in the specific sub-thread that I was interested in. I likewise imagine that this response may well be missed by you, so I'll try to keep this somewhat brief.

Here's my opinion, and it's almost a tautology, but I must not be doing a good enough job of stating it clearly (and may do no better with this attempt): Were one or other of the forms of society described above (i.e., those that made the prefatory clause inapplicable) to replace the existing one, then the model amendment (quoted above) would no longer contain language that provided an applicable rationale for the protection of the right to free expression. This is not to say that there would not be other good reasons for safeguarding those particular freedoms, nor is it to say that the stated reason may not again become relevant over the course of future evolutions in society.

But given the entirety of intent as expressed solely through the language in the prefatory clause, and assuming the lack of relevance of said intent in the extant society, it follows trivially that the expressed intent is no longer relevant. One would have to divine intent beyond that stated in the prefatory clause to find justification for the protection of the specific freedoms. A secondary point in this regard would be that such divination would be beyond the duties of a strict literalist.

If none of that helped, perhaps I can do better with a question: Why do you believe "this" is counter to the intent?

 

[CRGreathouse]

I completely missed this post - I haven't been following the thread closely, and assumed that mheslep was the only participant engaging in the specific sub-thread that I was interested in. I likewise imagine that this response may well be missed by you, so I'll try to keep this somewhat brief.

Glad to see someone else interested.

Here's my opinion, and it's almost a tautology, but I must not be doing a good enough job of stating it clearly (and may do no better with this attempt): Were one or other of the forms of society described above (i.e., those that made the prefatory clause inapplicable) to replace the existing one, then the model amendment (quoted above) would no longer contain language that provided an applicable rationale for the protection of the right to free expression. This is not to say that there would not be other good reasons for safeguarding those particular freedoms, nor is it to say that the stated reason may not again become relevant over the course of future evolutions in society.

We're reading the preface differently. You're reading, "Since this society requires foo" and I'm reading "Since all societies require foo".

But I think that even in the case that it said "As long as this society depends on the ability of its people to criticize this government, ..." there are problems. In particular, who gets to decide whether this is true? Could a law be passed declaring that this society does not depend on that ability (thus nullifying without repealing the amendment)?

But given the entirety of intent as expressed solely through the language in the prefatory clause, and assuming the lack of relevance of said intent in the extant society, it follows trivially that the expressed intent is no longer relevant.

Hmm, that's my view as well, so it looks like we're not disagreeing after all.

 

[Al68]

But given the entirety of intent as expressed solely through the language in the prefatory clause, and assuming the lack of relevance of said intent in the extant society, it follows trivially that the expressed intent is no longer relevant. One would have to divine intent beyond that stated in the prefatory clause to find justification for the protection of the specific freedoms. A secondary point in this regard would be that such divination would be beyond the duties of a strict literalist.

Just to point out the obvious, a "strict literalist" would have no reason to divine anything, if the prefatory clause states only the purpose of the main clause, instead of determining what it means.

In the case of the U.S. Constitution, it's the federal government's charter. Every requirement is law regardless of whether it has a currently relevant purpose or not. The amendment process purposely requires the people to decide when it needs to be changed.

And, importantly, liberty needs no justification. Depriving people of it by force requires justification.