PFF - Pennock's Fiero Forum, PDA Edition

School shootings... what changed? (Page 29/33)

olejoedad

JUN 12, 07:59 AM

quote

Originally posted by rinselberg:

Two experts in Constitutional Law used the power of 21st-century linguistic databases to subject the Second Amendment to semantic analysis, and yet, the meaning of “keep and bear Arms” remains debatable... perhaps, even...

UNXPLAINED

What was in the minds of the Founding Fathers when they settled on the 27 words that comprise the Second Amendment?

Well, that is what James C. Phillips and Josh Blackman tried to find out.

"The Mysterious Meaning of the Second Amendment"
James C. Phillips and Josh Blackman for The Atlantic; February 28, 2020.
https://www.theatlantic.com...nd-amendment/607186/

It's not a particularly long article.

I'd be a lot more interested in your response to my last posting.

82-T/A [At Work]

JUN 12, 08:00 AM

quote

I've watched that Shatner show before, it's pretty good.

But the book you reference is disingenuous. The SCOTUS rulings have clearly identified that the 2A is for the sole purpose of ensuring the Government is in a constant state of feeling threatened and challenged... that the Government understands who the rightful rulers of the country are. This is all documented in the Federalist papers, which they used in their SCOTUS decisions.

olejoedad

JUN 12, 08:01 AM

It boils down to the last four words, put at the end of the statement concerning the rights of the people and the limitations imposed on the government.

The words were placed at the end of the statement for emphasis.

SHALL NOT BE INFRINGED

[This message has been edited by olejoedad (edited 06-12-2022).]

blackrams

JUN 12, 08:58 AM

Joe,
Some will never agree on the intent of the 2nd Amendment. Some don't deserve the freedoms and guarantees the Constitution provides.
Some will cower and hide while others do stand up. Figuring out who, well that's the easy part.

Rams

rinselberg

JUN 12, 01:42 PM

OK, how about a FILIBUSTER..? "Cloture this..!"

What does the Second Amendment mean? This question is at the center of one of the most divisive debates in modern American constitutional law. The amendment itself contains 27 words: “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.” This provision references both the collective right of a militia and an individual right. Does this two-century-old text, then, mean that Americans today have a right to gun ownership and use?

In a landmark 2008 decision on this question, District of Columbia v. Heller, the Supreme Court was sharply divided. The majority opinion, by Justice Antonin Scalia, concluded, among other things, that the phrase bear arms against would always refer to service in a militia. But bear arms by itself—the wording used in the Second Amendment—could sometimes refer to an individual right. The dissenting opinion, by Justice John Paul Stevens, intimated that the phrase keep and bear arms was a fixed term of art that always referred to militia service.

In the 12 years since that decision, scholars have gained access to a new research tool that some hope can settle this debate: corpus linguistics. This tool allows researchers to search millions of documents to see how words were used during the founding era, and could help courts determine how the Constitution was understood at that time—what is known as “original public meaning.” Corpus linguistics, like any tool, is more useful in some cases than in others. The Second Amendment in particular poses distinct problems for data searches, because it has multiple clauses layered in a complicated grammatical structure.

With that in mind, in mid-2018 we searched large collections of language from around the time of the founding, and published our tentative findings on the Harvard Law Review’s blog. We used two databases: the Corpus of Founding Era American English (COFEA), which contains about 140 million words of text from various American documents published from 1760 to 1799, and the Corpus of Early Modern English (COEME), which covers British English from 1475 to 1800 and includes more than 1 billion words of text. We have now expanded that initial research to consider how other aspects of the Second Amendment were understood at the time of the framing. Our findings show that both Scalia and Stevens appear to have been wrong with respect to at least one of their linguistic claims in the Heller decision.

In 2008, technology was in a very different place. The iPhone was less than a year old. The format war between Blu-ray and HD DVD drew to a close. And Twitter celebrated its second anniversary. At the time, the justices and their law clerks had fairly rudimentary tools to search how language had been used 200 years earlier. Based on the limited data set Scalia considered, we can’t say his linguistic claim about bear arms against was unsupported then. But this specific conclusion does not stand the test of time.

Scalia concluded that the phrase bear arms “unequivocally” carried a military meaning “only when followed by the preposition ‘against.’” The Second Amendment does not use the word against. Therefore, Scalia reasoned, the phrase bear arms, by itself, referred to an individual right. To test this claim, we combed through COFEA for a specific pattern, locating documents in which bear and arms (and their variants) appear within six words of each other. Doing so, we were able to find documents with grammatical constructions such as the arms were borne. In roughly 90 percent of our data set, the phrase bear arms had a militia-related meaning, which strongly implies that bear arms was generally used to refer to collective military activity, not individual use. (Whether these results show that the Second Amendment language precludes an individual right is a more complicated question.)

Further, we found that bear arms often took on a military meaning without being followed by against. Thus, the word against was sufficient, but not necessary, to give the phrase bear arms a militia-related meaning. Scalia was wrong on this particular claim.

Next, we turn to Justice Stevens’s dissent. He wrote that the Second Amendment protected a right to have and use firearms only in the context of serving in a state militia. Stevens appears to have determined—though his exact conclusion is somewhat unclear—that the phrase keep and bear arms was a unitary term of art. Such single linguistic units, called binomials or multinomials, are common in legal writing. Think of cease and desist or lock, stock, and barrel. As a result, Stevens concluded, there was no need to consider whether keep arms had a different meaning from bear arms. Therefore, he had no reason to determine whether keep arms, by itself, could refer to an individual right.

Was Stevens’s linguistic intuition correct? No. The phrase keep and bear arms was a novel term. It does not appear anywhere in COEME—more than 1 billion words of British English stretching across three centuries. And prior to 1789, when the Second Amendment was introduced, the phrase was used only twice in COFEA: First in the 1780 Massachusetts Declaration of Rights, and then in a proposal for a constitutional amendment by the Virginia Ratifying Convention. In short, keep and bear arms was not a term of art with a fixed meaning. Indeed, the meaning of this phrase was quite unsettled then, as it had barely been used in other governmental documents. Ultimately, a careful study of the Second Amendment would have to treat keep arms and bear arms as two separate linguistic units, and thus two separate rights.

We performed another search in COFEA, about the meaning of keep arms, looking for documents in which keep and arms (and their variants) appear within six words of each other. The results here were somewhat inconclusive. In about 40 percent of the hits, a person would keep arms for a collective, military purpose; these documents support Justice Stevens’s reading. And roughly 30 percent of the hits reference a person who keeps arms for individual uses; these documents support Justice Scalia’s analysis. The remainder of the hits did not support either reading.

We could not find a dominant usage for what keep arms meant at the founding. Thus, even if Scalia was wrong about the most common meaning of bear arms, he may still have been right about keep arms. Based on our findings, an average citizen of the founding era would likely have understood the phrase keep arms to refer to possessing arms for both military and personal uses.

Finally, it is not enough to consider keep and bear arms in a vacuum. The Second Amendment’s operative clause refers to “the right of the people.” We conducted another search in COFEA for documents that referenced arms in the context of rights. About 40 percent of the results had a militia sense, about 25 percent used an individual sense, and about 30 percent referred to both militia and individual senses. The remainder were ambiguous. With respect to rights, there was not a dominant sense for keeping and bearing arms. Here, too, an “ordinary citizen” at the time of the founding likely would have understood that the phrase arms, in the context of rights, referred to both militia-based and individual rights.

Based on these findings, we are more convinced by Scalia’s majority opinion than Stevens’s dissent, even though they both made errors in their analysis. Furthermore, linguistic analysis formed only a small part of Scalia’s originalist opus. And the bulk of that historical analysis, based on the history of the common-law right to own a firearm, is undisturbed by our new findings. (We hope to publish this research, which also looked at other phrases in the Second Amendment, such as the right of the people, in an academic journal.)

In the next few months, the Supreme Court will decide a Second Amendment case from New York. More likely than not, the justices will dismiss the case as moot, as the local government has already repealed the law at issue. But should the justices want to settle the questions of the Second Amendment more finally, now or in the future, they’ll find that corpus linguistics, by itself, cannot definitively resolve whether Heller was right. Neither Scalia’s nor Stevens’s error provides the gotcha moment that people on both sides of the Second Amendment debate had hoped for.

Yet we remain optimistic about the future of this data tool. For certain originalist cases, corpus linguistics can provide powerful insights into how the founding generation understood a word or phrase in the Constitution. But when corpus linguistics illuminates only part of a text, then originalists should be candid about its limits. And when corpus linguistics provides answers that contradict long-held beliefs, originalists should be willing to reconsider old precedents—yes, even those by Antonin Scalia, originalism’s patron saint

"The Mysterious Meaning of the Second Amendment"
James C. Phillips and Josh Blackman for The Atlantic; February 28, 2020.
https://www.theatlantic.com...nd-amendment/607186/

quote

Even with the help of powerful 21st-century linguistic databases, the phrase “keep and bear arms” remains debatable.

When this article was published, James C. Phillips was a nonresident fellow with the Constitutional Law Center at Stanford University, and soon to start as an assistant law professor at Chapman University’s Fowler School of Law. Josh Blackman was a constitutional law professor at the South Texas College of Law Houston and an adjunct scholar at the Cato Institute.

blackrams

JUN 12, 03:01 PM

quote

Originally posted by rinselberg:

What does the Second Amendment mean?

Look to and reference all the anti-gun folks you want, if you don't understand the 2nd Amendment you be one of those hoping the LEOs get to you in time to save you.

Criminals love folks who are anti-gun ya know.

Rams

rinselberg

JUN 12, 03:44 PM

WASHINGTON — Senate negotiators announced on Sunday that they had struck a bipartisan deal on a narrow set of gun safety measures with sufficient support to move through the evenly divided chamber, a significant step toward ending a yearslong congressional impasse on the issue.

The agreement, put forth by 10 Republicans and 10 Democrats and endorsed by President Biden and top Democrats, includes enhanced background checks to give authorities time to check the juvenile and mental health records of any prospective gun buyer under the age of 21 and a provision that would, for the first time, extend to dating partners a bar on domestic abusers having guns.

It would also provide funding for states to implement so-called red-flag laws that allow authorities to temporarily confiscate guns from people deemed to be dangerous, as well as money for mental health resources and to boost safety and mental health services at schools.

The outline, which has yet to be finalized, falls far short of the sprawling reforms that Mr. Biden, gun control activists and a majority of Democrats have long championed, such as a ban on assault weapons and universal background checks. And it is nowhere near as sweeping as a package of gun measures passed almost along party lines in the House last week, which would bar the sale of semiautomatic weapons to people under the age of 21, ban the sale of large-capacity magazines and implement a federal red-flag law, among other measures.

But it amounts to notable progress, given the deep party divisions over how to address gun violence and repeated failed efforts to approve gun reform on Capitol Hill, where Republicans have thwarted action for years. Democrats hailed the plan, which would also toughen federal laws to stop gun trafficking and ensure that all commercial sellers are doing background checks, as an opportunity to pass the most significant gun safety legislation in decades. . . .

The backing of 10 Republicans suggested that the plan could scale an obstacle that no other proposal currently under discussion has been able to: drawing the 60 votes necessary to break through a G.O.P. filibuster and survive to see an up-or-down vote on the Senate floor. . . .

Aides cautioned that until the legislation was finalized, it was not certain that each of the components could draw the 60 votes necessary to move forward. . . .

[President] Biden urged Congress to pass a bill quickly, saying there were “no excuses for delay.” . . .

Excerpts from a newly published report in the New York Times

"Senators Reach Bipartisan Deal on Gun Safety"

quote

The agreement, which falls short of the sprawling changes championed by Democrats, is a significant step toward ending a yearslong impasse over gun reform legislation.

Emily Cochrane and Annie Karni for the New York Times; June 12, 2022.
https://www.nytimes.com/202...gun-safety-deal.html

olejoedad

JUN 12, 06:07 PM

I hope there is a statement in the legislation that says we must enforce existing law.

rinselberg

JUN 12, 07:12 PM

Red flag at night, gun grabber’s delight
Red flag at morning, gun owners take warning

"Florida's red flag law, championed by Republicans, is taking guns from thousands of people"
Steve Contorno, Leyla Santiago and Denise Royal for CNN; June 1, 2022.
https://www.cnn.com/2022/06...-flag-law/index.html

"By the Copy and Paste authority lawfully vested in me, I hereby reproduce a few paragraphs from a somewhat 'longish' news report."

Twice a week from her courtroom, Florida 13th Circuit Court Judge Denise Pomponio decides who in Hillsborough County can no longer be trusted with a gun. . . .

This is Florida's "red flag" law in action. Passed in the wake of the horrific 2018 mass shooting at a Parkland high school, the state law provides police a path to ask a judge to temporarily bar dangerous individuals from possessing or purchasing a firearm. Since its creation, Florida judges have acted more than 8,000 times to keep guns out of the hands of people authorities deemed a risk to themselves or others, according to data maintained by the Office of the State Courts Administrator. . . .

In the aftermath of recent massacres in Uvalde, Texas, and Buffalo, New York, those looking to change the country's gun laws see in Florida a blueprint to move forward -- not only because leaders moved to restrict firearms, but because it emerged out of a Republican stronghold unofficially known as the "Gunshine State."

"The Florida law is a good law, and it's a signal of what's possible," Democratic Sen. Chris Murphy of Connecticut, one of the most vocal advocates in Congress for gun control, said Sunday on ABC's "This Week."

In Florida, a red flag policy, also known as risk protection orders, was one piece of a sprawling gun reform package that then-Gov. Rick Scott signed into law just three weeks after a teenage gunman killed 17 people inside Marjory Stoneman Douglas High School. It included $400 million in new spending for priorities like school security and mental health resources, and allowed trained school staff to carry firearms for the first time. Republican lawmakers also agreed to raise the age to own a gun to 21 and implemented a three-day waiting period to purchase most rifles. . . .

[This message has been edited by rinselberg (edited 06-12-2022).]

blackrams

JUN 12, 07:48 PM

Mid-terms.

Rams