California: Gun Registration

[Andy9o8 3]

I can only maintain that the Federal courts, as well as state appellate courts across the country, have repeatedly held that it is a fundamental tenet of both statutory construction and constitutional construction that express language in a statute or constitutional provision should not be construed to render their provisions mere surplusage.

This applies to all statutes, the US Constitution and all state constitutions; and it applies to all provisions in those documents, not just some of them. Which means, of course, that it applies to the Second Amendment of the US Constitution as well.

You will find scads of cases and law review articles affirming this basic principle of construction if you Google:
("constitutional construction" + surplusage)
and
("statutory construction" + surplusage)

I think I've squeezed out about as much of my brain as I can on this thread.

[mnealtx 0]

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I can only maintain that the Federal courts, as well as state appellate courts across the country, have repeatedly held that it is a fundamental tenet of both statutory construction and constitutional construction that express language in a statute or constitutional provision should not be construed to render their provisions mere surplusage.

This applies to all statutes, the US Constitution and all state constitutions; and it applies to all provisions in those documents, not just some of them. Which means, of course, that it applies to the Second Amendment of the US Constitution as well.

You will find scads of cases and law review articles affirming this basic principle of construction if you Google:
("constitutional construction" + surplusage)
and
("statutory construction" + surplusage)

I think I've squeezed out about as much of my brain as I can on this thread.

I appreciate the info, Andy - I'll look that up.

A question, however - were these 'surplusage' rules or principles in force or effect at the time of the writing of the Constitution? Do we know that the founders did, in fact, use or follow these rules or principles when the Constitution was written?

From camlaw (which I believe may be where you got your original statement about surplusage - it looks to be a very close quote, anyway):

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Wood vs. State Administrative Board, 238 N.W. 16,17 (Mich. 1931)

E. How can constitutional convention materials shed light on the people's intent?

VI. Textual Analysis

Appropriate constitutional analysis begins with the text and, for most purposes, should end there as well: the text necessarily includes the words themselves, their grammatical relation to one another, as well as their context.

This supports your point of non-surplusage, but also supports Copperuds interpretation.

Note Copperud's answer, below:

[Schulman:] "(4) Does the clause 'A well-regulated Militia, being necessary to the security of a free State,' grant a right to the government to place conditions on the 'right of the people to keep and bear arms,' or is such right deemed unconditional by the meaning of the entire sentence?"

[Copperud:] "(4) The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia."

The problem, I believe, is due to the more recent interpretation of the militia clause as being the reason for the amendment, when the constitutions of several states, linguistic analysis as well as the words of the founders and mention in many early court cases suggest otherwise.

Mike
I love you, Shannon and Jim.
POPS 9708 , SCR 14706

[kelpdiver 2]

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I think you're misapprehending my position. I'm agreeing that the individual right is separate from the militia. But the reference to the militia in the Second is not just mere surplusage; according to basic principles of statutory/constitutional construction, if the reference to militia is in there, it's there for some kind of purpose (as contrasted with no purpose at all). So the intellectual task is to discern what that purpose is.

The part that does not make sense is the notion that we can redefine those words, and thus the purpose of this language in the 2nd amendment. It was written over 200 years ago and the intent isn't changing.

[JohnRich 4]

How is that gun ban working out for you in Chicago?

News:

8 dead among 52 shot across city over weekend

Eight people were killed and at least 44 others were shot across the city Friday night into early Monday...

Source: http://www.suntimes.com/news/metro/2415428,weekend-shooting-roundup-062110.article

[JohnRich 4]

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well, first off, I suspect your 'home town' isn't Chicago, but some nice medium sized town the other side of the Atlantic........(or a little hamlet, or a big metro like London...... but not Chicago)

JR knows my home town. He even posted it on this forum Nov 21, 2008, at 1:51 PM

From your profile:

Name: John K
Occupation: Ne're Do Well/Nerd, professor of physics and professor of engineering
Homepage: http://www.iit.edu/~kallend/skydive
Email: No email entered.
Interests: Anything that flies. Afternoon naps.
Country: United States
City: Chicago

Source: http://www.dropzone.com/cgi-bin/forum/gforum.cgi?username=kallend;

So you're telling us that you are lying about your home town in your profile information? And then you wonder where people get the idea that you have some connection to Chicago? And refuse to answer questions because it's an "invalid premise" that you are from Chicago?

What this reveals is that once again you are shown as someone who is not interested in honest debate, but only in playing games and avoiding answering any tough questions that challenge your views.

[DaVinci 0]

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The part that does not make sense is the notion that we can redefine those words, and thus the purpose of this language in the 2nd amendment. It was written over 200 years ago and the intent isn't changing.

That is one of the ways people attack it. They try to change the definitions to limit the power.

Back then the average person WAS the Milita. So the Founding Fathers wanted the average person to have weapons suitable in case they were needed to defend the State.

But then we created a State Milita.... That does not change the intent of the 2nd, although people want to claim that with a State controlled Milita that the average citizen no longer needs weapons.

But the founding principal still stands not matter how much you want to wrangle and twist it... The Founding Fathers wanted the average citizen to be armed.

Redefining the terms should not change the intent.

[Andy9o8 3]

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The part that does not make sense is the notion that we can redefine those words, and thus the purpose of this language in the 2nd amendment. It was written over 200 years ago and the intent isn't changing.

That is one of the ways people attack it. They try to change the definitions to limit the power.

Back then the average person WAS the Militia. So the Founding Fathers wanted the average person to have weapons suitable in case they were needed to defend the State.

But then we created a State Militia.... That does not change the intent of the 2nd, although people want to claim that with a State controlled Militia that the average citizen no longer needs weapons.

But the founding principal still stands not matter how much you want to wrangle and twist it... The Founding Fathers wanted the average citizen to be armed.

Redefining the terms should not change the intent.

Agreed. Put another way, the Framers of the Constitution never intended to allow Congress to unilaterally restrict the right of the people to keep and bear arms under the Second Amendment - and evade the formal, cumbersome process of amending the Constitution - merely by passing a narrowly-defined militia statute.

[billvon 3,133]

>The Founding Fathers wanted the average citizen to be armed.

Not quite. The Founding Fathers wanted to prohibit the government from _preventing_ the average citizen from obtaining arms. Nowhere does it state that it is desirable that the average citizen be armed, any more than it states that it is desirable that the average citizen belong to a religion or engage in public speech.

[Andy9o8 3]

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>The Founding Fathers wanted the average citizen to be armed.

Not quite. The Founding Fathers wanted to prohibit the government from _preventing_ the average citizen from obtaining arms. Nowhere does it state that it is desirable that the average citizen be armed,

I think a reasonable argument (albeit one that can never be resolved with certainty) can be made that the Framers were at least implying that they wanted the average citizen to be armed, or something close to it, with their preliminary language "A well regulated Militia, being necessary to the security of a free State...". In other words, that preliminary language is an expression of public policy rationale. By contrast, the First Amendment contains no such preliminary language of policy intent; it simply conveys the enumerated rights.

[kelpdiver 2]

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>The Founding Fathers wanted the average citizen to be armed.

Not quite. The Founding Fathers wanted to prohibit the government from _preventing_ the average citizen from obtaining arms. Nowhere does it state that it is desirable that the average citizen be armed,

It doesn't necessarily imply armed, as opposed to well practiced in using arms. But in that time, the distinction is a bit fainter.

[JohnRich 4]

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>The Founding Fathers wanted the average citizen to be armed.

Not quite. The Founding Fathers wanted to prohibit the government from _preventing_ the average citizen from obtaining arms. Nowhere does it state that it is desirable that the average citizen be armed...

That may be your personal interpretation, but it is clear from the writings of the time, that it was intended to encourage an armed populace, to serve as a check against run-away government tyranny. The following is a little sampler for you.

"As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear arms."
- Tench Coxe

"The great object is that every man be armed. Everyone who is able may have a gun."
- Patrick Henry

"Firearms stand next in importance to the Constitution itself. They are the American people's liberty teeth and keystone under independence... From the hour the Pilgrims landed to the present day, events, occurrences, and tendencies prove that to ensure peace, security, and happiness, the rifle and pistol are equally indispensable...The very atmosphere of firearms everywhere restrains evil interference--they deserve a place of honor with all that's good."
- George Washington

"...arms discourage and keep invader and plunderer in awe, and preserve order in the world as well as property... Horrid mischief would ensue were the law-abiding deprived of the use of them."
- Thomas Paine

"The importance of this article (the 2nd Amendment) will scarcely be doubted by any persons who have duly reflected upon the subject. The militia is the natural defense of a free country against sudden insurrections, and domestic usurpations of power by rulers... The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them."
- Supreme Court Justice Joseph Story, Commentaries on the Constitution, 1833.

"To preserve liberty, it is essential that the whole body of the people always possess arms and be taught, especially when young, how to use them."
- Richard Henry Lee, Letters from a Federal Farmer, 1787-1788

"If circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."
- Alexander Hamilton, Federalist 29

[rehmwa 2]

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>The Founding Fathers wanted the average citizen to be armed.

Not quite. The Founding Fathers wanted to prohibit the government from _preventing_ the average citizen from obtaining arms. Nowhere does it state that it is desirable that the average citizen be armed, any more than it states that it is desirable that the average citizen belong to a religion or engage in public speech.

I think the FF were encouraging the populace to be 'trained and armed'. Especially considering the context of the times.

However - your interpretation is just fine for today. We agree that people should have the CHOICE to arm themselves or not without government at ANY level interfering in that choice.

...
Driving is a one dimensional activity - a monkey can do it - being proud of your driving abilities is like being proud of being able to put on pants

[DaVinci 0]

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Not quite. The Founding Fathers wanted to prohibit the government from _preventing_ the average citizen from obtaining arms....Nowhere does it state that it is desirable that the average citizen be armed

Many quotes from the founding fathers state that they want the average citizen to be armed. I see someone else has posted many of them. Here are some more.

"I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them." -- George Mason

"And we do each of us, for ourselves respectively, promise and engage to keep a good firelock in proper order, and to furnish ourselves as soon as possible with, and always keep by us, one pound of gunpowder, four pounds of lead, one dozen gunflints, and a pair of bullet moulds, with a cartouch box, or powder horn, and bag for balls." -- George Mason Fairfax County Militia Plan, 1775.

"They tell us that we are weak—unable to cope with so formidable an adversary. But when shall we be stronger? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Three million people, armed in the holy cause of liberty, are invincible by any force which our enemy can send against us." -- Patrick Henry, 1775

"The supposed quietude of a good man allures the ruffian; while on the other hand, arms like laws discourage and keep the invader and the plunderer in awe, and preserve order in the world as well as property. The balance of power is the scale of peace. The same balance would be preserved were all the world destitute of arms, for all would be alike; but since some will not, others dare not lay them aside. Horrid mischief would ensue were one half the world deprived of the use of them; the weak would become a prey to the strong." -- Thomas Paine, writing to religious pacifists in 1775

"Arms in the hands of the citizens may be used at individual discretion for the defense of the country, the overthrow of tyranny or private self-defense." -- John Adams

"No free man shall ever be debarred the use of arms" -- Thomas Jefferson.

"Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined. The great object is that every man be armed. Everyone who is able may have a gun." -- Patrick Henry

"To preserve liberty, it is essential that the whole body of the people always possess arms and be taught alike, especially when young, how to use them." -- Richard Henry Lee American Statesman, 1788

And I have never seen a quote from a founding father saying that citizens should not be allowed to be armed.... In fact, most seem to require it or at least strongly encourage it, IMO.

[ChangoLanzao 0]

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Many quotes from the founding fathers state that they want the average citizen to be armed. I see someone else has posted many of them. Here are some more.

Many of them are phony quotes.

[rhaig 0]

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Many of them are phony quotes.

if you were actually trying to convince anyone, you might have bothered to put something behind your words... perhaps a source for at least one of those quotes showing it was phony.

or if you're not interested in making a persuasive argument continue with your current method. And we'll continue not giving any weight at all to your thoughts.

--
Rob

[ChangoLanzao 0]

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Many of them are phony quotes.

if you were actually trying to convince anyone, you might have bothered to put something behind your words... perhaps a source for at least one of those quotes showing it was phony.

or if you're not interested in making a persuasive argument continue with your current method. And we'll continue not giving any weight at all to your thoughts.

Anybody with a web browser can easily find out which quotes are phony. Those lists of quotes are cut and pasted from various propaganda. I don't care if you give my statements any weight, actually. I think it's the truth and somebody has to say it. Other readers can check for themselves instead of just blindly memorizing or cut and pasting those quotes.

If you don't like my posts, then just skip over them. Nobody is forcing you to read them. AFAIK, I am not violating any of the forum rules.

[turtlespeed 226]

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Many quotes from the founding fathers state that they want the average citizen to be armed. I see someone else has posted many of them. Here are some more.

Many of them are phony quotes.

Liar.

I'm not usually into the whole 3-way thing, but you got me a little excited with that. - Skymama
BTR #1 / OTB^5 Official #2 / Hellfish #408 / VSCR #108/Tortuga/Orfun

[quade 4]

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Many of them are phony quotes.

if you were actually trying to convince anyone, you might have bothered to put something behind your words... perhaps a source for at least one of those quotes showing it was phony.

Well, let's start with the first one in this "new" list shall we?

DaVinci (as do numerous pro-gun sites) quotes the following:

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"I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them." -- George Mason

Now, I can't prove a negative. There's no way on Earth I can possibly say George Mason NEVER said that, however, he is on record as actually having said this at the Viginia Convention:

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[W]hen the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually...I ask, who are the militia? They consist of now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor...
---George Mason

Source: http://www.guncite.com/gc2ndfqu.html

As you can see, it appears the quote by DaVinci has been woefully bastardized from its original intent.

If the first one has now been so easily been brought into question, then why would anyone assume the rest are entirely accurate?

quade -
The World's Most Boring Skydiver

[rushmc 23]

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Many quotes from the founding fathers state that they want the average citizen to be armed. I see someone else has posted many of them. Here are some more.

Many of them are phony quotes.

Which ones?

"America will never be destroyed from the outside,
if we falter and lose our freedoms,
it will be because we destroyed ourselves."
Abraham Lincoln

[rhaig 0]

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If the first one has now been so easily been brought into question, then why would anyone assume the rest are entirely accurate?

see chango? was that so hard?

Quade can make a persuasive argument. You.. well, I've not seen one yet...

and though the quote was not a direct quote... I see the same sentiment in the words.

--
Rob

[ChangoLanzao 0]

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If the first one has now been so easily been brought into question, then why would anyone assume the rest are entirely accurate?

see chango? was that so hard?

Quade can make a persuasive argument. You.. well, I've not seen one yet...

and though the quote was not a direct quote... I see the same sentiment in the words.

I'm not interested in persuading you.

[rhaig 0]

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I'm not interested in persuading you.

yet you keep trying to have the last word

--
Rob

[JohnRich 4]

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"I ask, Sir, what is the militia? It is the whole people. To disarm the people is the best and most effectual way to enslave them." -- George Mason

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When the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man, who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually...I ask, who are the militia? They consist of now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor...
---George Mason

As you can see, it appears the quote by DaVinci has been woefully bastardized from its original intent. If the first one has now been so easily been brought into question, then why would anyone assume the rest are entirely accurate?

[DaVinci 0]

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Many of them are phony quotes.

Prove it.

Because you know you are unable, you will not.

[DaVinci 0]

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As you can see, it appears the quote by DaVinci has been woefully bastardized from its original intent.

It actually does not change the intent as presented... I said the FF stated the militia was the whole of the people..... And he did say that.

He does say he is not sure what the future holds, but Mason considered the militia to be the people and that *is* supported by your longer quote.

AND when you go further into the discussion you would know that the quote came during the discussion of the Virginia ratifying convention and how a BoR was needed.

The Virginia delegation's recommended BoR stated:

That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.



So my point that the FF's (in this case Mason) said that the militia was to be formed of the people still stands.