My record keeping system

Unless I worry about some moral wrong, I try to restrict myself with this record keeping system when I post. When I make a post I give myself  the freedom to change it how I want and as much as I want including deleting it completely as long as that happen within up to 24 hours after I post. After that period I can only add things clearly marked with the date of that addition. 

District of Columbia v. Heller - 3

I posted a little time ago that there seems to be more to the court's position in answering the relative power argument I talked about in post 2 of this series about the case and here it is.

Based on what I currently see ,and I intend to continue checking on what I could have missed, it seems that the court started by accepting that the " being necessary to the security of a free state" clause as if it could be mainly a description rather than a condition or a qualifying thing. Then before you can argue how that could then fit with the purpose of giving the right to bear and keep arms in the second amendment you see what currently appears to me as some kind of acrobatic reasoning. It seems as if the court accepted the probability that the direct purpose of the second amendment was to prevent the government from dismantling militia creation and that the keeping and bearing of arms was stated as a right as some kind of a higher level attempt to prevent the government from doing that.

First, that understanding seems to be weakened by exchanging what generally understood as the main purpose (Having sufficient power to face a military or army of that time) with what seems to be secondary ( just a way to make it more difficult for the government to dismantle a militia).

Second, that understanding is also weekend by the starting justification of the second amendment. It doesn't seem very reasonable that those who made that amendment accepted the risk on civilian life for just that gain which could have been reasonably satisfied without involving firearms ownership.

Third, because of the relative primitiveness of weapons used at that time, the purpose of just preventing dismantling of the militia by the government also satisfy the creation of a militia with reasonably sufficient power to face a military or army of that time.

In other words, in our current time few persons using military machinery can wipe out entire areas and kill thousands and thousands of people easily (including those with guns or even military machinery that is less developed than the other side ). So, number is not a big thing. At that time, on the other hand, because of the relative primitiveness of the weapons used in battles the number of fighters was a big reasonable factor to win a battle. That means creating a sufficiently big militia imply creating a sufficiently powered militia. Or let me express that using the terms of the argument to which I am trying to respond: at the time of the second amendment preventing the dismantling of a militia implied preventing  weakening the militia. [(Added 11/18/2013) change the last part of the previous sentence from "preventing  weakening the militia"  to  "preventing having a militia with less than the reasonably sufficient power".Therefore it is not reasonable to recognize a separate intention between those two united purposes unless the speaker himself put an effort to declare his intention with regard to that separation. That is even more true when the separator try to flip and use the intended right to carry and bare firearms which is essentially an empowerment thing and use it for his claim separating those two united intention.

Forth, the purpose of the prevention of the dismantling of militia itself is allowing the creation of militia. Since the constitution is not a fairy tale story the "being necessary to the security of a free state" should apply as a condition if not on the current militia then at least on the target future militia. In other words, there should be a reasonable path for the militia to be "necessary to the security of a free state" and therefore arguments I made in post 2 of this series still apply.

Now, consider how that the type of militia to which the court refers would have been powerless in front of even the military machinery of second world war or even earlier. The same militia at our current time would still be powerless in front of the same machinery of the second world war and even much more powerless in front of the modern military machinery. Is that a reasonable path for a militia to have sufficient power satisfying to " being necessary to the security of a free state"? This is dreaming and imagination because the development of weapons between then and now completely changed every thing.

Note that I could be still missing significant things about the related positions of the court in the arguments I am trying to answer. Nevertheless, it is not a bad thing to build a stronger base by responding to other possibilities while zeroing in more closely on the position of the court so that it can be better understood and responded to.

District of Columbia v. Heller
 

Description or condition?

It seems to me that support for my interpretation of the " being necessary for the security of free state" in the second amendment  as a condition rather than just a general description for any "well regulated militia" is the missing link that many of my writings that depended on that part need. This is the only way I can make sense of the difference between what I wrote and the court opinion (mentioned in the previous post) I am reading.

[(Added 11/17/2013) On a second thought, while more support is certinly better, that link could be less missing than I described because that clause should be understood as a condition if not for the current militia then at least for what is the target for it to be]   

District of Columbia v. Heller - 2

This response to a second selection of the supreme court case in the title is related more closely to a main argument front of mine. 

 

"...as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right"

 

First, clearly I would like to agree with some part in the quoted text above and emphasize that guns have no power in fighting the machinery of a modern (and it doesn't even have to be very modern) military. But how does the quoted text and court opinion in general responds to this fact?Based on my current understanding, it seems the court thinks that fact does not change their interpretation because (1) a "militia" at that time meant merely people with lawful arms and/or (2) allowing gun ownership is part of the process for building a militia reasonably equipped to fight a modern military.

 

[(Added 11/17/2013) What I wrote above seems not to be complete regarding the court's position and that would be explained in some post(s) I intend to write probably today]

With regard to "(1)" ,and assuming it is true, it still doesn't apply on or justify the creation of similar militia at our time which, in fact, wont be really similar. It wont be similar because that structure of a militia empowered by the second amendment to carry arms equivalent to those held by armies or militraies at that time creates a militia force very reasonably capable of fighting those forces. In fact even without the second amendment it is not very unreasonable for a mass of people to fight those one bullet firearms at that time with swords ,knives or even tree branches. It is not even close to fighting fighter jets or tanks with your gun. In fact even with modern firearms against disarmed nations, standing of dictatorships depends on the machinery of their military not the power of these firearms which a revolting mass seeking freedom may not even count them as a real impediment despite being disarmed. In other words, even if  a militia at that time meant what the court says it meant that still wouldn't imply disregarding its relative power because it would still have created a militia with a reasonably sufficient power to fight armies and militaries of that time. So how can that be used as a justification for creating a militia this far from sufficient power at our current time?
In addition, if having sufficient power by the militia was not of a concern at that time why make this second amendment  in the first place? Instead of its current form, the second amendment could have been about allowing the creation of a militia without going through firearms ownership. But no, the second amendment itself did not accept not to balance the power even to the level of giving the militia the right to have firearms and make it in an equal footing with  a military or army of that time despite the relative primitiveness of  firearms of that time. So how can the current big difference of power between a militia and any modern military not be counted as an argument against militia creation as intended by the second amendment?

 

With regard to "(2)" in allowing gun ownership because it is part of the process of building a militia that somehow someday will have sufficient power in comparison with a modern military, it is like the action of a regular person who think it is acceptable to put car seats in an area designated for a car parking only because it is part of a car building process he somehow someday will figure how to do.

That objection is also empowered by the "necessary" word in the second amendment which imply readiness. The "necessary" word as used by the second amendment also imply sufficiency. It would not make much sense for someone to tell a stranger that shows are the necessary thing for him to travel the distance to Mexico City. Such a statement would probably be immediately corrected by a third person saying: No a car or plane ticket is what you need to travel that distance.

That last example may lead us to answer both "(1)" and "(2)" above by just paying more attention to what the second amendment says. The second amendment used the description of "being necessary for the security of a free state" as the reason or justification for what it allowed as rights. Unlike the travel to Mexico City example above were wearing shoes is still necessary to do the main requirement of driving a car or riding a plane to the destination, there is no half way or implied way for a militia to satisfy the condition of "being necessary for the security of a free state".It either has  a reasonably sufficient power to face armies and militaries of its time and therefore may be seen as satisfying that necessary condition or it does not and therefore it doesn't satisfy that necessary condition. The mere existence of what can create the kind of militia suggested by the court without knowing how it would have reasonably sufficient power to fight the machinery of a modern military does not satisfy that necessary condition in the second amendment of "being necessary for the security of a free state" because such militia has no reasonable path to have sufficient power for that purpose.               

 

Add to the arguments related to the sufficiency and readiness above the existence of the  justification mentioned at the beginning of the second amendment. That justification suggests a compromised decision through which those who made the amendment gave something (accepting the risk of firearms on civilian life) and took  in exchange of that the making of a militia reasonably equipped to fight armies or militaries of that time. So it is not a case of something is better than nothing and it  is very important what is being gained in exchange for the price being paid. The current compromise creates a militia that  reasonably does not have the sufficient power to stand to the machinery of any modern military while at the same time accepts paying much higher price than that at the second amendment time because of the much bigger danger of modern firearms on civilian life. 

 

 District of Columbia v. Heller

 

District of Columbia v. Heller

Every now and then I intend to respond or comment on some part of second amendment court cases. This post deal with my first selection from the case titled above at the supreme court.

 

"Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 849, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 35-36, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the Second Amendment extends, 2792*2792 prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

 

First, it is not necessary to take the argument to which the text above responds in the form suggested of  "only those arms in existence in the 18th century" but it can also be understood to mean excluding current arms that are not reasonably expected to be part of the vision and expectations at that time.

In any case, I personally prefer to concentrate on the vision and foreseeability (or lack of it) for the type of weapons held by a military in our time and that is related to another part to which I intend to respond at some later time.    

 

Nevertheless, no matter how one may see the validity of the argument to which the quoted text responds that response is wrong. it is wrong because it compares the generality of the meanings of words related to actions with those related to objects and things. If for example a person promises another something if that other person comes the next day then it is generally very reasonable to see that the promising person would be required to fulfill his promise no matter how much it was unexpected the way that other person  used to achieve that. On the other hand, if the instructions for some collage exam, for example, states that "No computer allowed" then that it is not unreasonable to see that not being interpreted to mean a basic calculator cannot be used in the exam although it is also used for computing things. I think that is clearly how meanings related to objects in comparison to those related to actions are  generally understood everywhere.    

 

One may also be able to say that the quoted text above incorrectly treated things that are conceptual only with things that also exist as objects then followed that by equating the different forms through which the same conceptual thing may come with different things on which the same name of an object may apply. [(Added 11/15/2013) Those who refer to conceptual only things (for example the freedom of speech) recognize their free attachment capability and therefore expect the different forms of its implementations. The same thing does not apply on physical objects.Also since "Speech" and "Search" ,for example, do not exist on their own they may therefore ,like a fluid, take the shape of the medium or form through which it is conveyed or implemented]  

 

 The "No computer allowed" if intended to prevent using even a calculator could have been stated as "No computing device allowed". In the case of "arms" in the second amendment ,and for it to be similar in clarity to the examples in the quoted text, it could had been expressed ,for example, using the definition of what arms are. On the other hand when someone just use the word "arms" then it is much less clear whether he is referring to all things on which the definition of that word apply or just what is being called as "arms" at his time. Ignoring the other possibility despite the fact that generally its use could be by far much more than the first doesn't seem very convincing or at least won't make it equivalent to the examples mentioned in the quoted text . Anyone can think with himself about how many times he used object names to refer to currently existing objects in comparison with how many times he used them to refer to all things on which the definitions of those names apply.

 

[(Added 11/15/2013) One very important difference between the examples given and the argument to which the quoted text is responding that can make that argument sound much less "bordering on the frivolous" is the justification or explanation mentioned at the beginning of the first amendment and the lack of something similar to it in the other examples (and probably the entire constitution). That justification suggests an effort to compromise between the danger of arms on civilian life and the protection of a democratic system at its infancy during that time. So it is clearly not outrageous to think that unlike other things in the constitution there is no limitless domain here and that one doing a critical compromising or balancing of things like those related to the second amendment may make decisions that are more tied to the status of things at that time which clearly can include the kind and capabilities of arms used at that time]  
   

District of Columbia v. Heller

 

The " twenty dollars " Argument

Even if we assume that the current interpretation of the second amendment is correct there is still a very strong argument against trying to fit it on our time despite the huge difference between then and now. That argument is very strong and very sufficient by itself and may not need additional support from an external thing. However, strengthening it even more with something from the constitution itself is even better.

The seventh amendment gives the right to a jury trial for any amount exceeding "twenty dollars" . Apparently following the unreasonableness of applying the second amendment on our time and causing all the gun mess blood sheds here was easier for some to choose than just following something that may sound silly because of its low value. As a result it seems that was never implemented.

Anyway, implementing that twenty dollars clause or not is not the point here. The point is what the mentioning of that amount signifies. Was the reason is that those who made that amendment failed to see that eventually such amount may become trivial and unreasonably low? If that is the case then how do you count on their extension of the vision behind the second amendment from then to our current time despite the huge difference in the advancement of weaponry? Which thing is easier to anticipate or predict at that time that the $20 dollars value may diminish or that there will be fighter jets or even any kind of airplane?

Or was the reason for the use and mentioning of the "twenty dollars" clause is that it was written for that time and those who made it were not concerned about how the future may change the significance of that amount? In that case it shows you how much you could be wrong by exaggerating in following the constitution by implementing the second amendment (as the way you currently interpret it) on the current day and age? What support your current position in treating the second amendment as if it was written with even what seems to be the very unreasonable expectation of a scope of vision sufficient to accommodate and contain the modern changes in weaponry even despite such a signal by the twenty dollar clause of the seven amendment? That is especially true when you think about how the second amendment is ,to the best of my knowledge, the only one that started with a justification or explanation. Who knows? May be that clause in the seventh amendment was an intentional signal to the future people to pay attention to what is at their time and follow intelligently.

Both the "arms" in the second amendment and the "twenty dollars" in the seventh amendment are related to things that change in relative significance to its own type with the passing of time , devices and money ,respectively, but you chose to treat them very differently in following your constitution. [(Added 11/11/213) If you think that changes in the way people live made that twenty dollar a trivial amount between then and now then the advancement in science and technology and their effect on the making of weapons between then and now made guns even more trivial in comparison to the kind weapons held by a military.

In addition, the twenty dollars value in that seventh amendment was not justified by a reason for its necessity or importance and you yourself chose to measure its value in today's world. The right to keep and bear arms in the second amendment, on the other hand, was justified by the purpose of militia creation. In other words, those who made that amendment gave you that reason as a measurement target so the amendment itself is calling on you to think about the effectiveness of that right for the purpose for which it was intended even if you do not want to choose to do that on your own.

[(Added 11/12/2013) One very important difference which I cant skip pointing it out directly between the right to keep and bear arms of the second amendment and the right to a jury trial for a value of more than $20 in the seventh is the strong sense of compromise the second amendment showed in creating that right despite the primitiveness of these arms at that time . That right is now being transferred for arms ,although much weaker and ineffective to face weapons of forces that are used in today's world to invade or establish dictatorships (militaries), are much more dangerous on the civilian life. There is clearly nothing anywhere close or similar to this compromise stated or can be seen in the case of the seventh amendment ]

[(Added 11/13/2013) " strong sense of compromise " in the paragraph above should be "struggle to reach that compromise"]
 Also, the view that money could change value was clearly out there and is not that hard to be reasoned at that time. The huge field of advancement in technology and science and in turn its effect on the making of modern weapons, on the other hand, was not even close to be seen or something reasoning at that time can reach. You may underestimate these changes because you are accustomed to it but imagine asking someone at that time how foreseeable these changes were to him. That is why it is considered an interesting thing if we find someone who predicted some of the devices we currently use even if it is in a general manner.

I think that it is hard to ask for a better sign from the time the constitution was made telling you that you are exaggerating your dependence on the intention of those who wrote the constitution to have their vision fit changes beyond their time like that of the changes in the technology and science of weapon creation between then and now than that twenty dollars clause]

By the way, according to some source I read even if you adjust the "twenty dollars" for inflation it would lead to ,according to what I remember, less than $7000 and that is still very far from the current requirement of $75000 for federal diversity jurisdiction.

[(Added 11/12/2013) Also, it was decided that the seventh amendment does not apply on the states while, on the other hand, the second amendment was applied on both the federal and state level despite using the state unit in the reasoning contained in it]   

Let me try to express more clearly what I meant in the first part of the previous post with this example. If you notice , from far away, that a toddler just fell in a pool and you shout to its parent who was busy with something else to notice that then in a normal reaction no matter how much that parent appreciate your notice that appreciation would not take any part from the seriousness of  his/her effort to correcting the situation.

I don't feel the same balanced reaction here. I don't feel that the main matter here is far enough from being taken as a game where even things that are of the notice kind of this example are not themselves being used to at least partly eclipse the gravity of that main matter and that the view to the human value of the victims in comparison with those talking about or dealing with this matter is not reduced to be closer to that of a thing making the occasion.      

Taking this like playing a game

It seems to me as if this subject is not being take seriously even by those who may appear closer than others to what I say here. It seems to me as if even many if not most of those closer than others to my position here are taking this like a game where the gravity of the situation as it relates to the victims are abandoned and replaced by positive feelings toward those who point out this deadly gun mess in this country. What is secondary should never eclipse and used to avoid the main thing and the death of the victims should never be used as an occasion where these secondary things become the main thing.That may show that while outside they appear against what is going on, inside they still take this as a game just like those on the opposite side.

Another thing that may support this view is taking the standing against gun violence against the innocent in this country as a humanitarian thing. This could imply that either gun ownership is a natural thing in reality and not something superimposed on reality in this country. And/or this could also imply that being a victim of gun violence is a consequence of being less fortunate in something from nature or failing in what others had succeeded but they care, like a philanthropist rich man looking after some poor people, and not that in many situations with gun violence the difference between being and not being a victim is just pure luck and not because of any nature or natural reasons.

Also, another big difference is that, except for acknowledging the guilt and injustice suffered by those who were the victims, those who are still living and not yet victims of gun violence are actually doing things for themselves not the victims when they work on correcting this mess.As for the victims, the guilt is already established and may belong to all those who support the continuation of this mess in  this country.