The reference argument - 3

I have this question

If  the text of the second amendment was part of something other than the constitution would the word "being" be taken with more probability that it refers to that time ?

If so, then it is something that I, at least currently, cant understand.

The same thing shouldn't be interpreted differently based on its source except by how much being part of that source had an effect on the intention of the originator(s) of that thing. The general applicability of the constitution shouldn't be applied in a way that precedes understanding the intention to modify it. The fact that the applicability domain of the constitution is all time doesn't mean   that everything in it was necessarily  directed to apply in a general unlimited way (and even more so not with things that lack that feature only in their direct application as is the case when the word "being" in the second amendment is taken to refer to the status of things at that time).         

The reference argument - 2

I wonder about what mindset would look at the "being necessary to the security of a free State" and can easily conclude that an intention to reason with the reader instead of directly imposing it as a fact is not THE substantial probability here or at least a substantial one. In fact, even if the second amendment came in the form:

Because a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed

which I don't see it as always equivalent to the original because it omits the potential significance of using "being" , One still cant avoid seeing that as a probable intention if not the main probable intention. What if you tell a friend:

Because A has the best degree and experience in heart surgery, I advice you to choose him to perform the heart operation on you.

Is it your intention that your friend should take the first part as an always true absolute fact and let A do the operation on him even if real world outside clearly shows your friend that A don't even have a medical degree? So why would you assume less from those who made the second amendment?

It is not unusual if not the most usual for things like the beginning of the statement above to be intended to remain under the control of what reality outside proves to be the case. That probability is even increased more with the potential intention behind the word "being" to refer to current status of things at that time. Also why would those who made the amendment need to impose thing as a fact in this way when they can do that with the direct clear cut form they generally used in the constitution using the power writing a constitution gives? If they wanted to impose the "being necessary to the security of a free State" as an absolute fact that always remain true no matter what changes in the outside world and what the outside world shows indicating otherwise, why would they bother themselves to take that long path to reach the same end result? They could have directly stated only that "The right of the people to keep and bear Arms shall not be infringed". So why take this longer path? Just to reason a rule they made using another thing that itself should be taken as always an absolute fact independent of reasoning related to the world outside? Even worse, imposing some notion to be taken as true regardless of reality outside is much less mentally digestible than a rule without any explanatory reasoning.

If there is a place in the constitution for something that is to be taken as always true regardless of what is in the outside world then certinely it should be of the kind of those listed on their own like much of what is in the other amendment rather than being part of the reasoning for other things. What prevented making the amendment in this form:

A well regulated Militia is necessary to the security of a free State. The right of the people to keep and bear Arms, shall not be infringed.

Or if they wanted to emphasis more the connection they could have also added something similar to this to the beginning of the second sentence

For a well regulated Militia,..

(clearly this just a simple example and those native speakers at that time are much more capable in expressing things than the one with English as a second language writing this) :

Couldn't they find a space for that in the already too short bill of rights?

One more thing, if everyone was agreeing on the right to keep and bare arms and that right was so widely accepted as the court pictured things in the District of Columbia v. Heller case then for whom it was thought that the reasoning in the first part of the amendment? Doesn't that suggest that future people were more the target audience in mind for that reasoning? If so, then wouldn't that reduce the probability of taking the risk to use the word "being" despite the possibility that it could be understood to refer to the status of things at that time unless it was intended?

Notice that there could also be a strong argument against taking that part as an absolute always true notion regardless of the intention behind it because of the dependence of those who made it on things that have gone through a path of huge changes to our time making them far beyond the reasonable capability to be predicted or accounted for at that time.

The reference argument

I may expand more on this argument later but I want to make this version of it first. I am interested to see how the opposing side answers it.

First the text of the second amendment

"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"

Those who think that the second amendment still lead to same application result on our time need to do one of the two options below:

1- Sufficiently prove that " being necessary to the security of a free State" part was meant as a fact to be taken always as true instead of being intended to support itself as a reference to the status of things in the world.

In other words how can they prove that part was intended to directly create a rule for the reader to follow and not passively communicating the status of the need for militia from the outer world and referring it to the judgment and reasoning of that reader? Why is it taken as a forced fact instead of an invitation to look at the world and apply the correct judgement? After all, that part belonged to the reasoning section of the amendment.

There are many situations where a speaker intends only to reference what is outside and use it as a judge or measurement instead of himself imposing it on the listener . For example if you tell a friend who cant afford a plane ticket and wants to travel to a city thousands of miles away:

A car, being your best option, I think you should travel using your car.

Are you in this case suggesting to your friend to refuse a plane ticket even if given to him at a price he can easily afford? Clearly NO. By stating that a car being the best option you were simply referring to the status of things in the outside world and using it as the measurement or the judge to determine the correct path without any intention to claim it as a fact that stands on its own without support from the outside world. In other words, it was a statement intended to be dependant on support from the outside world to be correct.

It is not unusual for the word "being" to be used in similar statements to replace a subjective representation of the speaker with a pass through representation for the outside world by the speaker. In fact, examples of this kind seems to be much easier to find than the other alternative.

 

2-Sufficiently convince with reasoning that the militia is at the level of necessity meant in that amendment for our time for the purpose mentioned (the security of a free State).  

Going back to #1, notice how the interpretation mentioned seems stronger and fits much better in the whole picture.

A possible argument that "being necessary to the security of a free State" should be understood to have been intended to be subjectively imposed as fact regardless of its conformity with the outside world because it should always apply since it is part of the constitution which was not written for a limited time is wrong because:

First, the general applicability of the constitution cannot supersedes the intention of those who made that part of the constitution in question if they intended to limit it .

Second, this seems to be a crude way to take the general applicability of the constitution since the amendment would still have a general applicability with this interpretation. General applicability does not imply always leading to same result. With this interpretation the second amendment would still apply every time except that the "being necessary to the security of a free State" would act like a conditional factor that may lead to different end results.

[(Added 12/11/2013) Based on the possibility that the "being necessary to the security of a free State" references the reader to the outside world to make the required judgment instead of supplying that reader with that judgment as a fact, the text of the second amendment applicable to our time is equivalent to:

(When/if/as long as ) a well regulated Militia is necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

How then those who made the second amendment did not use (when,if..) instead of "being"?

Because, adding more direct emphasizing on their current time does not harm the general applicability of the statement. In addition  that direct emphasizing on their current time using the "being" word served as an indirect indicator that they are not claiming that a militia may be "necessary to the security of a free State" outside the time of that "being". In other words the statement still apply to all time either directly as in the time of that "being" or indirectly through contrast by omission although it may lead to different results.   
 
Notice that in the earlier part  I missed to add to the argument needed to be proved by the opposing side in #1 that the timing intended  by the intention it claims  should have been permanent or at least sufficient to include our time. Otherwise, one could assume, while still not satisfying the opposing argument requirement in #1, that "being necessary to the security of a free State" was intended to be imposed as a fact not dependent on judging the outside world for that time while the use of  the word "being" also signify dependency on the outside world for the future implementation. It would be as if  they were saying:
The future will depend on seeing and judging the outside world but we saw and judged our current world and because of that we establish it as a fact that a militia is necessary to the security of a free State in our/current time]
  
  

District of Columbia v. Heller - 4

The court says:

"The debate with respect to the right to keep and bear arms, as with other guarantees in the Bill of Rights, was not over whether it was desirable (all agreed that it was) but over whether it needed to be codified in the Constitution"

This actually seems to stand against the court position instead of with it or even being neutral. That is because if all "agreed" while at the same time differed on whether it needed to be included in the constitution then it clearly suggests having the view of not wanting it to be taken and applied on a generality of times and situations like the other amendments and the restriction of not mentioning it by itself but only as part of another purpose seems to complete the picture here as an extension from that view.

It doesn't matter much that the court says that the same debate happened with other guarantees in the bill of rights. For those rights ended mentioned as unqualified or unrestricted stand alone rights unlike the keeping and bearing of arms and how that fits with the view mentioned above.

In addition it seems that two reasons comes to mind for agreeing to something but not wanting to include it in the Constitution. Either it is seen as too basic or it is not seen as sufficiently apply or needed for current and/or future times and situations. While the argument of being too basic can still be made for not wanting to include other things that came in the bill of rights in the constitution like freedom of speech or due process it cannot be made for the keeping and bearing of arms. That is not only because the right for that later thing seems to be clearly at high level not sufficient for that claim ,no matter how significant is this argument, but more importantly because the constitution itself significantly weakened or entirely abolished the capability for making that claim. That is because mentioning the right to keep and bear arms reasoned for [(Added 12/2/2013) by] the existence of a necessary militia stands very strongly against that the view for not wanting to include it in the constitution was because it was seen as too basic. For that claim it make things much worse than not mentioning that "right" altogether.

Going back to the beginning, otherwise without the view that a right to keep and bear arms may not apply to or be needed for the future as it did for that time what could have prevented them from declaring it as a basic right on its own the way they did with things like the freedom of speech or the right of the people to be secure from unreasonable searches and seizures?

There are things in the bill of rights that clearly cant give the same power of excuse for a government to take them away than that of keeping and bearing of arms, yet, unlike them it was not mentioned as a basic right on its own. It was only mentioned as part of a statement about the militia being necessary. In fact, all the pre bill of rights historical examples cited by the court about how firearms were taken by rulers and governments as part of an effort to control people to establish tyranny and their suggested effect on those who made the second amendment (and the bill of rights in general) also support more the argument here and back fire on the position of the court itself because the keeping and bearing of arms was not mentioned as a stand alone basic right like others in the bill of rights.

Notice how those who made the amendments of the bill of rights did not shy away from dealing with things that do not seem necessarily worthy of mentioning for future restrictions or regulations as other things in that bill. One seems to be ready example of that is the quartering of soldiers of the third amendment. They also do not seem to have been always shy from extending a rule taking what was at their period as a base as seems to be the case with the jury trial right for a value of more than $20 in the seventh amendment. Yet despite all that, the same people who accepted that the value of $20 dollars be also the measurement for future times (or were more concerned about fitting their time and counting on future people to do the same) when it came to the issue of keeping and baring of arms they acted as if they said:
Oh, wait a minute, we are not going to mention that on its own as a stand alone right like other things in this bill.

That clearly shows a different picture from that the court wanted to show.

Again, as much as the court try to strengthen its position by speaking about the significance of history examples of taking away firearms on those who made the bill of rights as much as it is weakening its application of the second amendment on our time because the keeping and bearing of arms was not mentioned as a stand alone right like other things in the bill of rights. [(Added 12/2/2013) In other words, as much as taking away firearms in the history had its effect on those who made the second amendment but they still did not accept to give a right to keep and bear arms on its own without serving another purpose then as much as that suggests even stronger intention and determination on avoiding imposing that right where and when it does not fit various situations and future times

[(Added 12/3/2013) One could also say that as much as taking away firearms in the history had its effect on those who made the second amendment but they still did not give a right to keep and bear arms like other rights in the bill of rights without assigning and restricting it to the purpose for which they declared it as a right as much as that suggests even stronger intention and determination on avoiding taking it as a basic right applicable to various situations and future time]

Now lets take a more detailed look at the picture to which I referred in the first paragraph here as it relates to the argument that a desire to have a right for keeping and bearing arms while at the same time differ on whether it should be included in the constitution suggests having a view suspicious of how that right may fit future times with varied situations.

What would you do when you feel you are making a decision based on some special environment and circumstances and you worry that others may try to apply your decision on situations for which it is not suitable? One path that seems to come first to mind is to tell your story when you mention your decision. Those who made the second amendment did something very similar to that. The second amendment is the only one I know of that intentionally shows not only the end result but the process through which that end result was reached.  It was the equivalent of saying we don't know about your situation; this is what we have in our time and because of which we gave that right. See how that fits with the view just mentioned?

If you want to expand the picture to the whole bill of rights you  may see a similar statement stated through things like that of giving the right for jury trial for a value of more than $20 in the seventh amendment .

While that seems to apply on also how the court seems to take the relationship between the process part and the result part of that amendment, you can even fit things deeper and see more details of that picture if you think about how the use of the word "being" may reflect an attempt to tell about what was being found and understood at that time rather than an attempt to impose a notion (that a militia is necessary) on the reader.

Those who made the second amendment and the bill of rights in general not only intentionally showed a process and end result for the second amendment but also showed that they did not care to apply the same thing on any other amendment in that bill]

 

District of Columbia v. Heller