Why so much insistence on "being"?

Why it seems that all versions of the amendment including those through the development use "being" when stating the necessity of a militia? If it is just an artistic expression why wasn't it changed?

If it serves the same purpose as ,for example, "is" or similar things why wasn't it replaced by that even in any suggested version through the development?

Even the initial proposal which stated

"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security.."  did not say that "..;a well armed and well regulated militia IS the best security..".

Clearly, seeing that something gets used that much  significantly more than what seem to be equivalent others pushes for thinking about the difference. 
What is the difference between "being" and words like "is"?

What "being" serves and what differentiates it from the like of "is"

is that it states directly only the existence of what is stated at the current time. It clearly does not state the continuity of what is stated. Instead , that continuity is dependent on the absence of changes. Otherwise, "being" clearly and strongly emphasizes that it does not contain any continuity in itself.

Such insitance on using "being" even more strongly suggests an intention to restricting the "necessary to the security of a free state" description to the time of making the amendment and opening the door for testing its continuity in the future.        

Why the comma before "being" in the Congress Version - 3

Another way to express that is to say:

The comma-less before "being" version of the amendment more clearly makes "being necessary to the security of a free state" a condition on a militia.The comma before "being" version of the amendment shows how looking for the satisfaction of that condition should be done. It does that through the use of the comma before "being". This comma changes the "being necessary to the security of a free state" from a condition to a fact. The generality that comes from stating "being necessary to the security of a free state" as a fact in comparison with stating it as a condition was not intended for the purpose of stating that it remains continuously true regardless of reality changes. On the contrary, the word "being" directly points only to the applicability of what it states in the current time. No, that generality is the result of an intention to state the origin of what makes a militia being "necessary to the security of a free state" is the general environment at the time and not the militia itself as long as it is "well regulated". 

 

Why the comma before "being" in the Congress Version - 2

One could also say that the generality created by the use of the comma before "being" was not to state the endless continuity of the applicability of  "necessary to the security of a free state" on a "well regulated" militia as the always true understanding of that part would imply. Instead the generality created by the use of that comma was to state the origin of  "necessary to the security of a free state" in a "well regulated" militia as being the general environment in which it existed and not  the "well regulated" militia itself.   

Submitting an Amicus Brief

Too bad, it seems that because I am not a lawyer I am not allowed to send the Supreme Court an Amicus brief if it takes a case that may involve taking a second look at the second amendment.

Is a seperate amendment based sufficiency argument necessary?

I noticed yesterday that even in my task of trying to make my case from the second amendment itself, it is not necessary to make a separate sufficiency argument from the amendment. Instead, my other argument that the "necessary to the security of a free state" did not come from the authority of writing a constitution as is the case with the do and don't parts of the constitution and was not intended to be taken as always true regardless of reality  would by itself allow considering the sufficiency part if it is understood to be a part of being "necessary".

Position of the operative clause - 2

In this post

http://druggedonguns.blogspot.com/2014/02/position-of-operative-clause.html

I argued that if the part before the operative one of the second amendment was not intended to restrict the operative clause and the operative clause always applies then the operative clause would have been placed in a much more needed position and fits much better at the beginning instead of the arrangement through which the amendment was expressed.

Today I noticed that such arrangement not only was not chosen but was explicitly avoided as it came in this initially suggested wording

"The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but..."

LINK

(more details in the Wikipedia article)

Why different versions of the second amendment were allowed?

AS you can see ,unlike the other alternative, understanding the "necessary to the security of a free state" as being reality dependent makes sense from both the version with and the one without comma before "being". It fits how each version served to concentrate on stating part of the purpose and shows how combining the two states  a needed whole. By doing that it also answers an important question it is not clear how it could be addressed using the other alternative understanding. That question is how is it possible to accept that those who put that much effort arguing and negotiating the details of expressing the amendment allows confusing people with two version that do not connect to or fit each other like that? I don't know if the change in other commas or capitalizations makes as much essential differences as the existence or absence of the comma before "being" but I know that  understanding the "necessary to the security of a free state" as being reality dependent provides a way, if not the only way, to at least solve that part of the puzzle. After all, remember that the change in the wording of developing the amendment from September 4 to 9 of same month in 1789 which I spoke about in a previous post shows clearly that attention was being paid to the existing commas and in the case of the one before "being" it is a very remote probability that with that attention the significance of its existence or removal was failed to be recognized.

Raising that point reminds me of a related similar one I thought about earlier. How much does it fit to think that those who even refused to allow the government to support the establishment of any religion would in the same bill establish a concept in the reasoning (or clarifying as some may like to call it) part of the second amendment with the intention for that reasoning or clarifying part to be taken as a fact that is always true to begin with? Where else in the entire constitution a concept was intended to be forced in the same way?As I said earlier, the purpose of a constitution is about do and don't not forcing concepts. 

 

Why the comma before "being" in the Congress Version

I think that there are overwhelming signs and evidences that the first comma in the congress version of the second amendment was intended to make stating "necessary to the security of a free state" from the authority of reality rather than that of making a constitution. Nevertheless while it may not be required, it would still be better if the benefit of the comma can be seen.

It seems to me that one of the big benefits of the first comma is that it directs thinking for evaluating the necessity of a militia (and that includes its sufficiency) to be on the basis of the existing environment  at the time  and applying generally on  any "well regulated" militia there rather than about a specific militia creation. That was emphasized more with the use of "being" instead of ,for example, "which is".

In other words the comma version shows that although the comma-less version makes the "necessary to the security of a free state" a requirement on the "well regulated" militia, satisfying or not satisfying that requirement actually dose not come from the militia itself and is not dependent on any specific structure or composition (other than being "well regulated") but is dependent on the  environment and  leads to one end result applying on any variation of a "well regulated" militia the same way.

"being the best security"

Several days ago I made a post about finding how the relative comparison "best" was changed to the non-comparative word "necessary" and how that provides even more support for the argument related to the need for the sufficiency of the militia in our modern weapon world.But then I found out that change was not direct and there were other middle step(s) so I deleted the post since it was still less than 24 hours old.In this post I am going back to that point again.

We can see that the "being the best security" description for the militia started early in the process of making the amendment. That continued from June 8 1789

LINK
to September 4 of the same year as shown by this Senate version:

"A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed"

LINK

(click "PREV IMAGE" to see the date of "FRIDAY, SEPTEMBER 4, 1789")

Assuming that I am not missing other intermediate step(s), that was changed also by the Senate in September 9 of the same year to:

"A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed."
LINK

(click "PREV IMAGE" to see the date of "WEDENSDAY, SEPTEMBER 9, 1789")

As you can see the relative comparison "best" was removed and replaced by a condition related to satisfying "being the security" expressed through the removal of the comma before "being". In other words we again reach similar conclusion related to the sufficiency of a militia similar to the earlier one that was missing this intermediate step.

Notice how that was supported again by the ratified version.

If one hesitates to use the word "removal" and instead try to be content with "omission" with the ratified version,this was a pure intentional removal for the comma before "being".

Now we see that the "being necessary for the security of a free state" in the Congress comma version being clamped from the development side by the same congress before making the amendment then later by the interpretation side through the ratified version after making the amendment as being intended to be reality dependent instead of always true.  

All the related data and links were found through the Wikipedia article about the second amendment.

http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution  

The Ratified Version of the Second Amendment - 3

One could also say that the ratified version makes it clear that the stating of fact in saying a well-regulated militia is necessary to the security of a free state comes from the authority of reality, which is available to anyone arguing for anything, and not the authority of writing a constitution. 

The Ratified Version of the Second Amendment - 2

I think that having two versions of the amendment can be a helping thing instead of a troubling thing when combined. With regard to the omission of the first comma in the ratified version, it tells us that whether a militia is necessary to the security of a free state or not is left to our good judgment and is not part of what we are required to follow in the amendment.   

The Ratified Version of the Second Amendmen

Notice that the text of the ratified version of the second amendment fits with my interpretation that the necessity of the militia was not intended to be imposed as a fact that is always true. It does that by omitting the first comma which is the only thing that indicates telling a fact (regardless of how was it intended to be taken).

Without that comma there doesn't seem to be any stating for the necessity of the militia as a fact .   

Instead the operative clause is connected to the beginning clause similar to the connection in this statement:

A car being ready to move, the passengers must buckle their seat belts.

Even if that statement is understood when stated to indicate that there is a car being ready to move that understanding comes from taking into account why the speaker is saying that not because the statement itself states that fact.

Even if I am wrong in saying that there is no stating for the necessity of the militia as a fact there, there is still a big significance in not emphasizing that with the coma. Instead what we see is that the reasoning connection being more emphasized in the text of the ratified version in comparison with whether facts at that time satisfies that reasoning. That shows what was being understood as the main intention behind the amendment. It is not just like any interpretation that came from that period because that is an interpretation that was accepted in as much as it was expressed as stated in the text of the ratified version of the amendment.  

Blaming the constitution

Initially I wanted to post this in a place where I am arguing for better access to the judicial system then thought that it can also serves a better purpose here.

It might has been well over a century since the second amendment became useless for the purpose for which it was created while its opportunity cost in terms of danger on civilian life became more and more significant. Nevertheless you continued your implementation of it blaming that on the constitution. Similar to how some claim serving a religion in order to satisfy some psychological issues, it seems that you continued this in service of your own psychological issues.

The court system in this country still acts like it is a century old or more when it comes to serving complaints on defendants and the related FRCP Rule 4. Courts and plaintiffs spends considerable time working for and arguing for serving the defendants in a complaint through methods and means that represented all the available communication means at those old times. Judges who are supposed to be able to evaluate the reasonability in things far from their profession implement this meaningless wasting of resources limitations that serves no reasonable purpose.Where is the reasonability when a defendant comes to the court to argue for dismissal of a complaint because he was not "served" according to these old methods even though by his coming to the court he acknowledges knowing about the complaint filed against him. In fact, instead of worrying that someone who did not appear was not served, courts work the opposite way. Courts take proof of service on its face and count the defendant as being served unless he or she appears to contest that service. 

Now let me ask you this: Did the constitution also tells you to do that? The "due process" requirement as it relates to the subject here is about making the defendant know about the complaint being filed on him regardless of the kind of the reasonable manner or mechanism used to achieve that. No, the constitution did not tell you to do that. But like the issue with the second amendment it shows fixation on old times to create an identity.

Not related to the main purpose of this blog

You want to assign some color or anything else to a cause you care about then that is your business. Otherwise I don't have a special affinity to any color and never had. Things started when a color was assigned to me and assumed to be my favorite because someone watched me put more effort to buy something in that color which is a discriminating action in itself because it did not take account for the normal human sophistication in that one may like something in one color and another in a different one. 

Position of the operative clause

If the operative clause of the second amendment was intended to always apply why bring it second instead of first? Why this form?

In demands or orders that can be expressed with short sentences and those for the do and don'ts as what a constitution is for, isn't it stronger and more expressive to put the demand or order first in the sentence or paragraph if the demand or order is always valid? That what seems to be generally the preferred path of stating always valid orders and demands in order to bring to focus the main purpose of executing things by stating what needs to be done.Why would one waste that and instead confuse things by stating first an explanation that always leads to the same end result for a text intended mainly for executing things like a constitution? What kind of execution or action is expected from an explanation that leads to a fixed result like that? In a text intended for execution, what could be missed if an explanation that always leads to the same fixed end result is not stated before the executable part of that text that otherwise could serve the purpose better if stated first?

In addition, assuming interpretations limiting or restricting the operative clause based on what came before it , like what I  argue for, were not intended by those who made the second amendment, they are still not all far fetched for them to be seen as things the thought of which did not occur to those who made the amendment. Starting with the executable part at the beginning would have greatly helped in excluding those interpretation because it would much more strongly suggests that the execution is not dependent on a condition. In other words, if the intention was for the part before the operative clause not to limit or restrict the operative clause then that intention could have been conveyed much better and with much less confusion by starting with the generality of the operative clause (or whatever equivalent to it) first and that part (or whatever equivalent to it ) second.   

[(Added 2/19/2014)  One could also ask this question: 
What end result action reading the entire second amendment shows as required to be done (or not done) and for which the amendment was made? It is the action described in the operative clause. 

Now, if you believe that the part before the operative clause do not affect the execution of the action in the clause then the end result action shown by reading the whole amendment and that by reading just the operative clause would be the same. Also, since the part before the operative clause do not affect the action in the clause, it does not need to be stated before the clause and knowledge of what was stated in that part do not need to impede the strength of stating what is in the operative clause and can be postponed to after the clause. So why would one weaken the strength of stating what is required to be done by making it flow through the part before the clause to the end of the amendment if it can be stated with more strength by simply positioning it first?Another avoidance of worse situation and gain of better one that comes with positioning what was stated in the operative part first and what was stated before it second comes from better avoidance of limiting or restricting interpretations,like the one I argue for, through better support for the generality of what is stated in both clauses with this arrangement]   


Why wasn't the second amendment arranged like this?

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

Or this?

    People shall always have the right to keep and bear Arms                 because a well regulated Militia is necessary to the security
    of a free State. 

Or simply reversing the first and second part of the form cited by the court as equivalent to the amendment like this?

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

 (It is not reasonable to understand in that the infringement is because the militia is necessary to the security of a free state. Also, if an opposing argument claim that was intentionally avoided then that level of avoiding misunderstanding could also be put for use against the opposing interpretation of the amendment)      

There are probably many other potential alternatives that can achieve the same purpose.

On the other hand,starting with the explanation,especially with its "being" form, then moving to the operative clause fits strongly with the intention of reasoning and giving the reader a measurement device to use. Seen through that understanding, the whole amendment from beginning to end shows an execution path to be followed starting from the reasoning path that should be followed to the application of the operative clause and that fits much better with the main purpose of a constitution in stating what needs to be executed and the do and don'ts of things. Arranging the second amendment the way it is allows selecting the path that would cause the executable part to come into effect.               

Let me be frank with you

I have maintained from considerable time ago that your acceptance and toleration of the second amendment despite how that makes no sense since the existence of weapons and army machinery of the thirties or even much earlier of past century comes from that same psychological need manifesting itself too much in this country which is finding an identity. Despite that I myself was not counting on finding anything to support my position against gun mess here in the second amendment so I did not acquaint myself with its text until probably a little over a year ago. Who would have expected that complex is not only behind surrendering and not doing anything against the situation but also the reason behind bringing the problem to begin with? So, when I read the amendment it was like a shock to me. Does it really say what it is saying and those people here still force themselves into this mess?

The part that mainly attracted my attention was the one in the middle stating "being necessary to the security of a free state". Nevertheless, I do not wish that I had read that amendment before the date of the case of District of Colombia v. Heller. Why? Because I thought so strongly the part quoted above of the amendment should have stopped the gun mess here that I thought the argument against the connection between the beginning part with the operative clause is the one I would more probably face until I read the opinion of that case which showed that I do not need to account for such possibility. But,Again ,despite having the theory I stated at the begging ,when I read the opinion of that case, only months ago, expecting to find what would reduce the shock of reading the amendment, I, instead became even more shocked with how weak it sounded to me. I could not find an answer to why the part quoted above was not understood to allow judgment based on the time in which one lives and in turn declaring that that amendment no longer fits its purpose with the weapons of our time and I am still waiting for an answer to why this clear thing was ignored.

          

"being" is about being- 8: Description not expressed through the described thing

When there is a permanent feature of something then it would usually be seen or considered as part of that thing. That is why when expressing the existence of that feature as a permanent feature of a described thing then the path of expressing that through the described thing is the most prominent one.    

 This is how the first part of the second amendment was written:

"A well regulated Militia, being necessary to the security of a free State"

It was not written as this:

A well regulated Militia is necessary to the security of a free State.

If the evaluation leading to the believe of the necessity of the militia in that part of the second amendment was not for what existed at that time and the intention was to say that the militia is always necessary to the security of a free state then why wasn't it described as a feature of the described thing like in the lower example above?

In the lower example above we see that the description stating the necessity of the militia was directly attached to be expressed as part of the described thing (the militia). That did not happen with how the related part was stated in the second amendment. Although the second amendment started by mentioning the well regulated militia, the description stating the necessity of the militia to the security of a free state was not expressed through the described thing and was separated from it. Instead, that description was expressed through the status of existence using "being" then through that to the described thing.Why would one use that path if he wants to express the necessity of the militia as a permanent feature of the militia? Why the necessity of the militia was not expressed as part of the militia if it was considered a permanent feature?

"being" is about being- 7:Left to you to decide

Although I myself wrote what came in the first post of this "being" series I did not notice how this simply follow from that despite its significance. Lets start from the beginning.

It seems that we can understand the use of the word "being" as always referring to the current status of that to which it refers then it may or may not extends from that in time. But what is this actually saying? What this is saying, in other words, that the continuation (or discontinuation) of the status to which the use of "being" refers is a characteristic of the thing to which "being" refers and has nothing to do with the use of that word. Still, in other words, the word "being" in itself refers only to the current status of the thing to which it refers while the continuation of that status depends only on the type of that thing. For example,you say:

The tree,being tall,...

Or

The tea, being hot,...

In both examples above, "being" refers to only the current status of tallness or hotness while the continuation of them depends on the thing to which the status or feature referred to by "being" belongs (tree and tea).

The same thing applies to the second amendment making the using of "being" in "being necessary to the security of a free state" only referring to the current status while judging the continuation of that status or feature was left to those who follow to decide based on what is in the real world.  

                                                                                                           

"being" is about being- 6: Referring to current existence with "being"

In "the reference argument" posts I spoke about the usage of "being" to depend on the existence in the world as the decider for the existence or absence of a stated fact. Suppose that a CEO of a company told his employee to deliver a message to another company then said:

-Mr. X  is the CEO of Corporation Y, deliver this message to him.

 Or

-Mr. X ,being the CEO of Corporation Y, deliver this message to him.

Which of these two statements could make the employee pay more attention to changing facts showing that X is no longer the CEO of that corporation and deliver the message to another person instead?

It seems that one could easily point to the second statement as the answer to that.

In addition to the general usage of the word as a guidance ,it seems that one can also reason that usage.

Both of the statements above came from the same speaker and referred to same current existence in the world. So why and how

could the second one satisfy the answer to the above question more than the first? That is because the difference is in the kind of authority supporting the statement. In the first statement the speaker was using his own authority to support that X is the CEO of that corporation. In the second statement on the other hand, the speaker is showing what fit transferring that authority to the existence outside and making himself more of a medium to transfer that authority to the listener. It is similar to when an author justifies his dependence on a fact by citing a reference for it .Except that, in the case of the author there is still an a direct authority exercised by the author in selecting that reference to represent reality. In the case of that second statement (and the second amendment) on the other hand there is what fits a direct transfer of authority to the reality in the world outside.       

"being" is about being- 5:An Example

What was mentioned in #2 of this being series in relation to the difference between application time and evaluation time is not far from the talk of daily life. Suppose that your friend wants to travel to a place he does not know how to reach. You know that your friend has no access to any other way like some other person with the required knowledge or a GPS system guidance. So ,recognizing what is available, you say to your friend:

A well detailed map, being necessary to reaching your destination, you should buy one before you leave.

Although the part that your friend should buy a map before leaving would still apply whether your friend will travel the next day or the next week or month, the reasoning based on which that suggestion was made was based on what existed at the time that suggestion was made. Therefore it is clearly understood that ,despite that there was no time limit on applying the suggestion to buy a map, whenever what caused the creation of that suggestion seize to exist then that suggestion will also seize to apply. In other words, your statement was equivalent to a more efficient "if" conditional statement that lists all the things that ,in combination or individually, led to the creation of that suggestion or the absence of  the things that could have eliminated the need for making that suggestion.

"to the security" not "for the security"

Notice needs to be taken that in previous posts I mistakenly substituted "to" with "for" in the part " being necessary to the security of a free State" of the second amendment. That substitution unnecessarily wastes the better way in describing the essential level of necessity of the militia in the amendment.That has a big importance to my sufficiency argument.

   

"being" is about being- 4 : Same thing expressed differently

I did not realize what I stated in #2 of this series ("being" is about being- 2: An Essential Distinction" ) until the date I posted it.So it shouldn't be a surprise if what I wrote previously do not fit with that. But that do not represent a problem or contradiction because it is only related to the forms of expressions I used not the content. In # 2 of this "being" series things were taken closer to their basic factors to help in understanding how the general applicability of the Constitution would fit. Otherwise, one may still chooses to express that side of the significance in using "being" with less granularity by using "time" to also include what satisfied "being" at that time and say that "being necessary to the security of free state" was intended for that time only.    

Second amendment interpretation argument outline

First, let me say that in case there is an inclination to mistake this, the argument that those who made the second amendment intended to reason with us the necessity of militia, although has a relation of supporting each other with the "being" argument, like I stated in a previous post, can exist independently of that "being" argument.  

In dealing with the interpretation of the second amendment I have been trying to make the following arguments:

1- The "being" argument.
2- The intention to reason with us (instead of forcing the believe) argument.
3- The sufficiency argument.

These arguments may be made to support each other or exist independently. Support for these arguments is being made in a fragmented way through posts made on this blog.

Also, do not assume that because I am arguing about interpreting the second amendment I think it sounds reasonable or makes any sense to continue to follow something that doesn't account for the difference in arms and weapon of that time and our time. No matter what the second amendment says, you are probably not less than seventy or eighty years late to changing the situation while the bloodshed consequence of that continued and the country became poisoned deeper and deeper with the spread of guns.But clearly one may not refuse also showing that the second amendment itself has cancelled itself if it is the case.

"being" is about being- 3 : A "because" Equivalent

A "because" equivalent to the second amendment from the side representing the significance of using "being" in time and reasoning would modify the substitution cited by the Supreme Court in District of Columbia v. Heller as this:

"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"

District of Columbia v. Heller

to something like this:

Based on what currently exist a well regulated Militia is necessary to the security of a free State and 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.

  

"being" is about being- 2: An Essential Distinction

I think that one thing that could impede understanding the potential significance of current time dependence or reference in "being" as used in the second amendment comes from not sufficiently distinguishing between two different things and confusing them as one. These two different things are:

1- The expression made in the second amendment in relation to the necessity of the militia:

I have no argument against the claim that expression was intended to apply on all time and the "being" argument I have been trying to make has nothing to do with that.

2- The expression made in the second amendment in relation to the EVALUATION for the necessity of the militia:

Here is the place of this "being" argument. The "being" ,as used in the second amendment, significantly suggests intentionally showing that although the expression related to the necessity of the militia could have been intended to apply on all time, the evaluation because of which that was made was intended to apply on that time.  [(Added 2/2/2014) one may express that last part better in this way: The "being" ,as used in the second amendment, significantly suggests intentionally declaring that, although the expression related to the necessity of the militia could have been intended to apply on all time, the evaluation FOR which that was made was made to what existed at that time.] [(Added 2/4/2014) that may be expressed better as:
The "being" ,as used in the second amendment, significantly suggests intentionally declaring that, although the expression related to the necessity of the militia could have been intended to apply on all time, the evaluation  because of which that was made was made FOR what existed at that time.] 

"being" is about being

I do not understand how "being" in the second amendment was understood to refer to an always existing status. "being" is about being.So it always refer directly to the current status. It is only when that status wont change with time that reference would indirectly expand to all time. The significance in that those who made the amendment were pointing directly to only the current status should not be ignored. They could have chosen words like "because" to make an all time direct reference instead of pinpointing directly to only their current time. 

It is not far from normal when people limit themselves to what is needed for their time and understand "being" to mean "because" but that changed to become no longer applicable a long time ago.       

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