Home | Notes
Contributors
Archives | Search
Links | About
contact:
editor@ExileStreet.com
..........

.........

.........

.........

Ralph Peters
Latest

Wars of Blood and Faith
Ralph Peters

..........

Conservatives Are From Mars, Liberals Are From San Francisco
by Burt Prelutsky
..........

..........

FROM THE PHONE BOOTH: The Smallest Space in  Hollywood

	FINEFROCK

The Intent of the Lawgiver:
From Abee Babee to Marbury Man
by Steve Finefrock - Hollywood Forum [scriptwriter] 11/30/07

SCOTUS IS COMING!
Hear the wailing?
 
The Second Amendment is getting a hearing after 228 years of convenient and incongruous judicial oversight.  All those decisions by all those judges hearing all those learned perfessors of law explaining how the ‘Living Constitution’ just happens to always suit the liberal interpretation of the basic governing document, the U.S. Constitution, yet has not fully visited the Second Amendment. Until this term.


Everyone loves Abe Lincoln – he’s liberals’ favorite GOPster, closely followed by T.R. [Teddy Roosevelt] for his trust-busting and environmentally friendly assertions.  “Hair” regaled ‘Abee Babee’ in one of its lyrics, but who knows what Abee Babee thought about the Supreme Court of the United States [SCOTUS in Secret Service parlance]? His first inaugural gives a few clues, worthy of noting as the coming case on gun rights works its way into briefs, amicus curiae and others, as well as oral arguments.

 
“[T]he intention of the lawgiver is the law” Abe proclaimed in triangulating on slavery and preserving the union.  In the eighth paragraph, he attempts to split the hairs on the issues which dominate the coming four bloody years.  A score of paragraphs later, he addresses whether SCOTUS should decide constitutional issues, per slavery and union of course, but with prophetic viewpoint:
 
“[T]he candid citizen must confess that if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”


Much of Abee Babee’s locution is circuitous, as he tries to square a circle of controversy over the question of a ‘perpetual union’ that cannot be broken – ignoring the perpetuity assumed by England with all its dominions, and the Articles of Confederation which was also one of “Perpetual Union” [in its very title] and yet was set aside by the Philadelphia convention’s document of 1787 after less than a decade of that perpetual union’s insufficiency. The question not raised, much less addressed on the Constitution’s terms and conditions, was that of a CONTRACT – what was the actual contract of the first eleven ratifying states?
 
Only eleven you say?  Yes, North Carolina ratified only after the first national elections of 1788, joining just in time for Washington’s April 1789 inaugural, with Rhode Island continuing its spoiler role and belatedly ratifying in time for the first mid-term election cycle.  What was the understanding at the time?  The 'intent’ of the lawgiver is the law, so the intent of those who gave our Supreme Law its life by ratification was the core question, answered by blood and treasure and a century of lingering resentments.
 
The first ‘Article Five” amendments came as twelve proposed amendments submitted to the thirteen states by the first elected constitutional Congress, of which ten were duly ratified by sufficient states’ legislatures, to become the Bill of Rights, and one of the two ‘orphans’ eventually was ratified by Michigan in 1992 to become #27 – the twenty-fifth such “Article Five Amendment” after the Second Amendment’s special language now before the Court.
 
What was the ‘intent’ of those lawgivers?  And that of the subsequent states’ ratification of the in-place law when they joined the Union?  Twenty amendments ratified since the ‘right to keep and bear arms’ was put into our basic document – a lot of amending along the way, plus thousands of Court-interpreted ‘amendments’ in those two centuries, with only a vague 1939 decision comprising the lone pronouncement by SCOTUS on what that right to ‘keep and bear arms’ means.
 
“Prefatory” and “operative” are two key terms in the pending case, labeling the two halves of the Second Amendment: “A well-regulated militia, being necessary to the security of a free State” versus the operative language after the second comma, “the right of the people to keep and bear Arms, shall not be infringed.” So what was the ‘intent of the lawgiver’ in the body of Congress and the ratifying states?  And of states’ joining the union in subsequent generations, thereby ratifying the existing documents?
 
Does the prefatory language limit the right of “the people”?  Does its reference to a militia limit the people to a right only as members of that militia?  The 1939 decision gives little guidance.  Much ‘research’ of late – by liberals almost exclusively, save for John Lott’s careful statistical methodology – has been tainted, especially examining probate records of the colonial and early constitutional era for the ‘intent’ of society then as expressed by property conveyed by will to survivors.
 
The famous, or infamous, Bellesisles ‘research’ was phony, so his conclusion [that there were few guns owned by individuals, and most were of poor quality] is of no value – save to show how far lying liberals will go to pursue their interpretations.  Perhaps the debate of the Congress when constructing the Second Amendment might be useful, as well as post-Federalist Papers intellectual descendants: op-eds and other expressions in the public debate in states during ratification, and state legislative debate records for the same.
 
Unique among Rights language is the prefatory phrase, unknown in any other amendment; it seems to express an express congressional concern that the purpose not be misunderstood.  There is no equivalent in the First Amendment, such as: “The need for a robust press and public expression of contrasting ideas being necessary to maintaining our rights and a proper republic, freedom of the press shall not be abridged.”
 
No prefatory language such as this example was deemed necessary and proper – nor for any other right.  Only regarding firearms did the first Congress feel compelled to put prefatory language inside the amendment itself.  Subsequent Congressional amendments submitted for ratification had no equivalent prefatory expression. Why in the Second, and not the First, or Third, or the others beyond the Second’s unique concern?
 
A key may be in the term “regulated” – seized by liberals to mean burrocratic regulatory imposition upon individual freedom.  But the concern, as a military master of the time – and historians since – will tell the Court is that one who is self-disciplined thru experience is thus self regulated due to familiarity with the weapon, and not as likelly to be seized with careless behavior or ineptness.  Regulation of masses of men firing blackpowder fusillades, sparks flying, smoke obscuring, fear arising required considerable levels of personal self-regulation borne of familiarity with the noxious smell, returning hostile musket balls, and cumbersome reloading protocols.
 
To the movies we can see something akin to that world, in “The Patriot” when the ‘tweener boys fire at the Redcoat patrol to cover dad in rescuing their captured oldest brother.  They ‘know’ their weapons, thus can ‘aim small, miss small’ because they’ve acquired the ‘regulation’ of shooting game, making the best of expensive gunpowder and lead, and bringing home the bacon to the family dinner table.  Seeing the rampant fear in their faces shows how un-regulated aim of those guns, by boys or men not earlier familiar with the weapon, would be as useless as a blindfolded child swinging at a birthday piñata.
 
Without dad standing over them, they are essentially alone yet ‘regulated’ by long experience at loading, firing, reloading, and other subtle familiarities which another movie, “Sergeant York” demonstrated: a backwoodsman with instinctive grasp of a more powerful and complicated military weapon, adapting from his game-hunting life before donning an army uniform.  Regulation in the Founders’ minds wasn’t burrocratic, but performance-oriented.
 
Thus, a well-regulated [and more effective, and efficient] militia was their goal by virtue of individuals owning, using, cleaning, repairing, and benefiting in a personal manner on a daily basis as part of their everyday life.  Long before showing up for a militia training event. Even if urbanization changed that circumstance in subsequent generations, the right did not diminish.  No more than speech or press or assembly is diminished because of crowded cities – which already were problematic in such memorable earlier occasions as the Boston Massacre, caused more by the crowd’s anger stoked by Samuel Adams’ agitations, and crowded street confinement, than by the Redcoats themselves.
 
Ironically, the left argues that this particular right must be abridged in crowded cities, but maybe can be less limited in the open areas elsewhere – the new ‘position’ adopted by Rudy Giuliani.  Yet the left cannot abide by any limitation by the Patriot Act of any right of any kind whatsoever.  Apparently street thugs in the capitol are more a cause for suspension of rights than Osama bin Laden or Hamas.  Strange views, but then liberals are long experienced at advocating one set of rules for one set of fools, and different rules for the fools they wish to defeat at the polls, and in legislative initiatives.
 
While there are fewer and fewer Sgt. Yorks to recruit into military or militia service, the intent of the lawgiver(s) at the time the law was given – the Second Amendment – and of the ratifying legislatures is the law.  Abee Babee himself said so.  And it is the only way to ‘interpret’ a law over the centuries. Any other pathway requires an amending amendment to be submitted to the states – the ‘Article Five’ method which honest liberals once practiced, such as the income tax, popular election of senators, women’s suffrage, Prohibition and in the repeal of Prohibition by a new amendment, the 21st.  No Court found “emanations” to simply ignore the 18th Amendment – the liberals hadn’t schemed that strategy yet, since they had the FDR-led majorities necessary to do it honestly, without contriving Court packing schemes.
 
These are but a few of the arguments and thoughts and tactics due when the pleadings are made, and they will be numerous.  Riding on this is a chance to clarify the lawgivers’ intent, and the notion of whose intent should be the law – them that gave it, or them that’s interpreting it via emanations and penumbras – along with examining why the first Congress inserted a prefatory clause in the first place.  Maybe they suspected a few emanations over the horizon!
 
Congress as well as the Founders in Philadelphia worked hard to find exact wording – in Philadelphia a special committee labored at length on these matters, as did the Continental Congress in finalizing Jefferson’s wording for the Declaration of Independence – and that wording deserves our respect, and honor of their lawgivers’ intent.  The Lawgivers were the ones who wrote the law, and their intent should survive any liberal designs which go beyond designing specific language in a specific amendment to be submitted by the specific manner prescribed for 3⁄4 of the states to ratify such specific language. After open, rousing debate in the state legislatures, elected by the people as their buffer and advocates in any Fifth Article procedure.
 
Until liberals replicate their 18th/21st amendment methodology, the 2nd Amendment should remain the province of the lawgivers’ intent – the language such as ‘militia’ and ‘regulated’ should survive from 1791 to 3091 and beyond.  Unless liberals write the proposal and get the requisite two-thirds of both Houses of Congress, and three-quarters of the legislatures of the states to assent.
 
Otherwise, the right to keep and bear arms is an INDIVIDUAL right. Even in the crime-infested center of idiocy which is currently our national pride-&-joy, Washington, D.C., as well as NYC and Philadelphia and Chicago and Los Angeles.  If liberals insist the 2nd can be suspended for ‘crisis’ reasons, then next they should endorse and applaud the Patriot Act and all similar ‘crisis’ empowerments of the president and attorney general.
 
Just one rule for all fools, in all branches, at all levels, and in all populations of whatever size.  The intent of the lawgiver is the law – Abee Babee said it 146 years ago, and his concern that “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal” will have gone far beyond even his wildest remonstrations against overweaning power of judicial jacobins.
 
Fortunately, the jacobins are in a minority in the Roberts-Alito-Scalia-Thomas court.  A properly composed decision could be the unique descendant of Marbury v. Madison: establish principals and language for leveraging our rights back to their original intent, with the emanating benefit of subsequent decisions quoting this precedent-setting opinion.  That would be one small step for this a particular court case, and a giant leap for original-kind.  The wailing you hear is the liberals’ well-founded fear that a New Marbury is coming down the pike – composed and constructed and construed by some very bright men, two of them brought to you by Dubya, chief among that pair being the Chief himself.
 
Such a success would make Roberts the Federalist Society’s “Marbury Man” – maybe a new award or title by Federalists and CATO and Heritage Foundation, a triple-threat appellation granted by three conservative think-tanks, designating this first [hopefully, more to come] New Marbury with the Marbury Man Award in subsequent decades.
 
If the Parker case is construed with the shrewdness which the Chief possesses, akin to that of the so-called Great Chief Justice himself, that Eminent Tribunal will have constructed ‘established law’ within a realm left mysteriously undisturbed by two centuries of judicial plowing over the other acres of constitutional interpretation.  This virgin field can make new law in the new century that is the third century of our republic.  The ‘Living Constitution’ will have acquired a new body part – the concern for the Lawgiver’s Intent, the original lawgivers’ intentions.  And resuscitate the original notion written clearly in the Fifth Article of the Original Constitution: amendments should be by the legislative branch, not the robed Robespierres.
 
Strictly speaking, the Executive has no role in amendments, either in the nation’s capitol or the states’ separate capitols.  Only the national legislature has a role in submitting a proposal, and only the states’ legislatures can ratify.  No governor, no president, no city mayor has any formal, constitutional role whatsoever.  So how did the judges get involved?


This 2nd Amendment case could be the shoehorn we’ve been seeking, to get the right fit, and a right fit, back to our national judicial direction. Let’s hope this potential Marbury Man gets a good majority and excellent language and convincing compliance by the inferior courts.  Originalism has hope in this case.  What a revolutionary idea: the intent of the lawgiver is the law!
 
That’s the kind of “established law” I’d like see established in our body politic.
 
RE-LOAD! ExileStreet

copyright 2007 Steve Finefrock

§