Friend, attorney and Second Amendment activist Peter Mancus has turned up an interesting case in his research, Capen v. Foster, wherein it was declared:
"Now," Peter writes, "think in terms of the Second Amendment and how it ends, '...the right of the people to keep and bear arms, SHALL NOT BE INFRINGED.'
"My point(s): 1) The Second, by declaring that this is a right that belongs to the people which shall not be infringed, conferred a right which 'designated the manner in which that right is to be exercised,' namely, it may be exercised to the fullest, without regard to time and place and mode restrictions; and 2) Based on that, and a ton of Rules of Constitutional Construction, e.g., no word or phrase is surplusage and all words and phrases must be given full weight and read in context, etc, no legislature has any constitutionaly legitimate power to impose a prior restraint against the exercise of this right; 3) The Congress and State legislatures retain the legitimate power to punish a civil negligent or criminal abuse or misuse of this right but they cannot, per the US Supreme Court, treat 'the right of the people' and/or 'shall not be infringed' as meaningless verbiage that does not impose meaningful limits on Congress or the State legislatures; 4) The Framers put in the Bill only that which they deemed to be important--fundamental, foundational; 5) The Second guaranteess, or at least codifies, a fundamental right that has always been binding against Congress and the States, from the get go, period."
I think Peter is on to something. I did have one concern that I wrote back to him about and urged him to address:
This reflects all too typical judicial arrogance and/or total misunderstanding of the purpose of the Constitution, i.e., to define the delegated structure and powers of the national government, and of the nature of the Bill of Rights demanded by the anti-Federalists.
The Framers understood rights to be “unalienable,” and “endowed by our Creator.” If they are “conferred,” they are done so by “Nature’s God,” not by a government document.
The Framers understood and held “these truths to be self evident, that all men are created equal,” which makes it impossible for one group to “confer” rights to another, as that, by definition, requires them to be bestowed from a position of superiority.
In fact, the view of government expressed here is exactly backward: Government is the servant. Government is conferred powers, bestowed from those in a position of superiority, i.e., the people.
So the Second Amendment does not confer to me any right to keep and bear arms—it merely articulates and recognizes that right, further stating it shall not be infringed. The limit is again on government, not on me.
So when you say: “The Second, by declaring that this is a right that belongs to the people which shall not be infringed, conferred a right which…” you are ceding this important concept to the enemy.
This is an important point and not mere quibbling over word choices. As you point out, “no word or phrase is surplusage and all words and phrases must be given full weight and read in context…”
I think your other points have much merit. I just think that this business of conferring rights also needs to be pointed out, and you shouldn’t fall into the trap of using “conferred” in your arguments, unless it is to point out the fallacy of the concept.
"[I]n all cases where the constitution has conferred a political right or privilege, and where the constitution has not particularly designated the manner in which that right is to be exercised, it is clearly within the just and constitutional limits of the legislative power, to adopt any reasonable and uniform regulations, in regard to the time and mode of exercising that right, which are designed to secure and facilitate the exercise of such right, in a prompt, orderly, and convenient manner;"
"Now," Peter writes, "think in terms of the Second Amendment and how it ends, '...the right of the people to keep and bear arms, SHALL NOT BE INFRINGED.'
"My point(s): 1) The Second, by declaring that this is a right that belongs to the people which shall not be infringed, conferred a right which 'designated the manner in which that right is to be exercised,' namely, it may be exercised to the fullest, without regard to time and place and mode restrictions; and 2) Based on that, and a ton of Rules of Constitutional Construction, e.g., no word or phrase is surplusage and all words and phrases must be given full weight and read in context, etc, no legislature has any constitutionaly legitimate power to impose a prior restraint against the exercise of this right; 3) The Congress and State legislatures retain the legitimate power to punish a civil negligent or criminal abuse or misuse of this right but they cannot, per the US Supreme Court, treat 'the right of the people' and/or 'shall not be infringed' as meaningless verbiage that does not impose meaningful limits on Congress or the State legislatures; 4) The Framers put in the Bill only that which they deemed to be important--fundamental, foundational; 5) The Second guaranteess, or at least codifies, a fundamental right that has always been binding against Congress and the States, from the get go, period."
I think Peter is on to something. I did have one concern that I wrote back to him about and urged him to address:
Main Entry: con·fer
Pronunciation: k&n-'f&r
Function: verb
Inflected Form(s): con·ferred; con·fer·ring
Etymology: Latin conferre to bring together, from com- + ferre to carry -- more at BEAR
transitive senses
1 : to bestow from or as if from a position of superiority (conferred an honorary degree on her) (knowing how to read was a gift conferred with manhood -- Murray Kempton)
2 : to give (as a property or characteristic) to someone or something (a reputation for power will confer power -- John Spanier)
This reflects all too typical judicial arrogance and/or total misunderstanding of the purpose of the Constitution, i.e., to define the delegated structure and powers of the national government, and of the nature of the Bill of Rights demanded by the anti-Federalists.
The Framers understood rights to be “unalienable,” and “endowed by our Creator.” If they are “conferred,” they are done so by “Nature’s God,” not by a government document.
The Framers understood and held “these truths to be self evident, that all men are created equal,” which makes it impossible for one group to “confer” rights to another, as that, by definition, requires them to be bestowed from a position of superiority.
In fact, the view of government expressed here is exactly backward: Government is the servant. Government is conferred powers, bestowed from those in a position of superiority, i.e., the people.
So the Second Amendment does not confer to me any right to keep and bear arms—it merely articulates and recognizes that right, further stating it shall not be infringed. The limit is again on government, not on me.
So when you say: “The Second, by declaring that this is a right that belongs to the people which shall not be infringed, conferred a right which…” you are ceding this important concept to the enemy.
This is an important point and not mere quibbling over word choices. As you point out, “no word or phrase is surplusage and all words and phrases must be given full weight and read in context…”
I think your other points have much merit. I just think that this business of conferring rights also needs to be pointed out, and you shouldn’t fall into the trap of using “conferred” in your arguments, unless it is to point out the fallacy of the concept.