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Old Aug 18, 12, 7:07 am   #256
 
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Originally Posted by nachtnebel View Post
By your reasoning, once automated presses came into being, none of the old conceptions of freedom of the press would apply because the technology is different.
No, not at all. What I'm saying is that how to apply it isn't obvious and certainly can't be viewed in a literal sense. When the only form of press is the printing press, "censoring" the press has a very clear and obvious meaning. But what's "press"? Is advertising a form of "press"? Can the government restrict whether corporations have the freedom to run advertising? Remember that the basis of the controvercial Citizen's United case on campaign financing is precisely along these lines. I just don't see how you can look at the First Amendment and say that its literal meaning could have been used to decide that case.

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That definition of course could extend to both machine guns and nuclear warheads which are both arms, but which due to the undesirability of folks having those, needed some other rationale, as expressed in US v Miller, as arms in the 2nd amendment sense being what someone would reasonably have if incorporated into a militia.
Precisely, but made worse by the fact that what was considered a "militia" then isn't the same as what we mean now. In other words, if you want to ask "is private ownership of nuclear weapons a right protected by the 2nd Amendment?", you can't answer that by looking at the literal language, but by trying to deduce what the Founders would have decided if confronted by that question. That's all I'm trying to say, that it's not possible to look at the Constitution literally: we have to interpret how its provision should or should not apply to situations never envisions by its authors.
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Old Aug 18, 12, 10:23 pm   #257
 
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Originally Posted by RichardKenner
Precisely, but made worse by the fact that what was considered a "militia" then isn't the same as what we mean now. In other words, if you want to ask "is private ownership of nuclear weapons a right protected by the 2nd Amendment?", you can't answer that by looking at the literal language, but by trying to deduce what the Founders would have decided if confronted by that question. That's all I'm trying to say, that it's not possible to look at the Constitution literally: we have to interpret how its provision should or should not apply to situations never envisions by its authors.
You are oversimplifying or overgeneralizing. In some cases, where technology has changed in ways that change the essential nature of the thing, a good case can be made for a reinterpretation by a historian familiar with the writings of the founders and 18th century American attitudes. This is not true in all cases. Only in a few limited cases. Clearly the founders were not thinking in terms of the immense destruction of nuclear weapons when thinking in terms of a 'militia'. So that's an easy argument for re-evaluation. Most arguments are not so easy. Most concepts in the constitution can be extended to modern technology pretty easily. Email is not fundamentally different from snail mail for instance. What is true for one should be true for the other, at least as far as government snooping is concerned. Horse-drawn carriages and horseless carriages are similar enough.

Bicycles were a 19th century invention, but I doubt the founders would regard their use as giving the government more power to regulate them. Skateboards and rollerblades would have seemed strange to people of the 18th century, but that doesn't mean that people who used them would have their freedom restricted. No one has invented a hoverboard yet, but conceptually it is really not much different from a skateboard. So no new regulation is required. OTOH what about teleportation? Still just a form of getting from point A to point B. Time travel? These are fundamentally different and impart great powers to the users of such advanced tech, but even so, it doesn't mean that the government has the right to forbid them. But some reinterpretation may be necessary.

Breaking into someone's home is already illegal. Teleporting into their home would naturally be just as illegal. Would it mean that the police can teleport into your home at any time because they weren't specifically forbidden from doing so in the constitution? I have no doubt the government would choose to see it that way and the supreme court would probably find a reason to agree, probably something to do with the fact that the constitution doesn't specifically forbid teleportation. Based on the modern assumption of course that anything not specifically forbidden to them is allowed.

One way to reinterpret is to posit magic. Sufficiently advanced tech being indistinguishable and all. A motorcycle becomes a very fast iron horse. A bus or train becomes a very long carriage which can magically propel itself without any horse power. An airplane becomes a large carriage pulled by flying horses and lifted by magic. A computer or the internet is a tough one. Perhaps the equivalent of an oracle, an omniscient creature with answers to every question. As far as I'm concerned the most important thing to consider about the founders is their political beliefs: the fact that being left alone by their government was their highest value. To forget this inconvenient fact is to disrespect those men in the greatest way imaginable. To spit in their faces.
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Old Aug 19, 12, 1:53 am   #258
 
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Originally Posted by RichardKenner View Post
No, not at all. What I'm saying is that how to apply it isn't obvious and certainly can't be viewed in a literal sense.
Why not? Let's review it:

Quote:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Do you see anything there making exceptions for political advocacy? I don't. Presumably they had political advocacy in those days.

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When the only form of press is the printing press, "censoring" the press has a very clear and obvious meaning. But what's "press"? Is advertising a form of "press"?
In those days "press" was some guy with inkstains on his face. Today, it can be someone with a computer, internet connection, and a web cam. We don't have to go through a Socratic dialectic to figure out that the modern person is simply carrying out the same press functions as the ink jockey. [edit add: not sure why you ask the questions of advertising versus press. those two activities are not the same, have not been confused, and are subject to different governing legal principles.]

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Remember that the basis of the controvercial Citizen's United case on campaign financing is precisely along these lines. I just don't see how you can look at the First Amendment and say that its literal meaning could have been used to decide that case.
Ultimately, the judges reaffirmed the force of those words. They didn't add to them. [edit add] although extending them wisely or unwisely to corporations. But I agree with you on that one. Not obvious and asking interesting questions on the nature of a corporate person and ramifications of persons being politically active in groups. [end edit]

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Precisely, but made worse by the fact that what was considered a "militia" then isn't the same as what we mean now.
Neither is a military unit the same now as it was in 1934 in the US v Miller ruling. Using Miller's reasoning, we'd all be entitled to M4's capable of firing in 3-round bursts today, because that's the baseline unit weapon today.

The militia clause, as pointed out by Laurence Tribe, is not the main clause of the 2nd Amendment establishing the right, btw. [edit add: this concession was made by tribe in 1999 when he said there was an individual right to bear arms apart from militia considerations]

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it's not possible to look at the Constitution literally: we have to interpret how its provision should or should not apply to situations never envisions by its authors.
If you have something for which there is no clear analogue, no clear line of descent from the times of the framers, I agree. But in the case of TSA strip searches and sexual gropings, there is nothing essentially or conceptually new. You have travelers, government actors, and vehicles. It is essentially the same as what the founders had. Unless the accident of travelling by air rather than on the ground magically provides government actors with the right of free access to your genitalia.

Last edited by nachtnebel; Aug 19, 12 at 3:46 am..
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Old Aug 19, 12, 6:10 am   #259
 
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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
This is a good discussion. I would like for us to look at the construction of the amendment. It is not by accident. Start by locating the semicolons. Let's separate there as they were meant as major separators.

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

or abridging the freedom of speech, or of the press;

or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
This makes it more obvious that the paired clauses within the major divisions have relation to each other. Establishment/free exercise in the first and assembly/redress in the last.

The middle one, by its separation, we can see the intended connection of speech and press. As I understand it as a non-lawyer, these refer to the primary modes of communication at the time, the spoken word and the printed word, and the clause purposefully connects the two and their use.

There is another interesting aspect. Both refer to the mechanics of the communication, not to the subject of the communication. It does not exactly say "abridging the freedom to talk, or to print" it uses speech (not oratory but the machinery used to communicate vocally) and press.

This "interpretation" can be brought directly into the 21st Century painlessly. No law may be made that abridges speech (which has not changed) and the means of communicating by written words. At the time, when authoritarian governments wished to stop the spread of information, they would imprison speakers and destroy the presses mechanically. The clause specifically addresses the sanctity of the machinery of communication, voice and press, as not being something that can be abridged.

Brought forward, that would include the use of computers, radio, television and other additions to the modes of communication. We have allowed "The Press" to take those words as an exclusion to themselves, when it is merely a title developed from their mode of communication as determined by the machinery they used.

You may take exception to my understanding. Fine, it will not bother me, but you should look at the next amendment which does the same thing. It is the "right to keep and bear arms," the machinery of defense may not be abridged, not the right of defense itself.

Speech without the ability to talk has no value. There is no value in the potential of printing and distributing information if the press is not available.

Mr. Kenner above asks, "But what's 'press'"? The answer is that it is the mechanics used to print. Its use is not to be abridged. I would propose that the Founders would include any other means of production had they known.
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Old Aug 19, 12, 1:26 pm   #260
 
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...deleted...

Last edited by SWCPHX; Aug 19, 12 at 2:55 pm..
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Old Aug 19, 12, 2:42 pm   #261
 
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I'll tell you if you tell me in which specific Constitutional text the word God or Creator appears.

[note: for historical completeness, this was a response to SWCPHX's question on how to literally interpret references to "Creator" in the Constitution]

Last edited by nachtnebel; Aug 19, 12 at 6:42 pm..
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Old Aug 19, 12, 2:54 pm   #262
 
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Originally Posted by nachtnebel View Post
I'll tell you if you tell me in which specific Constitutional text the word God or Creator appears.
My apologies, Declaration of Independence. Disregard the question.
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Old Aug 19, 12, 8:59 pm   #263
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Originally Posted by SWCPHX View Post
My apologies, Declaration of Independence. Disregard the question.
.... even as the second sentence above is asserted, the above is all in regard to the embarrassing question?
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Old Aug 19, 12, 10:14 pm   #264
 
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Quote:
Originally Posted by nachtnebel View Post
I'll tell you if you tell me in which specific Constitutional text the word God or Creator appears.

[note: for historical completeness, this was a response to SWCPHX's question on how to literally interpret references to "Creator" in the Constitution]
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Originally Posted by GUWonder View Post
.... even as the second sentence above is asserted, the above is all in regard to the embarrassing question?
My question in a nutshell was if people want or expect the Constitution to be interpreted in a very literal way than who or what is the meaning of the word Creator in the Declaration of Independence. I typed Constitution in the initial post, realized the mistake after nachtnebel's reply and then deleted the question.
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Old Aug 20, 12, 12:45 pm   #265
 
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I wonder why any attempt to post the link to this incident

on the TSA's blog and request some response from the TSA's serious reviewers is not successful...do you think they have no interest in responding on this matter?
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