Arguments

Educational Industry Language – Not Abuse

After reading Chris’s article on the so-called “abuse” of language in the education industry, I felt he may have taken the argument a bit too far. I do agree that education is full of jargon and constantly shifting acronyms. But do I believe this language is meant to harm or confuse students? No. In most cases, these changes seem intended to be more inclusive or politically correct, not malicious.

Chris and I actually discussed this during a car ride to Fort at Number 4 yesterday. I’ve since had time to reflect more on what he said. One of our points of disagreement was the shift from the word “student” to “learner.” My own school district made this change just before COVID, and while it took a few years for me to adjust, I now use “learner” regularly.

I believe this change was made with positive intentions. To me, “learner” suggests someone who is actively engaged, not just passively sitting in a chair. It reflects a belief in the potential of every child to grow, discover, and take ownership of their learning. I don’t believe the shift was done with ill will.

Chris argued that not all students are learners—that some are disruptive and show no interest in learning. I understand his point. But I still believe all students can become learners, even if they don’t show it yet. Will every child become a lifelong learner like Chris or me? Maybe not, but we can still hope and work toward that goal.

The ever-evolving language of education doesn’t bother me much. After 38 years of teaching, I’ve learned to go with the flow. I’ve seen many changes in terminology. Chris is passionate about precision in language, and while I agree that language matters, I just don’t get as worked up about it.

When our children were in elementary school, they were in the Talented and Gifted program. Later, it was renamed the “Infinity” program. I questioned the change at first, but ultimately, nothing really changed—the same kids were in the program, and they all knew they were high achievers. It was just a new label.

Similarly, the language used around learning disabilities has changed many times. These shifts often aim to reduce stigma and promote first-person language that emphasizes the individual, not the disability. As our understanding grows, so does our vocabulary.

Chris also criticized the use of the word “friend” in classrooms, something many teachers began using in the early 2000s to refer to all students. He argued that calling every classmate a “friend” confuses children, especially when some of those classmates are bullies. I agree with him on this point. The term may have been used too broadly, but again, I don’t think it was intended to cause harm.

Ultimately, words like “student” and “learner” carry different connotations. A student is typically someone who studies within a formal structure, while a learner is more self-directed and intrinsically motivated.

So, what do we want for our children? To simply complete assigned tasks, or to become curious, independent learners? Will changing our language help us reach that goal? I’m not sure, but I don’t believe these language shifts are malicious. Most are simply well-intentioned efforts to reflect evolving values in education.

Legal State Arguments

…this Nation’s historical tradition of firearm regulation

Creating rules for anything, a game, a business, the interaction between parties, there can be negative rules, or there can be positive rules.

You can have a set of negative rules. You cannot touch the ball with your hands. This is a rule in soccer.

What was the original intention? We don’t know. What we do know is that it is legal to hit the ball with your head, knees and body, as long as you don’t touch the ball with your hands.

This means that what is not forbidden is allowed.

If on the other hand, the rules are written in a positive mode. You can only touch the ball with your legs from the thigh down. You have inverted the restrictions. What is not permitted is not allowed.

You don’t have to state “you cannot touch the ball with your hands”. This is subsumed from the default negative. If it is not permitted, you cannot do it.

Our Constitution was written as a set of positive rules for the government. The government is authorized to do X, Y and Z. They are, by design and default, not allowed to do A through W.

When the Bill of Rights was ratified, we added negative rules. “Congress shall make no law…”

There is no conflict between the amendments and the original Constitution. The Bill of Rights made explicit that which was implicit. The government shall not do C, G, and W!

Unfortunately, this left the door open for the government to do evil. “Since the Constitution doesn’t say anything about A, B, and D, we can intrude in that area!”

The explicit addition to our Constitution made this argument possible.

Since the state always seeks to increase their power over The People, this is a fight that has been going on for decades.

In Bruen, the Court made it clear that the state must …demonstrate that the regulation was consistent with this Nation’s historical tradition of firearm regulation.New York State Rifle & Pistol Assn., Inc. v. City Of New York, Oops. Novel citation pattern. 8 (U.S. 2020).

The state bears the burden of demonstrating to the court that the law is consistent.

Not the plaintiffs, (Good Guys), nor the court, but the state.

For the state, this is a losing position. “Shall not be infringed!” is powerful language. They want that history to be as open as possible and as wide-reaching as possible.

In the early post-Bruen cases, they through the legal dictionary at the wall to see what would stick. In Duncan, the first iteration of “historically reinvent” regulations ranged from the 1500s through the mid-1900s. They were forced to reduce that for their second iteration, I think it was limited to 50 or 100.

Today, they are attempting a different path. Using the Rahimi language, Bruen was “not meant to suggest a law trapped in amber.United States v. Zackey Rahimi, No. 22-915 (U.S.) as amplified by Justice Barrett:

Many courts, including the Fifth Circuit, have understood Bruen to require the former, narrower approach. But Bruen emphasized that “analogical reasoning” is not a “regulatory straightjacket.” 597 U. S., at 30. To be consistent with historical limits, a challenged regulation need not be an updated model of a historical counterpart. Besides, imposing a test that demands overly specific analogues has serious problems. To name two: It forces 21st-century regulations to follow late-18th-century policy choices, giving us “a law trapped in amber.” Ante, at 7. And it assumes that founding-era legislatures maximally exercised their power to regulate, thereby adopting a “use it or lose it” view of legislative authority. Such assumptions are flawed, and originalism does not require them.
id. Barrett, concurring.

Under Bruen, silence in the historical record indicates that the current has no support in this Nation’s historical tradition of firearms regulation. Now, the state claims that silence does not mean a loss. Instead, they claim that it just indicates that they didn’t wanna at the time. They could have, if they wanted to. Since they could have, the state is now authorized to do so today.

This shifts the burden to The People to show that the state in 1791 not only didn’t want to pass such regulations, but instead were prohibited by the Second Amendment.

Nasty stuff.

The State of the State’s Arguments


B.L.U.F.
A long look at what the state is arguing. It has become repetitive. We continue to examine each filing made by the state, looking for some new argument.

The best I’ve found is “oh, look at what all the district courts in infringing states have said!”
(3000 words)


Four-hundred ninety-four days ago, the Supreme Court slapped down the infringing states, “may issue” game. The Supreme Court emphasized that the two-step shuffle of means-end was not acceptable. They commanded that the inferior courts use text, history, and tradition when analyzing a Second Amendment Challenge.

The Bruen opinion calls into question every gun-control infringement in the country. The states, not happy with being forced to issue CCWs, responded with Bruen Tantrum Bills. These bills were intended as direct challenges to the Supreme Court.

Since then, there have been hundreds of Second Amendment challenges filed. Both as civil suits and as criminal defenses.

The State’s Starting Point

The states start by looking at the Heller, McDonald, and Bruen opinions. They are looking for any openings to support their infringements.

Their go-to citations are:

  • The Second Amendment is not a straight-jacket
  • We are aware of no dispute over longstanding regulations
  • We presume that laws regulating NFA items are constitutional

Since the Supreme court did not explicitly say that there are no constitutional regulations on firearms, that means there must be constitutional limits. It is the task of the state to find those constitutional regulations.

The Plain Text

In Heller the court spent many pages defining exactly what each word and phrase in the Second Amendment meant. Every. Single. Word.
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Stupid Arguments before the Supreme Court

The Rahimi case has brought out all the normal infringers, along with a number of lesser known groups and people. They filed numerous amicus curiae briefs. I had intended to do a brief look through them all. Nope, no, forget it. Too much pain. What follows is a sampling of the first few, along with a couple of others I found interesting. Most of the text came from the table of contents. Take it for what you will.

(2300 words, mostly theirs)


If you want to go read these yourself, they are all on the Supreme Court’s webpage under the Rahimi case.
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22-915.html

American’s Against Gun Violence

  1. Bruen’s “text and history” test, applied in Rahimi, relied on two deeply flawed assumptions
    1. Both Bruen and Heller are based on the false premise that the text and history of the Second Amendment established an individual right to own a gun
      1. The “well regulated militia” clause refers to the right to possess and use firearms in connection with militia service
      2. The “keep and bear arms” clause refers to a right to possess firearms if needed for and in relation to military activities
      3. The Second Amendment did not codify any right inherited by English ancestors because no such individual right to own firearms ever existed
      4. The drafters of the Second Amendment knowingly did not include language to provide for an individual right to possess firearms for self-defense
      5. Heller and Bruen improperly departed from this Court’s interpretation of the Second Amendment
    2. Bruen’s framework is also improper because it compels a foregone conclusion and perpetuates the myth that gun ownership is important for individuals’ safety and self-defense
  2. Heller and its progeny “threaten the breakdown of law and order” as Justice Breyer warned in the Heller dissent
    1. Gun related deaths have been significantly increasing since Heller
    2. Gun ownership conveys a greater risk than benefit
    3. Gun related deaths in the United States far exceed those of any other high-income country
These infringers admit that under Heller and Bruen there is no gun control law that survives. … because it compels a foregone conclusion

American Medical Association

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Corpus Linguistics

Corpus linguistics is the study of a language as that language is expressed in its text corpus (plural corpora), its body of “real world” text. Corpus linguistics proposes that a reliable analysis of a language is more feasible with corpora collected in the field—the natural context (“realia”) of that language—with minimal experimental interference.

The text-corpus method uses the body of texts written in any natural language to derive the set of abstract rules which govern that language. Those results can be used to explore the relationships between that subject language and other languages which have undergone a similar analysis. The first such corpora were manually derived from source texts, but now that work is automated.
New York State Rifle & Pistol Assn., Inc. v. City Of New York, Oops. Novel citation pattern. 8 (U.S. 2020)

Why is this of interest in the Second Amendment

It has been litigated at the Supreme Court three times now. The right of The People to keep and bear arms is an individual right. This is shown by dictionary meanings of “to bear” and “to keep”. It makes plain sense.

It is also a plain reading of the text.

The infringers want our right to self-defense to be restricted. Horribly restricted.

The easiest way to do that is to get rid of that nasty old pest, the Second Amendment.

How they do that is to attempt to make things “not arms”. They are failing. They attempt to make it not apply in this particular location. That is being challenged and they expect to lose.

They are also attempting to redefine what “The People” means to exclude most, or at least make the process of becoming a member of “The People” a matter for the state. In other words, the state wants “The People” to mean only law-abiding, responsible citizens, as defined by them.

There is another attack vector they are using. They want the Second Amendment to be a collective right, granted to the organized militia controlled by the state.

The path they are using is corpus linguistics. The gist of which is they take all the written works from that culture, as defined by location and time, and create a “normal” meaning.

Since the term “bear arms” appears primarily in the context of armies and militias, the state, and their amicus, claim that “to keep and bear arms” exists only in the context of the Militia.

Let’s take a modern version of this. The workword “Fuck”.

To fuck has a dictionary meaning of “have sex with someone” or “an act or instance of having sex.”

If we were to collect all the uses of the word “fuck” in the United States for over the last decade (or more) we would find a different “normal” meaning. That would be more of a word of contempt, “fuck you”. Or of annoyance, “Fuck it”. Or, as just a way of adding emphasis, “clean your fucking room.”

The Supreme Court isn’t stupid. They saw through this the last time it was brought forward, and many times before.

That never stops the infringers. When we are all dead and gone, if there is still a protected right to keep and bear arms, you can bet your bottom dollar that there will be infringers out there making the same tired arguments.

Bibliography

New York State Rifle & Pistol Assn., Inc. v. City Of New York, Oops. Novel citation pattern. (U.S. 2020)
United States v. Zackey Rahimi, No. 22-915 (U.S.)

A “new” argument


B.L.U.F. The “new” argument from the state.


In June 2008, the Supreme Court issued their first Second Amendment ruling in nearly 80 years. They were asked …whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.New York State Rifle & Pistol Assn., Inc. v. City Of New York, Oops. Novel citation pattern. 8 (U.S. 2020) The District of Columbia generally prohibited the possession of handguns.

The law was set up such that each of the pieces was individually “acceptable” before the Court’s opinion. There was a law making it a crime to carry an unregistered firearm. Then the limits on who could register a handgun were such that almost nobody was ever allowed to register a firearm.

Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson’s dictionary defined “arms” as “weapons of offence, or armour of defence.” 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.” 1 A New and Complete Law Dictionary (1771); see also N. Webster, American Dictionary of the English Language (1828) (reprinted 1989) (hereinafter Webster) (similar).
United States v. Zackey Rahimi, No. 22-915 (U.S.)

This defines what an “arm” is. The Heller Court went on to say:

The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. For instance, Cunningham’s legal dictionary gave as an example of usage: “Servants and labourers shall use bows and arrows on Sundays, & c. and not bear other arms.” See also, e.g., An Act for the trial of Negroes, 1797 Del. Laws ch. XIII, § 6, p. 104, in 1 First Laws of the State of Delaware 102, 104 (J. Cushing ed.1981 (pt. 1)); see generally State v. Duke, 42 Tex. 455, 458 (1874) (citing decisions of state courts construing “arms”). Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.” 1 J. Trusler, The Distinction Between Words Esteemed Synonymous in the English Language 37 (1794) (emphasis added).
id.

This says that arms protected by the Second Amendment include both those “most useful for military/militia use” and those arms which are not. If it is an arm, it is protected by the Second Amendment.

From this place, the court then put limits on the arms that are protected by the Second Amendment. These were dangerous and unusual arms and NFA items. The NFA is not mentioned by name.

The court was exceptionally clear regarding “muskets are the only arms protected by the Second Amendment”. Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way.…Missing citations for LPGQXCDT

We reach the question, then: Does the preface fit with an operative clause that creates an individual right to keep and bear arms? It fits perfectly, once one knows the history that the founding generation knew and that we have described above. That history showed that the way tyrants had eliminated a militia consisting of all the able-bodied men was not by banning the militia but simply by taking away the people’s arms, enabling a select militia or standing army to suppress political opponents. This is what had occurred in England that prompted codification of the right to have arms in the English Bill of Rights.
Missing citations for LPGQXCDT

Yeah, it is an individual right.

Here is the crux of the post Heller battle for gun rights:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U.S., at 179, 59 S. Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N.C. 381, 383-384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N.C. 288, 289 (1874).
Missing citations for LPGQXCDT

This is what every infringing legislature hangs their argument on. This is the hook that will allow their particular infringement to slip past the protections of the Second Amendment. Unfortunately, Heller went on to say “text, history, and tradition” are the actual methods of judging a regulation.

I often wonder how the anti-gun people get their marching orders so quickly. And why they are so lock step with one another. I just found one of the reasons:

Justice BREYER moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post, at 2852. After an exhaustive discussion of the arguments for and against gun control, Justice BREYER arrives at his interest-balanced answer: because handgun violence is a problem because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.
Missing citations for LPGQXCDT

This is the Heller court rejecting means-end balancing. Means-end balancing comes from the dissenting opinions. In other words, from the argument that lost.

Bruen reaffirmed Heller and put a stop to means-end. This reduced the process of analyzing a Second Amendment challenge to a regulation to the following steps:

Does the challenged regulation implicate the scope of the Second Amendment? If it does not implicate the scope of the Second Amendment, the challenge loses.

Is the regulation a ban? If the regulation is a ban, are the arms banned in common use for lawful purposes? If the answer is yes, then the ban is unconstitutional.

If the regulation is not a ban, but does implicate the scope of the Second Amendment, the burden shifts to the state to prove a history and tradition of analogous regulations.

The state argues that their infringement does not implicate the Second Amendment. That is easily overcome.

The state argues that their infringement does not implicate an arm. Here, the state attempts to place the burden on the plaintiffs to prove that the item(s) in question are, indeed, arms.

If the infringement is a ban, the state then argues that the arm is not “in common use”. They try to limit the definition of “use” by putting qualifiers, “for self-defense” being the most commonly used manipulation.

The new argument

evidence in the record before this Court. Their showing is marked by argument without citations and sources showing that their argument would be supported by admissible evidence, even under the relaxed rules for preliminary injunctions. It is wholly unclear whether all of the weapons (like conversion kits or semiautomatic pistols) regulated by HB 1240 are “in common use” based on the Plaintiffs’ scant submission. The Plaintiffs have not made “a clear showing” of evidence (Winter at 22) that supports their contention that all of the weapons covered by HB 1240 are “in common use” and therefore not “unusual” (Heller at 626).
Missing citations for 4J6Z58IV

Emphasis in original.

There is no evidence that an “assault weapon” is in common use for lawful purposes?

The court is taking the side of the state here. They contend that because there is no legal evidence that hundreds of thousands of “assault weapons” are in common use, the plaintiffs have not met their burden.

I’m not exactly sure how you provide evidence that there are millions of “assault weapons” in common use. The court is unlikely to accept surveys as “evidence”. Nor are they likely to accept sales records. The court is bending over to say “well, most, if not all, of those guns were sold to law enforcement”.

They also ignore Caetano where the Supreme Court didn’t bother with figuring out exactly how many stun guns are out there. How many were owned per person.

The state has gotten this court to say that it requires that all “assault weapons” be in use for lawful purposes.

This one paragraph by the court stopped me in my tracks. They are working overtime to keep these laws from being overturned.

The reason this is important to us, is that this is not the only court that is using this to uphold infringements.

Arguments: Still not an “arm”

B.L.U.F. The last article was suppose to include this but turned into taxes aren’t infringements. I’m going to try and stay on topic with the state’s arguments about why certain things are not arms.


Bullets are not arms

This has been debunked so many times it isn’t even worth addressing. The Supreme Court has ruled that ammunition is considered “arms” under the meaning of the Second Amendment. Any ban of ammunition is an infringement and under Bruen triggers “history and tradition”.

Magazines are not arms

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Arguments: It isn’t within the scope of the Second Amendment

B.L.U.F. In the last post I described the leftist argument that Nuclear Weapons are outside of the scope of the Second Amendment. I submit that they are within the scope of the Second Amendment but that the Supreme Court’s current opinions put them outside the Scope.

This article covers the state attempting to claim that certain arms are not within the scope of the Second Amendment.


Let’s tax guns out of circulation!

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Argument: It is not an “arm” under the Second Amendment?

B.L.U.F. An analysis/opinion of the State’s attempt to move certain arms out from the protection of the Second Amendment.


This is a long running argument from the anti-gun rights people. The gist is always of the “this modern thing didn’t exist in 1791 so it isn’t covered by the second amendment.” These same people are saying this on phones, computers, The Internet, which the firmly believe are covered under the first Amendment, even though those things would not have been known at the time of the founding.

The question is legitimate, so lets take it to an extreme.

Are Nuclear Weapons Protected Arms Under the Second Amendment?

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Why are they arguing outside of Bruen

B.L.U.F. A thought exercise in why the state is producing so many opinions that don’t seem to matter within the bounds of the Bruen opinion. Maybe it is because they are attacking a particular clause in Bruen


There is a classic scene in most cowboy and Indian movies where the new person is with the more experienced person and spots an Indian. The new guy points him out and the grizzled old dude says something like:

If you see him, he wants you to see him. If there is one there are a hundred

The point being that it wasn’t an accident. The Indian wanted to be seen in order to accomplish some strategic or tactical goal.

Much of combat is attempting to get your enemy to misinterpret your actions. If your troops start moving back from the front line and the enemy doesn’t believe that it is because they are pushing you back, they are going to expect a trap. If on the other hand your troops hold as long as they can before retreating, pulling the enemy into ambush, the enemy is more likely to believe they forced the retreat.

As much as we like to call the gun infringers names, like “moron” or “idiot” or “Col. USMC(Ret.) Tucker Stupid”, these are not stupid people. If you believe for one moment that AG Rob Bonta or his people are stupid then you are in for a rude awakening.

These people don’t play to lose unless it is to their advantage.

So if they are presenting huge amounts of what I have called emotional blackmail and items outside of the bounds set forth under Bruen there must be a reason.

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