From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: ICLU Commission on the 2nd Amendment and Gun Control
Organization: University of Colorado, Boulder
Date: Thu, 3 Sep 1992 17:49:12 GMT

In article <81840@bcsaic.boeing.com> rwojcik@atc.boeing.com writes:
>>There were no state militias: As I said, Article One, section eight
>>put the militia under joint federal/state control. The Federalists
>>very definitely didn't want the states to have completely independent
>>military forces.

>Article One was in the body of the Constitution that the Antifederalists 
>were trying to amend.  The Bill of Rights was originally a sop to 
>Antifederalists, who lost the battle to prevent ratification.  Their 
>next step was to try to water down federal powers as much as possible
>through the amendment process.  There was an attempt, in connection with
>the 2nd, to block the federal govt. from establishing a standing army
>in peacetime.  As for there being no state militias, then what did New
>York and New Jersey use to fight each other with when they went to war?

Madison specifically stated, when he submitted it to Congress, that his draft 
of the Bill of Rights did _not_ alter any provision of the Constitution:
It mearly put in writing protections that were assured, de facto, by the
unammendmed Constitution. Further, Congress excersized it's powers 
under Article One, Section Eight (to regulate the militia) immediately
after the the Bill of Rights was ratified. It would seem there was
no intention of altering the militia structure set out in the 
Constitution.

As for the incident between New York and New Jersey (if we are thinking
of the same thing), this was under the Articles of Confederation and
(though there wasn't any actual fighting) this was one of the reasons
the new federal Constitution prohibited the states from keeping "troops"
and restricted their control of the militia.

It seems as though, under the Constitution, there were no independent 
state militias, and (as such) protecting them could not have been
the goal of the Second Amendment.

>>First, everyone involved agreed that the militia comprised _all_ physically
>>able male citizens. 

>I take the eligibility criteria for being involved in militia duty to be distinct
>from the duty itself.  However, I'll admit that people have confused the two
>senses of the word, and your quote of the Supreme Court ruling suggests that they
>prefered your interpretation at that time.  Fortunately, they don't take that
>interpretation seriously enough to strike down gun control laws.

You need to read those rulings a little more carefully, if you think they
don't take the militia seriously: In Presser v. Illinois, the Court
banned all state laws that would "prohibit the people from keeping
and bearing arms" on the grounds that "all citizens capable of 
bearing arms constitute a reserve military force, or reserve militia of
the United States" and the states cannot interfere with a federal
resource of that sort.

>The fact that they choose not
>to rule on Constitutional challenges to local gun control laws suggests to me
>that such challenges lack merit in their eyes.

This displays a increadble ignorance of the Supreme Court: Their willingness
to hear cases has mostly to do with time, federal laws on their 
jurisdiction, etc... There refusal to hear a case has _nothing_ to do
with thier opinions of the case's merits:

"...this Court has rigorously insisted that such a denial [to hear a case]
carries with it no implication whatever regarding the Court's views on the 
merits of a case which it has declined to review. The Court has said
this again and again; again and again the admonition has to be repeated."

(Justice Frankfurter, Maryland v. Broadcast Radio Sho, Inc. 338 US 912,
1950)

>>The Court generally sticks to it, when it can be determined. They also
>>tend to follow their own precidents: Every Supreme Court ruling on
>>the subject has treated the Second Amendment as a protection of an individual
>>right, though not an unlimited one.

>People on the pro-gun side keep saying this, yet the courts don't overrule 
>strict gun control laws. 

See the above quote. Also, perhaps _read_ the rulings I cited.

>>By the same logic, would it be accpetable to violate the Fouth Amendment,
>>by adopting a new meaning of "unreasonable searches and seizures"?

> But I think that the
>"collective right" interpretation is fully in line with the spirit of original
>intent.  I agree that many, if not most, of the original framers had a specific
>implementation in mind that runs counter to "collective right".  Our modern sense
>of what a militia is renders that implementation obsolete.

The federal laws and court ruling (US v. Miller) I cited all date from
this century. They aren't ancient history. Nor can an individual 
right be tken away from the people, without their consent, simply
by claims that it is "obsulete." If you truely believe the right
is obsulete, then you should try to pass a constitutional amendment to
that effect. If it doesn't pass, then it is safe to say the people 
diasagree.

  
>We just don't train
>gun owners to fight in a militia.  We don't, because nobody really thinks of 
>them as part of a militia. 

We certainly do: Look up the Army's "Director of Civilian Marksmanship"
program. Studies have shown that soldiers, who were experienced with
firearms before being drafted, are much better soldiers (in terms of
using their weapons effectively) and have a much higher chance of
surviving combat. 

>>Perhaps you should read the Militia Act of 1792: Not only were private 
>>individuals _intended_ to arm themselves, they were required by law to
>>do so (every male citizen had to own a rifle, musket or two pistols
>>and keep them in good condition.) 

>Again, an excellent point.  It shows how far we've come that we don't have
>similar laws today.  That old conception of the militia has long since withered
>away...

I think you will find substantial disagreement with this, nor is it
true simply beacuse you assert it.

                                                  Frank Crary
                                                  CU Boulder
Newsgroups: talk.politics.guns