From: wood@eisley.akita.com (Ken Wood)
Newsgroups: seattle.general
Subject: Re: Militia (was: Results of I 590)
Summary: Is membership in the militia required.
Keywords: militia firearms constitution amendment
Date: Thu, 30 Jul 92 02:48:08 PDT
Organization: Mos Eisley Spaceport BBS

graham@cs.washington.edu (Stephen Graham) writes:

> If you read the Constitution, it quickly becomes apparent that there are
> no wasted words in it. Nor are there parenthetical expressions. Your right

     There are quite a few explainations and clarifications in the 
constitution.  While it is supprisingly lean for a legal document there 
are indeed unnecessary words.  I would not call them wasted, obviously 
the authors didn't think they were, burt they are not strictly necessary 
to the intent.

> to bear arms is explicitly linked to your membership in the militia. That
> is why the first clause of the 2d Amendment exists. After all, it would
> have been much simpler to state: "The right of the people to keep and
> bear arms shall not be infringed" if that was all you meant. It is also
> why the militia clause still exists in the Federal Code. The Militia of
> the United States is the adult male citizen population which has not been
> disqualified by felony conviction.

     You are relativly correct on the Federal Code ( it includes some 
females ) but the first amendment in no way requires membership in the 
militia as a prerequisit to the exercise of the rights included therein.  
None of the few courte ruling on this issue has ever supported that 
position.  Neither does the writings of the founding fathers on the 
subject.  Additionaly, given the way the rest of the constitution is 
written, I would expect that if this was intended to be a limitation on 
the peoples rights it would be very clearly spelled out.  In all other 
areas limitations are clearly spelled out.

> 
> If you doubt my argument, I would suggest rereading the Constitution. Pay
> attention to the way in which it is written. Everything is set forth in
> the simplest language possible and everything in it has some specific
> legal effect. 
> 
     My paper copy sits next to me here as I right this ( my online copy 
is currenly unavailably but I prefer the physical one anyway ).  I have 
read it quite a few times.  Sme of it has a legal effect, some has a 
procedural one ( technicaly also a legal one ) and some of it is 
clarification.  It included reasons why pattents are issued and a 
"duty" of the president that "he shall take care that the laws be 
faithfully executed".  Note this is a seperate duty of the president and 
is not taken out of context ( It is one item in a list of duties ).

     I would interpet the first part of the second amendment as a 
clarification of the reasons behind it not as a limit on it.  As I have 
said before no court ruleing has supported a requirment such as this.  
The closest is Miller in which the court ruled that, based on the second 
amendment, the government could regulate weapons no suitable for militia 
use.  They never mentioned any requirment that the person in question be 
in any militia.  The suppreme court HAS however ruled that the "people" 
described in the 2nd amendment are the same as every other use of "the 
people" in the body and the Bill of Rights.  They specificly stated that 
the use of the phrase "the people" in the 2nd had the same meaning as 
it's use in the preamble and the 1st and 4th amendments.  If you want to 
understand the subject you need to look at the supreme courts decisions 
and the writings of the founding fathers.  Try the Federalist Papers fort 
starters.

     Ken Wood



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