From: andy@SAIL.Stanford.EDU (Andy Freeman)
Subject: Re: So... Why have a standing military?
Organization: Computer Science Department,  Stanford University.
Date: Sat, 3 Oct 1992 01:12:10 GMT

In article <84193@bcsaic.boeing.com> rwojcik@atc.boeing.com writes:
[using a non-standard attribution syntax that complicates things for
 no particularly good reason.]

>>>There is little question that the "militia" mentioned
>>>in Article I was the same "militia" mentioned in the 2nd.

>Andy Freeman (AF) writes:
>> On the contrary, there's considerable questions.  More importantly,
>> if Article I allows something that the 2nd forbids, the 2nd takes
>> precedence.
>
>Yes, amendments to the Constitution take precedence over the original text.
>But if you don't think that the word "militia" in Article I is the same as

Yes, both passages use some of the same words.  But, they also
use them differently.

A "militia" is an armed group of people.  Article I talks about a
subset of militias, ones with specific controls.  It is silent about
other types of militias.  The 2nd amendment also speaks to a subset of
militias.  If there's an overlap, the 2nd "wins", and if there isn't,
Article I's comments aren't particularly relevant.

>>>Andy, my original comments about the militia had to do with the so-called
>>>"unorganized militia," not the National Guard.
>>
>> Note how Wojcik tries to slide in "state militia" = "unorganized
>> militia".  It isn't.  State militias are, by definition, organized,
>> and govt, militias.

>Since I made the
>original comment, my definition of "militia" was the one under discussion.

Not so fast.  We're discussing what the wigged gents in 1792 meant by
the term.

>I had no preconceptions about "state" control of it, and at least one person
>in this newsgroup keeps wondering why the militias can't be self-organized.

Does Wojcik want to argue with that person?

>> The "who trains the unorganized militia?" question isn't all that
>> interesting to me.  However, I will note that the answer doesn't have
>> the properties Wojcik wants...[goes on to assert that gun ownership isn't
>> restricted to the "unorganized militia"]
>
>First of all, you are begging the question by asserting that gun ownership
>isn't restricted to the "unorganized militia."

Wojcik has inaccurately summarized my comment.

Every full-fledged member of the community is a member of the well
regulated militia.  (The 2nd amendment doesn't protect gun ownership
by rocks.)  Specific organized militias may have different membership
criteria, but that doesn't restrict membership in the well regulated
one.

>Secondly, that wasn't precisely the property I was interested in.

Which "that"?  Is Wojcik really going to tell us that his interest in
the 2nd amendment has nothing to do with gun control?

>>>BTW, as long as I've got you on the line, did you ever track down that passage
>>>showing that the "well-regulated" phrase in the language of the 2nd meant
>>>"familiar with," not the more common sense of "well-run"?
>>
>> As I've told Wojcik more than once, I didn't come up with any passage
>> like that, so I wonder why he asks me for it.  Why doesn't he ask
>> someone who has referred to it instead?  I'm not the default defender/
>> source for everything that someone has posted.
>
>That's really odd.  To my knowledge, you've only mentioned the passage once to
>me, although you may have mentioned it in threads that I haven't been
>participating in.

Try again.  I've mentioned it a couple of times, all the same way, all
"I didn't say that", all in response to Wojcik's question.

Of course, if Wojcik really thinks I've only mentioned it once, and my
mention has been "I didn't say that", one could wonder why he'd ask
again, or for something else....

>Someone had emailed me a remark that you had posted
>OED information on the so-called "trained" sense of "well-regulated."

So?  They were wrong.  Take it up with them.

>You posted an angry note referring to a reference from a 1749 pamphlet.

I've posted that cite repeatedly.

>I asked you to quote the passage, rather than just give a reference,
>and that was the last I heard from you on the subject.

And, I told Wojcik to go to the library if he doesn't think I'm
honestly representing it.  I'm not a typing service.

>> "Original intent" is the name of a school of constitutional
>> interpretation.  It makes vague references to 1790s documents when
>> convenient but doesn't feel bound by them.  It is a name chosen
>> for rhetorical reasons.
>
>Here is a better definition from Levy's Original_Intent_and_the_Framer's_
>Constitution, p. x:  "The term `original intent' (or `original intention')
>stands for an old idea that the Court should interpret the Constitution
>according to the understanding of it by its Framers."  Most of the arguments
>surrounding the 2nd have assumed original intent, whether you want to admit
>it or not.

Levy confuses the press release with the reality.

>> The RKBA arguments that Wojcik wants to tie to that school don't work
>> that way.  They're not an attempt to justify a "the founding fathers
>> meant" argument as much as they are evidence showing what said wigged
>> gents said, what the words they used meant.  Those arguments actually
>> do have the supporting evidence that is lacking in some positions
>> taken by members of the "original intent" school.
>
>Let me get this straight.  The RKBA argument is not "original intent" because
>it examines the actual words used by the framers.  It seems to be your
>contention that bona fide "original intent" arguments are those that lack any
>evidence for their conclusions.

Note how Wojcik loses a "some" and a distinction between "what they
were trying to do" with "what the text meant in 1790s American".  The
RKBA arguments we're discussing emphasize the latter....

>> Suppose word "trial" comes to mean "combat".  The RKBA-supporter style
>> argument would point out that that doesn't change the meaning of the
>> 6th, the "original intent" folks would come up with God knows what,
>> and the "living document" folks would insist that the 6th merely
>> requires said combat to take place in public.
>
>I'm not surprised that you attribute a "God knows what" position to "original
>intent."  You appear not to understand the term.

I understand it just fine.  The "original intent" school will ignore
relevant evidence.

>Nor do you understand the
>"living document" folks that you caricature with a straw man.

Sure I do.  They think that language change and govt inaction amends
the constitution.

>> The Constitution isn't written in stone.  We can change it whenever we
>> want.  Therefore, it is unreasonable to "amend" it by less formal
>> means, however convenient that might be.  There's nothing wrong with a
>> "what they wrote simply isn't appropriate to a modern society"
>> argument, but the proper way to implement such a decision is through
>> the amendment process.
>
>The amendment process was intentionally designed to be difficult.

So?  The difficulty doesn't justify ignoring said process.  It doesn't
justify using less explicit and vague means.

>The real intent of the backers of the amendment--to prevent federal
>control of the state militias--is now moot.

Even if we go with that interpretation, in what sense is it "moot"?
I've no particular interest in wearing a "fuck the draft" t-shirt into
court; does that imply that my right to do so is "moot"?

-andy
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