From: rwojcik@atc.boeing.com (Richard Wojcik,snake)
Newsgroups: talk.politics.guns
Subject: Re: 2nd Amendment Myths
Date: 2 Sep 92 19:56:45 GMT
Reply-To: rwojcik@atc.boeing.com
Organization: Research & Technology

In article 18084cINNks8@agate.berkeley.edu, fcrary@ocf.berkeley.edu (Frank Crary) writes:
>... How, specifically, do you reconsile your interpertation with:
>
>Federal control of the militia (as per Article One, Section Eight of
>the Constitution and the federal Militia Act of 1792 and Presser v.
>Illinois 116 US 252.) This is in conflict with your
>concept of a state-run militia. If, as these documents
>would suggest, the states do not have a free hand in arming and training
>militias then the Second Amendment cannot refer to a state power.

Already answered elsewhere, but worth answering again.  The 2nd was an
amendment that Antifederalists wanted to use to weaken Article I on just
this point.  The Constitution was a Federalist document, and the Amendments
were adopted at the instigation of the Antifederalists.

>By federal law (Title X), Supreme Court rulings (Presser v. Illinois and
>US v. Miller 307 US 174) and the stated views of the framers (A. Hamilton,
>G. Mason, R. H. Lee, etc..) the "militia" includes all citizens 
>who are physically able. This makes a "collective" interpertation almost
>meaningless: I am a member of the militia, by federal law, so the
>Second Amednment protects my right to keep and bear arms (in my capacity
>as a member of the militia.)

I have no answer to this other than to say that the Supreme Court has yet
to overturn a single gun control law on the basis of this interpretation.
Moreover, I think the court should have distinguished between eligibility
for militia duty and militia duty itself.  The fact remains that you belong
to no real militia, and you haven't been asked to engage in any of the 
training that you and others think "well-regulated" refers to.

>Finally, every Supreme Court ruling to even _mention_ the Second Amendment
>has treated it as an individual right. Specifically Scott v. Sanford 60 US
>1857, US v. Cruikshank 95 US 542, Presser v. Illinois 116 US 252, Miller
>v. Texas 153 US 535, Patsonne v. Pennsylvania (no cite handy, ruling in 
>1914), US v. Miller 307 US 174 and US v. Verdugo-Urquidez (no cite handy,
>ruling in 1990.) 

Not necessarily.  You are talking about presupposition rather than assertion.
The courts could take the position that, granted the petitioner's view of
personal right, this case does not bear on such personal right...  A later
ruling could argue that, in fact, no such personal right existed.  I don't
believe that the Supremes intended their wording to set precedent on this 
issue, but I'm quite willing to agree with your point if they ever use such
wording to overturn gun control laws.

>Until you can address these issues, I don't think you have any casue to
>call the individual rights interpertation "unsupported." Can you even
>cite a _single_ Supreme Court ruling that treated the Second Amendment
>as grant of powers to the states, as opposed to a protection of an
>individual's right?

Can you cite a single case where a gun control law was overturned because of
the 2nd?  That's the only real question here.

>>The problem with (2) is that it seems so counterintuitive.  Do the courts really
>>have the power to change or reverse the original intentions of lawmakers?  The
>>answer is more complex than yes or no.
>
>When the original intent is clear and supported by case law, they do not.
>Even the defenders of judicial activism concede this. As I have show
>above, original intent is reasonably clear and supported overwelmingly
>by case law.

Don't be silly.  The Supreme Court has gone so far as to reverse itself before,
and it could do so in the case of the 2nd.  The books I mentioned earlier--
Macedo's and Levy's go into great detail on the subject of original intent.
One point they make is that defenders of original intent invariably invoke it
when it suits their purposes and ignore it when it doesn't.  Madison himself
argued original intent against the establishment of a national bank, but he
ignored it with respect to taxes on horse buggies.  Finally, the language of
the 2nd is just as unclear and in need of interpretation as that of the other
amendments.  It is not of the same sort whereby the age and length of term in
office are specified.  It is only the latter type of language which gets legal
scholars to agree on the use of original intent.  Very few scholars would
maintain that the 2nd is anywhere near as clear as you would like it to be.

-----
Disclaimer:  Opinions expressed above are not those of my employer.

    Rick Wojcik   (rwojcik@atc.boeing.com)   Seattle, WA