From: fcrary@ocf.berkeley.edu (Frank Crary)
Newsgroups: talk.politics.guns
Subject: Re: ICLU Commission on the 2nd Amendment and Gun Control
Date: 1 Sep 1992 02:16:49 GMT
Organization: U. C. Berkeley Open Computing Facility
NNTP-Posting-Host: lightning.berkeley.edu

In article <81600@bcsaic.boeing.com> rwojcik@atc.boeing.com writes:
>In fact, this is the crux of the matter.  The origins of the 2nd are
>directly tied up in the old Federalist/Antifederalist politics of the
>late 18th century, and the 2nd was very definitely seen by some as a
>way to prevent the federal government from banning state militias.  

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.

Nor did the Second Amendment alter this: Madison clearly stated that
his proposed amendments did _not_ change anything. They simply
assured, in writing, things that were implicitly protected by the
unamended Constitution.

Further, the federal Militia Act of 1792 was based on federal 
control ovewr the militia (as per Article One.)

>>Also, the state's authority does not extend to bans, even if regulation
>>is constitutional. In Presser v. Illinois, the Supreme Court ruled
>>that a state ban would harm the militia and "deny the federal government
>>that resource..." Since state laws can't interfere with federal
>>peragotives, this limits state gun control laws.

>Not really.  If the law is interpreted to mean that the federal government 
>cannot prevent the states from equipping a militia, then it has nothing to
>do with the right of the states to pass bans and controls on weapons ownership.

Correct, _if_ the law is so interperted. However the above quote comes
directly from a Supreme Court ruling (Presser v. Illinois, 116 US 252).
Since the Supreme Court directly stated that the militia was a 
resource of the federal government ("It is undoubtedly true that all
citizens capable of bearing arms constitute the reserve military force
or reserve militia of the United States as well as of the States...")
then it would seem your view, that the militia is solely a state-organized
body, disagrees with Supreme Court case law. 

Further, the Court bassed it's above remarks, not on the Second Amendment,
but rather on the federal government's supremecy over state laws: The
states can not legislate away a resource of the federal government.

>A good source for some of the original wordings and discussions on the Bill
>of Rights is H. Veit, K. Bowling, and C. Bickford, Creating the Bill of Rights, 
>Baltimore: the Johns Hopkins Press, 1991.

A better source is the Congressional records themselves.

>In the 18th century, it was taken for granted that members of the militia would
>bring their own weapons, but there was even some discussion of having the 
>federal government organize and equip the militias.

"Congress shall have the power... To provide for organizing, arming, and
disciplining the Militia, and for governing such Parts of them as may be
employed in the Service of the United States, reserving to the States'respectively, the Appointment of the Officers, and the Authority of training the
Militia according to the discipline prescribed by Congress."

(Article One, Section Eights, Clause Sixteen of the United States 
Constitution.)

There was a great deal more than discussion of federal control of the militia.

You also seem to have missed two key points of the debate over the militia:

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

(By the way, this is also consistant with federal law, Title X, and
case law, Supreme Court rulings is Presser v. Illinois 116 US 252
and US v. Miller 307 US 174.)

Second, the concern over federal militia powers was not that they would
ban militias, but that they would neglect their responsibility to arm 
them:

"Of what service would militia be to you, when most probably you will
not have a single musket in the State; for as arms are to be provided by 
Congress, they may or may not furnish them."

(Patrick Henry, from the Virginia Ratification Convention.)

The Second Amendment was certainly intended to protect the militia, but
you seem confused about the mechanism: Even if the federal government
neglects the militia (as it has), the members (e.g. all physically
capable citizens) have an guarenteed right to arm themselves.

>In the case of the 2nd, states' rights and personal rights were sometimes 
>confused.

"Rights" was not a term applied to the states, at least in any of the 
writings of the period I've seen. The word was exclusively used to 
refer to individual rights. 

>In any case, so-called "original intent" has never served well or consistently
>to determine the way in which the courts interpret the law.

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.

>The view that the
>2nd only guarantees the right of states to equip militias, IMO, is a valid
>interpretation of the 2nd, even if it wasn't what many of the original framers
>intended.

At best, this is in conflict with all the Court rulings on the subject.
Further, to support an interpertation in conflict with the intended
meaning makes a mockery of the whole concept of a written Constitution.

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

>One thing they clearly did intend was the the RKBA was in connection
>with organizing and regulating an official state militia.  It was never intended
>to be used as a ploy by private individuals to arm themselves for other purposes,
>be they recreational or paranoid.

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.) 

It is fair to say the individual's right to keep and bear arms was
protected, in connection with militias, but not "official state militias."
The militias in question were the same sort that fought in the American
Revolution. These were formed by private citizens against the will (and
laws) of the then-legidimate government.

Can you reconsile your calims of "official state militias" with Title
X of federal law, which defines the militia as including all men
age 17 to 45? Or with the definitions of the militia in Presser v.
Illinois or US v. Miller ("all citizens capable of bearing
arms" and "all males physically capable of acting in concert for the
common defense")?

                                               Frank Crary
					       CU Boulder

(By the way, does anyone know how to get usenet acces from Boulder? My
new account doesn't seem to have direct access and remote logins to my
old Berkeley account are getting to be a pain...)

Newsgroups: talk.politics.guns,soc.culture.french