From: andy@SAIL.Stanford.EDU (Andy Freeman)
Subject: Re: 2nd Amendment Myths
Organization: Computer Science Department,  Stanford University.
Date: Sun, 6 Sep 1992 01:17:32 GMT

In article <82077@bcsaic.boeing.com> rwojcik@bcsaic.boeing.com (Rick Wojcik) writes:
>AF> Andy Freeman doesn't cite OED.  He does cite, among other sources,
>AF> Fletcher's Political Works, pub'd in 1749, which defines "well
>AF> regulated militia" as an armed people NOT under the control of govt.
>
>Sorry that I missed your excerpt of this one, Andy.  You can send it by email
>or post it.  Otherwise, I can't respond to it.

I've provided an author, title, and publication date.  I'm not a
typing service.  If Wojcik is interested, he has to go to the library
anyway.  If Wojcik didn't have a history of ignoring such information,
I'd have much more sympathy for such a request.  Besides

>(I find Frank's writings among the most interesting, and most challenging.  I
> won't respond to his extensive legal citations, other than to fall back on my
> original position:  Legal language is not fixed in meaning, and there are

Crary DOES provide the requested information, and look at the response.

It's nice to see that Wojcik is happy to let his constitutional
protections fall prey to language change.

>AF> Other people have pointed out that Wojcik's assumption that
>AF> "regulated" implies govt controlled is wrong.  It isn't necessarily
>AF> true now and wasn't true then.  (My car has a regulator, but it has
>AF> nothing to do with govt, and "regulation" is the process of adjusting
>AF> a gun for accuracy; the latter is a rare meaning now, but very common
>AF> in the 1700s.)  Freeman also correctly summarizes Gerry's objection,
>AF> WHICH resulted in a change in the 2nd amendment.  (So much for
>AF> Wojcik's characterization of Gerry's position, although he's finally
>AF> acknowledging that it dooms his interpretation.)
>
>Your linguistic argument is quite cheesy.  We aren't concerned with all the
>homonyms of "regulate", etc., but with the implication of government control.

Wojcik "forgot" the rest of his sentence, the part that goes "from the
use of the word `regulated'".  Then again, since I've shown that
"regulate" doesn't necessarily imply what he asserts that it does....

>I don't argue that the "well-trained" or "familiar-with" interpretation is
>wrong, only that there is no evidence that this (now obsolete) sense of the
>word was the one that everyone had in mind.

Except for the evidence showing that they thought that the 2nd protected
an individual right and their discussion of the militia in question, which
is inconsistent with Wojcik's "govt controlled" interpretation.

>The Gerry issue is different.  I never "acknowledged" anything of the sort,
>and I'm not completely certain of what your interpretation of the issue is.

Wojcik forgets that he suggested that Gerry's objection was crazy, but
obviously the parties involved didn't agree.  They bought his argument
and removed language that suggested the use of the 2nd amendment that
Wojcik desires.  If they objected to the idea of the 2nd as an
individual right, if they saw it as being consistent with govt
control, why did they accept Gerry's proposal to remove words that
allowed govt control?  Why did they reject the "for the common
defense" amendment?  If they intended what Wojcik insists they did,
they'd have done exactly the opposite.

>AF> Freeman has pointed out that Wojcik's "they didn't keep notes" argument
>AF> is bogus.  There weren't deliberation notes for the constitutional
>AF> convention, but the 2nd amendment didn't come out of the
>AF> constitutional convention.  It's a silly argument even for the...
>
>I was addressing the issue of how one interprets Constitutional law--whether
>or not the doctrine of "original intent" was what the framers had in mind.  If
>it had been, you would have expected the Constitutional Convention to keep
>notes and publish them.  Instead, Madison kept his *unofficial* notes secret
>until after his death.  Whatever principles applied to the interpretation of
>the original Constitution also apply to its amended form.  Or do you disagree?

Considering that that constitution requires congress to keep notes on
their actions and debates, even when they're considering amendments,
the authors obviously didn't intend to keep these discussions secret.
I note that referring to legislative history IS "good law".  I'm in
good company in disagreeing with Wojcik.

>AF> Freeman doesn't read every article looking for "challenges".  If Wojcik
>AF> wants me to see something, he can MAIL it to me.
>
>Interesting.  Andy didn't mail this one to me.  Guess he didn't want me to see
>it.  ;-)

Freeman didn't care whether or not Wojcik saw it.

>AF> Speaking of challenges, I note that Wojcik still hasn't bothered to
>AF> provide any evidence supporting his interpretation from the relevant
>AF> period of time.  Even Hamilton, who LOST the argument over the
>AF> distribution of power, disagrees with Wojcik.
>
>I'm not clear on which argument you're talking about.  I cited quite a bit of
>material from the OED on the "well-regulated" debate, and most of the
>counter-citations had nothing to do with the "training" sense of 'regulate'.
>In fact, they tended to support the "controlled" sense.

When did the OED become the only reasonable reference for word usage in
the 1790s by a bunch of people who hadn't seen a dictionary?  Why is
it a superior reference to their own writings on the subject?

>AF> Actually, the individual right RKBA folk don't necessarily fit into
>AF> the original intent school.  It is clever for Wojcik to play on that
>AF> confusion, but dishonest.
>
>A good point, Andy.  Now, would you care to explain the reasoning behind the
>conclusion?  Or do we just take your word for it?

Wojcik has shown that the original intent school has taken some hits.
He suggests that those hits apply to anyone who uses "intent", whether
or not they apply.  (Some of those hits consist of pointing out that
some positions of that school actually don't have any basis in the
"intent" of the relevant parties.  Those hits aren't applicable to
arguments which CONSIST of that sort of evidence from the relevant
parties.)

> in the case of Constitutional law.  We have yet to see a single gun control
> law overturned by the Supreme Court on the basis of the 2nd.  They just don't
> seem interested in the case made by the pro-gun lobby.  I think that, on this
> point, at least, we all agree.)

They've also never been presented with a case that would test the point.
The gun cases they have decided have been wrt gun possession by felons.

>Yes, but not everyone was a Federalist, and some even argued that producing a
>Bill of Rights would imply the opposite.  I don't think that they were far off
>the mark.

Few thought that the explicitly protected rights would be ignored though.

-andy
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