From: rwojcik@atc.boeing.com (Richard Wojcik,snake)
Newsgroups: talk.politics.guns
Subject: Re: ICLU Commission on the 2nd Amendment and Gun Control
Date: 2 Sep 92 19:28:35 GMT
Reply-To: rwojcik@atc.boeing.com
Organization: Research & Technology

In article 17ujqhINNdnc@agate.berkeley.edu, fcrary@ocf.berkeley.edu (Frank Crary) writes:
>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.

Article One was in the body of the Constitution that the Antifederalists 
were trying to amend.  The Bill of Rights was originally a sop to 
Antifederalists, who lost the battle to prevent ratification.  Their 
next step was to try to water down federal powers as much as possible
through the amendment process.  There was an attempt, in connection with
the 2nd, to block the federal govt. from establishing a standing army
in peacetime.  As for there being no state militias, then what did New
York and New Jersey use to fight each other with when they went to war?
Hessian mercenaries???  :-) ;-)

>>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.

As Mr. Greeley pointed out, this book contains those records.  But bear in mind
that such records are heavily edited and contain many errors.  The Congressional
Record is hardly the historical document that some would have you believe.  The
problem with such records is that they frequently record motions and votes without
providing any clue as to the motives of the proceedings.  Net historians are
fond of providing their own motivations for such proceedings.  ;-) 

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

I take the eligibility criteria for being involved in militia duty to be distinct
from the duty itself.  However, I'll admit that people have confused the two
senses of the word, and your quote of the Supreme Court ruling suggests that they
prefered your interpretation at that time.  Fortunately, they don't take that
interpretation seriously enough to strike down gun control laws.  I suspect that,
if they chose to listen to gun control cases, they would probably distinguish
between militia duty and eligibility criteria.  The fact that they choose not
to rule on Constitutional challenges to local gun control laws suggests to me
that such challenges lack merit in their eyes.

>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.)

You are quibbling.  My point agrees exactly with Patick Henry's (who was a
radical Antifederalist):  of what use is an unarmed militia?  The Constitution,
as it stood with Article I, provided a gaping loophole that the Antifederalists
were concerned to close up.  The right of the collective population to defend
themselves through an armed militia.  A collective, not necessarily a "personal" 
RKBA.  This quote is consistent with keeping arms in a state-controlled armoury
and bearing them only during militia duty.

>"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. 

It is fun to speculate about word meanings in this fashion, but your reading
of documents from that period is probably far from comprehensive, as is mine.
I'd like to see you try to use an argument like this to convince a court.  I'm
not saying that you wouldn't succeed with some of the current people on the 
Supreme Court ;-), but your weak "well, I've never seen..." hardly constitutes
evidence of anything.

>>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.

People on the pro-gun side keep saying this, yet the courts don't overrule 
strict gun control laws.  Surely that must bother you.  Why do you think you
are right about the courts if they won't behave in a way that is consistent
with your beliefs?  Are they all tools of the dreaded HCI juggernaut?  ;-)

>>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.

Interesting.  Shall we try to interpret all of our laws according to "original
intent"?  That would make our lives fun.  Especially if you could get someone
like Bork on the court, who believed that our personal rights were never
intended to be construed so broadly. 

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

A fair question.  Arguing against "original intent" makes me nervous because
it is a double-edged sword.  The courts have a tremendous amount of power, and
most people don't realize this.  Most people live with the illusion that legal
language has a plain, unambiguous interpretation.  Frankly, I disagree with many
court-based interpretations--e.g. the ones that appear to define the militia in
terms of people eligible to do militia duty.  ;-)  But I think that the
"collective right" interpretation is fully in line with the spirit of original
intent.  I agree that many, if not most, of the original framers had a specific
implementation in mind that runs counter to "collective right".  Our modern sense
of what a militia is renders that implementation obsolete.  We just don't train
gun owners to fight in a militia.  We don't, because nobody really thinks of 
them as part of a militia.  There is no sense in which that unorganized "militia"
can be said to fit the original intent of the framers.

>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.) 

Again, an excellent point.  It shows how far we've come that we don't have
similar laws today.  That old conception of the militia has long since withered
away, and the gun lobby is using it as a technicality to fight gun control
laws that have nothing to do with militias.

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

    Rick Wojcik   (rwojcik@atc.boeing.com)   Seattle, WA
Newsgroups: talk.politics.guns