From: fcrary@ocf.berkeley.edu (Frank Crary)
Newsgroups: talk.politics.guns
Subject: Re: Militia's and the right to keep and bear arms
Date: 25 Aug 92 17:28:54 GMT
Organization: U. C. Berkeley Open Computing Facility
NNTP-Posting-Host: lightning.berkeley.edu

In article <81141@bcsaic.boeing.com> rwojcik@atc.boeing.com writes:
>It is perfectly reasonable to
>surmise that, after the Whiskey Rebellion, lawmakers were a little leary 
>about the possession of guns outside of a disciplined organization.

Because most of the framers wrote, in numerous essays and articles, 
about the dangers of an army, or any military force, directly under
government control. Militias were the ideal solution, in their opinion:
An armed population, trained and organized, could both be an effective
force for national defense, and a check on repressive government.

>While
>some backers of the amendment wanted unrestricted language, they realized
>that they needed compromise wording to give it broader appeal.  Otherwise,
>why mention the militia at all?

The extremeists actually wanted a restrictive (restricitve, in all
the writings of the framers, refered to restrictions on the _government_
not on the people.) wording: 

"That the people have a right to bear arms for the defence of themselves
and their own state, or the United States, or for the purpose of killing
game and no law shall be passed for disarming the people, or any of them,
unless for crimes committed, or real danger of pulbic injury from individuals;
and as standing armies in the time of peace are dangerous to liberty, they
ought not to be kept up..."

(From the amendments proposed by the Pennyslvania anti-federalist minority.
By his own admissions in Congress, Madison drafted and introduced before
Congress our current Bill of Rights, to satisty the anti-federalist
objections to the Constitution.)

The extreme position was that there should be _no_ regular army, only
militias, and to assure the existance of such militias "against government
misadministration" (as Rep. Gerry discribed the Second Amendment
during th]e Congressional debates over the Bill of Rights), the government
was barred from disarming the citizens, or passing any law with that 
effect.

Madison didn't want to comp~rletely rule out peace time standing armies
so he drafted a compromise position into the Second Amendment: That
militias are necessary and (by implication) supperior to standing 
armies for the "defense of a free state."

>(2) The "original intent"
>theory is incompatible with the original intent of the Founding Fathers.  They
>wanted the courts to have latitude in the way that laws were to be interpreted.

This is a very interesting statement, considering that Jefferson 
specifically and publically endorsed "original intent{" in interperting 
the Constitui, that most of the framers wanted a Constitution that 
would strictly limit government powers, and that the courts were given no
authority to interpert the Constitution (this power was assumed by the
Supreme Court in 1803, Marbury v. Madison, and didn't exist when the
Bill of Rights was drafted.)

>That is why you don't find any minutes to the Constitutional Convention.  They
>were deliberately destroyed to prevent just the kind of nitpicking argument that
>"original intent" theorists like to make.

This is not true: The convention didn't have official minutes, but Madison
took detailed notes (he was, I believe, secretary for the concvention)
which were widely distributed and published.

It is also irrelevant: The Second Amendment was debated during the first
session of Congress, not the Constitutional Convention. There are 
detailed minutes of the entire session available.

>The fact is that not everybody who votes
>on a law agrees on precisely what the meaning is.

If you look at the debates over the Bill of Rights,{ the Representatives
seemed _very_ willing to minor details of phrasing (in for example, the
freedom of religion clause of the First Amendment) if there was any
possible misunderstanding or difference over meaning. There was _no_
such debate over the Second. This would imply they all understood
what it ment, and thought the meaning was very clear.

                                                  Frank Crary
						  CU Boulder
						  (even though I'm
						  still using my
						  Berkeley account.)
Newsgroups: talk.politics.guns