From: dmcclory@Chaos.mcs.kent.edu (Daniel McClory)
Subject: Guns and the Militia
Summary: What rights do we have under the 2nd Amendment?
Keywords: Militia Guns Constitution
Organization: Kent State University
Distribution: usa
Date: Thu, 16 Apr 1992 02:39:39 GMT

This is a long post, so I apologize to those who like things short and sweet.
I'll try to keep it interesting.

This is a discussion to some questions about the second amendment that
I posted.  As we all (?) know, the second amendment reads

	"A well-regulated militia being necessary to the security
	of a free State, the right of the people to keep and bear
	arms shall not be infringed."
	
I've gotten a few replies (from Geff Underwood and "Morris the Cat") to my
to original post.  I'll combine my replies here, to save space and time.
I apoligize if I don't fully attribute my sources.

My original questions are indented, and used for section headers.

>	- Are all citizens of the U.S. members of the militia?

From Geff Underwood:

:In <Title 10, Section 311, subsection (a)>, the law says:
:%   The militia of the United States consists of all able-bodied males
:% at least 17 years of age and, except as provided in section 313 of
:% title 32, under 45 years of age who are, or who have made a declaration
:% of intent to become, citizens of the United States, and of female
:% citizens of the United States who are commissioned officers of the
:% National Guard.

Morris also reminds me that convicted felons are not full citizens and
may be denied their right to keep and bear arms.

So, this implies that Congress has the right and responsiblity to define
who may be a member of the militia.  Rather narrowly define, I might
add.

>	- Is one of the purposes of the militia to overthrow an unjust
>	  government?

From Geff:
:Yes.  A last resort, but still legitimate.

I have read philosphy books/papers which appear to imply that a 
government which regularly and flagrantly violates human (natural) rights
may be considered unjust.  Let me say that I appreciate a form
of government which acknowledges the right of the people to revolution
*in writing*.  Makes me feel more confident that they will act in
my better interests.

As I believe T. Jefferson said "A little revolution now and then is a 
good thing" (or something like that).

>	- Is the Congress responsible/permitted to control the militia?

Geff provides this quote
:Article I, Section 8 of the Constitution:
:% The Congress shall have Power to ...
:%  * To provide for calling forth the Militia to execute the Laws
:%    of the Union, suppress Insurrections and repel Invasions;
:%  * To provide for organizing, arming, and disciplining the Militia,
:%    and for governing such Part 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.

(Section 8 also provides for many other Congressional powers, including
borrowing money and declaring war, one of which they do too much, and
they other of which they've given up on)

Geff then adds:
:Congress can make rules for the militia, but it can't enforce these rules;
:that's left to the states.  If the members of the militia don't like the
:rules, they can simply ignore Congress when it calls them forth.

Is this the law of the land as it is currently viewed and enforced, or
is this a statement of what the law *should be*?

According to my sources, the Supreme Court has upheld strict regulation
of certain firearms (sawed-off shotguns) on the grounds that they had
evidence that such weapons contributed to the militia (US vs. Miller).
Doesn't this indicate that Congress can limit firearms possession based
on whether a given weapon is appropriate for militia use?

Which branch of government controls the  BATF (Bureau of Alcohol,
Tobacco, and Firearms)?  The executive?  Doesn't this Bureau actively
and vigously enforce the Federal laws concerning firearms?  Does the
Congress have the right to enforce *any* law?  Isn't it solely able
to pass them, and leave enforcement to others?

>	- If the Congress is allowed to control the militia, and if one
>	  of the purposes of the militia is the overthrow of an unjust
>	  government, aren't these two ideas contradictory?

Both Geff and Morris contend that Congress has *no* control over the
militia, and therefore there is no contradiction.

If this is true, Congress appears to be taking many unconstitutional
actions in regard to firearms.  Given that the Supreme Court hasn't
(yet) shredded these laws, legal scholars appear to believe that the
above contention is *not* true, and that Congress can, to some extent
legislate controls on the militia.

Might I suggest that perhaps Congress has a very limited degree of
control over the militia, granted via the 2nd Amendment and various
court precedents, plus Article I, section 8 of the Constitution.
How far does this control extend?  That is the issue I think we are
struggling with.  The contradiction exists, and it is what we are
attempting to resolve.

>	- If the Congress is allowed to control the militia, shouldn't
>	  it have the authority to legislate which weapons are 
>	  appropriate for the militia to use?  Might this include a
>	  ruling that handguns are inappropriate and are therefore
>	  outlawed?

Geff replies
:Congress may choose which weapons it will issue to the militia.  The
:present choice is "no weapon at all".

Interesting point, isn't it?  Don't the Swiss issue weapons to their
citizens?  Should we (if we had the money)?

But, remember US vs. Miller (above)?  There have been times in the past
when Congress passed and the Supreme Court upheld laws which limit
which weapons citizens may keep and bear based upon the weapon's utility
to the militia.  Is a handgun a useful militia weapon in the numbers
currently available today?  If Congress decides not, it could mean that
they might pass a law to outlaw them.  Would it hold up in the
Supreme Court?  I don't know.  Could those of you knowledgable about
such things give me some guidance?

Geff goes on to say
: I don't believe that Congress ever had the authority to disarm
: the people, but even if it did, we have the Second Amendment.

Certainly Congress does not have the right to completely disarm the people,
just as it does not have the right to outlaw public speaking.  But
can the right be limited within the boundaries of creating a "well
regulated militia"?
^^^^^^^^^

>	- If we are all members of the militia, and if we are under
>	  the control of Congress, shouldn't the Congress be actively
>	  promoting the militia to arm itself with the most militarily
>	  effective weaponry?  In other words, shouldn't we all run out
>	  and buy assault rifles?

By actively promoting, I meant "the militia is encouaged to purchase
weapons deemed appropriate by the Congress, and Congress shall make
such purchase as convenient as reasonably possible".  No one should
be forced to buy a weapon they don't want and don't expect to need.

Geff stated that
:Actually, there should be a mix of weapon types.  If everybody has an
:assault rifle, who's the sniper?

Natually, I don't wish to limit the mix of weapons, but I suspect that
there would be a typical "militia weapon" which a poorly trained militia
member could carry and make reasonably effective use of when the need
arose, and this would be the weapon most encouraged by Congress.  I would
put forward that an Klashnikov rifle might be a pretty good choice.
Why, then, is it that the most likely weapons to be forbidden by the Congress
are those which it would appear Congress should be ENCOURAGING?  Are
Bills being proposed on the basis of emotions rather reason?

>	- What is to prevent the Congress from requiring that all members
>	  of the militia regularly undergo training in firearms use?
>	  Those who refused to comply would no longer be considered
>	  members of the militia.

No one has yet put forward anything which appears to refute this idea.
So let me pursue it a bit.  If you are excluded from the militia, do
you still have a full right to keep and bear arms?  Or does being a member
of the militia just give you the right to fight and die for your country
in the event that the militia is called up?

Let me ask some further troubling questions:

Is the right to keep and bear arms a natural (human) right, or a civil
right granted by the government through the Constitution?  If it is
a civil right, then the Government has the right to moderate or even
revoke the right.  If it is a natural right, then any attempt to infringe
upon the right is an unjust act.  Sufficient numbers of unjust acts make
for an unjust government, and we know what the Constitution says we
should do with them, right?

I'll go out on a limb and say that I think that the right to keep and
bear arms is a civil right, and the Government can yank it anytime they
want through modifications or amendment of the law.

All replies will be appreciated, and flames will be depricated.



-- 
          Daniel McClory               
	  Kent State University        
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