From: rwojcik@atc.boeing.com (Richard Wojcik,snake)
Newsgroups: talk.politics.guns
Subject: Re: So... Why have a standing military?
Date: 2 Oct 92 19:50:25 GMT
Reply-To: rwojcik@atc.boeing.com
Organization: Research & Technology

Frank Crary (FC) writes:

In article <83912@bcsaic.boeing.com> rwojcik@atc.boeing.com writes:
>Elbridge Gerry spoke for his own interpretation of the 2nd, not everybody's.
>As a dyed-in-the-wool Antifederalist, he bitterly opposed the Constitution
>and did all that he could to weaken the federal government. 

FC> His remark about the Second Amendment, however, does _not_ claim it
FC> weakens the federal government. In fact, he seemed to think that the
FC> federal government's authority over the militia was unaltered by
FC> the Second. Since this goes completely against his political biases and
FC> desires (to remove federal powers), it would seem that even Gerry 
FC> didn't think the Second Amendment protected state-controled militias.

Nevertheless, he had argued for altering the restriction on conscientious
objection on the grounds that the federal government could declare people
"religiously scrupulous" as a means of disarming them.  He seemed to see the
2nd as affecting the armament of the state militias then.  There is really
little point in picking over Gerry's words, since it is by no means clear that
those who ratified the final wording agreed with Gerry on its significance.
 
>The majority of
>the representatives who approved the Amendments were Federalists, who resisted
>(successfully) all attempts to restrict the power of the federal government to
>control state militias.

FC> So, we seem to agree: Both the Federalists and anti-federalists didn't
FC> think the Second Amendment protected state-controled militias...

Nice try, but no cigar.  I speculate that the Federalists felt the 2nd to be a
relatively harmless sop to the Antifederalists.  I wouldn't be at all
surprised if the Antifederalists took it to be a lever for regaining some of
the control that the states had lost.  Subsequent legal maneuvres seem to have
cemented federal control over the militias.  I suspect that the wording would
have been considerably more restrictive of gun ownership if the lawmakers back
then could have foreseen the level of gun-related crime that would appear two
hundred years hence in densely populated cities across a continent.  They
simply had no conception of modern urban crime, and they lived in a predominantly
rural, technologically backward culture.  Our major concern today is not
foreign (or federal) tyranny, from which we are well-protected by other means,
but widespread, senseless violence, much of it gun-related.  Hence, the courts
do not interpret the 2nd in the same way that they might have in the 19th
century if, say, New York City had decided to limit gun ownership to a very
restricted number of citizens.  Today, the 2nd cannot be used to strike down
such laws.  In the late 18th century, I suspect that it might have.

FC>  However,
FC> the second clause clearly protects _something_ (presumably something
FC> related to the militia) from federal infringement. It would be insane
FC> to suggest the federal government was thereby barred from infringing
FC> on the federally organized militia. Can you offer _any_ interpertation
FC> of "the right of the people to keep and bear arms", that fits these
FC> facts?

I don't consider the National Guard to be "federally organized" in its nominal
sense.  True, the federal government retains ultimate control, but it is
nominally organized by state.  The 2nd might become an issue if the federal
government decided to abolish the National Guard, replacing it with the
federal armed forces.  My basic attitude toward the 2nd, though, is that it
has been rendered moot by legal evolution.  Like the 3rd, it no longer has a
serious role to play, except in battles with those who want to have minimal
restrictions on gun ownership outside of a "militia" context.

FC> infringement) Certainly, the right of individual citizens to own 
FC> firearms fits the known facts: Individual citizens are not a state-
FC> controled militia, their ownership of guns contributes to militias (e.g.
FC> an armed citizenry) and there is no contradiction to putting this
FC> right outside of federal jurisdiction.

I don't think "an armed citizenry" is synonymous with "milita" any more than
an armed mob of vigilantes is a "militia."  The original debate surrounding
the 2nd touched on when the federal government would be able to place militias
under martial law.  The arguers were certainly thinking of a military force
having a chain of command.  Not a bunch of shopkeepers defending their property
in the midst of a race riot.

FC> A presupposition is very different from an assertion. The former implies
FC> a restriction (e.g. "assuming that... then"), while the later is
FC> simply a statement of fact (or belief) (e.g. "a well regulated militia
FC> is necessary.") What in the text of the Constitution makes you think
FC> the first clause is an presupposition? The Amendment seems to be a
FC> statement of fact about the need for militias, followed by a means
FC> of assuring the existance of such militias.

Presuppositions are propositions that must be true in order for the sentence
containing them to be coherent in context.  For example, the statement "It
being Tuesday, I must visit the doctor" presupposes that it is Tuesday.  If it
is not, then I lose my excuse for visiting the doctor.  The absolutive clause in
the 2nd establishes the context for the RKBA--the necessity of arming a militia.

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

    Rick Wojcik   (rwojcik@atc.boeing.com)   Seattle, WA

Guns don't kill people.  Guns make it easier for people to kill people.
Newsgroups: talk.politics.guns