From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: A BASIC QUESTION
Organization: University of Colorado, Boulder
Distribution: usa
Date: Sun, 6 Sep 1992 16:23:45 GMT

In article <1992Sep5.180110.26800@vela.acs.oakland.edu> sglanger@vela.acs.oakland.edu (LANGER STEVEN C) writes:
>Look, if the ProChoice crowd can find a constitutional underpinning for
>their position somewhere in the 5'th, 9'th and 14'th ammendments why
>should we find it so difficult to defend our rights when they are
>spelled out in explicit detail.

Modern constitutional law experts generally talk alot about the "modern"
meaning, and how the constitution should be interperted to fit "changing
times." Abortion is clearly an example: The medical proceedure was
probably not even imaginable in 1787, so if and why it should be
considered a basic right is beyond bare text of the Constitution.

Supporters of judicial "activism" and "restraint" (two groups that
include all of the current Supreme Court) both agree that, usually,
Congress should be allowed to fill in these grey areas (on the assumption
that Congress is the most democratic institution and constitutional
interpertation should conform to the public will. In my opinion a
questionable assumption...) The "activists", however, make a major
exception to this: The Court should step in and overturn laws that
violate "preferred freedoms" especially the freedoms of "permanent 
minorities." Both "preferred freedoms" and "permanent minorities"
are defined by very subjective political views.

Most judicail activists would consider abortion to be a "preferred"
freedom, while owning firearms is not. That means the Court is more
likely to overturn an abortion law than a "creative" (National Guard
only) interpertation of the Second Amendment. 

Not to imply that judicial activists don't enforce the Constitution,
but they only take a absolute and inflexable reading of it when the
text is crystal clear (Terms of office is a typical example.)

>The current attempt to repeal the 2'nd not withstanding, what needs
>to be done is challenge one of these bans at the Supreme Court
>level. 

The Court only hears around 300 cases each year, less than .1% of those
that enter the federal courts. They refuse to hear cases for an 
extremely wide variaty of reasons (including, but not limited to political
discomfort with the issue.) The Supreme Court hasn't heard a meaningful
Second Amendment case since 1939. I know of two cases, that the Court
refused to hear. There are two more working their way up towards the
Court.

>Force the gov. and the media to face the question head on 
>instead of nibbling at the edges.

How, exactly do you force the media to face the question? A few networks
magazines or newspapers have open editorial policies against supporting
gun ownership. Most have a bias in this direction.

Certainly, if the media "faced the issue" it wouldn't be hard to make
the government do so.

>I think the Supreme Court would have to agree that banning any type
>of gun constitutes an encroachment on our right to keep and bear arms.

Actually, in US v. Miller, the most recent case, the Court didn't
go as far as "any type of gun." Considering the first clause, refering
to a militia, they ruled that a weapon must usefull to militias for
the Second Amendment to protect private ownership. Specificially, that
they didn't have any evidence that sawed-off shotguns were usefull to
militias, so the National Firearms Act restrictions were constitutional.

                                                 Frank Crary
                                                 CU Boulder
Newsgroups: talk.politics.guns,rec.martial-arts