From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: 2nd Amendment Myths
Organization: University of Colorado, Boulder
Date: Thu, 3 Sep 1992 21:12:48 GMT

In article <81848@bcsaic.boeing.com> rwojcik@atc.boeing.com writes:

>>Federal control of the militia (as per Article One, Section Eight of
>>the Constitution and the federal Militia Act of 1792 and Presser v.
>>Illinois 116 US 252.) This is in conflict with your
>>concept of a state-run militia. If, as these documents
>>would suggest, the states do not have a free hand in arming and training
>>militias then the Second Amendment cannot refer to a state power.

>Already answered elsewhere, but worth answering again.  The 2nd was an
>amendment that Antifederalists wanted to use to weaken Article I on just
>this point.  The Constitution was a Federalist document, and the Amendments
>were adopted at the instigation of the Antifederalists.


And, as I have said elsewhere, the Federalists specifically stated
that the Bill of Rights did not alter the Constitution: It was mearly
a written protection of rights which were already protected, de facto,
by the unamended Constitution.

Further, the federal Militia Act and the Supreme Court ruling in Presser
v. Illinois undermine your concept of independent, state-run militias,
by imposing federal supremecy over organized militias. How can the
federal government have such authority, if the Second Amendment were
a grant state authority over the militia?

>>By federal law (Title X), Supreme Court rulings (Presser v. Illinois and
>>US v. Miller 307 US 174) and the stated views of the framers (A. Hamilton,
>>G. Mason, R. H. Lee, etc..) the "militia" includes all citizens 
>>who are physically able. This makes a "collective" interpertation almost
>>meaningless: I am a member of the militia, by federal law, so the
>>Second Amednment protects my right to keep and bear arms (in my capacity
>>as a member of the militia.)

>I have no answer to this other than to say that the Supreme Court has yet
>to overturn a single gun control law on the basis of this interpretation.

Specifically, they ruled that the Second Amendment protected the right
of individual citizens to own firearms, but that this right (like all
others) is subject to reasonable regulation. They simply haven't 
heard any cases involving unreasonable regulations. The rulings,
however, precident for such a decision. 

>Moreover, I think the court should have distinguished between eligibility
>for militia duty and militia duty itself.

In Presser v. Illinois:

"It is undoubtedly true that all citizens capable of bearing arms
constitute the reserved military force or reserve militia of the
United States as well as of the states..."

In US v. Miller:

"The Militia comprised all males physically capable of acting in
concert for the common defense..."

No matter what you, personally, may think the case law on the subject
is very clear. It is also in complete agreement with current federal
law (Title X).

>The fact remains that you belong
>to no real militia, and you haven't been asked to engage in any of the 
>training that you and others think "well-regulated" refers to.

Under Title X recognizes the "unorganized militia", which includes
all males between the ages of 17 and 45. So I do, in fact, belong
to a militia officially recognized by federal law. 

>>Finally, every Supreme Court ruling to even _mention_ the Second Amendment
>>has treated it as an individual right. Specifically Scott v. Sanford 60 US
>>1857, US v. Cruikshank 95 US 542, Presser v. Illinois 116 US 252, Miller
>>v. Texas 153 US 535, Patsonne v. Pennsylvania (no cite handy, ruling in 
>>1914), US v. Miller 307 US 174 and US v. Verdugo-Urquidez (no cite handy,
>>ruling in 1990.) 

>Not necessarily.  You are talking about presupposition rather than assertion.
>The courts could take the position that, granted the petitioner's view of
>personal right, this case does not bear on such personal right...

You might want to actually _read_ these citations before you make this
assertion. However, in summary:

Scott v. Sanford, considering a completely different issue, argued
that certain rights were inseperable from citizenship, and proceeded to
list some of those fundamental, individual rights:

"the right to enter every other [than his native state] state of the
Union whenever he pleased... the full liberty of speach... and to keep
and carry arms..."

US v. Criukshank, Presser v. Illinois and Miller v. Texas all
concluded that Second Amendment did protect the right of private 
citizens to keep and bear arms, but that (according to the interpertations
of that time) the Bill of Rights only applied to the federal government,
not to the States. Therefore, violations of the right to keep and
bear arms _and_ the First Amendment right to public assembly by local
governments were not unconstitutional. (The views of the Court on
the Bill of Rights and local government has since changed, so this
cannot be taken as a green light for local gun control laws.)

Further, on Article Six (supremecy of the federal government) grounds,
even a local ban on private firearms ownership would be unconstitutional
as it would "deprive the United States of their rightful resource for 
maintaining public security [the militia.]"

In Pattsonne v. Pennsylvania, the Court ruled that a anti-hunting law
could be enforced by restricting ownership of hunting weapons to
citizens, but that such a law could not "extend to weapons such
as pistols that may be supposed to be needed occasionally for
self-defense." (Possibly a Ninth Amendment right to meaningfull
self-defense, not Second Amendment.)

In US v. Miller, the Court considered the National Firearms Act of
1934, specifically the tax on sawed-off shorguns. The Court ruled
that Miller was, for Second Amendment purposes, part of the militia
(using the above quoted definition) but that there was no evidence
that sawed-off shotguns have "some reasonable relation relationship to
the preservation or efficiency of a well-regulated militia." Therefore,
Miller's right, as a private citizen, to own such a weapon was not
protected by the Second Amendment. Essentially, that militia-usefullness
was the test, to determin if the Amendment protected private ownership.  

Finally, only in 1990, the Court ruled in US v. Verdugo -Urquidez,
(when they were trying to establish the meaning of "the people" as
used in the Constitution), that "the people" had the same
meaning in the First, Second, Fourth, Ninth and Tenth Amendments
and that it mean "all members of our national community." Therefore,
the current Supreme Court considers the Second Amendment to
mean, "...the right of all members of our national community
to keep and bear arms shall not be infringed."

>>Until you can address these issues, I don't think you have any casue to
>>call the individual rights interpertation "unsupported." Can you even
>>cite a _single_ Supreme Court ruling that treated the Second Amendment
>>as grant of powers to the states, as opposed to a protection of an
>>individual's right?

>Can you cite a single case where a gun control law was overturned because of
>the 2nd?  That's the only real question here.

_You_ are the one trying to restrict a basic right: Therefore the burden
of proof is on _you_, both to prove the government has a delegated power
to regulate firearms ownership _and_ to prove the Second Amendment isn't
a barrier.

I have seen you present _no_ evidence to support this claim.

>>When the original intent is clear and supported by case law, they do not.
>>Even the defenders of judicial activism concede this. As I have show
>>above, original intent is reasonably clear and supported overwelmingly
>>by case law.

>Don't be silly.  The Supreme Court has gone so far as to reverse itself before,
>and it could do so in the case of the 2nd.

They have never done so with respect to a right, which has been excersiced
since the framing of the Constitution (and before) and which every 
scrap of case law considers Constitutionally protected.

In fact, I can't call to mind _any_ case where the Court overturned
precedent to _remove_ a right.

                                                Frank Crary
                                                CU Boulder