From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: So... Why have a standing military?
Organization: University of Colorado, Boulder
Date: Sat, 12 Sep 1992 20:10:16 GMT

In article <82595@bcsaic.boeing.com> rwojcik@atc.boeing.com writes:
>>The Second Amendment assured that the militias could arm
>>and train themselves, should the government neglect this. Preservation
>>of the militia, even if not under state control, was sufficient to 
>>satisfy the anti-federalists.

>Sufficient, or all they could get?  One of the problems with this whole
>argument is that the people whose views get trumpeted the most are the
>Antifederalists--those who opposed the Constitution in the first place.

The Bill of Rights was specifically intended to satisfy anti-federalist
objections to the COnstitution. I think this makes those anti-federalist
objections quite relevant.

>It is quite clear from the historical record that federal vs.
>state control of the militias was at the heart of the 2nd.

No, _exclusive_ federal control (and the ability of the federal government
to weaken or destroy the militia by neglecting it) was at the core of
the debate. State control was neither acceptable to the Federalists,
nor central to the anti-federalist opposition. So I don't see how
you can assert that the Second Amendment protects exclusive state
control of the militia.

>  Otherwise, why
>try to introduce language barring the control of the militias under martial
>law, except during war? 

To weaken federal control of the militia, but not necessarily to strengthen
state control over it.

>  It turns out that the lawmakers debated every
>detail of the wording. 

In every other case, they certainly did. However there was no debate
over the wording of the Second Amendment. This implies, at least to
me, that they felt the wording was clear, agreable to everyone and
not radically altered in meaning be the re-phrasing that occured in
committee.

>BTW, I've made this point before, and I'll make it again.  Article I, Section
>Eight, like all other articles in the Constitution can be superseded by
>amendments.

It _can_ be, but this is not the case for the Second Amendment: Madison
specifically drafted the Amendment _not_ to supersede or alter any
other part of the Constitution (he said as much before the House when
he proposed the Amendments.) Further, one year after ratification, 
Congress passed the Militia Act of 1792, which excersized federal
Article One, Section Eight powers over the militia, as if they were
still valid. Clearly, the Congress (composed, essentially of the 
same people who framed the Amendment) did not think the Second Amendment
superseded or altered Article One, Section Eight.

>  There is no evidence that the word "militia" in the 2nd referenced
>any other body than the one referenced in Article I. 

Nor is there any evidence that the first clause restricts the meaning
of "people" in the second. In both Article One, Section Eight and
the Second Amendment, "militia" refers to an armed force composed
of "the whole of the people, except for a few public officials."

> It is not only reasonable
>to assume that the 2nd was directed at Article I, Section 8, but the types of
>arguments we see in the historical record suggest it very strongly. 

No, there is historical evidence that the anti-federalists _wanted_ to
weaken Article One, Section Eight. However, all evidence suggests
that the Bill of Rights was a compromise that did _not_ alter these
powers.

>Otherwise,
>why would Patrick Henry, a rabid Antifederalist, warn against leaving the 
>arming of the militias up to the federal government?  That was what Article I
>provided for.

Because Aritcle One might be _mis_interperted as giving the federal 
government the _exclusive_ power to arm the militia. This could be
abused by failing to arm the militia, and preventing anyone else
from doing so.  The Second Amendment is clearly a compromise to
satisfy this objection: It protects the people's right to arm and
train themselves, while retaining federal authority over the militia
and keeping the states from having private armies.

                                                     Frank Crary
                                                     CU Boulder