From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: So... Why have a standing military?
Organization: University of Colorado, Boulder
Date: Tue, 6 Oct 1992 01:51:56 GMT

In article <84260@bcsaic.boeing.com> rwojcik@atc.boeing.com writes:
>Nevertheless, [Gerry] 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.  

This doesn't follow at all: His objection was that the federal government
could _claim_ someone was "religiously scrupulous" as a means of
disqualifying them from the militia and disarming them. He made no
mention of state _anything_, let alone state militias. His argument was
that the federal government should have no excuse to limit membership in
the militia and thereby justify disarming citizens. This seems to 
support the point you have been opposing all along: The Amendment
protects access to arms by individual citizens (and thereby also
protecting the existance of the militia), _regardless_ of the
federal government's views about the militia.

>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 don't see the difference between "didn't protect the state-controled
militias" and "a relatively harmless sop." The Federalists thought the
amendment did very little: It didn't give the states control over the
militia, and it's only prohibition (that the government may not
disarm citizens) was something they didn't think the government should
do anyway (as evidenced by the Federalist papers and several other
Federalist writings.)

>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. 

Perhaps they considered this additional political end, but it also 
satisfied their _specific_ complant that the federal government might
neglect its responsibility to arm and train the militia. By assuring
private citizens could arm and train themselves, the Amendment met this
specific objection by protecting the existance (if not the effective
organization) of the militia.

>I suspect that the wording would
>have been considerably more restrictive of gun ownership if...

What you suspect is both hypothetical and unsubstantaited by facts.
(In fact, it _contradicts_ some facts, as several of the "founding
fathers", including Jefferson and Paine, though privately owned
arms _reduced_ crime and disarming law-abiding citizens would only
make life easier on criminals.) Unsubstantiated, hypothetical
claims have (or should have) absolutely no relevance to constitutional
law.

>... 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.

In your opinion, perhaps. But given the federal RICO seizures and
other abuses associated with the "war on drugs", as well as the
irresponsible behavior of the Congress (which in some ways acts as if
it were a ruling class, not public servants), I would have to call
government repression and tyranny a very real and major concern. The
merits of this concern, on which people in general disagree, is a
_political_ not a legal question. The courts have, as a general
rule, avoided political questions as outside their jurisdiction. This
is a fundamental flaw in your "modern context" argument: The 
modern context is not something the people agree on, and is not
something a impartial court of law can apply. To make this the
basis of constitutional interpertation would be to make the Supreme
Court a law-making (legislative and political), not a law-applying 
(judicial and impartial) body.

>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 organization, arms and training are dictated by the Department of
Defense. The National Guard is required to obey the orders of the
President in all cases (even when the Governor issues cortrary orders)
and may be made a part of the regular army whenever the President wishes.
According to the Supreme Court (Perpitch v. Department of Defense) the
National Guard is part of the federal army.

By the way, you haven't said yet what you think the Amendment protects.
Are you claiming that, "the right of the people to keep and bear arms",
provides _no_ protection what so ever of _anything_?

>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." 

Every one of the framers to mention the subject in speaches or writing
though the "militia" was an armed citizenry. Many even directly stated
such definitions. I don't think your personal definitions are
relevant.

>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.

This was an anti-federalist _objection_ to federal control, clearly implying
they though a militia _not_ under subject to martial law was not only
possible but preferable. Further, you are confusing their opinion, that
the militia _should_ be well organized, with their stated definition of
the militia ("everyone, expect for a few public officials".)

>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. 

I'm quite familiar with English grammer. I was _not_ asking what a
presupposition implies. I was asking what evidence you have, that the
initial clause of the Second Amendment is a presupposition. The language
seems (to me) to be a statement of fact, not a presupposition.

                                                  Frank Crary
                                                  CU Boulder
Newsgroups: talk.politics.guns,rec.backcountry