Newsgroups: bit.listserv.politics
Date:         Wed, 15 Apr 1992 01:31:46 -0700
From:         Andy Freeman <andy@SAIL.STANFORD.EDU>
Subject:      Re: Talk about a vague amendment!

>> No, article 1, section 8 speaks of state militias, militias which are
>> not referred to as "well regulated".  "Militia" in the 1790s meant
>> nothing more than an armed group of people.  One type, a select
>> militia, was also referred to as an army.  Note the use of context and
>> modifiers to distinguish different types of armed groups.  Section 8
>> explicitly discusses state militias, and gives the feds considerable
>> veto power over them.  The 2nd refers to well regulated militias,
>> which aren't govt militias by definition.
>>
>I partly disagree, and will note my area of questioning for I submit
>that you are knowledgable on the subject (I know flattery will get me
>nowhere).  Article 2 separates a militia from an army for
>clause 12 speaks of them, and Article 2 gives the president power over
>both the army and the militia.

"the militia" assumes too much; there are several possible militias,
controlled by various entities and with different properties.  Article
2, Section 2 speaks of the president's power over the "militia of the
several States"; those can't be "well regulated" because they are govt
organizations.

>    Also why does "well regulated" make it the militia mentioned in
>amendment 2 so different from the one mentioned in Article 1 and 2?

Because that's what "well regulated" means.  Regulated doesn't imply
govt control (my car has regulators in it and certain forms of
adjustment on guns are called "regulation"; all without govt
involvement) and the 1790s definition of "well regulated" explicitly
excludes govt control.  Asking "why" is much like asking why "blue"
usually refers to a color/mood and not a type of sandwich.  We can
trace how words and phrases get meaning, but once they do, "why" they
have a particular meaning at a particular time is often irrelevant.

>> BTW - Even if the 2nd conflicts with Section 8, the 2nd takes
>> precedence; that's how amendments work....
>>
>it doesn't!  the second just takes the power of removing arms from the
>people from the Congress' militia power.  How is a slight difference
>of wording change the type of militia in question?

Modifiers and context often have big effects.  Consider the difference
between "driver" in a discussion about auto racing and "drunk driver".
Language works that way.

>Are you saying in a time of invasion, the militia mentioned in the 2nd
>amendment can't be called up to defend our country by Congress?

I am saying that people can't be called into service based on their
membership/participation, or lack thereof, in a "well regulated"
militia.  That is not to say that Congress can't call up individuals
who happen to be members of "well regulated" militias, because it can,
by using the same authority that Congress has to call up anyone else
and under the same circumstances and criteria.  (Some might argue that
the 13th forbids the draft, but that discussion only affects criteria
and circumstances and doesn't tell us anything about militias.)

>> Actually, it was intended that the people should destroy the govt
>> "when in the course of human events" that became necessary.  Adams put
>> it "Whenever the militia comes to an end, or is despised or neglected,
>> I shall consider this union dissolved, and the liberties of North
>> America lost forever."  (Jefferson, being a redhead, was a bit more
>> radical; he thought that a revolution every two generations would be
>> necessary.)
>
>that's the Declaration of Independence, which would also null the
>treason clause too

Jefferson not only won a rebellion, he crushed another as president.
He distinguished being able to cross the line from actually doing so,
a distinction that I find appropriate.  Scarry argues that the 2nd
serves as another check and balance, that govt won't avoid
confrontation with "the people" unless it has reason to, and
revolution is a good reason.

>> The notion that the militia clause somehow limits "the right of the
>> people" is fairly new; I've never found a cite to it older than 1920
>
>I'm admitting that the 2nd amendment gives the people a right to bear
>arms, after all that's what the amendment says.  But, just like the
>1st amendment doesn't say the people can assemble inside of jails, the
>2nd amendment doesn't say the gov't can't say require us to learn how
>to use guns to be more well regulated or even require our militia to
>serve our country as it was meant to.

The 2nd would not prohibit mandatory universal gun education or
military service, so those are red herrings because they have nothing
to do with an individual's RKBA choice.  The question wrt gun access
restrictions is whether "permission" constitutes infringement, or,
more specifically, what kinds of restrictions are infringments.

Surely arbitrary govt discretion is an infringment, but criminal acts
that happen to involve a gun, such as robbery or murder, can be
punished.  (Instant checks don't seem to be an infringement, but
"cooling off" periods are.  I'd be willing to compromise on the latter
in return for round the clock police protection for the "cooling"
person until the period ends, although hunters might want some sort of
instant trade in.  Sure, people usually know when season opens,
although it's amazing how late they can change, but they don't know
when a gun will break or they'll have an opportunity that they didn't
expect.)  Similarly, we can jail individuals for crime even though
"the people" still have "liberty and the pursuit of happiness".  We
can argue about whether or not criminal record is relevant, but the
current debate is really about non-criminals.

While gun owner education requirements sound like a good idea,
practice, like that of literacy tests, is far different.  Moreover,
the relevant stats reveal that there really isn't a problem, so
significant restrictions can't possibly be justified on those grounds.
(Hint: gun education can't affect criminal use.)  Even without the
2nd, those problems don't justify the de facto bans that the
requirements are used to implement, and suggesting that they repeal
the 2nd won't get you very far.

BTW - gun owners have experience with "trust me".  If you want them to
trust you, there is no shortage of opportunities to earn that trust by
removing things that reveal that "trust me" means "bend over", and if
you don't bother to earn that trust ....  Also, telling them that they
are evil, or basing your arguments on things that they know are wrong,
is a good way to ensure their non-cooperation.

Bruce-Briggs has made a rather convincing case that the gun control
debate is really about values; that's certainly more consistent with
the debate itself, as opposed to the flimsy excuses.  (Take, for
example, Barney Frank's Speaking Frankly, or is it Frankly Speaking?
In one sentence he expresses support for significant restrictions and
admits that they won't provide any crime/accident control benefits.
Either he's stupid or he's supporting them for other reasons.)

-andy
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