From: Terry.Preston@f207.n914.z8.rbbs-net.ORG (Terry Preston)
Newsgroups: sci.skeptic
Subject: The 2nd amendment- part 1
Date: 11 Nov 92 07:03:52 GMT

In article <51419@seismo.CSS.GOV> (Thomas Carter) wrote as follows:


TC>Excuse me Rick [Moen], but you couldn't be more wrong. The 2nd Amend.
TC>does indeed protect the right of the individual citizen to keep and
TC>bear arms.

TC>Everything from historical commentary to modern case law is on the
TC>side of the individual interpretation.

I respectfully disagree.

TC>Perhaps a little research before "posturing" is called for.

OK.  I've gone through "U.S. Reports", the primary case reporter for the
U.S. Supreme Court, as well as relevant other sources like the Federal
Reporter and the United States Code to verify these cites.

TC>This interpretation is upheld by the writings and speeches of all of
TC>the major players of the time [of the writing of the Constitution].

Whether we must consistently follow the interpretation of the
Constitution provided by some of the authors, regardless of contemporary
relevance, is a matter of  intense  debate among legal scholars (recall
the Robert Bork confirmation hearings).  The world of small farmers that
the Framers lived in has long since passed, and the federal government,
faced with Indian wars and threats from European powers, recognized
pretty quickly after the adoption of the Constitution that the core of
American land defense had to be a disciplined and well-managed
 professional  army.

TC>Specifically, you should acquaint yourself with the following Supreme
TC>Court cases:

TC>Scott v. Sanford (1857)     [Dred Scott]

TC>US v. Cruikshank (1876)

The issue in 'Dred Scott' was whether or not state law could free as
slave simply by virtue of the slave entering the state.  The court held
that slaves were property identified and protected by the Constitution,
and that no state could deprive a slaveowner of his property without due
process of law.  'Cruikshank' merely reaffirms this well-settled
constitutional doctrine concerning the taking of private property.

Nothing in 'Scott' or 'Cruikshank' appear to prohibit a state from
confiscating arms.  From these holdings I would argue that if the state
does move to confiscate private arms it must pay adequate compensation
and provides grounds for challenging the amount of compensation.
Lincoln took this view regarding slavery when he proposed compensating
slaveowners for lost property prior to the Emancipation, and later to
make peace with defeated Confederates.  Several bills, including a
recent proposal by outgoing Senator Alan Cranston of California that
would reimburse gun owners a set amount for compulsory surrender of
selected private arms.

In conclusion, these cases  do not  find an independent right to bear
arms enshrined in the Second Amendment.  If the NRA or their fellow
travellers are citing them, then they're agreeing with those who hold
that guns should be treated by the Constitution as any other form of
private property.

TC>In this century there are only two Supreme Court cases that even
TC>mention the 2nd [Amendment].

TC> US v. Miller (1934)

TC>        Court rules that the 2nd applies to individual citizen.
TC>        Further states that the citizen has the right to keep and
TC>        bear any arm which would be useful to a regular (infantryman).

I have no idea  where  your source got this idea.  U.S. v. Miller, 294
U.S. 436, (1934) deals with an infantryman who lost his arm while on
duty in France in 1918 who was challenging the government's denial of a
pension.  There is absolutely  nothing  regarding the Second Amendment
in this case.  If I have the wrong case, please provide the full cite.

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