From: rwojcik@atc.boeing.com (Richard Wojcik,snake)
Newsgroups: talk.politics.guns
Subject: Re: So... Why have a standing military?
Date: 14 Sep 92 20:13:44 GMT
Reply-To: rwojcik@atc.boeing.com
Organization: Research & Technology

In article 10821@ucsu.Colorado.EDU, fcrary@ucsu.Colorado.EDU (Frank Crary) writes:
>In article <82595@bcsaic.boeing.com> rwojcik@atc.boeing.com writes:
>>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.

Relevant, but not necessarily the ones that should be taken as decisive in
interpreting the 2nd.  As I pointed out, the First Congress was largely a
Federalist body.  The country had voted overwhelmingly in favor of the Consti-
tution.  The Bill of Rights was a compromise effort by Federalists to bring
Antifederalist holdouts back into the fold.  There were Antifederalist amendments
to the language that were defeated, too.  The way people argue in this newsgroup, 
you would think that the framers never intended the militias to be "trained to
arms", because that wording was proposed but not adopted.  We know that the
words "for the common defense" were rejected, and some draw the conclusion from
that rejection that the framers didn't want the RKBA restricted to militia duty.
Pure speculation.  It's also possible that some lawmakers feared that "common
defense" would imply federal control.  It is wrong to look at the skewed, possibly
incorrect, records of the debates and base modern interpretations on such weak
theorizing.  We also need to look at the final wording and how that fits into
the modern context.  Do we now have anything like a militia that is supported by
private gun ownership?  No.  There are no more Minuteman militias, and there is
no longer a pervasive fear of federal control over state militias.  Instead, the
2nd has become a battleground for those who wish to regulate/unregulate ownership
of guns for entirely other purposes.  The "unregulated militia" has come to mean
(in the minds of some) the entire population of the country (not just 18-45 yr. old
males) in a completely nonmilitary role.  There is no federal or state control 
over this putative body, even though those ancient Federalist/Antifederalist feuds
spent all that time arguing over *who* would regulate the militia, not whether
there would be any regulation at all.  I ask t.p.g. why there is no "training,"
and I am advised to impeach my governor.  Ditto for every other governor in the
entire nation.  Just don't admit to the farce.

>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.

The limited, skewed records that we have of ratification debates cannot give
us the entire picture.  There were a lot of references to how the federal 
government might deviously disarm or wrest control of the militias.  I have
yet to find any reference to a fear that the state governments would be equally
tyrannical.  Patrick Henry virtually equated the federal government with a
monarchy.  He did not seem to be as fearful about the government of the State
of Virginia, of which he was a legislator.  The issue didn't come up because
the debators were more interested in which *government* would have the power to
regulate the militias.

>>  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.

Oh, come on.  The militia was supposed to be trained and ready for war.  Who was
supposed to do that?  The local parish priest?

>>  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.

No debate?  They certainly made a lot of changes to the words without any
debates.  ;-)  I think that you mistake a record of votes for a transcription
of the proceedings.  Little attempt was made to record debates.

>>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.

I thought that Madison's remark referred to all the Amendments, rather than the
2nd specifically.  But the point matters little, anyway.  Madison's claims 
about what he meant have little to do with what everyone else thought when it
came time to debate the Amendments.  Otherwise, nobody would have tried to
insert language about standing armies, etc., in the language of the 2nd.  The
Antifederalists believed that they were indeed amending the Constitution.  That's
why they called them "Amendments."  BTW, the Militia Act of 1792 does not prove
anything per se.  Legislatures may pass laws that are invalidated by the courts,
and that act did not go through the same ratification process that the 2nd did.
If the legislature says it's so, and the court says it ain't, it ain't.

>>  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."

The interpretation of such matters is why we have courts.  Legislators tend
to forget that the Supreme Court can sweep away all the split hairs on the
floors of Congress.  This was bitter medicine that Madison came to swallow
later on in his life.  He came to understand, and even approve of, the ability
of the courts to shape and extend law.

>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.

I must admit to a certain amount of confusion over what you believe.  Are you
saying that the original intention was to have "militia" mean the same thing
in both article I and the 2nd, but that subsequent events changed that
interpretation?

>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.

So when is the last time you went to militia drills with your neighborhood
gun owners?  Are we to blame you personally or our governors from failing
to drill the militia?  :-)  The 2nd is "clearly" nothing but unclear.  Most
constitutional authorities seem to agree on that, at least.  If, in the final
analysis, we must go beyond the language to interpret the law, why is it that
legislators worry so much over what the form of their language will be?   It 
is because the courts interpret their words, not the "debates" surrounding their
words.

-----
Disclaimer:  Opinions expressed above are not those of my employer.

    Rick Wojcik   (rwojcik@atc.boeing.com)   Seattle, WA
Newsgroups: 2,3,talk.politics.guns,fido.rtkba