From: andy@SAIL.Stanford.EDU (Andy Freeman)
Subject: Re: democratic platform
Followup-To: talk.politics.guns
Organization: Computer Science Department,  Stanford University.
Date: Thu, 3 Sep 1992 20:25:12 GMT

In article <1992Sep3.003520.8273@cfctech.cfc.com> kevin@cfctech.cfc.com (Kevin Darcy) writes:
>In article <1992Aug25.220005.7119@CSD-NewsHost.Stanford.EDU> andy@SAIL.Stanford.EDU (Andy Freeman) writes:
>>Darcy's right and I retract it.  It is a gross mischaracterization
>>because it is unreasonable to assume, as I did, that Darcy's positions
>>have local internal consistency.  I knew better than to make that
>>assumption and I'm sorry that I did.
>
>No, Andy, it's a gross mischaracterization because I have said nothing that
>would cause reasonable people to believe I meant GOVERNMENT control 
>exclusively.

There's no such thing as exclusive government control, so why would a
reasonable person attribute such a position to Darcy?  (Yes, people
who've had significant dealings with him might, but are they
reasonable?)

Out with it Darcy.  Is the 2nd amendment compatible with a by-govt
veto over small arms ownership by law-abiding people in Darcy-land?

>>Darcy has been arguing that the militia clause somehow restricts
>>"the people", that the 2nd isn't an individual right.
>
>What is the purpose of the first clause then?

As I wrote (and provided relevant cites), it's about the distribution
of military power.

>I don't buy the "preamble" argument, of course. It's not marked as
>such, nor is it set off in any way shape or form from the following
>piece of substantive legislation. It is, in fact, in the same
>sentence. Can you cite any other instance where a "preamble" occurs in
>the same sentence as a piece of real legislation, Andy, either in the
>Constitution, or in ANY major legislation? I'd be VERY surprised if
>you could.

In my message that Darcy is responding to, I made it quite clear that
I'm not making a preamble argument.  (I've pointed out that preamble
interpretation is incompatible with his iron-clad "every word matters"
theory, a theory that he's abandoned.)  I refuse to defend Darcy's
strawmen, even if that does render his best argument irrelevant.

>>That's the opening line for a "the 2nd doesn't forbid gun control"
>>argument.  (Of course, the 1st doesn't forbid ALL speech control
>>either, but we're not talking about minimal permissive controls, but
>>restrictive ones, to use Zimring's terminology.)
>
>More name-dropping. Do you ever give up? I'M NOT IMPRESSED, ANDY. ANY 8-YR-OLD
>IN A PUBLIC LIBRARY CAN DROP THE NAMES OF BOOK TITLES AND AUTHORS!!! IT 
>DOESN'T PROVE   A N Y T H I N G!!!

Mentioning Zimring wasn't intended to prove anything.  It was
providing the appropriate context for interpreting the words used and
crediting the person who came up with the definitions used in this
context.  Interested readers can use that name as a springboard into
the gun control literature; Zimring is a major player and
understanding his arguments, data, etc. is necessary for any informed
discussion of the issue.  I didn't mention that name for Darcy's
benefit.

Zimring uses "permissive license/permit systems" to refer to systems
where denial must be based on objective, relevant, and limited
criteria.  Driver's licenses in the US are usually issued on a
permissive basis.  "Restrictive license/permit systems" let the
issuing authority deny on whim.  Zimring favors the latter.

The differences are relevant to the discussion.  Note that permissive
systems can be consistent with "a right of the people", while
restrictive systems can't be.  (Think of the sorts of restrictions one
can place on "the right of the people peaceably to assemble, and to
petition the Government" without violating that right.)

>>The argument starts with with "the 2nd only applies to guns owned by
>>members of <some group>" often with a "acting as such", which is what
>>Darcy has been arguing.  To get that into gun control, govt has to be
>>able to control the group or its membership.  
>
>Wrong. It has to be "well-regulated", and it has to be "necessary to the
>security of a free state", but there is no requirement that it be govt-
>controlled.

There is such a requirement if Darcy's argument has anything to do
with gun control.  Darcy might well be blathering about something that
he thinks doesn't have any relevance to the discussion, but I'm going
to assume that he thinks his blatherings are relevant.

>	In fact, the term "the people" indicates that the purpose of
>the Amendment was to establish an RKBA for militias _other_ than the ones 
>controlled by the Federal Government, e.g. State militias or possibly even
>citizen militias.

Curiously, the states don't rate a mention in the 2nd, so how does the
2nd affect their militias except by their inclusion in some broader
class?  (BTW - Does Darcy want to argue that the 2nd overrides the
body of the constitution wrt state militias?  What federal controls on
state militias does it preempt?)

>The point you seem to be missing is that "people" means "anyone but the
>Federal Govt." in this context, but not necessarily "anyone at all".

No one claimed it did include "anyone at all", any more than the 1st,
4th, or voting rights apply to "anyone at all".

>Even according to your own definitions, "militia" had age and/or sex
>restrictions at the time the BOR was written.

Darcy is both confusing me with someone else AND misstating the facts
presented.  There are two relevant portions of the various militia
acts.  One concerns folks who are subject to being called up; that
portion has age and sex criteria.  (Seamen are also exempted.)  The
second concerns a gun ownership mandate, which had no such
restrictions.  Moreover, even that doesn't imply that the militia
includes only those people who were required to own guns.

It's unclear what Darcy thinks "well regulated militia" means, but if
he thinks it is consistent with anything more than the most permissive
regulation, he doesn't know anything about the 1790s meaning of the
term.  I've posted the relevant cites, but Darcy just responds with
"Andy is name-dropping again", which is also his response to cites
about the distribution of power meaning of the first clause.  (Since
the only argument he has is against his preamble strawman, that's
understandable, but ....)

>>UNLESS one makes the last connection, the militia clause's meaning can't
>>have any relevance to the discussion, 
>
>It either limits the applicability of the RKBA, or it's just decoration.
>Maybe you're so unpatriotic that you think one of our most important and
>fundamental legal documents is littered with pointless decoration, Andy, but 
>please don't expect everyone to share that view.

No, I don't think that the militia clause is decoration.  The first
half of the amendment is about the distribution of military power and
states that an armed people are to be supreme.  The second part
implements that distribution.  It is possible to have universal RKBA
without that distribution, so BOTH parts are necessary.

In Darcy's interpretation, the second part is useless decoration.  (If
"well regulated militia" implies "state militia/groups with guns" and
"the people" means "state militia", the second part is superfluous
because the first clause gives guns to state militias.)

-andy
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