From: kevin@rotag.mi.org (Kevin Darcy)
Subject: Re: Rights and Legal Manuevering (Was Re: democratic platform)
Organization: Who, me???
Date: Tue, 28 Jul 1992 06:01:36 GMT

In article <veal.138@utkvm1.utk.edu> veal@utkvm1.utk.edu (David L. Veal) writes:
>In article <1992Jul26.220426.20758@rotag.mi.org> kevin@rotag.mi.org (Kevin Darcy) writes:
>
>>In article <1992Jul26.002943.4459@athena.mit.edu> sybok@athena.mit.edu (The Rifleman) writes:
>>>In article <1992Jul25.232111.18191@rotag.mi.org> kevin@rotag.mi.org (Kevin Darcy) writes:
>>>>In article <Brv573.2q6@fmsrl7.srl.ford.com> wreck@fmsrl7.srl.ford.com (R. Cage) writes:
>>>>>
>>>>>So, Mr. Novak, why should someone not have to wait for an
>>>>>abortion (not a right enumerated in the Constitution), but
>>>>>have to wait to exercise the right to keep and bear arms
>>>>>(enumerated in the Second Amendment)?
>>>>
>>>>Because they're not a well-regulated militia.
>>>
>>>Do you know what the words "well-regulated militia" mean?  Well regulated,
>>>according the Oxford English Dictionary, when said of troops, means
>>>well disciplined/able in shooting,                    ^^^^^^
>
>>Thanks for doing my work for me. The majority of the people for whom this
>>vaunted universal RKBA is being cited are not "troops", in any common-sense
>>meaning of the term.
>
>>Q.E.D.
>
>     Ok, let's take a short little cruise on the Ship o' Logic in the
>Sea o' the English Language...
>
><Wavy special effects as scene changes...>
>
>The Second Amendment contains a reasoning, followed by a guaranteed right.
>Like the preamble to the Constitution, the reasoning does not restrict or 
>empower any portion of the body which follows it.

A preamble is by definition not supposed to be a statement of law. Welding
a phrase onto the SAME SENTENCE as a substantive piece of legislation, on
the other hand, is reasonably considered to be part of that legislation.

Also, see definition of _expressio unius est exclusio alterius_ in a 
recently-posted article near you.

>However, *even if it did*, the Second Amendment would still guarantee
>and individual right to keep and bear arms *because*...
>
>The militia is not any body of professional troops, despite the, perhaps,
>less than clear wording above.  In 1789, and even today if you'll bother
>to pull our a dictionary, the militia referes to a "citizen army" called
>up "in time of emergency."  The militia, because of its transitory nature,
>was supposed to supply its own weapons.

Fine. But it still refers to an organized and trained group of people. Not 
just anyone who coincidentally knows how to shoot a firearm.

>The founders, with an understanable fear of government oppression, 
>considering the circumstances, wanted to make sure that, in the event
>the need again arose for the people to overthrow their government, the
>first last line of defense, the armed populace (or the militia) could not
>legally be disarmed.
>
>The militia does not today, nor has it ever, refered solely, or even 
>primarily, to professional soldiers.

Not FEDERAL soldiers, no. Maybe not even "soldiers" or "professionals".
But not just anyone who coincidentally knows how to shoot a firearm either...

>>>...and "militia" according to the 1792
>>>Militia Act meant all free males from 17 to 45.  
>
>>Not women? Not males over 45? Yet again, this hardly sounds like the
>>_universal_ right it's hyped up to be...
>
>     Ok, class, let's all open our Constitution.  Let's all look at 
>AMENDMENT 14, which specifically defines citizenship and who qualifies.
>Since RKBA is a *right*, and women are *citizens*, they therefore have *all 
>the rights* listed in the Constitution.

Give me a break. "All the rights"?!?!?! Do women have the automatic right to 
be President? To coin money? To make treaties with foreign powers? Let's be a 
little sensible on which rights apply and which don't...

If the word "militia" meant "males between 17 and 45" when the 2nd was 
enacted, why does it suddenly apply to females because of the 14th? There's
nothing in the latter amendment about repealing *ALL* previous distinctions.
Only the ones which lack a "rational reason" -- the test eventually developed 
for whether a state law is constitutional or not. Certainly there are 
"rational reasons" for excluding women from the militia -- the same reasons 
currently used to exclude them from combat roles in federal armed forces. And 
there are "rational reasons" why older men should be excluded also. So where 
is the applicability of the 14th to the 2nd? I see none whatsoever. The 2nd
never refers to "citizens", only to "people", specifically, to that subset 
of "people" belonging to a well-regulated militia.

>>This rule is usually waived in the case of mere preambles or "mission 
>>statements", of course, but the 2nd Amendment doesn't qualify as either of 
>>those.
>
>>I therefore see no reason to refrain from applying the rule in this 
>>case.
>
>     Oh, bravo.
>
>     Let's play another legal game, shall we?
>
>     It's called "precedent" and "context."
>
>     These are valid legal doctrines, aren't they?
>
>     All other rights listed in the bill of rights are individual 
>rights.  Unless you want to argue that only the government has the right
>to assemble and only the collective the right to be safe from 
>unreasonable search and seizure?

Straw man. I never said that the 2nd ONLY applied to the federal government,
or for that matter that it ONLY applied to government at any level. I maintain 
only that it applies exclusively to ORGANIZATIONS, specifically "well-
regulated militia", and not just random individuals.

>     Given that the context the Second Amendment was ratified in, it 
>seems unusual that it, off all the amendments, does not refer to an
>unlimited right of the people as do all the others.     

Does EVERYONE constitute "the press"? Does EVERYONE constitute "an 
establishment of religion"? The BOR frequently refers to indentifiable,
exclusive subsets of "people" -- there's no reason to think the 2nd is an 
exception in that regard.

>>Like I said, I'd be fairly sympathetic to a universal RKBA, but I just don't
>>think the 2nd is up to the task as written. Please propose another Amendment, 
>>instead of trying to twist the 2nd to your political agenda. Constitutional
>>revisionist tinkering tends to make me uneasy...
>
>     The view that the Second Amendment does not apply to individuals is
>a fairly new one, originating primarily in the twentieth century.

There wasn't much of a NEED to analyze the 2nd until population densities
and crime rates started skyrocketing, now was there? A de facto universal 
RKBA made quite a bit a sense while we were pushing our frontier out to the
Pacific Ocean, killing wild animals, trying to genocide local Indian 
populations, etc. (no flames, please, I'm merely stating historical facts).
Once the Industrial Revolution hit, and people started crowding together
in cities, then the inevitable question had to be asked: is the de facto
universal RKBA really _de jure_? And the debate began...

In other words, please don't confuse an historical lack of controversy with 
an intellectual tacit acceptance. The timing of a challenge, and its
plausibility, are often two completely independent attributes.

								- Kevin
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