From: fcrary@ocf.berkeley.edu (Frank Crary)
Newsgroups: talk.politics.guns
Subject: Re: RKBA - are you missing the point?
Date: 28 Aug 1992 06:03:37 GMT
Organization: U.C. Berkeley Open Computing Facility
NNTP-Posting-Host: whirlwind.berkeley.edu

In article <81482@bcsaic.boeing.com> rwojcik@atc.boeing.com writes:
>>Madison, when he introduced the Bill of Rights to Congress,  specifically 
>>said he drafted them to satisfy the opposition to the Constitution (as
>>represented by the debates over ratification.)

>Again, this means very little.  You can explore Madison's personal motives
>and beliefs all you like, but he was not the only person who ratified the
>amendments. 

Again, when the other parts of the Bill of Rights were discussed, there
was _lots_ of debate over very small differences in phrasing and over
even slight ambiguity of meaning. 

There was _no_ such discussion of the Second Amendment (except for a 
third clause, exempting religious pacifists from the militia, which was
deleted. The debate over this clause started over a very slight ambiguity
of wording that _might_ have allowed the government to declare a group 
pacificts, and thereby disarm them.) Since there was no discussion of
the militia or right to keep and bear arms clauses, their meaning was
apparently clear.

Further, writings across the entire political spectrum of the 1780s agree
that a militia means an armed citizenry (e.g. every citizen owning and
being able to use weapons.) And that the Second Amendment was ratified to
assure such a situation.

When everyone who wrote on the subject agreed, and there was no debate of
the issue, I think the original intent is extremely clear.

>>This opposition included substantial objections to government control
>>of the militia, and the threat of tyranny if the people were disarmed
>>or the militia weakened (while the government maintianed a regular army.)

>That doesn't even tell you that Madison was even thinking of these objections
>when he spoke of "satisfying the opposition."  He could have had entirely
>different issues in mind.  

The anti-federalists put their objections forward, in the form of Constitutional
amendments (with supplemental notes explaining why they wanted such an 
amendment.) The militia/right to keep and bear arms amendments proposed
by the federalists were of almost identical phrasing as Madison's
Bill of Rights. These were also the only objections dealing with this
subject. Unless you want to claim the similarity in phrasing is a 
co-incidence (very hard to believe) Madison must have based his "Second
Amednment" on these objections. 

Further, Madison specifically said he though there was no real, constitutional
need for a Bill of Rights: That it was redundant, and needed only to 
satisfy the anti-federalists. If he wasn't dealing with an anti-federalist
complaint, he would never have proposed a right to keep and bear arms
(redundant, by the way, because the government is granted no authority to
regulate privately owned arms.)

>>Check again: The Constitution makes no mention what so ever of has the 
>>authority to interpert it. I have as much right as the Supreme Court to
>>do so. The Court, however, has a great deal of power to enforce it's
>>interpertation: It can allow laws _it_ considers constitutional to be
>>enforced, or prevent the enforcement of laws _it_ sees as unconstitutional.
>>It wasn't untill 1803, in Marbury v. Madison, that the Court claimed
>>any jurisdiction over interperting the Constitution, and said it would
>>use it's legidimate powers to make it's interpertations stick.

>1803.  There were still a few people around at the time who understood the
>issues of the 1780's and 1790's. 

Most of whom thought John Marshall, the Chief Justice of the Supreme Court
who wrote the Marbury v. Madison opinion, was a Federalist party hack
acting on a political agenda. 

>But you refer to the first case in which
>the Court overturned a state law, not the date from which authority to do so 
>existed. 

Marbury v. Madison had absolutely nothing to do with state laws.
(If you don't know what you are talking about, why to you keep acting as
if you do?)

Marbury was appointed as a judge for the District of Columbia two weeks
before John Adams left office. The Federalists had just lost the 
election of 1800 _badly_ and were trying to keep some political control
by packing the federal courts with party loyalists (John Marshall, by
the way, became Supreme Court Justice at this same time and for that
same reason.) Marshall, who was then _both_ Secretary of State _and_
Chief Justice. He dropped the ball, and didn't get Marbury's commission
delivered by 4 March 1800, when he left office. Madison, the new 
Secretary under Jefferson, refused to deliver the commission and let
Marbury take office. Marbury filled a suit directly with the Supreme
Court.

The Court held (Chief Justice Marshall writing the opinion, despite a
massive conflict of interest) that Marbury had a right to take office,
but that the Court had no constitutional authority to force Madison
to hand over the commission (thereby overturning a federal law on the
Court's authority.) Marshall went on, at length, the explain that the
Court had to have the power to overturn unconstitutional laws, and therefore
to interpert the Constitution.

He did not, by the way, say the Court had any _exclusive_ power to do so...

                                                    Frank Crary
						    CU Boulder
						    (even though I'm
						    still using my
						    Berkeley account...)

Newsgroups: talk.politics.guns