From: PA146008@utkvm1.utk.edu (David Veal)
Subject: Re: 2nd Amendment Myths
Organization: University of Tennessee Division of Continuing Education
Date: Thu, 10 Sep 1992 23:21:38 GMT

In article <82355@bcsaic.boeing.com> rwojcik@atc.boeing.com (Richard Wojcik,snake) writes:

>Paul Swanson (PS) wrote:
>
>PS> If I were writing the Bill of Rights now, there wouldn't be any such
>PS> thing as the Second Amendment ... This has been subject to one of the
>PS> greatest pieces of fraud - I repeat the word fraud - on the American
>PS> public by special-interest groups that I have ever seen in my lifetime.
>PS>                                  - Former Chief Justice Warren Burger
>
>PS> Here is someone who probably has a good idea about constitutional law
>PS> who apparently thinks the RKBA is a misinterpretation of the Second
>PS> Amendment.
>
>Yes, and he isn't alone in that interpretation.  

     Nobody is ever alone in their interpretation.  That's one of the
side benefits of two hundred forty eight million people.

>I believe that most of the
>original debaters would have left it out if they could have foreseen the
>evolution of military defense.  

     Who is to say what they might have done about a lot of things if they
could have forseen the future.  Perhaps they would have reduced even more
direct public involvement with the government if they had forseen mass
instantaneous media.  Or not been as concerned with unreasonable search
and seizure had they forseen such large-scale smuggeling.
     We can't base our decisions on what they *might* have done had
they known something any more than they could have based their decisions
on something they didn't know.

>Who would have dreamed of tanks or helicopter
>gunships?  

     Who, indeed.  Warfare has marched steadily forward throughout
recorded time.  Men such as Thomas Jefferson did and built things
marvelous by even today's standards.  It is absurd to think that they
did not consider that technology might continue advancing into the
future.  They were educated men, after all.

>Anyway, many, if not most, legal scholars seem to think that both
>the 2nd and the 3rd are anachronisms born out of conditions that responded to
>conditions local to the 18th century.  

     I don't know about this, not having ever seen a roll-call vote
on the subject.  (Who would qualify, anyway?)
     However, I have read and talked to a few "legal scholars" and not
always come away with enormous respect for their opinions.  Like most
other social science it is very easy to inject your opinions into
what you read.  Academics in general tend to lean toward the liberal.
Perhaps their views vary accordingly.

>The King had tried to control the
>colonies by preventing them from arming themselves, and he forced colonists to
>quarter troops in their homes.  During the Antifederalist backlash against
>strong federal rule, the fear was that the strong federal government would
>serve to bring back the same tyranny.  In the modern world, the federal
>government has gained almost total supremacy over the states, and the state
>militias have evolved into the National Guard.  Hence, the interpretation that
>the RKBA is really a "collective" right which the National Guard fulfills.

     Since the National Guard can be Federalized by the stroke of a pen,
and the National Guard knows this, how can they possibly be used as any
sort of defense against a tyrannical federal government?
     And note that the amendment, even if we assume that the militia clause
is restrictive, does not limit it to state militias, but just the militia.
Further, since the National Guard is made up of professional soldiers,
it does not qualify as a militia.

>Frank Crary (FC) responds:
>
>FC> I'm afraid I'm not impressed with his reasoning: From all his published
>FC> statements, his logic goes no further than "It only applies to 
>FC> the National Guard and state militias. Guns are bad." (A paraphrase...)
>FC> I haven't heard him produce any evidence or facts to back this up.
>
>Have you read everything he's written on the subject?  

     By god, you're right!  I'll bet Frank missed Thursday's grocery 
list! :-)

     It *is* possible to understand someone's views on a subject to a 
great degree withoutreading *everything* somebody has ever written.

>Anyway, he seems quite
>firm in his views.  Charging fraud and all that.  You'll never see the pro-gun
>side stoop to such tactics, will you?  ;-)

     Firm in his views and guilty of bad logic are two entirely different
things.  Plenty of people are firm in their views and don't have the
vaguest clue as to how to justify them logically.

     Some of them even read USENET.

>FC> It is also worth noting that Chief Justice Burger is a strong
>FC> supporter of judicial activism and, while on the bench, based his
>FC> opinions on how he thought the Constitution _should_ read, not what
>FC> it actually said.
>
>In fact, this only underscores my point that you guys are in the "original
>intent" camp, a method of legal interpretation that has been largely
>discredited.  

     Oh, "largely discredited," now.  So, sorry.  I'll just slink away
and think like I'm told.

     I find it ... distressing ... that the Constitution should
be interpreted based on what a judge thinks it *should* say.  If
the words can just be "evolved" into new meanings, what is the point
of writing it down, anyway?  Isn't the act of putting pen to paper
supposed to be *some* form of commitment to the words?
     Why should we follow *anything* the Constitution says, when we can
just "understand" it differently?  Maybe free speech only covers speech
you don't have to pay for.  Put a tax on speech and *poof* no longer free.

>I again propose the works of the Constitutional scholar Leonard
>Levy for a detailed refutation of "original intent":  Original Intent and the
>Framer's Constitution.  Here is a passage from his writings (p. 341):  

[...]

>Andy Freeman has stated that the RKBA folks are not really in the "original
>intent" crowd, but he fails to back up his claim.  And others disagree.
>
>Sean Malloy (SM) writes:
>
>>>for militia duty and militia duty itself.  The fact remains that you belong
>>>to no real militia, and you haven't been asked to engage in any of the 
>>>training that you and others think "well-regulated" refers to.
>
>SM> Then impeach your state governor for nonfeasance in office; state
>SM> governors are, in the Constitution, given the responsibility of
>SM> officering and training the militia in their state; since the state
>SM> governments only deal with the _organized_ militia, the governors
>SM> are failing to perform their duties with respect to the _unorganized_
>SM> militia.
>
>Or perhaps the "unorganized militia" is not what the framers of the 2nd had in
>mind.  

     It is fairly certain, on way or the other, that general disarmament
was also not what they had in mind.

>It certainly doesn't seem to be discussed very clearly in the
>historical record.  Instead, one gets a clear sense that the lawmakers were
>expecting to militia to practice and drill with its arms.  After all, to
>paraphrase the Antifederalist Patrick Henry, what use is a militia if you
>can't train it?  You need to form straight lines and make sure that one line
>fires while the other reloads.  It takes coordination and discipline.  I guess
>most of our governors are content to treat the National Guard as the real
>militia.  Not too many people in the "unorganized militia" seem anxious to
>spend their free time drilling to fight an enemy that nobody expects to
>attack.  

     It should be noted that in many, many places such organization and
drilling is *illegal*.

>After all, the whole point of this discussion is to justify gun
>ownership for the purpose of self defense, recreation, etc.  It wouldn't do to
>take the word "well-regulated militia" any more seriously than we need to in
>order to fulfill the real agenda.  Wink.  Wink.

     The good lord forbid anybody have an *agenda*.

     On reasoning for the right to keep and bear arms does not, by its
existance, nullify all others.  One can hardly suggest that protections
on free speech were supposed to protect musing on Dan Quayle's spelling
abilities as opposed to reasoned political debate.


===========================================================================
|David Veal  PA146008@utkvm1.utk.edu  University of Tennessee             |  
|            veal@cs.utk.edu          Division of Continuing Education    |
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