From: veal@utkvm1.utk.edu (David L. Veal)
Subject: Rights and Legal Manuevering (Was Re: democratic platform)
Organization: University of Tennessee Division of Continuing Education
Date: Mon, 27 Jul 1992 17:32:20 GMT

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.

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.

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.

Now we return to our regularly scheduled tirade...

>>...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.

     The unorganized militia is still defined, by the government, as males 
between the ages of 17 and 45, but that does not restrict a right, which
is guaranteed to the *people*, not the militia, from women.

>Sure, you can argue that the Founding Fathers really _would_ have given
>this right to women and older men, IF they had foreseen the advances in 
>women's rights, longer lifespan, etc. etc. But then your adversaries on the
>gun-control side of the fence can throw that argument back in your face by 
>claiming that the Founding Fathers would have yanked the right altogether if 
>they had been able to foresee the population densities, racial tensions, crime 
>rates, drug wars, effects of automatic weapon technology, hollow-nosed 
>bullets, infra-red sighting devices etc. etc.

     Imagine Ben Franklin's shock and horror at the idea of instanantueous 
mass communication and the damage it has done in terms of educating the
people.

     Regardless, the Constitution is the law, and the right is there.  Women
have been included in that law, regardless of the inentions of the founders.
The Constitution has been changed since then, in that regard.

>That's the trouble with "if they had known" hypotheticals, actually. You can 
>never be QUITE sure just which way the subjects would have reacted...

     This reasoning can be applied to any right.  "If they had known,"
is irrelevent.  We must rely on what the did know.

>>Furthermore, the
>>first clause of the Second Amendment is *not* a restrictive clause,
>>it merely states the reason for the second clause--which acknowledges
>>an unlimited right to keep and bear arms.

>It is a long-standing rule of statutory construction that the meaning chosen
>for a given law should acknowledge that every phrase therein has SOME sort of 
>contributory meaning to the whole.

     The Founders were big on explaining their intentions.  Meaning still
does not imply restriction.

> In this instance, one cannot read the first
>clause of the 2nd as being non-restrictive UNLESS one is prepared to interpret
>it as redundant idle chit-chat, and therefore to break the established rule. 

     "Established" rules are not necessarily correct.  The history of law
should be enough to convince you of that.

     However, the Constitution *does* tend toward the "idle" chit-chat
occasionally.

>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?

     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.     

     But I guess we're all lawyers here, and what matters if the truth
is ignored in favor of legal doctrine.

>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.

     But you don't want to hear that, do you?

>                                                               - Kevin

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|David Veal  PA146008@utkvm1.utk.edu  University of Tennessee             |  
|                                     Division of Continuing Education    |
| Statistics are any data which can be twisted to support your posititon  | 
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