From: rwojcik@atc.boeing.com (Richard Wojcik,snake)
Newsgroups: talk.politics.guns
Subject: Re: So... Why have a standing military?
Date: 1 Oct 92 23:32:30 GMT
Reply-To: rwojcik@atc.boeing.com
Organization: Research & Technology

Andy Freeman (AF) writes:

>There is little question that the "militia" mentioned
>in Article I was the same "militia" mentioned in the 2nd.

AF> On the contrary, there's considerable questions.  More importantly,
AF> if Article I allows something that the 2nd forbids, the 2nd takes
AF> precedence.

Yes, amendments to the Constitution take precedence over the original text.
But if you don't think that the word "militia" in Article I is the same as
that in the 2nd, then the 2nd can hardly be taken to apply to the meaning of
Article I.  Just the same, the framers seemed to have fooled themselves into
thinking that the words meant the same thing.

>Andy, my original comments about the militia had to do with the so-called
>"unorganized militia," not the National Guard.

AF> Note how Wojcik tries to slide in "state militia" = "unorganized
AF> militia".  It isn't.  State militias are, by definition, organized,
AF> and govt, militias.

As the latecomer in the discussion, you should have the courtesy to stick with
the meaning that was originally intended.  (pun intended :-) Since I made the
original comment, my definition of "militia" was the one under discussion.  I
had no preconceptions about "state" control of it, and at least one person in
this newsgroup keeps wondering why the militias can't be self-organized.

AF> The "who trains the unorganized militia?" question isn't all that
AF> interesting to me.  However, I will note that the answer doesn't have
AF> the properties Wojcik wants...[goes on to assert that gun ownership isn't
AF> restricted to the "unorganized militia"]

First of all, you are begging the question by asserting that gun ownership
isn't restricted to the "unorganized militia."  Secondly, that wasn't
precisely the property I was interested in.  I was more interested in making
sense out of the various apparent equivocations on the word "militia" in this
newsgroup.  Most of my comments have centered around the common theme of what
it is we mean by "well-regulated militia."

>BTW, as long as I've got you on the line, did you ever track down that passage
>showing that the "well-regulated" phrase in the language of the 2nd meant
>"familiar with," not the more common sense of "well-run"?

AF> As I've told Wojcik more than once, I didn't come up with any passage
AF> like that, so I wonder why he asks me for it.  Why doesn't he ask
AF> someone who has referred to it instead?  I'm not the default defender/
AF> source for everything that someone has posted.

That's really odd.  To my knowledge, you've only mentioned the passage once to
me, although you may have mentioned it in threads that I haven't been
participating in.  Someone had emailed me a remark that you had posted
OED information on the so-called "trained" sense of "well-regulated."  You
posted an angry note referring to a reference from a 1749 pamphlet.  I asked
you to quote the passage, rather than just give a reference, and that was the
last I heard from you on the subject.  I do recall you admonishing me in that
post to send you email if I expected you to read what I posted.  Maybe you
should apply your own rule to yourself when expecting me to see what you post.

>I also wouldn't mind some elaboration on your curious comment that
>defenders of the RKBA are not in the "original intent" camp.

AF> I've explained it repeatedly and Wojcik has ignored it repeatedly.

I didn't see it, so I'm glad you're indulging my request here.

AF> "Original intent" is the name of a school of constitutional
AF> interpretation.  It makes vague references to 1790s documents when
AF> convenient but doesn't feel bound by them.  It is a name chosen
AF> for rhetorical reasons.

Here is a better definition from Levy's Original_Intent_and_the_Framer's_
Constitution, p. x:  "The term `original intent' (or `original intention')
stands for an old idea that the Court should interpret the Constitution
according to the understanding of it by its Framers."  Most of the arguments
surrounding the 2nd have assumed original intent, whether you want to admit
it or not.

AF> The RKBA arguments that Wojcik wants to tie to that school don't work
AF> that way.  They're not an attempt to justify a "the founding fathers
AF> meant" argument as much as they are evidence showing what said wigged
AF> gents said, what the words they used meant.  Those arguments actually
AF> do have the supporting evidence that is lacking in some positions
AF> taken by members of the "original intent" school.

Let me get this straight.  The RKBA argument is not "original intent" because
it examines the actual words used by the framers.  It seems to be your
contention that bona fide "original intent" arguments are those that lack any
evidence for their conclusions.  I doubt that anyone would own up to belonging
to that "original intent school."  So I understand your not wanting to be
associated with it.  ;-)

AF> Suppose word "trial" comes to mean "combat".  The RKBA-supporter style
AF> argument would point out that that doesn't change the meaning of the
AF> 6th, the "original intent" folks would come up with God knows what,
AF> and the "living document" folks would insist that the 6th merely
AF> requires said combat to take place in public.

I'm not surprised that you attribute a "God knows what" position to "original
intent."  You appear not to understand the term.  Nor do you understand the
"living document" folks that you caricature with a straw man.

AF> The Constitution isn't written in stone.  We can change it whenever we
AF> want.  Therefore, it is unreasonable to "amend" it by less formal
AF> means, however convenient that might be.  There's nothing wrong with a
AF> "what they wrote simply isn't appropriate to a modern society"
AF> argument, but the proper way to implement such a decision is through
AF> the amendment process.

The amendment process was intentionally designed to be difficult.  If you could
change it at the drop of a hat, it wouldn't be worth much.  I would personally
support a repeal of the 2nd if it were interpreted according to what you
insist was the original intent of the framers.  But the courts appear not to
interpret it that way, and most of the public is satisfied with the status quo
in that regard.  There is just no need to support an amendment to repeal an
interpretation that has no real bearing on modern gun control laws.  The real
intent of the backers of the amendment--to prevent federal control of the
state militias--is now moot.

>I can understand where a libertarian like yourself

AF> I'm not a libertarian or a Libertarian.

My mistake.  Don't get upset.  After all, I could have used that other L-word.
:-)  Anyway, my opinion of you has just gone up a notch.

-----
Disclaimer:  Opinions expressed above are not those of my employer.

    Rick Wojcik   (rwojcik@atc.boeing.com)   Seattle, WA