From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: 2nd Amendment Myths
Organization: University of Colorado, Boulder
Date: Wed, 2 Sep 1992 05:41:53 GMT

I'm sorry to re-post one of my one articles, but I noticed that Mr. Wojcik
had directed follow-ups away from talk,.politics.misc.

Given the nature of his post, I find that rather offensive:

In article <81628@bcsaic.boeing.com> rwojcik@atc.boeing.com writes:
>Despite a direct challenge that people come up with counterevidence to (1)
>[a collective, state-organized militia interpertation], nobody
>has.  This does not mean that the contrary claim will not be made over and over
>and over again in this newsgroup.  Only that that claim remains unusupported
>now
>and probably will remain unsupported in the future.

His "direct challenge" has been answered several times. It seems that
he is playing games with message distributions, to avoid hearing 
facts he doesn't like.

My reply was as follows:


You cannot simply reject all views you disagree with, by calling them
"unsupported." 

Just yesterday, I supported this view with several points, which you
need to at least consider before rejecting. How, specifically, do you
reconsile your interpertation with:

Federal control of the militia (as per Article One, Section Eight of
the Constitution and the federal Militia Act of 1792 and Presser v.
Illinois 116 US 252.) This is in conflict with your
concept of a state-run militia. If, as these documents
would suggest, the states do not have a free hand in arming and training
militias then the Second Amendment cannot refer to a state power.

By federal law (Title X), Supreme Court rulings (Presser v. Illinois and
US v. Miller 307 US 174) and the stated views of the framers (A. Hamilton,
G. Mason, R. H. Lee, etc..) the "militia" includes all citizens 
who are physically able. This makes a "collective" interpertation almost
meaningless: I am a member of the militia, by federal law, so the
Second Amednment protects my right to keep and bear arms (in my capacity
as a member of the militia.)

Finally, every Supreme Court ruling to even _mention_ the Second Amendment
has treated it as an individual right. Specifically Scott v. Sanford 60 US
1857, US v. Cruikshank 95 US 542, Presser v. Illinois 116 US 252, Miller
v. Texas 153 US 535, Patsonne v. Pennsylvania (no cite handy, ruling in 
1914), US v. Miller 307 US 174 and US v. Verdugo-Urquidez (no cite handy,
ruling in 1990.) 

Until you can address these issues, I don't think you have any casue to
call the individual rights interpertation "unsupported." Can you even
cite a _single_ Supreme Court ruling that treated the Second Amendment
as grant of powers to the states, as opposed to a protection of an
individual's right?

>The problem with (2) is that it seems so counterintuitive.  Do the courts reall
y
>have the power to change or reverse the original intentions of lawmakers?  The
>answer is more complex than yes or no.

When the original intent is clear and supported by case law, they do not.
Even the defenders of judicial activism concede this. As I have show
above, original intent is reasonably clear and supported overwelmingly
by case law.

                                                Frank Crary
                                                CU Boulder




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