From: rwojcik@atc.boeing.com (Richard Wojcik,snake)
Newsgroups: talk.politics.guns
Subject: Re: ICLU Commission on the 2nd Amendment and Gun Control
Date: 31 Aug 92 10:30:54 GMT
Reply-To: rwojcik@atc.boeing.com
Organization: Research & Technology

In article 17mpc6INNdqc@agate.berkeley.edu, fcrary@ocf.berkeley.edu (Frank Crary) writes:
>In article <1992Aug28.005816.19621@news.cs.indiana.edu> "Paul Hager" <hagerp@moose.cs.indiana.edu> writes:
>...
>This doesn't sound like a bad mix, but please try to equally represent
>both sides: Either make sure no one involved has strong pre-existing
>views on the subject, or have supporters of _both_ sides of the
>debate. I strongly suspect the current ACLU position paper on the
>Second Amendemnt was drafted by a group politically biased against
>guns.

I agree with what Frank says, although I doubt that the people with the
most neutral opinions are those who have the most interesting arguments
to make.  Furthermore, I strongly suspect that Frank's criterion for "bias"
has something to do with whether opinions agree with his own or not.

>>o	the 2nd amendment permits state regulation of firearms via
>>	the "well-regulated militia" clause but prohibits federal
>>	regulation;
>
>The extent to which the states can regulate firearms ownership is
>debatable, but this authority doesn't come from the militia clause
>of the Second Amendment: Article One, section eight specifies how
>the militia is regulated, and the writings and debates concerning the
>Bill of Rights imply there was no intention to alter this. It's a
>fairly awkard joint control excersized by the federal _and_ state
>governments. Both have to cooperate to do anything substantive, and
>neither can really run the militia on its own.

In fact, this is the crux of the matter.  The origins of the 2nd are
directly tied up in the old Federalist/Antifederalist politics of the
late 18th century, and the 2nd was very definitely seen by some as a
way to prevent the federal government from banning state militias.  
It was further associated with attempts to prevent the federal govt.
from establishing a standing army during peacetime.  At one point, 
Elbridge Gerry, in complaining about the "religious scruples" wording
in an early version of the amendment, argued the crazy position that the
government could use that wording to declare people religiously scrupulous
as a means of denying them arms.  

>Also, the state's authority does not extend to bans, even if regulation
>is constitutional. In Presser v. Illinois, the Supreme Court ruled
>that a state ban would harm the militia and "deny the federal government
>that resource..." Since state laws can't interfere with federal
>peragotives, this limits state gun control laws.

Not really.  If the law is interpreted to mean that the federal government 
cannot prevent the states from equipping a militia, then it has nothing to
do with the right of the states to pass bans and controls on weapons ownership.

A good source for some of the original wordings and discussions on the Bill
of Rights is H. Veit, K. Bowling, and C. Bickford, Creating the Bill of Rights, 
Baltimore: the Johns Hopkins Press, 1991.  The record of what was meant by the
wording of the 2nd is far from complete, but an examination of the records
that did exist shows that there were various intentions and beliefs behind it.
In the 18th century, it was taken for granted that members of the militia would
bring their own weapons, but there was even some discussion of having the 
federal government organize and equip the militias.  Antifederalists wanted to
overturn the Constitution, but, failing that, to water down the powers of the
federal government through amendments.  The 2nd was at the center of a tug of
war between those who wanted a strong central authority and those who wanted
to prevent that central authority from abridging state and personal rights.
In the case of the 2nd, states' rights and personal rights were sometimes 
confused.

In any case, so-called "original intent" has never served well or consistently
to determine the way in which the courts interpret the law.  The view that the
2nd only guarantees the right of states to equip militias, IMO, is a valid
interpretation of the 2nd, even if it wasn't what many of the original framers
intended.  One thing they clearly did intend was the the RKBA was in connection
with organizing and regulating an official state militia.  It was never intended
to be used as a ploy by private individuals to arm themselves for other purposes,
be they recreational or paranoid.

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

    Rick Wojcik   (rwojcik@atc.boeing.com)   Seattle, WA
Newsgroups: talk.politics.guns