From: rwojcik@atc.boeing.com (Richard Wojcik,snake)
Newsgroups: talk.politics.guns
Subject: Re: So... Why have a standing military?
Date: 6 Oct 92 18:22:29 GMT
Reply-To: rwojcik@atc.boeing.com
Organization: Research & Technology

In article 29829@ucsu.Colorado.EDU, fcrary@ucsu.Colorado.EDU (Frank Crary) writes:
>any part of it they see fit. The Second Amendment asserts that the militia
>is necessary, and protects its _existance_ by assuring that the people
>can arm themselves.

I think that we are in basic agreement here (except maybe on speech act theory :-),
but we disagree over the question of whether the government must allow those arms
to be owned privately.  In other words, we disagree on the method of implementation.
I contend that state militias in 20th century America, such as they are, no longer
rely on participants to bring their own arms in service of the country.  Whether or
not the 18th century framers of the 2nd had this in mind is now moot.

>>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...
>
>Which is to say, the Courts have (unconstitutionally) assumed the power
>to modify the Constitution, and therefore there is no need for an
>amendment process. In theory, at least, the government exists only by
>consent of the people and can be modified only with the consent of
>an overwelming majority of the people. By your logic, the Court could
>(in effect) amend the Constitution, over the _objections_ of a majority
>of the people.

The Court does not amend the Constitution, but it can amend the interpretation of
the Constitution.  This is, in fact, what it does.  And it is not about to stop
doing it.  This is what is going on with Roe v. Wade and most other legal issues
brought before the Court.  The Court is empowered to supply an interpretation. 
That is its constitutional function.  And, if you understand civil rights laws,
you understand that it can interpret the Constitution in a way that is over the
objections of a majority of the people.  It has that power.  You may like to think
that the Constitution means something other than what the Court says it means, but
your opinion does not have the force of law.  The Court's does.  So the next time
your Senator says that "the President deserves his choice" for a Supreme Court 
position, holler and scream.  It's too important to be left just to the President.

>This interpertation is not supported by historical fact: From 1792 onwards,
>the federal government exercised control over the militia. Since the 
>Congress in 1792 was (for the most part) composed of the same people as
>in 1789, one would think they understood their own intentions. Since
>they enacted federal controls over the militia, they obviously didn't 
>intend the Second Amendment to do this. The real intent of the Second
>Amendment was to assure the existance of the militia, even if the federal
>government became hostile the concept.

We just keep going over the same points, like a broken record.  It doesn't matter
that a lot of the people in 1792 were the same as those in 1789.  People change
their opinions over time, and that was the very period in which people were working
out how the system would work.  There were original framers of the Constitution on
the Supreme Court, too, and they tended to take a very liberal position on "original
intent."  For example, in the matters of establishing a National Bank and raising
taxes.  The Court extended the powers of the federal government well beyond what 
was originally intended, and many of the participants (e.g. Madison) came to believe
that the extensions worked out to the advantage of the Republic as a whole.  Even
though they resisted some of the extended interpretations (but not others) at the
time.  Federalism was not as well established in 1789 as it was just a few years 
later.  There have always been holes and inconsistencies in the system.  

>By the way, do you think the text of the Amendment (specifically, the
>clause, "...the right of the people to keep and bear arms, shall not be
>infringed.") protects _something_ from infringement? If so, _what_? Keep
>in mind that this thing could not be state-organized militias, since
>the Congress "infringed" on this within a year of the ratification of the
>Second Amendment.

What can't be infringed is the collective right of the people to bear arms in an
organized militia.  Whether or not this was the original interpretation is now
moot.  The spirit of the 2nd--the collective defense of the nation--is more than
adequately met by our numerous military organizations.  Whether or not Congress
"infringed" this right by cementing federal control over state militias is a 
matter of interpretation.  I tend to side with the Federalists on this issue,
and you prefer an Antifederalist interpretation.

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

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