From: geff@iastate.edu (Geff Underwood)
Subject: Re: Guns and the Militia
Keywords: Militia Guns Constitution
Organization: none for me, thanks, I'm trying to cut down
Distribution: usa
Date: Fri, 17 Apr 1992 17:30:21 GMT

In article <1992Apr16.023939.17539@mcs.kent.edu> dmcclory@Chaos.mcs.kent.edu (Daniel McClory) writes:
>This is a discussion to some questions about the second amendment that
>I posted.  As we all (?) know, the second amendment reads
>
>	"A well-regulated militia being necessary to the security
>	of a free State, the right of the people to keep and bear
>	arms shall not be infringed."
>
>My original questions are indented, and used for section headers.
>
>>	- Are all citizens of the U.S. members of the militia?

[Quotes from me and Morris, saying roughly "not quite", deleted]

>So, this implies that Congress has the right and responsiblity to define
>who may be a member of the militia.  Rather narrowly define, I might
>add.

Yes, but this doesn't grant the authority to disarm the people.  Remember,
the Second Amendment protects the "right of the *People* to keep and bear
Arms" (emphasis mine), rather than the "right of the Militia" to do so.

>>	- Is one of the purposes of the militia to overthrow an unjust
>>	  government?
>
>Let me say that I appreciate a form
>of government which acknowledges the right of the people to revolution
>*in writing*.  Makes me feel more confident that they will act in
>my better interests.

Here we are in full agreement.

>>	- Is the Congress responsible/permitted to control the militia?
>
>Geff provides this quote
>:Article I, Section 8 of the Constitution:
>:% The Congress shall have Power to ...
>:%  * To provide for calling forth the Militia to execute the Laws
>:%    of the Union, suppress Insurrections and repel Invasions;
>:%  * To provide for organizing, arming, and disciplining the Militia,
>:%    and for governing such Part of them as may be employed in the
>:%    Service of the United States, reserving to the States respectively,
                                     ^^^^^^^^^^^^^^^^^^^^^^^
>:%    the Appointment of the Officers, and the Authority of training
                                            ^^^^^^^^^^^^^^^^^^^^^^^^^
>:%    the Militia according to the discipline prescribed by Congress.
       ^^^^^^^^^^^

(There's a reason I underlined those parts; I'll get to it later.)

>Geff then adds:
>:Congress can make rules for the militia, but it can't enforce these rules;
>:that's left to the states.  If the members of the militia don't like the
>:rules, they can simply ignore Congress when it calls them forth.
>
>Is this the law of the land as it is currently viewed and enforced, or
>is this a statement of what the law *should be*?

Neither.  It is a statement of fact (apparently poorly phrased) -- people
are physically able to refuse a call.  If a large number of those who are
called consider the call to be usurpation, the call will fail.  Refusing
the call would be an act of rebellion.

>According to my sources, the Supreme Court has upheld strict regulation
>of certain firearms (sawed-off shotguns) on the grounds that they had
>evidence that such weapons contributed to the militia (US vs. Miller).
>Doesn't this indicate that Congress can limit firearms possession based
>on whether a given weapon is appropriate for militia use?

Actually, the Court ruled that it had _no_ evidence that such weapons
contributed to the militia.  That's because Miller was a fugitive when
the case was argued.  In reality, sawed-off shotguns _are_ militarily
useful, but the Court only had the prosecutor's claim to the contrary.
I note that the _Court_ decided that sawed-off shotguns were not military
weapons, and claim that it erred.  The Court can do anything, until it
either provokes a revolution, or provokes the Congress and President to
add new judges.

>Which branch of government controls the  BATF (Bureau of Alcohol,
>Tobacco, and Firearms)?  The executive?  Doesn't this Bureau actively
>and vigously enforce the Federal laws concerning firearms?  Does the
>Congress have the right to enforce *any* law?  Isn't it solely able
>to pass them, and leave enforcement to others?

The militia is a special case.  Now we come to that underlining I did
with Article 1, Section 8.  Congress is granted the authority to make
the rules, and is then explicitly denied the ability to enforce them.

>>	- If the Congress is allowed to control the militia, and if one
>>	  of the purposes of the militia is the overthrow of an unjust
>>	  government, aren't these two ideas contradictory?
>
>Both Geff and Morris contend that Congress has *no* control over the
>militia, and therefore there is no contradiction.
>
>If this is true, Congress appears to be taking many unconstitutional
>actions in regard to firearms.  Given that the Supreme Court hasn't
>(yet) shredded these laws, legal scholars appear to believe that the
>above contention is *not* true, and that Congress can, to some extent
>legislate controls on the militia.

As a practical matter, the Court has ruled as you suggest.  However, I
draw an analogy to Roe v. Wade -- it is the current ruling, so there is
a sense in which abortion is Constitutionally protected.  It may be
overturned, and abortion would not be Constitutionally protected in that
sense.  I mean to imply a different sense, in which it can be said that
the Supreme Court has ruled incorrectly.  In the sense I mean to use,
abortion either _is_ or _is not_ Constitutionally protected, and a new
decision from the Court will have no effect on that fact.

I do not dispute that, in the first sense, Congress has the power to
place extreme restrictions on what weapons people may own.  I do dispute
that it has this power in the second sense.  Forbidding a sane citizen
who is not a felon from owning a real assault rifle (or even a gun that
Sarah Brady imagines to be an assault rifle) is infringing that citizen's
right to keep and bear arms.  The Second Amendment clearly forbids that.

>Might I suggest that perhaps Congress has a very limited degree of
>control over the militia, granted via the 2nd Amendment and various
>court precedents, plus Article I, section 8 of the Constitution.
>How far does this control extend?  That is the issue I think we are
>struggling with.  The contradiction exists, and it is what we are
>attempting to resolve.

Some of those issues are very difficult.  Even so, some are simple.
How many ways are there to interpret "the Right of the People, to keep
and bear Arms, shall not be infringed"?

>>	- If the Congress is allowed to control the militia, shouldn't
>>	  it have the authority to legislate which weapons are 
>>	  appropriate for the militia to use?  Might this include a
>>	  ruling that handguns are inappropriate and are therefore
>>	  outlawed?
>
>Geff replies
>:Congress may choose which weapons it will issue to the militia.  The
>:present choice is "no weapon at all".
>
>Interesting point, isn't it?  Don't the Swiss issue weapons to their
>citizens?  Should we (if we had the money)?

The Swiss do indeed issue weapons to their militia.  I'm not sure whether
we should, though.  I mean, I like the idea that everybody in the militia
considers it important enough to buy their own stuff.  On the other hand,
I don't imagine that poor people can't be patriots.

>But, remember US vs. Miller (above)?  There have been times in the past
>when Congress passed and the Supreme Court upheld laws which limit
>which weapons citizens may keep and bear based upon the weapon's utility
>to the militia.  Is a handgun a useful militia weapon in the numbers
>currently available today?  If Congress decides not, it could mean that
>they might pass a law to outlaw them.  Would it hold up in the
>Supreme Court?  I don't know.  Could those of you knowledgable about
>such things give me some guidance?

Here you seem to be asking about the practical matter of what the Supreme
Court will actually decide.  I haven't the faintest idea about that, but
my view about how they _should_ decide probably goes without saying.

>Geff goes on to say
>: I don't believe that Congress ever had the authority to disarm
>: the people, but even if it did, we have the Second Amendment.
>
>Certainly Congress does not have the right to completely disarm the people,
>just as it does not have the right to outlaw public speaking.  But
>can the right be limited within the boundaries of creating a "well
>regulated militia"?
>^^^^^^^^^

That depends on what you mean by "limit".  I haven't heard anybody claim
that Congress doesn't have the legitimate authority to forbid criminals
in jail from being armed.

One more thing, though.  "Well-regulated" meant "functioning properly" in
18th Century America.

>>	- If we are all members of the militia, and if we are under
>>	  the control of Congress, shouldn't the Congress be actively
>>	  promoting the militia to arm itself with the most militarily
>>	  effective weaponry?  In other words, shouldn't we all run out
>>	  and buy assault rifles?
>
>By actively promoting, I meant "the militia is encouaged to purchase
>weapons deemed appropriate by the Congress, and Congress shall make
>such purchase as convenient as reasonably possible".  No one should
>be forced to buy a weapon they don't want and don't expect to need.

Okay, now I understand.  Yes, Congress should do that.

>Geff stated that
>:Actually, there should be a mix of weapon types.  If everybody has an
>:assault rifle, who's the sniper?
>
>Natually, I don't wish to limit the mix of weapons, but I suspect that
>there would be a typical "militia weapon" which a poorly trained militia
>member could carry and make reasonably effective use of when the need
>arose, and this would be the weapon most encouraged by Congress.  I would
>put forward that an Klashnikov rifle might be a pretty good choice.
>Why, then, is it that the most likely weapons to be forbidden by the Congress
>are those which it would appear Congress should be ENCOURAGING?  Are
                                                                  ^^^
>Bills being proposed on the basis of emotions rather reason?
 ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^

Give that man a cigar!  You probably heard about the Brady bill, which
required that all handgun sales be approved by the local chief law
enforcement officer, but explicitly didn't require any CLO take any
action whatsoever (like, approving any handgun sales, or doing a
background check, for instance).  The big gun control organizations loved
that bill (I hated it, though), and were very angry when it failed.

You probably haven't heard about the Staggers amendment (it didn't get
much press attention), which required that all firearm sales be preceeded
by a background check.  The NRA (and I) supported that one, but the big
gun control organizations hated it.

>>	- What is to prevent the Congress from requiring that all members
>>	  of the militia regularly undergo training in firearms use?
>>	  Those who refused to comply would no longer be considered
>>	  members of the militia.
>
>No one has yet put forward anything which appears to refute this idea.
>So let me pursue it a bit.  If you are excluded from the militia, do
>you still have a full right to keep and bear arms?  Or does being a member
>of the militia just give you the right to fight and die for your country
>in the event that the militia is called up?

It would also entitle one to whatever Congress decides to issue to the
militia in peacetime, but the right to fight and die is probably the big
issue.

>Let me ask some further troubling questions:
>
>Is the right to keep and bear arms a natural (human) right, or a civil
>right granted by the government through the Constitution?  If it is
>a civil right, then the Government has the right to moderate or even
>revoke the right.  If it is a natural right, then any attempt to infringe
>upon the right is an unjust act.  Sufficient numbers of unjust acts make
>for an unjust government, and we know what the Constitution says we
>should do with them, right?
>
>I'll go out on a limb and say that I think that the right to keep and
>bear arms is a civil right, and the Government can yank it anytime they
>want through modifications or amendment of the law.

I claim that it is a natural right, deriving from the right to self
defense.  Guns exist; they're not going away.  Bad people have them, so
let's make sure good people do as well.
--
Geff Underwood
geff@iastate.edu