From: PA146008@utkvm1.utk.edu (David Veal)
Subject: Re: democratic platform
Organization: University of Tennessee Division of Continuing Education
Date: Thu, 3 Sep 1992 20:21:53 GMT

In article <1992Sep3.003520.8273@cfctech.cfc.com> kevin@cfctech.cfc.com (Kevin Darcy) writes:

>>Darcy has been arguing that the militia clause somehow restricts
>>"the people", that the 2nd isn't an individual right.
>
>What is the purpose of the first clause then? I don't buy the "preamble"
>argument, of course. It's not marked as such, nor is it set off in any way 
>shape or form from the following piece of substantive legislation. It is, in
>fact, in the same sentence. Can you cite any other instance where a "preamble"
>occurs in the same sentence as a piece of real legislation, Andy, either in
>the Constitution, or in ANY major legislation? I'd be VERY surprised if you
>could.

>By your same "preamble" reasoning, couldn't we just call the whole 2nd 
>Amendment a "preamble" to the Third, and chalk up the numbering gap to a 
>drafting error? That would certainly help to curb this Constitutional 
>opportunism, doncha think? In fact, why don't we just call the entire original
>Constitution a "preamble" to the Bill of Rights? Whoopee! Yee-hah! Tinker,
>tinker, tinker....

     I don't particularly care what you call the militia clause, and it
really doesn't matter.  The question is how does it, precisely, modify the
right of the people, as specified in the next clause.  I do not accept
that argument "Because it is there," any more than you accept the
argument that it is simply a preamble.  And where does that leave us?

>>That's the opening line for a "the 2nd doesn't forbid gun control"
>>argument.  (Of course, the 1st doesn't forbid ALL speech control
>>either, but we're not talking about minimal permissive controls, but
>>restrictive ones, to use Zimring's terminology.)
>
>More name-dropping. Do you ever give up? I'M NOT IMPRESSED, ANDY. ANY 8-YR-OLD
>IN A PUBLIC LIBRARY CAN DROP THE NAMES OF BOOK TITLES AND AUTHORS!!! IT 
>DOESN'T PROVE   A N Y T H I N G!!!

     Oh, shouting.  That's right.  I'd forgotten where I was.

>If you're so learned, it should be obvious from the quality of your arguments
>alone, and you would have no need to drop names as you do.

     You should market that and sell it.  Put a lot of Universities
out of business.

>>The argument starts with with "the 2nd only applies to guns owned by
>>members of <some group>" often with a "acting as such", which is what
>>Darcy has been arguing.  To get that into gun control, govt has to be
>>able to control the group or its membership.  
>
>Wrong. It has to be "well-regulated", and it has to be "necessary to the
>security of a free state", but there is no requirement that it be govt-
>controlled. In fact, the term "the people" indicates that the purpose of
>the Amendment was to establish an RKBA for militias _other_ than the ones 
>controlled by the Federal Government, e.g. State militias or possibly even
>citizen militias. The Federal Government didn't NEED an RKBA established
>in the BOR -- they already had one from the original Constitution.
>
>The point you seem to be missing is that "people" means "anyone but the
>Federal Govt." in this context, but not necessarily "anyone at all". 

     Good point.  We'll mark off resident aliens and government employees.

>Even 
>according to your own definitions, "militia" had age and/or sex restrictions 
>at the time the BOR was written. Why then do you find it so hard to believe 
>that the vastly more heavily-qualified term "well-regulated militia ... 
>necessary to the security of a free state" is correspondingly MORE 
>restrictive? I think you've been batting these words and phrases around so 
>long that the line between what they actually mean and what you WANT them to 
>mean has been erased in your mind.

     Ok, let us assume that there are certain requirements for being
in the militia.  Who gets to determine these requirements?  Seeing as
how we now have age, race, sex, and disability discrimination laws, it would 
appearto mean that those can no longer be used.
     What does that leave us with?

>>UNLESS one makes the
>>last connection, the militia clause's meaning can't have any relevance
>>to the discussion, 
>
>It either limits the applicability of the RKBA, or it's just decoration.
>Maybe you're so unpatriotic that you think one of our most important and
>fundamental legal documents is littered with pointless decoration, Andy, but 
>please don't expect everyone to share that view.

     Its mere existance can't be construed to imply a restriction.  To
be a restriction, we must look at the amendment, and decide exactly how
the grammar implies that the "right of the people" is restricted.

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|David Veal  PA146008@utkvm1.utk.edu  University of Tennessee             |  
|            veal@cs.utk.edu          Division of Continuing Education    |
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