From: cdt@sw.stratus.com (C. D. Tavares)
Newsgroups: talk.politics.guns,alt.politics.clinton
Subject: Re: democratic platform
Date: 28 Jul 92 20:57:34 GMT
Followup-To: talk.politics.guns
Organization: Stratus Computer, Inc.

In article <1992Jul28.151442.9016@mksol.dseg.ti.com>, mccall@mksol.dseg.ti.com (fred j mccall 575-3539) writes:
> In article <5166@transfer.stratus.com> cdt@sw.stratus.com (C. D. Tavares) writes:
> >In article <1992Jul25.232111.18191@rotag.mi.org>, kevin@rotag.mi.org (Kevin Darcy) writes:
> >
> >> While I'm somewhat sympathetic to a universal RKBA, I don't believe the 2nd 
> >> establishes any such thing. Propose a new amendment if you want...
> >
> >Luckily the Supreme Court disagrees with you, and has regularly and 
> >consistently for over 200 years.
> 
> I don't think that's strictly true.  I believe that more modern
> Supreme Courts have held (at least once) that the 'militia' clause
> does indeed restrict, and that the National Guard meets that -- hence
> there is no guaranteed right for anyone else to have weapons.

Not only have they not ruled that the first clause is restrictive, but
they have recently ruled that the National Guard does NOT qualify as a
militia when it has been federalized -- something they ruled that the
President has the power to do at any time, against the wishes of the
state governor:

     Perpich, Governor of Minnesota, et.al.  v.  Department of Defense et.al.
     (No. 89-542)   ___U.S.___, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990).

     Justice John Paul Stevens delivered the opinion for a unanimous Court,
upholding the constitutionality of the Montgomery Amendment and thus the
authority of the President (Reagan, in this case) to order members of the
National Guard of the United States to active federal duty for training outside
the U.S.  In support of this position he reviews the history of the Guard and
notes that "[s]ince 1933 all persons who have enlisted in a state National
Guard unit have simultaneously enlisted in the National Guard of the United
States.  In the latter capacity they became a part of the Enlisted Reserve
Corps of the Army, but unless and until ordered to active duty in the Army they
retained their status as members of a separate state Guard unit." When called
to active federal duty the Guard member loses his/her status in the state Guard
for the duration of the federal duty.

     This change of status is a key to the court's decision. Justice Stevens
quotes an Illinois Supreme Court case [Dunne v. People, 94 Ill. 120 (1879)]
defining the 'militia' as "a body of armed citizens trained to military duty,
who may be called out in certain cases, but may not be kept on service like
standing armies, in time of peace" and then writes:

  "Notwithstanding the brief periods of federal service, the members of the
  state Guard unit continue to satisfy this description of the militia.  In
  a sense, all of them now must keep three hats in their closets--a civilian
  hat, a state militia hat, and an army hat--only one of which is worn at
  any particular time. When the state militia hat is being worn, the 'drilling
  and other exercises' referred to by the Illinois Supreme Court {in the
  decision above} are performed pursuant to 'the Authority of training the
  Militia according to the discipline prescribed by Congress,' {U.S. Consti-
  tution, Article I, section 8, clause 16} but when that hat is replaced by
  the federal hat, the Militia Clause is no longer applicable."

That is, the Guard member becomes a member of the federal Army and is no longer
under the authority and control of the state Governor.

> That is, after all, why waiting periods, etc., are constitutional.  Or
> so the claim goes.

Since Presser vs. Illinois (1886) was mooted by the 14th Amendment, I know
of no cases where the Supreme Court has ruled on what powers a state has
to regulate, limit, or infringe upon gun ownership or carrying.  I'll be
happy to hear from somebody who does.
-- 

cdt@pdp.sw.stratus.com      --If you believe that I speak for my company,
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Newsgroups: talk.politics.guns,alt.politics.clinton