From: kevin@rotag.mi.org (Kevin Darcy)
Subject: Re: democratic platform
Organization: Who, me???
Date: Tue, 8 Sep 1992 01:44:57 GMT

In article <5849@transfer.stratus.com> cdt@sw.stratus.com (C. D. Tavares) writes:
>In article <1992Aug24.055923.9087@rotag.mi.org>, kevin@rotag.mi.org (Kevin Darcy) writes:
>> In article <5166@transfer.stratus.com> cdt@sw.stratus.com (C. D. Tavares) writes:
>
>> >Say, Darcy, which comes first -- the chicken, or the egg?  How are you
>> >going to get competent with a gun (which is what "well-regulated" means)
>> >if you can't get one until you're competent?
>> 
>> Your error is in your agenda-laden definition of "well-regulated". To you,
>> it means "competent with a gun". Obviously, if one accepts that definition,
>> one must conclude that a "limiting" interpretation of the 2nd is rather 
>> impractical. But I, for one, don't accept that definition. Well-regulated
>> means well-organized and well-run. As long as the militia itself is well-
>> regulated, I don't see that it makes diddly-squat difference whether its
>> brand-new trainees can shoot straight or not...
>
>Thanks for the exercise in constutitional solipcism.  Now answer the question.
>
>Which comes first -- the chicken or the egg?  There ARE no private militias
>in my state at the moment.  Under your flawed interpretation, I can't get 
>guns for one, since I don't have a well-organized and well-run militia.  
>I can't have a well-organized and well-run militia because I can't get guns 
>for them.  Ah, you crafty little old tyrant, you -- I bet you were counting 
>on that all along, weren't you.

Do you understand the difference between "shall not be infringed" (strong
statement) and "shall not be subjected to excessive government regulation"
(weak, wishy-washy statement)? I can think of numerous ways short of TOTAL
non-infringement in which the states could easily nurture citizen militias 
into existence. This is not an either/or situation, in other words. Do you have
evidence that states are deliberately blocking the rise of citizen militias?
How many militiahood applications have been rejected? Are you going to 
reinforce the stereotype of anti-gun-control freaks being nothing more than
paranoid of tyrannies? How many times have you heard tyrants under your bed?

Let's get down to the nitty-gritty, shall we? The reason there are no 
citizen militias is because most folks CAN'T BE BOTHERED participating in 
such things. They'd rather just pay their taxes and let Big Brother do it 
all for them. That's pretty pathetic, IMO, but I don't think the other
extreme -- babbling about conspiracies and tyrants -- gets us very far 
either. Believe it or not, I'm somewhat middle-of-the-road on gun-control
as a SOCIAL issue, even though my views on the CONSTITUTIONAL issue are
somewhat strict-constructionist.

>> >Luckily the Supreme Court disagrees with you, and has regularly and 
>> >consistently for over 200 years.
>> >
>> >           It would give to persons of the negro race, who are
>> >        recognized as citizens in any one state of the Union, the
>> >        right to enter every other state, whenever they
>> >        pleased. . . . and it would give them full liberty of speech
>> >        in public and in private upon all subjects upon which its
>> >        own citizens might meet; to hold public meetings upon
>> >        political affairs, and to keep and carry arms wherever they
>> >        went.[Dred Scott v. Sandford, 60 U.S. 691, 705.]"
>> 
>> Whoa, time out here! Isn't the court deciding in this case to REFUSE to
>> give an RKBA to blacks? With what twisted logic can this be construed as
>> granting a universal RKBA?!?!?!
>
>OK, I'll spell it out.  Try to read this S-L-O-W-L-Y.

Condescension is not necessary. I understand your interpretation, I simply 
don't agree with it. It is the height of arrogance to assume that reasonable,
informed people cannot still disagree with each other.

>Dred Scott refused to grant CITIZENSHIP to blacks.  It concluded that
>blacks were NOT citizens of the United States, and could not be declared 
>citizens by any state.
>
>The excerpt above says,  "If black persons WERE citizens, then that
>would grant them the right to keep and bear arms."  And clearly, the
>court wasn't having any of that.  Nevertheless, it is a clear statement
>by the SC that the common US citizen DOES have the RKBA.

It's not clear in the slightest. The paragraph starts off

	"It would give to persons of the negro race..."

Does it say ALL persons of the negro race? Of course not. The Justices were
presumably aghast at the thought of ANY negro being able to keep and carry
arms, WHETHER THEY WERE MEMBERS OF THE WELL-REGULATED MILITIA OR NOT. In
short, they were aghast that blacks should have the same rights as white
citizens, but they DIDN'T go into tremendous detail as to what those rights
were. The RKBA provisions of the 2nd Amendment were not the primary focus
of the case, and therefore _Dred Scott_ is questionable precedent at best
for an interpretation of the 2nd Amendment. Maybe the opinion-writer had 
possible _future_ interpretations in mind when he wrote the comments above. 
Maybe he WANTED to foster the notion of a universal RKBA, and slipped the
comments past the other plurality-opinion Justices. There's no way of telling 
for sure. But you first have to prove its precedential value, so all of this
speculation is somewhat moot...

>If you don't like Dred Scott, try United States v. Verdugo-Urquidez, 
>110 S. Ct. 1839 (1990).  One of the questions this case raised was,
>"Who are 'the people'?"  According to Chief Justice Rehnquist in the
>majority opinion, the phrase "the people" was a term of art used by 
>the Framers.  Rehnquist wrote:
>
>     The Second Amendment protects "the right of the people
>     to keep and bear Arms," and the Ninth and Tenth
>     Amendments provide that certain rights and powers are
>     retained by and reserved to "the people."  See also U.S.
>     Const., Amdt. 1, ("Congress shall make no law ...
>     abridging ... the right of the people peaceably to
>     assemble"); Art. I, s 2, cl. 1 ("The House of
>     Representatives shall be composed of Members chosen every
>     second Year by the People of the several States")
>     (emphasis added).  While this textual exegesis is by no
>     means conclusive, it suggests that "the people" protected
>     by the Fourth Amendment, and by the First and Second
>     Amendments, and to whom rights and powers are reserved
>     in the Ninth and Tenth Amendments, refers to a class of
>     persons who are part of a national community or who have
>     otherwise developed sufficient connection with this
>     country to be considered part of that community.  110 S.
>     Ct. at 1061.

As I have noted previously, the obvious intent of THIS paragraph is to
expand the scope of the term "the people" beyond some specific limits,
but nowhere does it rule out a subsequent limitation by explicit reference
elsewhere in the specific statutes. In the voting example, for instance,
"the people" is restricted CONSTITUTIONALLY to those of a certain age, and
CONSTITUTIONALLY, before Amendments, to those of certain races. Obviously,
then, "the people" forms a raw superset out of which individual provisions
may carve out subsets. And if this subsetting process was and is 
constitutional for voting rights, why is it not equally constitutional for
the RKBA?

I will also point out that, like _Dred Scott_, the primary focus of this case 
was something OTHER than an interpretation of the 2nd Amendment RKBA, and 
thus the reference to the 2nd Amendment could be considered mere _dicta_ and 
not furnishing any useful precedent whatsoever. 

Lastly, please note the "by no means conclusive" wishy-washiness in the middle 
of the paragraph. Kinda makes this paragraph shakey for ANY kind of precedent,
doncha think?

								- Kevin
Newsgroups: talk.politics.guns