From: rwojcik@atc.boeing.com (Richard Wojcik,snake)
Newsgroups: talk.politics.guns
Subject: 2nd Amendment Myths
Date: 9 Sep 92 19:56:29 GMT
Reply-To: rwojcik@atc.boeing.com
Followup-To: talk.politics.guns
Organization: Research & Technology


Paul Swanson (PS) wrote:

PS> If I were writing the Bill of Rights now, there wouldn't be any such
PS> thing as the Second Amendment ... This has been subject to one of the
PS> greatest pieces of fraud - I repeat the word fraud - on the American
PS> public by special-interest groups that I have ever seen in my lifetime.
PS>                                  - Former Chief Justice Warren Burger

PS> Here is someone who probably has a good idea about constitutional law
PS> who apparently thinks the RKBA is a misinterpretation of the Second
PS> Amendment.

Yes, and he isn't alone in that interpretation.  I believe that most of the
original debaters would have left it out if they could have foreseen the
evolution of military defense.  Who would have dreamed of tanks or helicopter
gunships?  Anyway, many, if not most, legal scholars seem to think that both
the 2nd and the 3rd are anachronisms born out of conditions that responded to
conditions local to the 18th century.  The King had tried to control the
colonies by preventing them from arming themselves, and he forced colonists to
quarter troops in their homes.  During the Antifederalist backlash against
strong federal rule, the fear was that the strong federal government would
serve to bring back the same tyranny.  In the modern world, the federal
government has gained almost total supremacy over the states, and the state
militias have evolved into the National Guard.  Hence, the interpretation that
the RKBA is really a "collective" right which the National Guard fulfills.

Frank Crary (FC) responds:

FC> I'm afraid I'm not impressed with his reasoning: From all his published
FC> statements, his logic goes no further than "It only applies to 
FC> the National Guard and state militias. Guns are bad." (A paraphrase...)
FC> I haven't heard him produce any evidence or facts to back this up.

Have you read everything he's written on the subject?  Anyway, he seems quite
firm in his views.  Charging fraud and all that.  You'll never see the pro-gun
side stoop to such tactics, will you?  ;-)

FC> It is also worth noting that Chief Justice Burger is a strong
FC> supporter of judicial activism and, while on the bench, based his
FC> opinions on how he thought the Constitution _should_ read, not what
FC> it actually said.

In fact, this only underscores my point that you guys are in the "original
intent" camp, a method of legal interpretation that has been largely
discredited.  I again propose the works of the Constitutional scholar Leonard
Levy for a detailed refutation of "original intent":  Original Intent and the
Framer's Constitution.  Here is a passage from his writings (p. 341):  

     "The Second Amendment is as vague as it is ambiguous.  Some think it
upholds the collective right of state militias to bear arms, while others,
probably more accurate in so far as original intent is concerned, argue that
it protects the right of individuals to keep and bear arms..."

As you can see, he's no HCI lacky.  Another excellent work on the problems
with "original intent" is Stephen Macedo in his libertarian monograph:  The
New Right v. the Constitution (1987).  

Andy Freeman has stated that the RKBA folks are not really in the "original
intent" crowd, but he fails to back up his claim.  And others disagree.

Sean Malloy (SM) writes:

>>for militia duty and militia duty itself.  The fact remains that you belong
>>to no real militia, and you haven't been asked to engage in any of the 
>>training that you and others think "well-regulated" refers to.

SM> Then impeach your state governor for nonfeasance in office; state
SM> governors are, in the Constitution, given the responsibility of
SM> officering and training the militia in their state; since the state
SM> governments only deal with the _organized_ militia, the governors
SM> are failing to perform their duties with respect to the _unorganized_
SM> militia.

Or perhaps the "unorganized militia" is not what the framers of the 2nd had in
mind.  It certainly doesn't seem to be discussed very clearly in the
historical record.  Instead, one gets a clear sense that the lawmakers were
expecting to militia to practice and drill with its arms.  After all, to
paraphrase the Antifederalist Patrick Henry, what use is a militia if you
can't train it?  You need to form straight lines and make sure that one line
fires while the other reloads.  It takes coordination and discipline.  I guess
most of our governors are content to treat the National Guard as the real
militia.  Not too many people in the "unorganized militia" seem anxious to
spend their free time drilling to fight an enemy that nobody expects to
attack.  After all, the whole point of this discussion is to justify gun
ownership for the purpose of self defense, recreation, etc.  It wouldn't do to
take the word "well-regulated militia" any more seriously than we need to in
order to fulfill the real agenda.  Wink.  Wink.



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

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