From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: So... Why have a standing military?
Organization: University of Colorado, Boulder
Date: Sun, 11 Oct 1992 19:18:39 GMT

In article <84686@bcsaic.boeing.com> rwojcik@atc.boeing.com writes:
>FC> In your opinion, perhaps. But given the federal RICO seizures and
>FC> other abuses associated with the "war on drugs", as well as the
>FC> irresponsible behavior of the Congress (which in some ways acts as if
>FC> it were a ruling class, not public servants), I would have to call
>FC> government repression and tyranny a very real and major concern...

>The only legal and proper way to fight such alleged abuses of power is through
>our democratic political process.  Our form of government has tended to work
>very well that way.

It _usually_ works that way. There have been a few occasions where it
didn't: The election of 1800 comes to mind, as do the events of 1860.
On those rare occasions where peacefull means fail, and violence or
the threat of violence is resorted to, who should have control of
such martial force? Consider, for example, many South American nations.
In cases of governmental crisis, "whose side is the Army on?" often
becomes the decisive issue. I would rather have violent force in the
hands of the people: "Whose side will the people fight for?" is a
far better question, in those (fortunately) rare circumstances.

>FC> By the way, you haven't said yet what you think the Amendment protects.
>FC> Are you claiming that, "the right of the people to keep and bear arms",
>FC> provides _no_ protection what so ever of _anything_?

>I have said over and over again that it protects the right of citizens to
>defend themselves from foreign attack through an armed militia.  I have
>speculated that an attempt by the federal government to disarm the National
>Guard might be ruled unconstitutional under the 2nd. 

The National Guard, by federal law and Supreme Court ruling, is part
of the federal army. It is irrelevant to discussions of the militia.
Further, the issue of citizens defending themselves from tyrannical,
domestic government, by means of militias, was discussed and was
part of the anti-federalist proposals than Madison incorportaed into
the Second Amedment. Are you suggesting that the idea of domestic
tyranny, or the need to defend against it, was rejected by men who,
only a decade earlier, had fought a defensive was against tyranny
by their own government?

>FC> Every one of the framers to mention the subject in speaches or writing
>FC> though the "militia" was an armed citizenry. Many even directly stated
>FC> such definitions. I don't think your personal definitions are
>FC> relevant.

>We don't even have records of what every one of the framers thought.  My guess
>is that "armed citizenry" meant something like "a body made
>up of armed citizens" as opposed to, say, professional soldiers.

"Armed citizenry" was my own paraphrase. To avoid misunderstanding, here
are some of the direct quotes:

Col. George Mason (anti-federalist, and an officer in the Virginia Militia):
"I ask, sir, what is the militia? It is the whole of the people, except
for a few public officials."

Richard Henry Lee (or whoever really write the anti-federalist "Letters
from the Federal Farmer to the Republican"):
"To preserve liberty, it is essential that the whole of the people
always possess arms and be taught alike, especially when young, how
to use them..."

Alexander Hamilton (perhaps the most influential federalist, on the
organization of the militia):  "Little more can reasonable be aimed 
at, with respect to the people at large, than to have them properly
armed and equipped; and in order to see that this be not neglected,
it will be necessary to assemble them once or twice in the course of a
year."

The Supreme Court in US v. Miller:
"The signification attributed to the term Militia appear from the
debates in the Convention, the history and legislation of Colonies
and States, and the writings of approved commentators [Justice Story's
commentary is cited later]. These show plainly enough that the
Militia comprised all males physically capable of acting in
concert for the common defense... And further, that ordinarily when
called for service these men were expected to appear bearing arms
supplied by themselves and of a kind in common use at the time."

It would seem that the "militia" means an armed population in general,
not just a militiary force composed of part-time professional soldiers
(e.g. the National Guard). 

Further, the writings of the framers distinguish between the militia and
a "select militia", that is a militia made up of only a small fraction
of the people, selected for ability, age, loyalty to the government, or
any number of other reasons, and given extra training and better arms
by the government. These writings also note that the "select militia"
is _not_ the entirety of the militia, and that alone (e.g. if the
rest of the militia were eliminated) such "select militias" would
(from a political, not a military point of view) essentially a
part-time standing army and would _not_ satisfy to intended purpose
of having militias.

>FC> I'm quite familiar with English grammer. I was _not_ asking what a
>FC> presupposition implies. I was asking what evidence you have, that the
>FC> initial clause of the Second Amendment is a presupposition. The language
>FC> seems (to me) to be a statement of fact, not a presupposition.

>Ok, let me explain again.  The amendment *asserts* the RKBA.  It presupposes
>that the RKBA is necessary to maintain a well-regulated militia.

Again, you miss my point: You claim that the first clause is a
presupposition and the second is an assertion based on that assumption.
I, reading the same sentance, see a assertion followed by a related
specific prohibition. What facts do you have to support your claim?
(Random House dictionaries don't count for much in constitutional
law, as they lack _any_ restraint on the political and social prejudices
of the authors.)

>I have frequently raised the point that the Whiskey Rebellion was very much on
>the minds of leaders in the early days of the federal republic.  It is
>probably one of the reasons why state militias came to be so tightly
>controlled by the feds, despite the wishes of the Antifederalists.  It must have
>given many a lawmaker second thoughts about the advantages of having an "armed
>citizenry" that was not subject to military discipline.

And yet, the Whiskey Rebellion was a revolt by armed citizens _not_ by
militias organized by the state. If the lawmakers of the time had this 
concern you claim ("they must have", by the way, is a very weak and 
unsupported sort of claim), why did they make no effort what so ever to disarm
citizens outside of organized militias? Laws restricting state militias
would be quite irrelevant to this sort of concern.

                                            Frank Crary
                                            CU Boulder