From: fcrary@ocf.berkeley.edu (Frank Crary)
Newsgroups: talk.politics.guns
Subject: Re: Constitutional Gun Banning
Date: 9 Apr 1992 05:16:05 GMT
Organization: U.C. Berkeley Open Computing Facility
Distribution: usa
NNTP-Posting-Host: tornado.berkeley.edu
Keywords: HCI

In article <1981@transfer.stratus.com> cdt@sw.stratus.com (C. D. Tavares) writes:

>Here's an interesting HCI document I just came across called 
>"The Second Amendment: Fraud and Fact." 

>FRAUD: The Second Amendment to the Constitution guarantees each
>individual the unlimited right to own and use guns for hunting,
>self-protection, target shooting, or other individual pursuits.

Technically true, since the Court has ruled (on several occasions) that
the right of private citizens to own guns is subject to reasonable
limitations. I don't think the Court recognizes _any_ right to be
"unlimited."

>...the truth is the federal courts have unanimously held that the
>right to keep and bear arms is limited to participation in an
>organized militia... 

I don't believe any Supreme Court ruling on gun ownership ever refered
to an organized militia. The closest they came, was in US v. Miller, 
were they ruled that only weapons usefull to a militia are protected.

There was a lower court ruling (I don't have the reference) which, in
effect, said that the Second Amendment didn't really mean it. But this
ruling doesn't stand _any_ close inspection: It cites, for example, 
vague passages on the militia (which imply that widespread, private
gun ownership isn't needed for an effective, modern militia) from an
"authority" on the Constitution. But if one looks at the cited work,
one finds clear statements on the next page, saying that the Second
Amendment protects private gun ownership, _regardless_ of the needs
of a well organized militia. I've heard the ruling described as "not
even up to undergraduate levels of research."

>that the Second Amendment does not guarantee the
>right of individuals to own and to carry arms.

In US v. Cruikshank, the Court ruled on private ownership of firearms,
saying that, "The second amendment declares that it shall not be
infringed..."

>FACT: No federal court in history has ever overturned a gun control
>law on Second Amendment grounds.

This is out of date: A federal court in Illinois has overturned the
National Friearms Act of 1934, on the grounds that Congress has no
power to regulate firearms sales, except as part of enforcing a tax. 
Since a 1986 law prevents further taxes from being collected, NFA 1934
is viod, as it enforces a non-existant tax.

>...nor does it prevent the states from
>regulating the use and sale of firearms as they see fit.

In Presser v. Illinois, the Court ruled that, "...the States cannot,
even laying the constitutional provisions in question out of view, prohibit
the people from keeping and bearing arms, so as to deprive the United
States of their rightfull resource for maintaining the public safety [the
militia], and disable the people from performing their duty to the general
government."

In Patsone v. Pennsylvania, the Court (O. W. Homes writting the decision)
said that, while hunting weapons could be banned to enforce a ban on 
hunting, "The prohabition does not extend to weapons such as pistols that
may be supposed to be needed occasionally for self-defense."

>FRAUD: Because it contains the phrase, "the right of the people to
>keep and bear arms," the Second Amendment was meant to confer an
>individual right to own and use firearms.

The Bill of Rights was based on several proposed sets of amendments, and\
it can reasonable be assumed that an amendment similar to the Second
Amendment would have had a similar intent. For example, 
"That the people have a right to keep and bear arms for the defence of 
themselves and their own state, or the United States, or for the 
purpose of killing game; and no law shall be passed for disarming the
people, or any of them, unless for crimes committed, or real danger of
public injury from individuals..." (Proposed by the Pennsylvania minority.)

_Every_ Supreme Court ruling to consider (or even mention) the Second
Amendment has treated it as an individual right, even if not an
unlimited one.

>FACT: During colonial days, Americans held a great distrust of
>standing armies and, in order to get the Constitution ratified, the
>framers had to include a Bill of Rights provision to protect state
>militias from federal encroachment. 

Section Eight, Article One of the Constitution puts arming, determining
the manner of training, and the manner of calling up the militia under
control of the Congress. This is in no way is altered by the Second
Amendment: The States have no authority to arm, train or call up the
militia, except as specified by Congress.

Further, Madison had originally planned to insert the amendments into 
the text of the Consitution, rather than append them to the end of
the document. What became the Second Amendment was to have been placed
in Section Nine, Article One next to clauses on Habius Corpus, trial 
by jury, and other personal rights. It was _not_ to have been inserted
in Section Ten, where the state vs. federal powers are specified.

>FRAUD: A "well-regulated militia" refers to those persons who live
>within the boundaries of any given state, and that's why each citizen
>of a state retains a fundamental "right to keep and bear arms."

Under US Title X, "militia" means all men between that ages of 18 
and 45.

>FACT: The term "well-regulated militia" has been consistently viewed
>by the federal courts as the active, organized militia of each state.

In US v. Miller and Presser v. Illinois, the Supreme Court took the
term "militia" in the context of the Second Amendment, to mean armed
citizens in general: "...the Militia comprised all males physically
capable of acting in concert for the common defense... these men were
expected to appear bearing arms supplied by themselves and of a kind in
common [military] use at the time."

>Moreover, the US Supreme Court has twice held that the National Guard
>is the modern day equivalent of a state militia.  Of course, the
>National Guard does not use privately owned firearms at all.

The Supreme Court has ruled specifically that the National Guard is
_not_ the same as the state militias, and that it is subject to Presidential
orders as part of the "standing army." They have ruled that the National
Guard is also _part_ of the militia.

                                          Frank Crary
					  UC Berkeley

Newsgroups: talk.politics.guns