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 18:28:16 GMT

In article <84481@bcsaic.boeing.com> rwojcik@atc.boeing.com writes:
>>any part of it they see fit. The Second Amendment asserts that the militia
>>is necessary, and protects its _existance_ by assuring that the people
>>can arm themselves.

>I think that we are in basic agreement here...
>but we disagree over the question of whether the government must allow those
>arms to be owned privately.  In other words, we disagree on the method of 
>implementation. 

One of the things the Second Amendment protects the militia _from_
is the governemnt itself. (The writings of the framers, Federalist
and anti-federalist, argue that repressive governments prefer
standing, professional armies to citizen militias. The anti-federalists
went on to argue that, should the United States' government become
repressive it would try to weaken or destroy the militia; therefore
a constitutional protection of the militia was needed.)

Clearly, saying that a right "shall not be infringed" means the government
may not dictate how that right may be peacably exersized. If the 
protection from the government is to be at all meaningfull, the government
cannot control details, such as who provides the arms or how they are
kept.

>I contend that state militias in 20th century America, such
>as they are, no longer
>rely on participants to bring their own arms in service of the country. 
>Whether or
>not the 18th century framers of the 2nd had this in mind is now moot.

The militia (as distinct from the federal army, a distinction very
clearly made by the Constitution) currently exists _only_ as the
unorganized militia of all able-bodied citizens. So I'd have to say
it is _extremely_ dependent on the participants bringing their own arms.

>>Which is to say, the Courts have (unconstitutionally) assumed the power
>>to modify the Constitution, and therefore there is no need for an
>>amendment process. In theory, at least, the government exists only by
>>consent of the people and can be modified only with the consent of
>>an overwelming majority of the people. By your logic, the Court could
>>(in effect) amend the Constitution, over the _objections_ of a majority
>>of the people.

>The Court does not amend the Constitution, but it can amend the interpretation
>of the Constitution.  This is, in fact, what it does.  And it is not about to
>stop doing it...
>The Court is empowered to supply an interpretation. 
>That is its constitutional function.

"Interpret" means "to make understandable" _not_ "to modify the meaning of."
When the Court's "interpertation" goes so far as to alter the meaning
of the Constition, they are in fact, amending it. The Court certainly
has the authority to interpert the Constitution, but only within the
ambiguity of the text's actual words. They, specifically, have no
just power to declare a constitutional provision "irrelevant to the
modern context." This is not an interpertation making that provision
understandable, but rather a removal of that provision _despite_ the
meaning of the text.

>>By the way, do you think the text of the Amendment (specifically, the
>>clause, "...the right of the people to keep and bear arms, shall not be
>>infringed.") protects _something_ from infringement? If so, _what_? Keep
>>in mind that this thing could not be state-organized militias, since
>>the Congress "infringed" on this within a year of the ratification of the
>>Second Amendment.

>What can't be infringed is the collective right of the people to bear arms in
>an organized militia.

So, even by your intereprtation, the members of any private shooting
organization have a right to keep and bear arms? Clearly, if the Second 
Amendment protects "organized militias" from the government, then
the government cannot dictate the details of organization and training
to such militias (this would very definitely be an infringement on the
protected right.) Therefore, the government has no authority to
say that a shooting club is not, in fact, a militia.

>The spirit of the 2nd--the collective defense of the nation--is more than
>adequately met by our numerous military organizations. 

This is not its spirit at all: It is for the people to be able to defend
_themselves_ against foreign invasion _or_ domestic tyrrany by the
government, and without being dependant on a professional army for such
things. No one argued, in 1787, that the militia was superious to 
regular armies in a military sense: Professional armies are generally
better at fighting wars. The argument was that, politically, it was
better for military froce to be in the hands of the people themselves
rather than the government (which may or may not represent the will
of the people.)

                                               Frank Crary
                                               CU Boulder