From: tcarter@seismo.CSS.GOV (Thomas Carter)
Newsgroups: sci.skeptic
Subject: RE: 2nd Ammendment
Keywords: None
Date: 16 Nov 92 21:03:28 GMT
Organization: Center for Seismic Studies, Arlington, VA
Originator: tcarter@beno.CSS.GOV



In several articles, Terry Preston replys to a post I made
concerning the 2nd Ammendment. I will not repost them in their
entirety for bandwidth's sake, but will address the points
he raised. Let me first apologize for several typos that
occurred in the original post concerning dates. As per
Terry Preston's request, I will provide the entire cites.

TS> The issue in 'Dred Scott' was whether or not state law could 
TS> free as slave simply by virtue of the slave entering the state.


Scott v. Sanford indeed was not considering the 2nd Ammend.
directly. As I have said, There are precious few S.C. cases
that have. The reasoning behind the decision, however is
important. In that case, the Chief Justice writes that
certain fundamental, individual rights were inseparable
from citizenship. 

"It [granting citizenship to freed slaves] would give to persons of
the negro race, who are recognized as citizens in one state of the
Union, the right to enter every other State whenever they pleased,
singly or in companies...; and it would give them the full liberty of
speech...; and to keep and bear arms wherever they went."

US v. Cruikshank 95 US 542 
Presser v. Illinois 116 US 252 
Miller v. Texas 153 US 535

These three cases, being pre-incorporation, are not terribly
important but are nonetheless interesting. All three, in
varying degrees, acknowledge that either the individual
RKBA is protected or that the militia is composed of
all able-bodied citizens. The Court argues however, that
since the Bill of Rights applies only to the Federal
Government, the States can infringe on any right that 
they wish to. As I'm sure you know, The Supreme court
does not hold this opinion any longer.

A typical quote from Presser v. Illinois:

"It is undoubtedly true that all citizens capable of bearing arms
constitute the reserved military force or reserve militia of the
United States as well as of the states..."


US v. Miller 307 US 174  (I inadvertently typed the year 1934 
                          instead of 1939 - again I apologize)

This is the only modern ruling on a federal gun control law. 
Miller was charged with possession of a sawed off shotgun
in violation of the National Firearms Act of 1934. Defense
claims this is a violation of Miller's 2nd Ammend. rights.
Miller lost. This case typifies the confusion over the
2nd Ammend. People who do not read the case assume that
because Miller lost, The 2nd Ammend. does not protect the
individual right to keep and bear arms. Nothing however
could be further from the truth, as people would see if
they would bother to read the case (and others) instead
of relying on synopses.

The Court said that the Second Amendment was intended to
"assure the continuation and render possible the effectiveness 
of such a force [the militia]... It [the Second Amendment] must 
be interperted and applied with that end in view." The Court then 
says, in clarifying what it meant by "militia" in the previous
sentence that membership in the militia included "all males physically 
capable of acting in concert for the common defense." 

The Court went on to say that although the Federal Gov. could not
restrict ownership in general, they could restrict certain types
of weapons that did not "have any reasonable relation to the
preservation or efficiency of a well regulated militia".
In essence, any weapon that is useful to the militia is protected.
This is going to be a hard precedent to overcome when some of the
newly enacted "assault weapon" bans hit the Supreme Court.

Miller lost because there was no one present (neither he nor
his attorney showed up) to argue that a sawed off shotgun was
indeed standard army issue. Without evidence that it was,
the Court ruled it wasn't, and therefore Miller was not protected
in owning it.

I included  US v. Verdugo -Urquidez (1990) to shed some light on
how the current Supreme Court may view the 2nd Ammend. and I stand
by the cite. In trying to determine the meaning of "the people" as
used in the Constitution, the Court says that "the people" had the 
same meaning in the First, Second, Fourth, Ninth and Tenth Amendments
and that it means "all members of our national community."
I cite this and the other cases because they mention the 2nd Ammend.
As cited above, the only modern day 2nd Ammend. case states
unequivocally that the 2nd Ammend. protects the right of the 
individual citizen to keep and bear arms. All of the other cites
are just icing on the cake.


TS> Terry states his opinion that Title X is just an excuse so
TS> that Congress can can impress people into wartime service.

What's your point? Congress already has this power granted to
it in the Constitution. Specifically, "To provide for calling
forth the militia..."

Have I left anything out?


Oh, and by the way, I am not now, nor have I ever been, a
member of the NRA. Trying to discredit an argument by insinuation
is not a terribly honest debate technique.

My original post was a reply to Rick Moen who stated that
every single Supreme Court case concerning the 2nd Ammend.
found that the "individual" interpretation of the 2nd was
an incorrect interpretation. Mr. Moen is wrong and I stated 
as much. The only modern day 2nd Ammend. case 
(US v. Miller 307 US 174) says that he is wrong. 
Every snippet that can be culled from any case that even 
mentions the 2nd Ammend. says he is wrong. Does this
mean that the next 2nd Ammend. case that the Court
hears will say this. I don't know. No one except the Court
itself knows that for sure. If they follow the doctrine
of stare decisis then you should put your money on the
"individual" interpretation. I think Verdugo -Urquidez
gives a clue as to how they feel.





-- 
________________________________________________________________________________
Thomas B. Carter                          |  Center for Seismic Studies
My wife calls this the Nut-Net...         |  tcarter@beno.css.gov             
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Newsgroups: sci.skeptic