From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: 2nd Amendment Myths
Organization: University of Colorado, Boulder
Date: Sat, 5 Sep 1992 18:12:19 GMT

In article <82077@bcsaic.boeing.com> rwojcik@bcsaic.boeing.com (Rick Wojcik) writes:
>I was addressing the issue of how one interprets Constitutional law--whether
>or not the doctrine of "original intent" was what the framers had in mind.  If
>it had been, you would have expected the Constitutional Convention to keep
>notes and publish them.  Instead, Madison kept his *unofficial* notes secret
>until after his death.  Whatever principles applied to the interpretation of
>the original Constitution also apply to its amended form.  Or do you disagree?

Keeping notes of debates was not a common practice at that time. By
_requiring_ the new federal government to do so, the Constitutional
Convention admitted that the lack of such noteas was a problem. So
they clearly wanted records of important debates, regardless of the
proceedures they were using during the Convention.

It isn't clear that the Convention even _considered_ how the Constitution
should be interperted. The real consideration of that didn't start
until the governemnt was actually up and running. 

Further, both John Marshall and Jefferson (two of the chief debators
on the subject of constitutional interpertation) both supported what
we now call "original intent" (though then, as now, they disagreed on
what the intent was...) It is hard to imagine two public figures
farther apart politically than Marshall and Jefferson: If _they_
agreed, it is fairly safe to say almost everyone held this opinion.

>AF> Speaking of challenges, I note that Wojcik still hasn't bothered to
>AF> provide any evidence supporting his interpretation from the relevant
>AF> period of time.  Even Hamilton, who LOST the argument over the
>AF> distribution of power, disagrees with Wojcik.

>I'm not clear on which argument you're talking about.

The argument over the structure and organization of the American militias.

>(I find Frank's writings among the most interesting, and most challenging.  I
> won't respond to his extensive legal citations, other than to fall back on my
> original position:  Legal language is not fixed in meaning, and there are
> plenty of cases where explicit interpretations have been reversed--especially
> in the case of Constitutional law.  We have yet to see a single gun control
> law overturned by the Supreme Court on the basis of the 2nd.  They just don't
> seem interested in the case made by the pro-gun lobby.  I think that, on this
> point, at least, we all agree.)

Again, as the Court has very specifically said on _many_ occasions, their
decision not to hear a case means _nothing_ about the case. It _might_
mean they didn't have time to hear it, it _might_ mean they want the
politicials to deal with it (they did this with malapportionment of
voting districts for 15 years. They, in general, prefer to give others
time to deal with constituional problems, instead of forcing a court
decision on people.), it _might_ mean the case has no merits, it 
_might_ mean they have personal political doubts (though the legal
and constitutional issues are clear) and it _might_ mean a great deal
of other things. In fact, when the Court refuses to hear a case, they
don't say why, and there is no way to tell.

>FC> And, as I have said elsewhere, the Federalists specifically stated
>FC> that the Bill of Rights did not alter the Constitution: It was mearly
>FC> a written protection of rights which were already protected, de facto,
>FC> by the unamended Constitution.

>Yes, but not everyone was a Federalist, and some even argued that producing a
>Bill of Rights would imply the opposite.  I don't think that they were far off
>the mark.

The Federalist opposition to the Bill of Rights, and their inclusion of
the Ninth Amendment was to avoid exactly this view. They were very
clear that the people's rights were _not_ limited to the provisions of
the Bill of Rights and that the government's authority did _not_ 
extend to these areas (even if there were no Bill of Rights. There was
alot of concern that a Bill of Rights would confuse people about this
topic.

Further, the Federalists were the supporters of a strong federal government.
All their opponents wanted a weaker federal government and stronger 
restrictions on it's behavior. While the Federalists argued that the
Bill of Rights already covered, de facto, by the unammended Constitution,
their opponents felt it couldn't hurt to get it in writing. Their 
concern was _mis_interpertations and loopholes in the Constitution, that
might allow the federal government to have more power than it should.
No one thought that the Constitution _should_, or was intended to, 
allow governemnt infringement on individual rights.

Specifically, the anti-federalists felt that the government might
_abuse_ it's authority over the militia, to destroy or weaken
such bodies. They did not think the government _should_ have the
power to do so. There objections extended only to abusive federal
actions, not to federal authority over the militia in general.

So the Federalists considered the Second Amendment redundant, and
the anti-federalists thought of it as a safeguard, protecting against
federal abuses (by insuring that the members of the militia could
arm and train themselves.) Out of the entire political spectrum of
1791, no one thought the Second Amendment gave the states total and
unchecked control of the militias. The Second Amendment does, however,
totally forbid federal authority over _something_. Therefore, the
Second Amendment cannot be, as you argue, about state-controled
militias.

>FC> Further, the federal Militia Act and the Supreme Court ruling in Presser
>FC> v. Illinois undermine your concept of independent, state-run militias,
>FC> by imposing federal supremecy over organized militias. How can the
>FC> federal government have such authority, if the Second Amendment were
>FC> a grant state authority over the militia?

>Very easily.  The Antifederalists clearly wanted to prevent this, but they
>weren't able to get all the language they wanted into the 2nd.  Consequently,
>it wasn't hard for the Court to rule this way. 

Which is to say, the Second Amendment does not protect state-controled
militias (Some anti-federalists may have wanted this, but as you said,
they got a compromise: Since total state control was unacceptable
to some, and federal abuses a danger to others, they compromised on
a safeguard which protected not the states, but the people themselves.)

Since, as you seem to agree, the Second Amendment does not protect the 
state militias, what does it protect (if not the right of the people?)

>[On why no gun control laws have been overturned.]

>FC> Specifically, they ruled that the Second Amendment protected the right
>FC> of individual citizens to own firearms, but that this right (like all
>FC> others) is subject to reasonable regulation. They simply haven't 
>FC> heard any cases involving unreasonable regulations. The rulings,
>FC> however, precident for such a decision. 

>A good point.  I would think that the NYC and Washington DC laws qualify for
>such a ruling, don't you?  What do you do if they never hear of any
>"unreasonable" regulation? 

There are cases of the Supreme Court waiting 15 years to overturn 
unconstitutional laws. With the greater case load the Court faces
today, it wouldn't be supprising if unconstitutional local laws
remained on the books for a few decades, before the Court ruled on them.

The gun control laws you refer to date from the 1970s (The New York 
law is older, but it is "unreasonable" mostly because of the way
permits are issued (e.g. to no one without political connections.) I
believe this is a fairly new (less than 25 years old) development.)

Further, you might want to consider how the Court decides to hear
cases: Only about 10% of the petitions to hear cases are ever _seen_
by and Justice on the Court. There legal clerks throw out most of
them, on various grounds, to ease to work load of the Justices.
A refuasal to hear a gun control case might (and probably did, in 
most past cases) rest solely on the judgement of a single legal
clerk fresh out of law school. All things considered, it isn't
supprising that a major Constitutional issue hasn't been addressed
in the past two decades.

>>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.

>AF> Under Title X recognizes the "unorganized militia", which includes
>AF> all males between the ages of 17 and 45. So I do, in fact, belong
>AF> to a militia officially recognized by federal law. 

>A good point.  However, the Supremes *could* rule that the "unorganized
>militia" does not constitute the one that the Federalists and Antifederalists
>were squabbling over--i.e. the "well-regulated militia".

How, exactly, would you define "well-regulated"? The narrowest meaning
I can think of is, subject to all laws passed by Congress concerning
the militia. The "unorganized militia" of Title X makes me a member
in accord with congressional regulation.

(I disagree with this narrow meaning of "well regulated", but even
adopting it doesn't prove your point.) 
 
>The "unorganized
>militia" certainly doesn't undergo all that training you guys like to refer
>to.  I'd like to see you all report on Saturday mornings for "musket
>practice".  On the double, now. 

However, the militia's right to own and train with arms is protected
by the Second Amendment. Even if you limit militia membership to those
who intend to practice regularly, I'd still be a member.

                                                     Frank Crary
                                                     CU Boulder
Newsgroups: talk.politics.guns