From: greeny@top.cis.syr.edu (J. S. Greenfield)
Subject: Re: [ACLU] Guardian of Liberty: American Civil Liberties Union
Organization: Syracuse University, CIS Dept.
Date: Fri, 20 Nov 92 16:23:04 EST

In article <Bxy12o.Dxw@news.cso.uiuc.edu> cbl@uihepa.hep.uiuc.edu writes:

>>You have adopted position 1. The ACLU has adopted position 2. Either of you
>>may be right, as a definitive Supreme Court decision has not been made.
>
>	Ever hear of the Miller case? No I though not. . .
>try:
>UNITED STATES vs. MILLER et al.
>No. 696.  Argued March 30, 1939 -- Decided May 15, 1939

Is it your claim that the US v. Miller decision is definitive?  If so, then
you seem to disagree with most of the Second Amendment scholars on *both*
sides of the issue.


As a very brief summary, I offer a few excerpts from

  The Right to Keep and Bear Arms: Report of the Subcommittee on
  the Constitution of the Committee on the Judiciary, United
  States Senate, Ninety-seventh Congress, Second Session,
  United States Government Printing Office (1982).
  
(Orrin Hatch, Chairman; Dennis DeConcini, Ranking Minority
Member.)

which I would describe as clearly biased (by its own admission) in
favor of the "individual-rights" interpretation of the Second Amendment.

From the appendix "Case Law":

  "The United States Supreme Court has only three times commented
upon the meaning of the second amendment to our constitution.  The
first comment, in Dred Scott, indicated strongly that the right to
keep and bear arms was an individual right; the Court noted that,
were it to hold free blacks to be entitled to equality of
citizenship, they would be entitled to keep and carry arms wherever
they went.  The second, in Miller, indicated that a court cannot
take judicial notice that a short-barrelled [sic] shotgun is
covered by the Second Amendment--but the Court did not indicate 
that National Guard status is in any way required for protection by
that amendment, and indeed defined 'militia' to include all
citizens able to bear arms.  The third, a footnote in Lewis v.
United States, indicated only that 'these legislative restrictions
on the use of firearms'--a ban on possession by felons--were
permissable [sic].  But since felons may constitutionally be
deprived of many of the rights of citizens, including that of
voting, this dicta reveals little.  These three comments constitute
all significant explanations of the scope of the second amendment
advanced by our Supreme Court."


  The report also includes what are effectively briefs from various
concerned organizations and individuals.  Among these are
statements from both the NRA and the NCBH (National Coalition
to Ban Handguns).  The NCBH Statement is prefaced by the following
excerpt (among others):

  "The Second Amendment to the United States Constitution says:
'A well regulated militia being necessary to the security of a free
state, the right of the people to keep and bear arms, shall not be
infringed.'  While the NRA takes the firm stand that law-abiding
Americans are constitutionally entitled to the legal ownership
and use of firearms, the Second Amendment has not prevented
firearms regulation on the national and state levels.  Also, the
few federal court decisions involving the Second Amendment have
largely given the Amendment a collective, militia interpretation
and have limited the application of the Amendment to the Federal
Government.

--National Rifle Association (NRA Fact Book on Firearms Control)


In their prefaces to the report, both of the ranking members agreed
that,


"...the right to keep and bear arms...has since been construed
in but a single, and most ambiguous, Supreme Court decision...."

--Orrin Hatch


"Our Supreme Court has but once touched on its [the Second
Amendment's] meaning at the Federal level and that decision, now
nearly half a century old, is so ambiguous that any school of
thought can find some support in it."

--Dennis DeConcini


As such, I think that any suggestion that the SC has provided a clear
interpretation of the Second Amendment is simply incorrect.  There are
far more lower court decisions, but these decisions are substantially
divided (with federal courts adopting a "collective" interpretation, and
many state courts adopting an "individual" interpretation).


>>The presence of various gun control laws in the statute books is an
>>argument that the Supreme Court may decide in favor position 2. 
>>
>
>	Just like segregation laws were on the books for ~100 years. . . 

I don't think his rather reasonable statement ("the SC *may* decide") is
contradicted by your point.  But at the same time, your point is well-taken,
in that the SC *may* decide the other way.

The fact is, at this time, we really can't say what the SC may decide, assuming
it ever choose *to* decide...


>>Whether you think this is a good or bad thing is a subject for
>>talk.politics. guns.

Please direct follow-ups along these lines to talk.politics.guns.

Follow-ups debating SC precedent should probably be directed to misc.legal.


-- 
J. S. Greenfield                                         greeny@top.cis.syr.edu
(I like to put 'greeny' here, 
but my d*mn system wants a 
*real* name!)                        "What's the difference between an orange?"
Newsgroups: talk.politics.theory