From: PA146008@utkvm1.utk.edu (David Veal)
Subject: Re: ICLU Commission on the 2nd Amendment and Gun Control
Organization: University of Tennessee Division of Continuing Education
Date: Thu, 3 Sep 1992 16:24:34 GMT

In article <81840@bcsaic.boeing.com> rwojcik@atc.boeing.com (Richard Wojcik,snake) writes:

>In article 17ujqhINNdnc@agate.berkeley.edu, fcrary@ocf.berkeley.edu (Frank Crary) writes:
>>>A good source for some of the original wordings and discussions on the 
Bill
>>>of Rights is H. Veit, K. Bowling, and C. Bickford, Creating the Bill 
of Rights, 
>>>Baltimore: the Johns Hopkins Press, 1991.
>>
>>A better source is the Congressional records themselves.
>
>As Mr. Greeley pointed out, this book contains those records.  But bear in mind
>that such records are heavily edited and contain many errors.  The Congressional
>Record is hardly the historical document that some would have you believe.  The
>problem with such records is that they frequently record motions and votes without
>providing any clue as to the motives of the proceedings.  Net historians are
>fond of providing their own motivations for such proceedings.  ;-) 

     So we strike off the Congressional Record when discussing the history
of Congress?  It's at least an original way to look into history.

>>First, everyone involved agreed that the militia comprised _all_ physically
>>able male citizens. 
>
>I take the eligibility criteria for being involved in militia duty to be distinct
>from the duty itself.  However, I'll admit that people have confused the two
>senses of the word, and your quote of the Supreme Court ruling suggests that they
>prefered your interpretation at that time.  Fortunately, they don't take that
>interpretation seriously enough to strike down gun control laws.  I suspect that,
>if they chose to listen to gun control cases, they would probably distinguish
>between militia duty and eligibility criteria.  The fact that they choose not
>to rule on Constitutional challenges to local gun control laws suggests to me
>that such challenges lack merit in their eyes.

     It could mean they don't want to uphold an individual RKBA, and
know there is no reasonable way they can follow the law and not do so.
Lawyers and Judges have their own particular skewed ethics, but they
tend to remain consistent about it.
     Perhaps they avoid the issue so they won't have to come down on the
wrong side.  If they felt as you suggest, all it would take is one case
to put an end to the debate.

>>Second, the concern over federal militia powers was not that they would
>>ban militias, but that they would neglect their responsibility to arm 
>>them:
>>
>>"Of what service would militia be to you, when most probably you will
>>not have a single musket in the State; for as arms are to be provided by 
>>Congress, they may or may not furnish them."
>>
>>(Patrick Henry, from the Virginia Ratification Convention.)
>
>You are quibbling.  My point agrees exactly with Patick Henry's (who was a
>radical Antifederalist):  of what use is an unarmed militia?  The Constitution,
>as it stood with Article I, provided a gaping loophole that the Antifederalists
>were concerned to close up.  The right of the collective population to defend
>themselves through an armed militia.  A collective, not necessarily a "personal" 
>RKBA.  This quote is consistent with keeping arms in a state-controlled armoury
>and bearing them only during militia duty.

     It was common at the time, as we all know, to turn your personal arms
in for government safekeeping.

     If Patrick Henry was concerned that Congress would not supply weapons,
how can you suggest that it is consistent that those arms be kept in
militia arsenals, which, one must assume, would be controlled by the
state?

>>"Rights" was not a term applied to the states, at least in any of the 
>>writings of the period I've seen. The word was exclusively used to 
>>refer to individual rights. 
>
>It is fun to speculate about word meanings in this fashion, but your reading
>of documents from that period is probably far from comprehensive, as is mine.

     "I know better.  Trust me.  Do not question."

>I'd like to see you try to use an argument like this to convince a court.  

     It's been done.  It's occasionally worked.     

>I'm
>not saying that you wouldn't succeed with some of the current people on the 
>Supreme Court ;-), but your weak "well, I've never seen..." hardly constitutes
>evidence of anything.

     No, in court you would argue by bald assertation, never admitting
that the other side even has a valid point.

     Kind of like USENET.

>>>In any case, so-called "original intent" has never served well or consistently
>>>to determine the way in which the courts interpret the law.
>>
>>The Court generally sticks to it, when it can be determined. They also
>>tend to follow their own precidents: Every Supreme Court ruling on
>>the subject has treated the Second Amendment as a protection of an individual
>>right, though not an unlimited one.
>
>People on the pro-gun side keep saying this, yet the courts don't overrule 
>strict gun control laws.  

     The *Supreme Court* has not over-ruled strict gun control laws.  Plenty
of lower courts have over-ruled strict gun control laws.

>Surely that must bother you.  Why do you think you
>are right about the courts if they won't behave in a way that is consistent
>with your beliefs?  Are they all tools of the dreaded HCI juggernaut?  ;-)

     The courts, as has been noted by many people on many issues, seem
to have their own agenda most of the time.  Currently it is toward big
government and weakening of protections of rights.

>>>The view that the
>>>2nd only guarantees the right of states to equip militias, IMO, is a valid
>>>interpretation of the 2nd, even if it wasn't what many of the original framers
>>>intended.
>>
>>At best, this is in conflict with all the Court rulings on the subject.
>>Further, to support an interpertation in conflict with the intended
>>meaning makes a mockery of the whole concept of a written Constitution.
>
>Interesting.  Shall we try to interpret all of our laws according to "original
>intent"?  

     Why not?  Should we instead interpret all our laws based on current
Congressional opinion of the meaning of words?  ('Today, "free speech" means
speech you don't have to pay for.  Since we just instituted a tax on speech,
it is no longer free, and no longer protected...')

>That would make our lives fun.  

     Immensely amusing.  We might even no longer have to worry about our
rights being withdrawn because the courts decide that the meaning of "Free"
of "secure" has "changed substantially."

>Especially if you could get someone
>like Bork on the court, who believed that our personal rights were never
>intended to be construed so broadly. 

     You are actually arguing *against* a broad interpretation of rights
by bringing up a boogy-man who you say would *restrict* rights?

     How... interesting...

>>By the same logic, would it be accpetable to violate the Fouth Amendment,
>>by adopting a new meaning of "unreasonable searches and seizures"?
>
>A fair question.  Arguing against "original intent" makes me nervous because
>it is a double-edged sword.  

     It always is.

>The courts have a tremendous amount of power, and
>most people don't realize this.  Most people live with the illusion that 
>legal language has a plain, unambiguous interpretation.  

     What, are you a lawyer?  Plain?  Unambiguous?

>Frankly, I disagree 
>with many court-based interpretations--e.g. the ones that appear to define 
>the militia in terms of people eligible to do militia duty.  ;-)  
>But I think that the "collective right" interpretation is fully in line 
>with the spirit of original intent.  

     You argue *against* original intent, but even if we use original intent,
your position *was* the original intent.  It must be nice to have an argument
defined so that you come out on top in all possible outcomes.

>I agree that many, if not most, of the 
>original framers had a specific implementation in mind that runs counter 
>to "collective right".  

     The framers, even federalists, were fairly big individualists.  Do you
have any original intent support to for the "collective right" 
interpretation?

>Our modern sense of what a militia is renders that 
>implementation obsolete.  We just don't train gun owners to fight in a 
>militia.  

     No, they train themselves.  That way the government can't deny the
militia training or arms.

>We don't, because nobody really thinks of them as part of a 
>militia.  

     It is generally accepted in the United States that rights are not
solely based on general opinion.

>There is no sense in which that unorganized "militia" can be said 
>to fit the original intent of the framers.

     The phrasing of this sentence makes it fairly obvious any counter-
argument would be a waste of time.

>>Perhaps you should read the Militia Act of 1792: Not only were private 
>>individuals _intended_ to arm themselves, they were required by law to
>>do so (every male citizen had to own a rifle, musket or two pistols
>>and keep them in good condition.) 
>
>Again, an excellent point.  It shows how far we've come that we don't have
>similar laws today.  That old conception of the militia has long since withered
>away, and the gun lobby is using it as a technicality to fight gun control
>laws that have nothing to do with militias.

     You just argued in the *same* message that the collective right
*was* the original intent, *and* the we've come a long way to arrive
at a current collective right stance.


===========================================================================
|David Veal  PA146008@utkvm1.utk.edu  University of Tennessee             |  
|            veal@cs.utk.edu          Division of Continuing Education    |
===========================================================================

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