From: gerard@caliban.soest.hawaii.edu (Gerard Fryer)
Subject: Re: Is the U.S. Constitution tacit?
Organization: Scum of the Earth and Senile Tenured
Date: Sat, 22 Aug 1992 01:11:05 GMT

In article <1992Aug20.004701.3399@news.Hawaii.Edu>, I hinted that the
US Constitution extends tacit rights as well as those granted
explicitly. I used as the basis for my argument the 2nd Amendment,
which, in discussing arms and States' rights, appears to say nothing
about the individual.  Yet the individual, in 1787 at least, clearly
had the right to bear arms.

My post excited a flurry of personal e-mail, more than half of it
flames (from both sides of the debate on guns) which I ignored.  There
were, however, a few thoughtful responses.  From these, and from a
dinner I just had with an historian of the American Revolution, I now
see things rather differently.

Every "free able-bodied white male citizen" became a member of the
militia, if he so chose, as a consequence of the Militia Act of 1792.
I have the image of a militiaman, his flintlock (?, forgive me, I know
nothing about the history of weaponry) beside his bed, ready to grab
his weapon and go to the muster point at the first hint of a call to
arms.  His right to his weapon was unquestionably explicitly guaranteed
by the 2nd Amendment then.

In my original posting I asked
|> But times change.  Does an individual now have the [tacit] right to
|> bear arms when not acting as part of a militia?  In the eighteenth
|> century he quite obviously did have that right.  But if that right has
|> been lost, when was it lost?

If indeed an individual's right to bear arms was ever lost, that loss
happened in 1903 when State militia units became the National Guard and
the Reserves, and the President was granted the power to mobilize these
units (prior to 1903, the President had to ask the governors of the
states if they would call up their militia for federal duties).  But
the Guard and the Reserves, while volunteer organizations, do not
include the entire population.  You have to enlist.  It would appear
that in 1903 the explicit, constitutionally-guaranteed right to bear
arms became restricted to National Guardsmen and reservists.

But wait, there's a gotcha.  The intent of the 2nd Amendment was to
deny federal interference in States' militia.  The 1903 Act, and the
subsequent National Defense Acts of 1920 and 1933, clearly amount to
federal interference.  The Constitution has to take precedence.  The
conclusion is inescapable: every citizen (or, more strictly, every free
able-bodied white male citizen) has the right to bear arms guaranteed
by the Second Amendment.

For me this is a shocking revelation.  Not only are the implications
for the violence of society depressing, the revelation also shows me
that my original thesis, that the Constitution confers tacit rights, is
totally without merit.  Without tacit rights (it is pretty obvious we
can ignore the vague assurances of the Ninth Amendment), you only have
the rights that you manage to get conferred explicitly.  I always
refused to support the Equal Rights Amendment as I thought it was
unnecessary.  Now I see that I was mistaken.

There is one weakly-flickering brightness in all of this.  The Bill of
Rights (the first ten amendments to the Constitution) is generally
regarded as the darling of the liberals.  With the Second Amendment of
such obvious repugnance to liberals, perhaps conservatives can now
embrace the Bill also.

But me? I'm left depressed and exhausted by this exercise.  I shall not
post anything more about this subject (and I apologise to readers of
s.c.b for dragging them through this).  Time to go listen to something
bright and uplifting (like Mahler's ninth) or read an upbeat and
amusing book (like Canticle for Leibowitz)  :-(
-- 
Gerard Fryer  (g.fryer@soest.hawaii.edu)
School of Ocean & Earth Science & Technology
University of Hawaii at Manoa
Newsgroups: soc.culture.usa,talk.politics.guns