From: rwojcik@atc.boeing.com (Richard Wojcik,snake)
Newsgroups: talk.politics.guns
Subject: Re: 2nd Amendment Myths
Date: 31 Aug 92 17:27:12 GMT
Reply-To: rwojcik@atc.boeing.com
Followup-To: talk.politics.guns
Organization: Research & Technology

From rwojcik@atc.boeing.com (Richard Wojcik,snake)
Newsgroups: talk.politics.misc
Subject: 2nd Amendment Myths
Date: 31 Aug 92 17:19:37 GMT

Earlier, I made two points in response to the ongoing debate in this newsgroup
and elsewhere over the RKBA:

   1)  There is no good reason to believe that "well-regulated militia" only
       referred to a "well-trained militia," and not the more usual sense
       of a controlled body.  

   2)  The defenders of the so-called "RKBA" as an individual right rest their
       case on the "original intent" doctrine, which many legal scholars reject
       on the grounds that the doctrine itself is incompatible with the original
       intent of the framers.

Despite a direct challenge that people come up with counterevidence to (1), nobody
has.  This does not mean that the contrary claim will not be made over and over
and over again in this newsgroup.  Only that that claim remains unusupported now
and probably will remain unsupported in the future.

The problem with (2) is that it seems so counterintuitive.  Do the courts really
have the power to change or reverse the original intentions of lawmakers?  The
answer is more complex than yes or no.  Some laws contain totally unambiguous 
language, and it is reasonable to apply some kind of original intent criterion.
Other laws were passed in deep controversy, often with ambiguous or vague language,
and it is impossible to say for certain whether there was a single "intent" behind
the wording.  Those laws receive their final interpretation through court
decisions, which may not favor the interpretation of some (or most) of the framers
and ratifiers of the language.  The courts have the latitude to extend or change
interpretation in this country, and they always have.  That does give the courts
frightening power, but noone can dispute that they have it.

To understand the problems with original intent, you might want to take a look
at the following works.  The first, by Stephen Macedo, gives a libertarian
perspective on what is wrong with "original intent."  The second, by the emminent
Constitutional scholar Leonard Levy, goes into more depth.  It should be noted
that Levy backs the "personal right", rather than "collective right", interpretation
of the 2nd as probably the correct one vis a vis "original intent."  However, he
does so in the context of a much larger work which condemns original intent as
too simplistic and unworkable as the sole criterion for legal interpretation.
Neither work concerns itself very much with the interpretation of the 2nd so much
as with the question of whether "original intent" is a workable, even historically
viable, criterion.

Stephen Macedo.  The New Right v. the Constitution.  Washington DC: The CATO
                 Institute.  1987.

Leonard Levy.  Original Intent and the Framers' Constitution.  New York: MacMillan.
                 1988.

p.s.  I was wrong earlier to say that the minutes to the original Constitutional
      Convention were "destroyed".  There is no evidence of any having ever been
      taken.  Madison worked on his notes at home and kept them secret until after
      his death.  Although Madison believed in a version of "original intent", he
      sometimes took contradictory positions on it.  In any case, he explicitly 
      denied that the intent counted should be that of the framers.  He argued that
      only the intent of the ratifiers counted, although only four state ratifica-
      tion debates were even recorded, and those spottily.  Shortly after the
      Supreme Court began deliberating, they came to extend the law in ways that
      clearly went beyond original intentions, and Madison himself generally came
      to acquiesce in those decisions, accepting the power of the court to extend
      legal interpretation.

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Disclaimer:  Opinions expressed above are not those of my employer.

    Rick Wojcik   (rwojcik@atc.boeing.com)   Seattle, WA