From: rwojcik@atc.boeing.com (Richard Wojcik,snake)
Newsgroups: talk.politics.guns
Subject: Re: So... Why have a standing military?
Date: 11 Sep 92 16:22:15 GMT
Reply-To: rwojcik@atc.boeing.com
Organization: Research & Technology

In article 13490@ucsu.Colorado.EDU, fcrary@ucsu.Colorado.EDU (Frank Crary) writes:
>In article <82273@bcsaic.boeing.com> rwojcik@atc.boeing.com writes:
>> For example, the
>>Senate, at one point, rejected the insertion of the following language in one
>>version of the 2nd...
>
>Just to be pedantic, that was the House, proposed by the Mr. Burke,
>at the request of his state and constituants.
>
>At the time, the Senate met behind closed doors, and I haven't been
>able to find records of their debates.

Thanks for correcting that, Frank.  You can't find any records of the Senate
debates because there were no records.  Those who oppose "original intent"
often cite this as one of the reasons why it is a flawed doctrine.  Not 
only is the historical record incomplete (and probably mistaken on details)
but most lawyers at the time understood the principle of judicial interpre-
tation.  They did not expect court sessions to turn into history debates.
It is the language of the law that is interpreted, not the debates that went
on in Congress and the state legislatures. 

>>I don't agree.  I think that the Federalists were not able to block the
>>2nd, but they were able to prevent the Antifederalists from destroying
>>the ability of the nation as a whole to defend itself with a coherent 
>>armed force.  The Antifederalists got the 2nd as a sop--to prevent the
>>feds from disarming the sovereign states and preserve the old status quo
>>that they enjoyed under the Articles of Confederation.  Their own armed
>>forces.

>The anti-federalists may have wanted this, but the Second Amendment
>did not preserve the states "own armed forces." The militia was still
>a federal militia, and was still subject to federal regulation under
>Article One, Section Eight (As evidenced by the federal Militia Act
>of 1792.) The Second Amendment assured that the militias could arm
>and train themselves, should the government neglect this. Preservation
>of the militia, even if not under state control, was sufficient to 
>satisfy the anti-federalists.
                                      
Sufficient, or all they could get?  One of the problems with this whole
argument is that the people whose views get trumpeted the most are the
Antifederalists--those who opposed the Constitution in the first place.
To take the views of Patrick Henry, Elbridge Gerry, George Mason, etc.,
as the basis of Constitutional interpretation is to turn history on its
head.  It is true that the Bill of Rights was largely an Antifederalist
thrust at federal control, but the language had to pass through a 
Federalist filter.  The First Congress was basically a Federalist Congress,
with only 4 states electing Antifederalist legislators--the ones who seem
most vociferous in the historical record.  You might as well take Strom
Thurmond's arguments as the basis for interpreting modern civil rights
legislation.  It is quite clear from the historical record that federal vs.
state control of the militias was at the heart of the 2nd.  Otherwise, why
try to introduce language barring the control of the militias under martial
law, except during war?  And why was Madison's word "country" replaced by
"state" in the final wording?  It turns out that the lawmakers debated every
detail of the wording.  To say that the "whereas" clause is insignificant
in the 2nd is simply to ignore what goes on when legislators hammer out
compromise language.

BTW, I've made this point before, and I'll make it again.  Article I, Section
Eight, like all other articles in the Constitution can be superseded by
amendments.  There is no evidence that the word "militia" in the 2nd referenced
any other body than the one referenced in Article I.  It is not only reasonable
to assume that the 2nd was directed at Article I, Section 8, but the types of
arguments we see in the historical record suggest it very strongly.  Otherwise,
why would Patrick Henry, a rabid Antifederalist, warn against leaving the 
arming of the militias up to the federal government?  That was what Article I
provided for.

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

    Rick Wojcik   (rwojcik@atc.boeing.com)   Seattle, WA
Newsgroups: 2,3,talk.politics.guns,fido.rtkba