From: andy@SAIL.Stanford.EDU (Andy Freeman)
Subject: Re: Is the U.S. Constitution tacit?
Followup-To: talk.politics.guns
Organization: Computer Science Department,  Stanford University.
Date: Sat, 22 Aug 1992 02:09:57 GMT

In article <1992Aug20.004701.3399@news.Hawaii.Edu> gerard@caliban.soest.hawaii.edu (Gerard Fryer) writes:
>The current discussions in alt.politics.clinton about the
>not-too-serious suggestion to repeal the 2nd Amendment to the U.S.
>Constitution raises the interesting question about how much of the
>U.S. Constitution is tacit.  It is the misunderstanding of what is
>tacit and what is explicit that explains the current row.  Consider the
>Second Amendment:

Let's see how well Fryer "understands".

>`A well-regulated Militia, being necessary for the security of a free
>State, the right of the people to keep and bear Arms, shall not be
>infringed.'

That's a good start; apart from the inserted "-", that text is
correct.

>Apart from the redundant comma after `Arms,' this is elegant prose and
>speaks volumes about the pressures of the times (in particular, the
>desire to guarantee States the right to maintain a militia not under
>the control of the federal government).

The second amendment doesn't mention state militias at all.  It
mentions the "security of a free State", which isn't synonomous with
the security of state govts.  In fact, "the security of a free State"
may well depend on overthrowing state govts, so it is absurd to claim
that the 2nd protects state militias.

There's also that phrase "well regulated Militia".  In 1790s English,
that meant an armed people NOT under the control of govt.  See
Fletcher's Political Works, pub'd in 1749, the comments of Madison et
al, and the legislative history of the amendment itself.  (There were
a number of changes proposed.  One, which was accepted, came about in
response to a comment by Gerry pointing out that the original version
didn't stop govt from disarming anyone, or everyone.  Another, which
was rejected, was to make the amendment refer to the "common
defense".)

"Regulated" does not imply govt control, now or then.  With respect to
guns, it refers to various accuracy adjustments.

>Yet the NRA has a case.  While the Constitution says nothing about an
>individual's right to arms (the wordsmiths who forged the Bill of
>Rights knew what they were doing and quite clearly knew the difference,
>for example, between a singular "people" and a singular "individual"),

Really?  The 1st amendment mentions "the right of the people peaceably
to assemble"; that isn't a right of individuals?  The 4th amendment
mentions "The right of the people to be secure"; that's not a right
of individuals?  The 9th and 10th amendments also mention "the people".

The notion that "the people" have a right that no individual has is a
curious one.  While it would be interesting to consider what kind of
right could work that way, we don't have to consider it WRT the
constitution because "the people" is used to refer to individuals.

Scarry's University of Penn law review article discusses the meaning
of that first clause.  It is about distribution of power and is a
limit on the concentration of power in the govt.  It says that power
is to be, by default, as distributed as possible, only to be
concentrated when necessary and to remain subordinate to civilian
military capability, not just authority.

>The Second Amendment made sure that if those armed people wanted to form
>themselves into a State militia the Feds could not interfere.

Try again.  The body of the constitution, written and accepted by the
same people, explicitly gives the feds considerable power over state
militias.

The argument against the bill of rights was that they didn't really
change anything, that the govt didn't have the power to interfere with
those rights, that listing them merely encouraged govt to ignore other
rights AND to expand its powers beyond the enumerated ones.  Even the
advocates of the bill of rights agreed with the former.  Yet, Fryer
would have us believe that everyone involved was wrong, that the 2nd
amendment actually does modify Article 1, Sections 8 and 9, that it
basically repeals the federal control over state militias.

Originally, the amendments were to be inserted into the body of the
constitution at the appropriate places.  Under this plan, by the
authors of the constitution and amendments, the 2nd amendment was
supposed to go with other individual rights like the 1st; it wasn't
going to go in Article 1, Section 8 or 9.

-andy
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