From: fcrary@ucsu.Colorado.EDU (Frank Crary)
Subject: Re: So... Why have a standing military?
Organization: University of Colorado, Boulder
Date: Tue, 15 Sep 1992 17:32:17 GMT

In article <82739@bcsaic.boeing.com> rwojcik@atc.boeing.com writes:
>>The Bill of Rights was specifically intended to satisfy anti-federalist
>>objections to the COnstitution. I think this makes those anti-federalist
>>objections quite relevant.

>Relevant, but not necessarily the ones that should be taken as decisive in
>interpreting the 2nd.

Why not? There were specific anti-federalist objections, to federal 
control of the militia, the possibility of federal neglect of the
militia and the need for private citizens to own arms. The phrasing
of these objections is almost identicle to that of the Second Amendment.
Unless you suppose some surreal coincidence, Madison drafted the
Amendment to satisfy these objections.

>...It is wrong to look at the skewed, possibly
>incorrect, records of the debates and base modern interpretations on such weak
>theorizing.  We also need to look at the final wording and how that fits into
>the modern context. 

No, the use of "modern context" is nothing more that an excuse to inject
one's own political biases and prejudices. The Constitution is the
"supreme law of the land" and is supposed to be a set of rigid restraints
on the government. If the government can invoke "modern context" to
avoid these constraints, a written Constitution becomes meaningless
and the government is unrestrained.

> Do we now have anything like a militia that is supported by
>private gun ownership? 

Yes: The Korean store owners in Los Angelos formed armed defence 
groups (self-organized militias) to defend themselves during the
riots last spring. The stores so defended were (for the most part)
the only ones left standing.

A modern militia, supported by private gun ownership, succesfully
protected themselves, their families and their livelyhood, while
while the government was unable or unwilling to help.

You rarely see such militias, because they are formed _only_ during
exceptional emergenncies. That doesn't mean they are don't exist.
(How many times have you collected on, say, the fire insurance on
your house? Never? Does that mean you have no insurance?)

>>No, _exclusive_ federal control (and the ability of the federal government
>>to weaken or destroy the militia by neglecting it) was at the core of
>>the debate. State control was neither acceptable to the Federalists,
>>nor central to the anti-federalist opposition. So I don't see how
>>you can assert that the Second Amendment protects exclusive state
>>control of the militia.

>The limited, skewed records that we have of ratification debates cannot give
>us the entire picture.

No record is going to be perfect: Is this a sufficient excuse to give
up all efforts to understand the Constitution, and replace the rule
of law with the whims (excuse me, "modern meaning") of whoever is 
currently in office?

>  There were a lot of references to how the federal 
>government might deviously disarm or wrest control of the militias.  I have
>yet to find any reference to a fear that the state governments would be equally
>tyrannical. 

There was little, if any discussion of state regulation. Some anti-federalists
proposed amendemnts to protect individual gun ownership (the Pennsylvania
minority, for example.) Others proposed giving control of the militia
back to the states (the Virginia ratification convention, I believe.) 
All anti-federalists wanted to limit federal control, at least to assure
the existance of _some_ kind of militia. The Federalists strongly
opposed state control of the militia, and Madison's proposed Second
Amendment (drafted to be a compromise) is almost identicle in phrasing
to the anti-federalist proposals to protect private ownership (though
Madison deleted the clauses that would have most strongly restricted
the federal governent, such as prohibitiobns on standing armies or
requirements to provide for the militia.)

>The issue didn't come up because
>the debators were more interested in which *government* would have the power to
>regulate the militias.

"That the people have the right to bear arms for the defence of themselves
and their own state, or the United States, or for the purpose of killing
game; and no law shall be passed for disarming the people or any of them..."

(Proposed by the Pennsylvania minority, 18 DEC 1787.)

_Some_ of the anti-federalists were taking about state militias, but not
all of them. Given the text Madison proposed, and the opposition of
the Federalists to state militias, it would seem a protection of individual
ownership was the adopted compromise.

>>>  Otherwise, why
>>>try to introduce language barring the control of the militias under martial
>>>law, except during war? 

>>To weaken federal control of the militia, but not necessarily to strengthen
>>state control over it.

>Oh, come on.  The militia was supposed to be trained and ready for war.  Who was
>supposed to do that?  The local parish priest?

No, the federal government: The anti-federalist proposals were designed
to _force_ the federal governemnt to support the militia, by making it
the _only_ means of national defence. Theyu didn't what the government
to have a choice between a standing army and militias.

>No debate?  They certainly made a lot of changes to the words without any
>debates.  ;-)  I think that you mistake a record of votes for a transcription
>of the proceedings.  Little attempt was made to record debates.

Complete records of the debates before the House were made and are
available. There was no debate there. There was _one_ change of wording
made, and _one_ rejected, in committee, and these debates aren't well
documented. There was no debate of ambiguous phrasing before the House
(excepting the delected pacifism clause, which was deleted.) The 
members of the House were very willing to debate minor points concerning
earlier and later amendments, if there was any lack of clarity or major
disagreement with their views. It follows, therefore, that the
members of the House were all in agreement about the Second Amendment.
 
>>>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.

>>It _can_ be, but this is not the case for the Second Amendment: Madison
>>specifically drafted the Amendment _not_ to supersede or alter any
>>other part of the Constitution (he said as much before the House when
>>he proposed the Amendments.) Further, one year after ratification, 
>>Congress passed the Militia Act of 1792, which excersized federal
>>Article One, Section Eight powers over the militia, as if they were
>>still valid. Clearly, the Congress (composed, essentially of the 
>>same people who framed the Amendment) did not think the Second Amendment
>>superseded or altered Article One, Section Eight.

>I thought that Madison's remark referred to all the Amendments, rather than the
>2nd specifically.

You might not have noticed, but the Second Amendment is part of the 
Bill of Rights: Madison's remarks applied to it as well as the other
amendments.

  
>But the point matters little, anyway.  Madison's claims 
>about what he meant have little to do with what everyone else thought when it
>came time to debate the Amendments.  Otherwise, nobody would have tried to
>insert language about standing armies, etc., in the language of the 2nd.  T

The Amendments, as proposed by Madison, were not intended to alter
the unamended Constitution. As modified by Congress, they might have
(for example if the standing army prohibition had been added.) How
was the Second Amendment altered, after Madison proposed it, to so
alter it's meaning. There was a little bit of re-phrasing done, but
no changes to it's basic structure.

>Antifederalists believed that they were indeed amending the Constitution.  That's
>why they called them "Amendments."

"Amendment" can mean an _addition_, not just replacing pre-existing
passages.

>  BTW, the Militia Act of 1792 does not prove
>anything per se.  Legislatures may pass laws that are invalidated by the courts,
>and that act did not go through the same ratification process that the 2nd did.
>If the legislature says it's so, and the court says it ain't, it ain't.

The Courts did not overturn this act. In fact, some of their rulings
support it.

However, the passage of the Militia Act is extremely strong _historic_
evidence: The members of Congress in 1792 were very familiar with 
their own intentions only three years earlier (most of the members were
the same people...) As such, if the Congress of 1792 thought the
Article One federal control of the militia was valid, they probably
didn't intend the Second Amendment to alter that power.

>>Nor is there any evidence that the first clause restricts the meaning
>>of "people" in the second. In both Article One, Section Eight and
>>the Second Amendment, "militia" refers to an armed force composed
>>of "the whole of the people, except for a few public officials."

>The interpretation of such matters is why we have courts. 

They have: Presser v. Illinois (in a dicta, admittidly) and US v.
Miller (as a centeral part of their reasoning) defined the
militia, as used in the Second Amendment, to include all able
bodied males.

Since you support the Court's authority to interpert the Constitution,
I take it you will accept the Court's rulings on the subject.

>I must admit to a certain amount of confusion over what you believe.  Are you
>saying that the original intention was to have "militia" mean the same thing
>in both article I and the 2nd, but that subsequent events changed that
>interpretation?

No, "militia" was intended to mean the same thing in both Article One
and the Second Amendment. Some anti-federalists wanted an
amendment to alter the Article One militia powers, but they didn't
get such an amendment. Instead, they had to compromise for protections
on the people's access to arms (so the militia couldn't be eliminated,
by the federal government, even if the states didn't have much control over it.)

>>Because Aritcle One might be _mis_interperted as giving the federal 
>>government the _exclusive_ power to arm the militia. This could be
>>abused by failing to arm the militia, and preventing anyone else
>>from doing so.  The Second Amendment is clearly a compromise to
>>satisfy this objection: It protects the people's right to arm and
>>train themselves, while retaining federal authority over the militia
>>and keeping the states from having private armies.

>So when is the last time you went to militia drills with your neighborhood
>gun owners? 

Drilling in formation isn't of military use anymore. According to Department
of Defense studies, marksmenship is. I was at a pistol range practicing
this last Saturday. The Army also seems to think unarmed combat is
also of use to soldiers. I spent a few hours Sunday studying this.

> Are we to blame you personally or our governors from failing
>to drill the militia?  :-) 

More organized training illegal in most states, as it violated bans
on paramilitary organizations. If such training were available, I'd
be interested.

> The 2nd is "clearly" nothing but unclear.  Most
>constitutional authorities seem to agree on that, at least. 

You can not establish this be assertion (unless you are a fan of
"Big Lie" propoganda.) And "most constitutional authorities" have
never seriously considered the subject: Nothing is clear if you
don't look at it.

>If, in the final
>analysis, we must go beyond the language to interpret the law, why is it that
>legislators worry so much over what the form of their language will be?   It 
>is because the courts interpret their words, not the "debates" surrounding their
>words.

Congressmen go to great lengths to establish the "legislative history"
of laws, during the debates. The Courts do use the debates, as a guide
to understanding the text (when it is uclear, or when someone 
invents ambiguity for their own purposes.)

                                                   Frank Crary
                                                   CU Boulder