From: andy@SAIL.STANFORD.EDU (Andy Freeman)
Newsgroups: bit.listserv.politics
Subject: Re: Talk about a vague amendment!!!
Date: 10 Apr 92 16:53:05 GMT
Organization: Computer Science Department,  Stanford University.
Comments: Gated by NETNEWS@AUVM.AMERICAN.EDU

>problems: - what is a militia?
>          - what about well regulated? seems to limit the militia some
>          - the "being...State" phrase seems redundant, like saying
>          speech is needed for an informed populance

A well regulated militia is an armed people NOT under the control of
govt, thus "being necesary for the security of a free State" is not
redundant.  It protects the people's independent military power (of
govt both local and federal), even more so than Article 1, section 8
does with respect to the states.  It also limits govt's military
power.  See Scarry's "War and the Social Contract: Nuclear Policy,
Distribution, and the Right to Bear Arms", University of PA Law
Review, Volume 139, Number 5, pg 1257 (may 91).  Halbrook's "That
Every Man be Armed" is also relevant.

Scarry: "But the second amendment is a very great amendment, and
coming to know it through criminals and the endlessly disputed claims
of gun clubs seems the equivalent of our coming to know the first
amendment only through pornography.  Freedom of speech may or may not
protect pornography; but it would be difficult, probably impossible to
infer the monumental scale and solidity of that amendment from this
one solitary inflection on its surface.  The same is true of the right
to bear arms.  The history of its formulation and invocation makes
clear than whatever its relation to the realm of individuals and the
private uses they have devised for guns, the amendment came into being
primarily as a way of dispersing military power across the entire
population.  Like voting, like reapportionment, like taxation, what is
at stake in the right to bear arms is a just distribution of political
power."

In that section, Scarry makes one mistake, namely, the word
"primarily".  (Then again, she only looks at the question of
distribution and has made the case that "distribution of power", in
particular, distribution of power outside the govt, is part of the
second amendment's meaning.)  Kates, in "The Second Amendment and the
Ideology of Self-protection", Constitutional Commentary, Volume 9, No
1, 1992 provides evidence for other reasons.  (Scarry hints at a
hunting meaning, but the argument is not that good.)

>          - how broad is "keep" and "bear", i.e. a license like a
>          driving license for guns or waiting periods may arguably not effect
>          this, or like in speech cases infringe it

Interestingly enough, it wasn't until this century that the supremes
actually took the 1st amendment seriously.  Until then, one could be
jailed for seditious speech acts like reading the declaration of
independence at socialist rallies.

>          - how outdated is this in today's society?

Without knowing the effects, one can't really discuss that.  (Plug:
Kleck's Point Blank contains tons of useful info.)

-andy
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