shallit@gargoyle.UChicago.UUCP (Jeff Shallit) (01/10/85)
In article <> sunny@sun.uucp (Sunny Kirsten) writes: >The NRA does far more to support the continued existance of wildlife than it >does anything else. It also supports the second ammendment to the US >Constitution, which many people seem to forget exists. For the last time, the 2nd amendment to the Constitution DOES NOT GUARANTEE THE RIGHT TO OWN A HANDGUN. "A well-regulated Militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed." On FIVE separate occasions, the US Supreme Court has ruled that the 2nd amendment applies ONLY to arms that bear a "reasonable relationship" to those that a civilian militia would use. The current NRA leadership is not in agreement with this interpretation. Jeff Shallit University of Chicago
gam@amdahl.UUCP (gam) (01/12/85)
> Jeff Shallit > For the last time, the 2nd amendment to the Constitution DOES NOT > GUARANTEE THE RIGHT TO OWN A HANDGUN. > > "A well-regulated Militia being necessary to the security of a free > State, the right of the people to keep and bear arms shall not be > infringed." > > On FIVE separate occasions, the US Supreme Court has ruled that > the 2nd amendment applies ONLY to arms that bear a "reasonable > relationship" to those that a civilian militia would use. > > The current NRA leadership is not in agreement with this interpretation. I don't agree with that interpretation either. I would like to know which Supreme Court decisions you are refering to. Please don't bother to "condense" them for me; you are not exactly an impartial observer. The case numbers would be sufficient. -- Gordon A. Moffett ...!{ihnp4,hplabs,sun}!amdahl!gam
josh@topaz.ARPA (J Storrs Hall) (01/13/85)
> Jeff Shallit again: > > For the last time, Whew! Thank God... > the 2nd amendment to the Constitution DOES NOT > GUARANTEE THE RIGHT TO OWN A HANDGUN. Obviously its current interpretation by the govt doesn't. This really hasn't got a lot to do with either (a) what the framers meant when they wrote it, or (b) a reasonable interpretation for today, or a probable one for tomorrow, given the SC's penchant for reversing its field. > "A well-regulated Militia being necessary to the security of a free > State, the right of the people to keep and bear arms shall not be > infringed." Ok, what do YOU think it means? That the government has a right to have an army? The fifth amendment explicitly differentiates the armed forces and the militia. That you have a right to join the National Guard (ie, the right is a "collective" one?) The same phrase, "the right of the people", is used in several of the other amendments, including the first and fourth. If the right to bear arms is "collective", why not petition or security from search and seizure? > > On FIVE separate occasions, the US Supreme Court has ruled that > the 2nd amendment applies ONLY to arms that bear a "reasonable > relationship" to those that a civilian militia would use. > Such as fully automatic assault rifles, mortars, hand grenades, etc? The armament of the militia in 1776 (all privately owned weapons) was *better* (Kentucky rifles, etc) than that of the standard army equipment (muskets). I think you'll find that the NRA's interpretation of the 2nd amendment is *more moderate* than a literal reading of the words. If the militia clause means anything, it makes it clear that the amendment is talking about *weapons of war*, not just hunting rifles. And the pistol *is* a standard military weapon. --JoSH
shallit@gargoyle.UChicago.UUCP (Jeff Shallit) (01/13/85)
Gordon Moffett has requested the case numbers of Supreme Court decisions
relating to the 2nd Amendment.
At the risk of boring everyone, here they are:
United States v. Miller, 307 U. S. at 178. The court established the
principle that the second amendment cannot be invoked to defend possession
of a firearm without a showing that the "preservation or efficiency of
a well regulated militia" is somehow at risk. The circuit courts have
repeatedly endorsed an applied this principle in rejecting second
amendment defenses in federal firearms prosecutions. For example,
see United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977),
cert. denied, 435 U. S. 926 (1978) United States v. Warin, 530 F.2d at 105-08;
United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974) (per curiam);
Cody v. United States, 460 F.2d 34, 36-37 (8th Cir.), cert. denied,
409 U. S. 1010 (1972), etc.
The right to arms has always been treated as "subject to... well-recognized
exceptions arising from the necessities of the case". For example,
see Robertson v. Baldwin 165 U. S. 275, 281-82 (1897). See also
United States v. Freed, 401 U. S. 601, 609 (1971) (possession of inherently
dangerous weapons may be criminalized without requiring scienter);
Konigsberg v. State Bar, 366 U.S. 36, 50 n.10 (1961); Adams V. Williams,
407 U. S. 143, 150-51 (1972) ("There is under our decisions no reason why
stiff state laws governing the...possession of pistols may not be enacted.")
Stanley v. Georgia, 394 U.S. 557, 568 (1969), the Court expressly rejected
the notion that there is a constitutional right to possess firearms in
the home.
There are other decisions, but I do not have the case numbers readily
available. If Moffett wishes to follow up these in more detail
(and I note that he questions my ability to summarize cases) I will
try to find the case numbers.
Jeff Shallit
University of Chicagoshallit@gargoyle.UChicago.UUCP (Jeff Shallit) (01/14/85)
>> = Jeff Shallit > = J. Storrs Hall >> ...the 2nd amendment to the Constitution DOES NOT >> GUARANTEE THE RIGHT TO OWN A HANDGUN. > >Obviously its current interpretation by the govt doesn't. This really >hasn't got a lot to do with either (a) what the framers meant when >they wrote it, or (b) a reasonable interpretation for today, or a probable >one for tomorrow, given the SC's penchant for reversing its field. It amazes me what lengths the gun nuts will go to. So now we are supposed to ignore 150 years of precedent and try to figure out what the "framers" meant when they wrote the Constitution and the Bill of Rights. Let me quote from an "amicus curiae" brief, prepared by experts on the Constitution, and constitutional history: "The second amendment was intended to regulate the relationship between the national government and the states, rather than between the national government and individual citizens. Its "obvious prupose" was "to assure the continuation and render possible the effectiveness of" state militias [United States v. Miller, 307 U.S. 174, 178 (1939)], as the events leading up to the adoption of the amendment amply attest. "The delegates to the Constitutional Convention in Philadelphia vigorously debated the proper extent of federal control over state militias [see A. Prescott, Drafting the Federal Constitution: A Rearrangement of Madison's Notes 515-25 (1941); Weatherup, Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment, 2 Hastings Const. L. Q. 961, 980-984 (1975); W. Riker, Soldiers of the States: The Role of the National Guard in American Democracy 14-16 (1957).] They viewed permitting some degree of federal control as the principal practical alternative to maintaining a substantial standing national army, which at the time was anathema to many Americans. They resolved the issue at the convention by dividing authority over the militia between federal and state governments. A number of Anti-Federalist delegates opposed this compromise, however, and it became a focal point for Anti-Federalist attacks during the ratification process. A major theme of these attacks was that the federal government might, by abuse or non-use of its power over state militias, disarm and destroy them. One result was that a number of states formally proposed that the integrity of those militias be constitutionally protected by recognizing a right to keep and bear arms. The second amendment responded to those fears and proposals by safeguarding state militias against disarmament by the federal government. Its historical purpose, expressly reflected in its initial clause, was not to guarantee individual citizens against disarmament by the states, but to protect state militias. "Keeping private weapons in support of state militias is not today a funda- mental aspect of an Anglo-American regime of ordered liberty--if indeed it ever was. [The founding fathers were by no means unanimously agreed that independent state militias would be effective defense forces]. The states have substantially ceded responsibility for their militias to the federal government. For many years Congress has supplied states with money for militia firearms and has provided for federal control over their care and disposition. Private citizens are not expected, or in most cases, even permitted--to use their own firearms in milita service. Today, our society neither recoils from maintaining standing armies nor relies on state militias for its defense." I might add, there is ample precedent in English common law for laws regulating the firearms of private citizens. >I think you'll find that >the NRA's interpretation of the 2nd amendment is *more moderate* >than a literal reading of the words. This idea is ludicrous, if one reads carefully the analysis above. It amazes me that most posters seem to believe they are more qualified to interpret the constitution than experts in constitutional law. You don't think you are better qualified to do detailed surgery than a surgeon, do you? Yet in both cases, the ability to analyze the fine points depends on years of study and research. If you really want to become an expert on constitutional law, I suggest attending a course on the subject at your local college or university. Jeff Shallit University of Chicago
josh@topaz.ARPA (J Storrs Hall) (01/16/85)
> >> = Jeff Shallit > Let me quote from an "amicus curiae" brief, prepared by experts on the > Constitution, and constitutional history: > Prepared by BIASED experts etc. I'm sure that you could find, if you cared to look for them, briefs by similar experts to the opposite conclusion. I've run across an analysis done by a subcomittee of the Senate Justice Committee on the issue which you might read. > [United States v. Miller, 307 U.S. 174, 178 (1939)] If I recall correctly, Miller was decided by default, only the Justice Department showing up. Arguments for Miller's side were never made. The case was over whether a sawed-off shotgun was a military weapon. The SC, in ignorance of the fact that US forces had used 30,000 sawed-off shotguns in wwI (and more in wwII, afterward), and in the absence of any defensive arguments, held for the US. (I believe that today Miller would have had counsel appointed (under Gideon).) > "The delegates to the Constitutional Convention in Philadelphia ... You seem to forget that the 2nd Amendment (and the rest of the Bill of Rights) weren't part of the Constitution they drafted. The rest of your "analysis" seems merely to be a description of the status quo, which I agreed beforehand was as such. I claim that in current interpretation, four of the Bill of Rights are dead letters: amendments 2,6,9, and 10 (only one word of 6, namely "speedy"). > > >I think you'll find that > >the NRA's interpretation of the 2nd amendment is *more moderate* > >than a literal reading of the words. > > This idea is ludicrous, if one reads carefully the analysis above. I said "literal reading" and you talk about historical interpretation. You don't understand plain English (are you a lawyer?). > It amazes me that most posters seem to believe they are more > qualified to interpret the constitution than experts ... There is a difference between being qualified in a technical subject and in legal interpretation. In what technical subject can one get a "doctorate" in two years? In what other profession would someone comparable to a SC justice publicly say that half its practitioners were incompetent or superfluous? What profession has the lowest regard among the general public (with the possible exception of politicians)? If you were really knowlegeable about law, you would realize that the "open texture" of legal interpretation leaves no room for the sort of airtight exegesis of the second amendment as you have been pretending. --JoSH
gam@amdahl.UUCP (gam) (01/16/85)
> Jeff Shallit > It amazes me that most posters seem to believe they are more > qualified to interpret the constitution than experts in constitutional > law. You don't think you are better qualified to do detailed surgery > than a surgeon, do you? Yet in both cases, the ability to analyze > the fine points depends on years of study and research. The law, especially individual rights, should never be left to "experts" but should be vigorously argued and defended by the people themselves. The "experts" (US Supreme Court) brought us "Separate but equal", "It's OK to jail Japs just because we want to, and besides there's a war going on", "The government can lift your passport if you are too threatening to it....". (Please also note my quotes from the USSR constitution -- no doubt they have judicial experts, too). Damn right I'm going to question the Supreme Court! > If you really want to become an expert on constitutional law, I suggest > attending a course on the subject at your local college or university. Gee, one course? -- Gordon A. Moffett ...!{ihnp4,hplabs,sun}!amdahl!gam