karl@cbrma.UUCP (10/11/86)
>The >amendment's reading seems clear to me--it gives the States the right >to have well-regulated Militias. The ability of any individual to >own whatever weapons he or she chooses is clearly outside the scope >of the amendment. I suppose one could argue that the States are free >to define their militia as comprising the entire populace... Before you go making claims concerning the legal definition of "militia" and to what circumstances it applies, you would do well to read up a bit on the available historical sources for it. In fact, the "entire populace" is exactly what the militia is. In _Presser_v_Illinois [116 US 252 (1886)], one of those Supreme Court decisions that gun control advocates like to hold up as "anti-gun" (and therefore supporting their conclusions), there are these extremely interesting paragraphs concerning the nature of the "militia," and whether the people have the right to arms. For context in this case, a man named Presser was appealing a conviction for illegally parading in a private militia. The court upheld the conviction, with which I agree. (In fact, this decision is in no way anti-gun. I think it's quite pro-gun, just anti-private-militia.) "We think it clear that the sections under consideration [which ban private militias], which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. [...] "It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the general government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government. But, as already stated, we think it clear that the sections under consideration do not have this effect." The court held quite unequivocally that private armies or militias are a Bad Thing, holding that the ability to raise armies lies with Congress alone. (Cf. US Constitution Article I, Section 8, defining Congress' ability to raise armies; Article I, Section 10, preventing States from keeping troops in times of peace. Side issue: How do we allow State-run National Guards during peacetime? Personally, I think it's illegal.) But note at the beginning of the second paragraph that the Court held that the militia is indeed defined as the entire general populace "capable of bearing arms." That's just about everybody, except those physically incapable, the extremely aged, and idiots (legal idiots, that is; I am not slandering anyone). One should note well the strength with which the Court upheld the Right to Keep and Bear Arms: "...the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms..." Just amazing: Even without the force of the Constitution, the States shouldn't be allowed to restrict the people's right to arms. @begin [sarcasm] Would somebody please tell me how the Supreme Court's decisions have always been anti-gun? @end [sarcasm] >[ Hm... well, during the days of the writing of the Constitution (and >many years after) possession of guns by private citizens was not >regulated in any way. What this say of the meaning of the Second >Amendment? Have things changed from then to now that change this >'non-decision' by the writers? - CWM] Here's another interesting piece of writing from 1880, by a recognized constitutional authority. Please note carefully the last clause of the last sentence. "The Right is General.--It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia...consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon...The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose." Thomas M. Cooley, _The_General_Principles_of_Constitutional_ Law_in_the_United_States_of_America_ (Boston: Little, Brown, and Company, 1880), p. 271. -- Karl Kleinpaste -------
jim@oswald.UUCP (10/30/86)
Many people claim that the second amendment provides the general
populace a constitutional right to keep and bear arms. This is
demonstrably false.
For many years, localities such as New York City have had laws which
abridge this putative right. Many people have been convicted of
violating these laws. During all this time, the Supreme Court has
never overturned such a conviction due to conflict with the second
amentment. If the Court really believed that such a right existed,
the NRA would have found a suitable test case decades ago. The
Court's silence speaks volumes.
What the anti-gun-control people really mean is that *they* (not the
Court) interpret the amendment to provide such a right. Anyone can
interpret the constitution, but only the Court's interpretation really
counts. By letting gun control laws stand, the Court has decided that
a general right to keep and bear arms does not exist.
-- Jim Olsen
...!{decvax,lll-crg,mit-eddie,seismo}!ll-xn!oswald!jim --- Jim Olsen
...!{decvax,lll-crg,mit-eddie,seismo}!ll-xn!oswald!jim
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