NetNews Usenet Archive 1992 #27/NN_1992_27.iso/spool/comp/org/eff/talk/7066

Internet Message Format | 1992-11-15 | 6.3 KB

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From: [e-mail] (Zhahai Stewart)
Newsgroups: comp.org.eff.talk
Subject: Re: Registered Keys - why the need?
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Date: 11 Nov 92 22:24:22 GMT
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 OK, enough of this nonsense about the second amendment's "true" meaning,
 based on quoting selected factional advocacy pieces from contemporary
 sources.  Interesting stuff, and not totally irrelevant, but they often
 represent minority positions, even if from famous men.  To see what the
 framers as a whole meant by "militia" we can turn to the Constitution
 itself:

  "Section 8: The Congress shall have power: ...
  15. To provide for calling forth the militia to execute the laws of
  the Union, suppress insurrections, and repel invasions.
  16. To provide for organizing, arming, and disciplining the militia,
  and for governing such of them as may be employed in the service of
  the United States, reserving to the States respectively, the
  appointment of the officers, and the authority of training the
  militia according to the discipline prescribed by Congress"

 This is the clearest and most authoratative (as well as most binding)
 evidence of what the Constitution means by a "militia", and what "well
 regulated" meant.  Read it for yourself if you think I've taken it out
 of context (as others sometimes do with the second amendment).

 In this light, positions like:

 AF> The importance of the militia clause is that it is to subordinate
 AF> govt military power to that of the armed people.

 don't hold much water.  The second amendment may be ambiguous (except
 to overly polarized people on either side) about bearing arms, but
 the Constitution itself is not ambiguous about the purpose and uses
 of a "militia": enforcing laws and suppressing insurrections and
 repelling invasions, all only at the call of the Congress.  At all
 times the militia is subject to the discipline of the Congress.  The
 Congress is responsible for arming them as needed (tho the 2nd
 amendment partially reduces the need), the states governments for
 training them and appointing officers to control them.  Overall,
 it's clear that the militia is intended to be tightly controlled
 by mainly the federal government, with some yielding to state
 governments.  And the "importance of the militia clause" is
 to tie arms bearing to an institution clearly under the thumb of
 the government, not vice versa.  (The importance of the "right to
 bear arms clause" would appear to somewhat counter that; the
 amendment was a compromise between factions who did not agree).

 There *were* advocates of a "people's militia" free of government
 control, as a hedge against government tyranny.  No doubt about it.
 The thing is, they were a minority who failed to convince the
 majority back then.  A similar minority today pretends that their
 predecessors completely won the battle, quoting the second amendment
 out of context as evidence, or quoting advocacy papers from that
 minority faction as if they represented the majority, which they
 did not.  (Read the above quote if you still doubt that).  The 2nd
 amendment represents an uncomfortable compromise through ambiguous
 wording which both sides can argue favors their position more, while
 never convincing the other side.  Anyone who thinks the 2nd
 amendment is "unambiguous", on either side, has definitely
 misunderstood it - it was confusing to those who authored it, and
 it has confused all the generations since.

 Any arguments about the second amendment's intent, which do not take
 this context into account, are deceptive and bogus.

 I find it interesting but not conducive to credibility that anyone
 could spend pages quoting selected obscure *advocacy* opinions from
 that era, and equally selected court opinions from the two
 centuries since, without finding room for the clearest, most
 accessible, and most authoratative evidence of what the framers,
 acting jointly, meant - from the Constitution itself.  The question
 is not "what opinion did a few of the public figures of the time have
 about the best role or purpose of a militia", but "what consensus
 purpose did the framers as a whole wind up adopting for a militia
 and for an armed citizenry".  I believe the above quote directly
 addresses the matter.  And the omission of that quote from most
 pro-gun purported analyses is discrediting.

 The worst irony is for me is that I personally lean towards the
 minority who wanted a hedge against tyranny in our own government.
 I think it might have been better if they HAD won their case.  I just
 get tired of people misrepresenting the outcome of that long past
 ideological struggle, selectively rewriting history as justification
 for their position.  And I get tired of folks on any side pretending
 that the second amendment unambiguously supports their position; we
 can argue about it for another two centuries, and probably will,
 without convincing each other - because it WAS ambiguous.  Better
 to drop the search for historical justification and move forward.
 Neither side won an unambiguous victory back then, and so we muddle
 on with a hodgepodge of partial restrictions, satisfying neither
 side.

 Maybe we need to re-open the question, and make a new amendment
 supporting gun ownership completely independent from any militia
 controlled by the government:

   "In order that a free people never become enslaved to their
   government, neither the United States, nor any of the individual
   States, shall prevent the citizens thereof from owning the
   weapons appropriate to common soldiers in time of war.  No
   licence, training, nor direction by the government shall be
   required."

 I know they were smart enough to have said that, if it was what
 they intended.  Maybe we should say that now, if it's what we as a
 people want, rather than pretend that the framers "meant to say
 that, but accidentally said something else".
      ~z~

 (Sigh.  I wish this could set things to rest, but I guess not.)


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