Newsgroups: talk.politics.misc,alt.politics.usa.constitution,alt.politics.libertarian,talk.politics.guns,talk.politics.theory,alt.fan.rush-limbaugh,alt.politics.clinton,misc.legal
From: [c r philli] at [hound.edaca.ingr.com] (Ron Phillips)
Subject: Re: Rights and the Constituttion (was Re: Question concerning US Code vs. Constitution conflict)
Date: Tue, 7 Dec 1993 18:32:12 GMT

In article <[PA 146008 236 2 D 039485] at [utkvm1.utk.edu]>, [PA 146008] at [utkvm1.utk.edu] (David Veal) writes:
|> 
|>        The Second Amendment is intended to protect arms ownership to prevent 
|> the neglect of the militia.  ("A well-regulated militia being necessary...")
|> A militia as a concept is pretty much a defense unit over and above a 
|> regular army, not really intended to replace a regular army (some ideas to
|> these extent among the more radical anti-Federalists not-withstanding).  
|> As such, one might reasonably expect they would, as a rule, be less heavily 
|> armed.  In addition, they would be armed relatively lightly, to be able to 
|> move quickly when called out.  This seems to imply small arms:  rifles, 
|> pistols, knives, etc.  The sort of thing the average infantry-man, infantry
|> officer, etc. would be armed with.
|> 

Good response!  Here's more from one of this country's leading
constitutional attornies....


The following article appeared on page 7B of today's (Tuesday, 
December 7, 1993) edition of the San Jose Mercury News.

======================================================================
The right to bear arms is, by law, an individual's

BY DON B. KATES, JR.
AND ALAN J. LIZOTTE

   The view that the Second Amendment's guarantee of a right to arms
applies only to state militias, not to individuals, is an invention of
20th-century gun prohibitionists.  It was unknown to the Founding
Fathers or any 18th- or 19th-century interpreter of the law.  The only
interpretations before Congress when it adopted the amendment
explained it as guaranteeing people "their own arms," "their private
arms."
   Of 36 law-review articles on the amendment published since 1980, 
only four disagree.  Three of them were written by employees of anti-
gun groups, one by a politician.  All appeared in minor law reviews.
In contrast, 12 articles supporting the individual-rights position
appeared in top law reviews.  Among the authors were leading liberal
constitutional scholars who don't own guns and never desired the
conclusions the evidence forced upon them.
  Basic to interpreting the Constitution`s first 10 amendments -- the
Bill of Rights -- is understanding that they were enacted as one
document and are judicially interpreted as such.  In the First
Amendment, the "right of the people" is judicially interpreted as an
individual right.  How can the same phrase just 16 words later in the
Second Amendment mean a right of the state?  In the Fourth and Ninth
amendments, the same phrase is always understood and judicially
interpreted as an individual right.  And the 10th Amendment
specifically distinguishes the state's rights from those of the 
people.
   Unable to explain this away, gun prohibitionists point out that the
courts have upheld federal laws banning gun possession by some people
-- felons, minors and the insane; if these are not violations of the
Second Amendment, then neither is extending the ban to everyone.  This
argument is specious.  Cases upholding such laws prove only that, like
other basic rights, the Second Amendment has reasonable limits.
Felons, children and the insane have no more right to arms than to 
vote.  Courts should also uphold licensing requirements, but only 
those designed to exclude the criminal or irresponsible without
delaying or denying access to defensive arms by law-abiding adults.
   The Supreme Court's only extended discussion of the Second 
Amendment's right to bear arms (in United States vs. Miller, 1939)
recognizes that the "militia" it mentions is not some formal military
organization like the National Guard, but the Colonial system of all
trustworthy "males physically capable of acting in concert for the
common defense ... bearing arms supplied by themselves."  The court
rejected the state's-right theory, which was expressly urged upon it,
instead allowing the defendants to invoke the right.  While 
recognizing that some arms of ordinary citizens are protected, the
case limits the protection to high-quality militia-type arms.  This
would include handguns, rifles, and yes, "assault rifles," but not
poorly made "Saturday-night specials."
   Anti-gun arguments reflect baseless, illiberal distrust in the
people.  It is falsely claimed that murderers are ordinary people who
kill in moments of rage.  Criminological studies show murderers to be
aberrants with life histories of felony, substance abuse, injurious
motor-vehicle accidents and violent attacks on those around them.
Certainly, these aberrants should be disarmed.
 --------------------------------------------------------------------
 Don B. Kates Jr. is a San Francisco constitutional lawyer and
 criminologist; Alan J. Lizotte is a professor of criminal justice
 at the University of Albany, State University of New York.  They
 wrote this article for the Los Angeles Times.
======================================================================


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