From: [h--e] at [btree.brooktree.com] (Bob Hale)
Newsgroups: alt.society.civil-liberty,misc.legal,talk.politics.guns
Subject: Re: Ban Gun Ownership By Blacks!!!
Date: 23 May 1994 20:34:40 -0700

ROMI BOSE <[r--o--e] at [kentlaw.edu]> wrote:
>[Karl Kleinpaste] at [cs.cmu.edu] writes:
>>The modification or repeal of the 2nd Amendment would not change the
>>nature or existence of the right to bear arms.  It might make doing so
>>illegal, hence the cost to exercise one's right would rise, but the
>>right itself would persist.  The right cannot be repealed.  The right
>>is bound up inextricably in the right to self-defense; no more
>>fundamental right exists.

These are wise and well thought out words.

>I think people need to read the 2d amendment more closely.  When it was 
>written, it was shortly after independence.  The militia at the time still 
>mainly consisted of private individuals defending, along with their 
>neighbors, against attacks.  If you read it, you will see references along 
>the lines of maintaining a well armed militia.  Police and the 
>armed forces have taken care of the need of a well armed militia, and 
>private people are not required to carry weapons.  I just don't think gun 
>control is a 2d amendment issue.  Our modern armies and police have made the 
>protection of the 2d amendment to private individuals moot.


Human nature hasn't changed any significant amount in the last 200 years
or so.  The 2nd is at least as valid now as it was when it was penned,
and is probably even more important to the people of the U.S. at the
present time than it was then.

The Second Amendment must be one of the most misunderstood writings
ever put forth in this country, even though there has been an enormous
amount of scholarship applied to it and its ramifications.  Bear with
me and we'll touch on a few relevant points.

The militia clause of the 2nd was added to strengthen it.  If you
read the various debates held by state legislatures and the publications
of the Founding Fathers (The Federalist Papers being a good start) you
will find that various wordings were tried and discarded until they
produced what we have today - a sentence consisting of a leadin clause
which expresses _one_ of the reasons why the RKBA is to be preserved,
and the guarantee itself, that the RKBA shall not be infringed.  The
first clause in no way limits or diminishes the following words;
instead, it serves to strengthen them.

A frequently offered argument says that the 2nd refers to a collective
right of the people, not to individual rights.  This interpretation
has been discredited by numerous sources, not the least of which is
the U.S. Supreme Court.  In a 1990 case the court noted that "the
people" referred to in the 1st, 2nd, 4th, 9th, and 10th amendments all
referred to the same set of individuals.  Sanford Levinson, in his
"The Embarrassing Second Amendment", admits that he started out to
prove, once and for all, that the 2nd referred to a collective right.
He had the integrity to admit that he was wrong, and he published his
work in the Yale Law Journal.  There are numerous other works on this
subject of which the overwhelming majority come to the same conclusion,
that the RKBA applies to individuals.  See the last paragraph below.

There is no guarantee that the government, at any level, will come
to anyone's defense against violence.  Numerous courts, including
state supreme courts and the U.S. Supreme Court have all held that
no law enforcement agency has any legal duty to protect any individual.
Since the government is not obligated to protect any individuals,
who will protect them?

The words "gun control" usually refer to some legislation which would
attempt to make it unlawful to possess or to use any of a certain
(usually large) class of firearms.  But criminals don't pay attention
to the law in the first place.  Such legislation does nothing but
disarm the ordinary citizen while leaving the criminals alone.
In fact, the U.S. Supreme Court has ruled that criminals cannot be
forced to incriminate themselves by revealing that they illegally
possess firearms.  In other words, criminals are immune from
firearms registration requirements.

Historically, registration has been a prelude to confiscation.  Just
ask the residents of New York City about that.

The Second Amendment does not _grant_ the RKBA.  Instead, it guarantees
the pre-existing right to keep and bear arms.  United States law is
based upon English common law.  Sir William Blackstone listed amongst
the absolute rights of individuals "the right of petitioning the king
and parliament for redress of grievances; and lastly, to the right of
having and using arms for self preservation and defense."  In his
"Commentaries on the Laws of England" he goes on to elaborate why
the right to self defense supersedes the man-made laws of society.

Romi Bose said that private people are not required to carry weapons.
This is true.  Much time and debate was spent on whether or not such
a requirement should exist.  In the end, the Founding Fathers decided
that it was best not to have such a requirement because there would
have been a need for exceptions to it, and the exceptions were subject
to enormous abuse.  However, the real issue is whether the people have
the _option_ to keep and bear arms.  There are a few places in the U.S.
where citizens are required to maintain arms.  Kennesaw, Georgia, is one
such place.  It has a remarkably low crime rate.  Whether their crime
rate is a result of their law is debatable, but one thing is sure, their
law didn't create a rash of citizen shootings.  If anything, it did the
opposite.  Other cities have done the opposite.  Morton Grove, Illinois,
is one such example.  Their violent crime rate has risen dramatically
since their ordinary citizens were disarmed by a city ordinance.  The
criminals in Morton Grove were emboldened by the ordinance because
the victims of the criminals were made legally defenseless.

Many people are unaware of just what the militia is.  It is actually
codified in U.S. law - there is the organized militia which consists
of groups such as the National Guard, and the unorganized militia
which consists of all males between the ages of 17 and 45 with a few
exceptions.  However, since this law was enacted, discrimination on
the basis of sex and age has been outlawed so it is likely that the
code applies to all citizens and to all those who intend to become
citizens.  In other words, almost every one of us is a member of the
militia.

The Founding Fathers were very much opposed to the concept of a standing
army.  The reasoning was simple - a standing army could be taken over
by a tyrant or by a tryannical government while the militia (the people
at large) could not be forced to turn against their own.

Thomas Jefferson said it well when he remarked "No Free man shall ever
be debarred the use of arms."  He hit the nail right on the head - the
history of this country is rife with examples of race control
implemented by gun control.  Take New York's Sullivan Law for one
example.  It protected the dock criminals at the expense of the largely
immigrant population in the area.  Or the laws passed in the South
after the Civil War which forbade the ownership of any handgun expect
the Army or Navy models.  Sounds pretty innocuous, doesn't it?  But
the Army and Navy models were high priced, roughly $500 in today's
currency.  No Negro could afford either of those models so they were
effectively disarmed by that law.  A similar effort is being proposed
these days - a ban on "Saturday Night Specials."  A Saturday Night
Special is a cheap handgun, typically of poor quality and short life
expectancy.  It is cheap and therefore it is affordable to those who
are of minority race and have not had the benefit of education and
equal treatment.  Bans on such firearms would work against the interests
of minority races who are, for the most part, poor.

Much literature is available on the subject of the RKBA.  I have a
bibliography available by e-mail request.  If you are interested in
the subject then please request it.

Bob Hale   [h--e] at [brooktree.com]