From: [d--ar--y] at [indirect.com] (David T. Hardy) Newsgroups: talk.politics.guns Subject: US v. Miller and "approved commentators" Date: 3 Mar 1997 00:01:40 GMT In the Miller opinion, the Court refers to the meaning of the militia as derived from "the debates in the Convention, the history and legislation of the colonies and states, and the writings of approved commentators." Unfortunately, it doesn't define exactly who the last are. Possible lead: in fn. 3, at 307 US 182, the Court says that "some of the more important opinions and comments by writers are cited." The footnote cites cases, and three comments. The last I haven't found, but the first two are Story on the Constitution, and Cooley's Constitutional Limitations. Story, a famed Supreme Court justice, wrote that "The importance of this article [2d amend.] will scarcely be doubted by any persons who have duly reflected upon the subject. The militia is the natural defense of a free country.... The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of the Republic; since it offers a strong moral check against the usurpation and arbitrary power of rules and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. ... A similar provision in favor of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it having been declared that 'the subjects which are protestant, may have arms for their defense, suitable to their condition, and as allowed by law.' But under various pretences the effect of this provision has been greatly narrowed, and it is at present in England more nominal than real as a defensive privilege." Cooley's Constitutional Limitations (8th ed., 1927, apparently the same edition the court used, as the page numbers match) discusses the history of the English repugance to a standing army and continues: "The alternative to a standing army is 'a well regulated militia'; but this cannot exist unless the people are trained to bearing arms. The Federal and State constitutions therefore provide that the right of the people to keep and bear arms shall not be infringed; but how far it may lie in the power of the legislature to regulate the right we shall not undertake to say. Happily, there has never been, nor, we may hope, is there likely to be, much cause for examination of that question by the courts." The last hope obviously did not come to pass: the editors here append fn. 5 listing all of the cases on the right to arms, ranging from Bliss to Aymette to Brickey and Zerillo, variously holding that concealed weapons laws or bans on certain arms are, or are not, unconstitutional. [Cooley's General Principles of Constitutional Law explained his argument in greater depth: "The right is general. It may 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. .... If the right were limited to those enrolled, the purpose of the guarantee might be defeated altogther by the action or neglect to act of the government it was meant to hold in check. 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 the government for this purpose."] So those are two of the commentators whose writings the Court cites as among the "more important opinions and comments by writers...." The third reference (vol. X of the Encyclopedia of the Social Sciences) I have not yet found... _____________________________________________________________________ I'm not an attorney; I'm just) [d--ar--y] at [indirect.com] morally-challenged. ) http://www.indirect.com/www/dhardy )____________________________________