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] <David T. Hardy>
morally-challenged.          )  http://www.indirect.com/www/dhardy
                             )____________________________________