Posted on 05/12/2002 4:10:21 AM PDT by The Raven
TANFORD, Calif. — The Bush administration has found a constitutional right it wants to expand. Attorney General John D. Ashcroft attracted only mild interest a year ago when he told the National Rifle Association, "The text and original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms."
Now, briefs just filed by Solicitor General Theodore Olson in two cases currently being appealed to the Supreme Court indicate that Mr. Ashcroft's personal opinion has become that of the United States government. This posture represents an astonishing challenge to the long-settled doctrine that the right to bear arms protected by the Second Amendment is closely tied to membership in the militia.
It is no secret that controversy about the meaning of the amendment has escalated in recent years. As evidence grew that a significant portion of the American electorate favored the regulation of firearms, the N.R.A. and its allies insisted ever more vehemently that the private right to possess arms is a constitutional absolute. This opinion, once seen as marginal, has become an article of faith on the right, and Republican politicians have in turn had to acknowledge its force.
The two cases under appeal do not offer an ideal test of the administration's new views. One concerns a man charged with violating a federal statute prohibiting individuals under domestic violence restraining orders from carrying guns; the other involves a man convicted of owning machine guns, which is illegal under federal law. In both cases, the defendants cite the Second Amendment as protecting their right to have the firearms. The unsavory facts may explain why Mr. Olson is using these cases as vehicles to announce the administration's constitutional position while urging the Supreme Court not to accept the appeals.
The court last examined this issue in 1939 in United States v. Miller. There it held that the Second Amendment was designed to ensure the effectiveness of the militia, not to guarantee a private right to possess firearms. The Miller case, though it did not fully explore the entire constitutional history, has guided the government's position on firearm issues for the past six decades.
If the court were to take up the two cases on appeal, it is far from clear that the Justice Department's new position would prevail. The plain text of the Second Amendment — "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed" — does not support the unequivocal view that Mr. Ashcroft and Mr. Olson have put forth. The amendment refers to the right of the people, rather than the individual person of the Fifth Amendment. And the phrase "keep and bear arms" is, as most commentators note, a military reference.
Nor do the debates surrounding the adoption of the amendment support the idea that the framers were thinking of an individual right to own arms. The relevant proposals offered by the state ratification conventions of 1787-88 all dealt with the need to preserve the militia as an alternative to a standing army. The only recorded discussion of the amendment in the House of Representatives concerned whether religious dissenters should be compelled to serve in the militia. And in 1789, the Senate deleted one clause explicitly defining the militia as "composed of the body of the people." In excising this phrase, the Senate gave "militia" a narrower meaning than it otherwise had, thereby making the Ashcroft interpretation harder to sustain.
Advocates of the individual right respond to these objections in three ways.
They argue, first, that when Americans used the word militia, they ordinarily meant the entire adult male population capable of bearing arms. But Article I of the Constitution defines the militia as an institution under the joint regulation of the national and state governments, and the debates of 1787-89 do not demonstrate that the framers believed that the militia should forever be synonymous with the entire population.
A second argument revolves around the definition of "the people." Those on the N.R.A. side believe "the people" means "all persons." But in Article I we also read that the people will elect the House of Representatives — and the determination of who can vote will be left to state law, in just the way that militia service would remain subject to Congressional and state regulation.
The third argument addresses the critical phrase deleted in the Senate. Rather than concede that the Senate knew what it was doing, these commentators contend that the deletion was more a matter of careless editing.
This argument is faulty because legal interpretation generally assumes that lawmakers act with clear purpose. More important, the Senate that made this critical deletion was dominated by Federalists who were skeptical of the militia's performance during the Revolutionary War and opposed to the idea that the future of American defense lay with the militia rather than a regular army. They had sound reasons not to commit the national government to supporting a mass militia, and thus to prefer a phrasing implying that the militia need not embrace the entire adult male population if Congress had good reason to require otherwise. The evidence of text and history makes it very hard to argue for an expansive individual right to keep arms.
There is one striking curiosity to the Bush administration's advancing its position at this time. Advocates of the individual-right interpretation typically argue that an armed populace is the best defense against the tyranny of our own government. And yet the Bush administration seems quite willing to compromise essential civil liberties in the name of security. It is sobering to think that the constitutional right the administration values so highly is the right to bear arms, that peculiar product of an obsolete debate over the danger of standing armies — and this at a time when our standing army is the most powerful the world has known.
Jack Rakove is a professor of history and political science at Stanford Uni versity and the author of ``Original Meanings: Politics and Ideas in the Making of the Constitution.''
Do these newpapers hire based on ignorance? The "militia" was all males 18 to 55, and now, with the 19th amendment, also presumably females 18 to 55. That makes up essentially the entire adult population of America, therefore the "private" population.
Did the author of this piece mention exactly what the militia is, or did I miss it? 
Yes, and he said if the libs would read the 2nd Amendment as they do the 1st, they would conclude the same thing
Right.....and if they meant something else, they would have said it.
I remember hearing/reading some Congress-critter saying something to the effect that "The Constitution strangles democracy," to whit - whatever they can convince the mob that it wants.
If anyone can put a name to that quote, I'd appreciate it.
This filthy America-hating communist found itself the platform from which It could spew this bullshit where all *good* America-hating Socialist-Communists invariably do.
The New York Times; again.
Although let us all agree; this question is only moderately more complex for these Socialist-Communists at the Slimes (& within acadamia) than was determining the meaning of, "is."
Plus I just cannot tell y'all how fuzzy I'm left feeling, too; knowing our constitutiion's plain English is now being parsed, hacked, & mashed by this ilk of freak??
...Socialist-Communist, "commentators" interpretting our constitution's origninal meaning, eh?
Whatever problems the 2nd amendment provides society...it doesn't come close to the harm an armed government can do with an enslaved people.
(a)
The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.(b)
The classes of the militia are -(1)the organized militia, which consists of the National Guard and the Naval Militia; and(2)the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia
TITLE 32
CHAPTER 3
Sec. 313. - Appointments and enlistments: age limitations
(a)
To be eligible for original enlistment in the National Guard, a person must be at least 17 years of age and under 45, or under 64 years of age and a former member of the Regular Army, Regular Navy, Regular Air Force, or Regular Marine Corps. To be eligible for reenlistment, a person must be under 64 years of age.(b)
To be eligible for appointment as an officer of the National Guard, a person must -(1)be a citizen of the United States; and(2)be at least 18 years of age and under 64
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Guns Save Lives !!
Freedom Is Worth Fighting For !!
The Right Of The People To Keep And Bear Arms Shall Not Be Infringed !!
An Armed Citizen, Is A Safe Citizen !!
No Guns, No Rights !!
Molon Labe !!
Miller argued that the Second Amendment to the Constitution of the United States provides: A well regulated militia being necessary to the security of a free state, the right of people to keep and bear arms, shall not be infringed; that the said National Firearms Act is in violation and contrary to said Second Amendment and particularly as charging a crime against these said defendants, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States.
The SCOTUS, after hearing only the government's arguments (Miller's attorneys were not present), determined that, without evidence to the contrary, a sawed-off shotgun was not a military-style weapon, and, therefore, was not protected by the 2nd Amendment. The court did not challenge the notion that Miller was in the militia, even though he clearly was a private citizen with no connection to the National Guard..
Let's assume the Miller ruling was correct. If so, then all of us are in the militia, and all of us have a right to keep and bear an M16.
Enough with the lies, already.
John, do you remember a couple battles that took place at Lexington and Concord ? A disorganized bunch of people lead by Captain John Parker ?
They stood up to tyranny and many, many paid the ultimate price. They fought for a way of life, a life of freedom not servitude. They were out manned, out gunned and out organized by the standing armies of Great Britain. But they were not out classed.
The disorganized bunch of people at the birth of our nation had just as much to lose as we do today. They risked all and in prevailing they designed a government of checks and balances to prevent tyrannical rule.
But even they had the foresight to realize that governmental rule is imperfect and through enumeration in the Bill Of Rights, "the disorganized bunch of people", were guaranteed their inalienable rights. One of which the supporters of tyranny keep trying to alienate from us.
If the supporters of tyranny achieve their goal and disarm "the disorganized bunch of people", what's next ? Will we then start burning books that the tyrants don't agree with ? Will we be required to support one religion sanctioned by the tyrants ? Where is the line drawn ?
I make a lousy orator but possibly you can find some answers in the words of Patrick Henry.
"... it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation? For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst, and to provide for it."
Why can't government obscure basic human unalienable rights? Because human beings can exist without government but government can't exist without human beings. I hope ours, unlike those in the past, don't have to learn that the hard way.
What a snotty, biased lead. Par for the course, I suppose.
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