Re: CAN THE STATE MILITIAS EVER BE ABOLISHED?

Diogenes <[EMAIL PROTECTED]> wrote in message news:<[EMAIL PROTECTED]>...
> Leif Rakur wrote:
> > Diogenes <[EMAIL PROTECTED]> wrote in message news:<[EMAIL PROTECTED]>...
> > 
> >>Leif Rakur wrote:
> >>
> >>>Robert S. Baron <[EMAIL PROTECTED]> wrote in message news:<[EMAIL PROTECTED]>...
> >>>
> >>>
> >>>>[EMAIL PROTECTED] (Leif Rakur) wrote: 22 Nov 2003 22:03:32 -0800
> >>>>Message-ID: <[EMAIL PROTECTED]>
> >>>>
> >>>>>Robert S. Baron <[EMAIL PROTECTED]> wrote in message
> >>>>
> >>>>news:<[EMAIL PROTECTED]>...
> >>>>
> >>>>
> >>>>>>><snip>
> >>>>>>
> >>>>>> RSB: Since a well regulated militia is recognized as being necessary,
> >>>>>> and the people have been guaranteed the general right to keep and bear
> >>>>>> arms by the federal constitution, it follows that the people have the
> >>>>>> particular implied right to make themselves well regulated, and
> >>>>>> especially so when the government neglects the militia and lets it
> >>>>>> fall into disuse.  Even in the absence of RKBA incorporation via the
> >>>>>> Fourteenth Amendment, the state governments have no legitimate power
> >>>>>> to prevent the people keeping arms and becoming proficient in the use
> >>>>>> of arms.  The supreme court supports that position in Presser:
> >>>>>>
> >>>>>>     "But in view of the fact that all citizens capable of bearing
> >>>>>>     arms constitute the reserved military force of the national
> >>>>>>     government as well as in view of its general powers, the
> >>>>>>     States cannot prohibit the people from keeping and bearing
> >>>>>>     arms, so as to deprive the United States of their rightful
> >>>>>>     resource for maintaining the public security."
> >>>>>>
> >>>>>> RSB: Some might conclude that this merely recognizes the supremacy of
> >>>>>> federal militia powers in Art.I Sec.8, but this would represent an
> >>>>>> extremely narrow interpretation of the phrase 'rightful resource'.  It
> >>>>>> would suppose that 'rightful' refers to the question of federal
> >>>>>> supremacy, which is not in question.  And it would suppose that the
> >>>>>> definition of 'resource' is not operative, i.e., "something that lies
> >>>>>> ready for use" [Webster's New World Dictionary].  A well regulated
> >>>>>> militia lies ready for use; a neglected, dispirited militia does not.
> >>>>>
> >>>>>Leif speaking:  What Presser says is that the Second Amendment is not
> >>>>>applicable against the states:
> >>>>>
> >>>>>"But a conclusive answer to the contention that this amendment [the
> >>>>>Second Amendment] prohibits the legislation in question lies in the
> >>>>>fact that the amendment is a limitation only upon the power of
> >>>>>Congress and the National government, and not upon that of the
> >>>>>States."
> >>>>>
> >>>>>Insofar as the Second Amendment is concerned, the states can enact
> >>>>>whatever gun legislation the people want.
> >>>>
> >>>> RSB: Presser was decided in 1886, well before the era of incorporation
> >>>> began in 1897 with Robertson v. Baldwin, 165 U.S. 275.  As you
> >>>> contemplate incorporation of the 2dAm via the 14thAm, ask yourself why
> >>>> an amendment that begins, "Congress shall make no law...", is applied
> >>>> against the states while the provision that guarantees a right of the
> >>>> people shall not be infringed applies only to Congress.
> >>>
> >>>
> >>>Leif speaking:  The Second Amendment is NOT incorporated under the 14
> >>>Amendment.
> >>
> >>The only reason the second amendment is not incorporated is because the 
> >>courts have simply not chosen to do so, as they did with others, and simply 
> >>restating it hasn't been incorporated doesn't address the question that was 
> >>raised.
> >>
> >>
> >>>Presser is good law.  The states, insofar as the Second
> >>>Amendment is concerned, pass whatever kind of gun legislation they
> >>>want.
> >>
> >>And, of course, before incorporation they could, in theory, pass whatever 
> >>speech, or any other, law that was previously prohibited only to the 
> >>federal government. They could even put statues of the ten commandments in 
> >>their court houses if they wanted to.
> >>
> >>
> >>>The Second Amendment protects the right of the people
> >>>collectively to maintain their own state militia even if Congress
> >>>should fail to do its constitutional part in that respect.
> >>
> >>There is nothing any more 'collective' about the second than any other 
> >>enumerated right of the people.
> >>
> >>
> >>> It's hard
> >>>to see how that provision could be applied AGAINST the states.
> >>
> >>It's actually quite easy. The second's protection of the people's right to 
> >>keep and bear arms is precisely because government wields power, and an 
> >>armed populace is a counter balance to that power: an inherent right of 
> >>self protection, from others and even one's own government should it turn 
> >>oppressive; no longer serving the needs of the people. Which, if you'll 
> >>note, is precisely what the Revolutionary War was about, as specifically 
> >>stated in the Declaration of Independence.
> >>
> >>It is not much of a stretch to imagine that if the people have that right 
> >>of self protection, including from the Federal government, then they have 
> >>that same right of protection from their State government.
> > 
> > 
> > Leif speaking:  The Second Amendment was written to restrain Congress
> > from infringing the right of the people to their state militia.   That
> > would be a good reason for not trying to incorporate in against the
> > states.
> 
> It's true that's the standard misinterpretation of it's meaning and it 
> would have been real simple to write "the right of the people to their 
> state militias shall not be infringed," but they didn't.

Leif speaking:  They could also have said simply, "the right of
individuals to keep and carry arms shall not be infringed," but they
didn't.
> 
> 
> >>>>>As for the Presser paragraph you quote, I don't think you have the
> >>>>>opinion quite right.  At least it doesn't match what I picked up out
> >>>>>of my copy.
> >>>>
> >>>> RSB: You are correct.  I used a shortened version and should not have
> >>>> included the quotation marks.  Nevertheless, the 'rightful resource'
> >>>> argument remains unaffected.
> >>>>
> >>>>
> >>>>
> >>>>>For one thing,it leaves out the very important phrase,
> >>>>>"even laying the constitutional provision in question out of view..." 
> >>>>>Here's the paragraph as it appears in my copy:
> >>>>
> >>>> RSB: That is why my explanation began with, "Even in the absence of
> >>>> RKBA incorporation via the Fourteenth Amendment, ..."  It means the
> >>>> same thing.
> >>>>
> >>>>
> >>>>
> >>>>>"It is undoubtedly true that all citizens capable of bearing arms
> >>>>>constitute the reserved military force or reserve militia of the
> >>>>>United States as well as of the states, and, in view of this
> >>>>>prerogative of the general government, as well as of its general
> >>>>>powers, the states cannot, even laying the constitutional provision in
> >>>>>question out of view, prohibit the people from keeping and bearing
> >>>>>arms, so as to deprive the United States of their rightful resource
> >>>>>for maintaining the public security, and disable the people from
> >>>>>performing their duty to the general government. But, as already
> >>>>>stated, we think [116 U.S. 252, 266] it clear that the sections under
> >>>>>consideration do not have this effect."
> >>>>>
> >>>>>This means that, taking the Second Amendment out of the picture, the
> >>>>>states cannot enact legislation that would deprive the federal
> >>>>>government from calling on the people to perform their duties to it --
> >>>>>like a law to interfere with a federal draft act, for instance.
> >>>>
> >>>> RSB: Leif ignores the operative phrase, "to deprive the United States
> >>>> of their rightful resource for maintaining the public security".  This
> >>>> has a much broader scope than mere duty to the federal government.
> >>>
> >>>
> >>>Leif speaking:  When you read the full Presser text rather than your
> >>>shortened version you see that it speaks of "the prerogative of the
> >>>general government,"
> >>>another phrase your shortened quote omitted.  What's involved is the
> >>>prerogative of the federal government to require the citizens to
> >>>perform their duties to it.  No other scope is identified. The
> >>>"rightful resource for maintaining the public security" are "all
> >>>citizens capable of bearing arms" (i.e., all citizens capable of armed
> >>>military service, which, of course, would not include  one-legged
> >>>70-year-olds who could carry a musket but would not capable of bearing
> >>>arms).  However, all of this has nothing directly to do with the
> >>>meaning of the Second Amendment and the fact that the amendment does
> >>>not apply against the states.
> >>>
> >>>-Leif
> >>