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From: rickw@eskimo.com (Richard Wojcik)
Subject: Re: Second Amendment Language
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Date: Sun, 8 Jan 1995 17:36:52 GMT
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In article <3eo5tg$cv4@usenet.srv.cis.pitt.edu>,
Lester C Jacobson <lcj+@pitt.edu> wrote:
>Rick Wojcik wrote in sci.lang:
>
>>  So how do we interpret "militia"?
>
>Thankfully our benevolent and munificent government has taken care of this 
>problem for us in the United States Code:
>
>US Code, Title 10 section 311:
>
>* * * *
>     (a) The militia of the United States consists of all able-bodied
>males at least 17 year of age and, except as provided in section 313 of
>title 32 [32 USC sec. 313], 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 commissioned officers
>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.
>* * * *
>
>I'll bet that a lot of you didn't know that you were in the militia,
>did you?  It's that little "unorganized militia" stinger at the end that
>most people aren't aware of.

It is obvious that the framers of the language made no distinction between
"organized" and "unorganized" militias, since the National Guard was a
post-Civil War phenomenon.  My comment was that the issue went beyond
linguistic argumentation.  As our concepts of "arms" and "militia" and
"people" change, it is up to the courts to bring our interpretations of the
words into line with modern reality.

>Mr. Wojcik is completely correct when he points out that a person probably
>won't get too far by focussing ones attention completely on the absolute
>construction in the second amendment.  While new research is always 
>welcome, the original poster might find it useful to consider the
>voluminous literature on the subject.   On the other hand, he might
>not like what he finds, as the following quote is typical in "serious"
>studies of the meaning of the second amendment:
>
>"The conclusion is thus inescapable that the history, concept, and
>wording of the second amendment to the Constitution of the United
>States, as well as its interpretation by every major commentator and
>court in the first half-century after its ratification, indicates that
>what is protected is an individual right of a private citizen to own and
>carry firearms in a peaceful manner."
>  -- Report of the Subcommittee on the Constitution of the Committee on
>     the Judiciary, United States Senate, 97th Congress, Second Session
>     (February 1982)

Lester is simply supplying us with a lot of pro-gun material, much of which
can be found in the many pro-gun sites in the web.  For example, the above
"serious" study was written by pro-gun lobbyists for the Committee on the
Judiciary when it was headed by Orrin Hatch, a strong supporter of the NRA.

We can get into debates on political interpretations here, but I would like
to confine this discussion to just linguistic issues, if that is possible.
I do not want to totally divorce myself from attributing legal significance
to the absolute construction.  I take the position that the final
interpretation of the amendment is not purely a linguistic matter.  Some
legal scholars take the view that constitutional language is
"parsimonious".  That is, every word has significance.  This is so because
the language was constructed by a group, rather than a single individual.
If you accept this argument, then the absolute construction can be used to
limit the scope of the main clause.  Given that very few other sentences in
the document preface declarations with their justification, the existence
of a "justifying" absolute in the 2nd is very significant.  The framers
were calling attention to the use that the "arms" were to be put to.
The Supreme Court seems to have adopted this view in the 20th century in a
number of decisions, and that is why the 2nd has not been used successfully
to strike down gun laws in the courts.  Not yet, anyway.
-- 
Rick Wojcik  rickw@eskimo.com     Seattle (for locals: Bellevue), WA
             http://www.eskimo.com/~rickw/
