Joe Sylvester wrote: > > There is nothing in the Rhode Island Constitution's RKBA provison about the > militia. The court looked to the federal Constitutional provision and to > those of some other states. > > Their reasoning, if one can call it that, dealt with the meaning of "to > bear" and decided it ony applied to a military, and thus militia, context. > This of course ignores the provisions in yet other state Constitutions which > explicitly apply to "bearing arms in defense of themselves and the state".
There is a good reason why there is nothing in Rhode Island's RKBA provision about the militia: by the time the RI constitution was adopted (1842), it was well established that RI did not have sovereign power over its own militia. By contrast, the Massachusetts "common defense" RKBA provision dated from 1780, when that commonwealth had the undisputed sovereign power to embody its militia. So it may make sense that the Rhode Island framers omitted "militia" because they knew the state could ultimately not confer that status, and they intended to protect private arms-keeping and arms-bearing as a state right. By 1842, Congress had exercised its militia powers for 50 years; the U.S. Supreme Court had for 22 years held that Congress had 'occupied the field' of militia law and preempted state law (Houston v. Moore); the Supreme Court had also rejected (in Martin v. Mott, 1827) the militia-related state-sovereignty arguments raised the Hartford Convention states (which included Rhode Island). Also by 1842, the states were starting to exempt large classes of citizens from militia duty, and Massachusetts found it necessary (in 1839) to obtain an advisory opinion of the Supreme Judicial Court to confirm that such exemptions were consistent with federal law, and thus within the constitutional power of the states. Reading "militia" into the Rhode Island RKBA provision is not simply an act of "contextualizing," it binds the court's decision to militia law, a distinct area of law which received no consideration in the case. The federal "collectivist" 2nd Am decisions make the federal right contingent on "militia" status that Congress can withhold. Taking that as the basis for a state "right" begs an explanation as to whether anything at all is protected from the state, and how it is protected. Sorely missing from the RI opinion is any legal discussion of "militia" status, or any effort to identify how that status can be conveyed on citizens. Despite the court's holding being based on that point, the opinion is devoid of meaningful militia law discussion. It would be remiss in a law student to make such assertions without at least consulting a hornbook about militia law. Surely some brief-writer will direct the other courts' attention to this in the future. Norman Heath _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/firearmsregprof
