An interesting point (Randy Barnett or Nelson Lund in my documentary make a variant form: The amendment as a whole ensures that Congress could never use its militia power to forbid the people to own arms. Congress could not use its power to prescribe the militia arms to prohibit ownership of arms.
As a practical matter, we'd have to ask how much deference the courts would give to a Congressional determination (or just an implicit determination, Congress wouldn't have done it unless it thought it was a good idea) that its regulations were compatible with the militia clause. We have that copyright case where, despite the fact that the Const. says Congress may grant such to promote the useful arts (paraphrasing, I'm in a hotel rm) yet the Court held it could not only extend the period of copyright protection but make it applicable to already-issued copyrights, which involve things already created -- the extension of the Act to them couldn't encourage any useful art. I suspect in the militia context the degree of deference would be exceptionally high. -----Original Message----- >From: Jon Roland <[EMAIL PROTECTED]> >Sent: Jul 29, 2007 12:30 PM >To: >Cc: [email protected] >Subject: Re: FW: The REPUBLICAN ... from New York. > >I like to explain the Second Amendment by comparing it to another, Art. >I Sec. 4, in which Congress has a pre-emptive power of regulation over >state regulation on the same subject. When combined with the Militia >Clauses of Art. I Sec. 8, it does provide for firearms and militia to be >regulated as part of the "discipline" clause, but only in the direction >of enhancing the effectiveness of militia. In the same way, the >regulation of the time, manner, and place of elections could only be >regulated in the direction of making voting more convenient, accurate, >and fair. Put in another way, a delegation of a power to regulate was >not a "plenary power" within its "sphere", as Justice Marshall would >later say in /Gibbons v. Ogden/, but a power that could only >constitutionally be regulated in a certain direction. Under this >construction, a state regulation or prohibition on firearms, or the >convening of militia, would be unconstitutional if it did not enhance >the effectiveness of militia, not because it was a regulation of >something that could not be regulated in some ways. The use of the >phrase "shall not be infringed" indicates not that no one could ever be >ordered not to use a particular weapon in a certain way while on militia >duty, such as by requiring someone on sentry duty to bear a shotgun, and >on sniper duty to bear an accurate, long-range rifle, but that it was >unconstitutional to do so when a person is not in called-up status, or >in a way that would impair his ability to defend against a threat to >public safety. Thus, an order to stand down or surrender in the face of >invasion would be unconstitutional. Militia, unlike an Army, may not >surrender. > >-- Jon > >---------------------------------------------------------------- >Constitution Society 7793 Burnet Road #37, Austin, TX 78757 >512/299-5001 www.constitution.org [EMAIL PROTECTED] >---------------------------------------------------------------- > _______________________________________________ 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 Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
