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Although it may make some sense for Boaz Sangero to confine his
analysis to the opinions in Heller, that cramps and overlooks
some critical elements that need to be examined for a full
understanding of the original meaning of the Second Amendment and the
other Militia Clauses. 1. The basis for the right to keep and bear arms is partly, but not entirely, self-defense. The more important basis is defense of the community, of which one's self happens to be a member. The Militia Clause of the Second Amendment is there for a reason. It recognizes that primary justification and provides the context from which all the rest follows. 2. The use of the term "state" in the article conflicts with the meaning of that term in the U.S. Constitution. The "state" is not the government. It is the society plus a territory over which it has established dominion. A "state" may or may not have a government, although historically most of them do most of the time. The constitutional usage can be seen in the Second Amendment itself, in the phrase "free state". It makes no sense to say "free government". Only a people, within a territory, can be free in that sense. It should be recognized that the identification of "state" with "government" is a 19th century innovation from the European Continent. Conflating "state" with "government" (officials) only obscures the issues. "Society", "territory", and "government" are distinct elements which may or may not be combined in a particular instance. 3. It is a mistake to presume that "potential aggressor" may not include government itself. Defense against abusive government is a persistent theme of U.S. constitutional history, from the Founding Era through Reconstruction. The right to keep and bear arms was one of the main rights intended to be protected by the 14th Amendment, for both blacks and white visitors to the former Confederate states. It wasn't just to enable them to protect themselves from burglars. 4. Proportionality may make some sense in defense of oneself and the community, but if the potential aggressor may include government then a tank may very well be appropriate as a weapon. Anything the government may have that it can use against the people is something for the people to have that they can use against the government. 5. There is no constitutional authority for the federal government to make it a crime to possess anything, and that includes weapons. The possible exception is on the territory of federal enclaves like the District of Columbia, where it may exercise powers like those of a state (in a different sense). Commerce is trade, not possession, and the Necessary and Proper Clause only authorizes administrative incidentals to the efforts authorized by other delegations of power. Such delegations are only of authority to make efforts, and not to do whatever may be conducive to getting a desired outcome. The powers to tax, spend, regulate, promote, and prohibit (with criminal penalties) are each distinct, and none may be derived from any of the others, except for minor things like regulatory requirements to pass through certain checkpoints. 6. There is a power to regulate militia, but it is only a power to make efforts designed to enhance the effectiveness of militia to defend the public from threats from outside militia, not from the militia. It is like the pre-emptive power of Congress to regulate the time, place, and manner of congressional elections (except the place of senatorial elections). That power is only to make elections more convenient and accurate, not to impair them. Delegated powers are only delegated for use in certain directions. 7. While "militia" can be a state-sanctioned and directed group, that is not its primary or initial meaning, which is one or more persons engaged in defense activity, whether state-organized or not. Historically, militia has often been spontaneous and often consisted of the efforts of single individuals. However, if the effort is not defensive, disciplined, or is not broadly representative of the community as a whole, then it is not militia, appearances notwithstanding. If one confines one's understanding of the term to armed groups then one misses the essence of the concept. Substitute the phrase "defense activity" for "militia" wherever it appears in the Constitution, and much will become more clear. -- Jon ---------------------------------------------------------- Constitution Society http://constitution.org 2900 W Anderson Ln C-200-322 Austin, TX 78757 512/299-5001 [email protected] ---------------------------------------------------------- |
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