The descriptions and quotes below describe pretty well the militia view -- i.e. that
the Second Amendment protects a right to keep and bear arms in connection with citizen
service in a government organized and regulated militia.
Regards,
Bob Spitzer
-----Original Message-----
From: Peter Boucher [mailto:[EMAIL PROTECTED]
Sent: Thu 10/16/2003 12:02 PM
To: [EMAIL PROTECTED]
Cc:
Subject: Re: reinsert eyeballs
"... In all, 13 prior law journal articles (including the 1874
article (counted as one) and an article published by Ansell in 1917
which was also not listed in the Index to Legal Periodicals under the
subject headings of "weapons" or "right to bear arms") were published
before 1960, and all of them adopt the militia view. ..."
I'd like to see Prof. Spitzer's definition of "the militia view," and a
description of how and where it conflicts with the Standard Model
expounded by Rawle, Story, Cooley, and the majority of modern scholars,
because I read the 1874 article and the 1917 article and don't see where
either of them conflicts with the Standard Model.
For example the 1747 article
(http://www.guncite.com/journals/centlj.html)
says that a law regulating the wearing of certain weapons does not
violate the Second Amendment because
a) the type of weapons that the law prohibited people from carrying
were not the type of weapons soldiers ordinarily use -- no disagreement
with the Standard Model here, and
b) the right can be regulated without taking it away -- no
disagreement with the Standard Model here, either
From the article: "... With certain restricted exceptions, it
effectually prohibits the bearing of all small arms, whether openly or
concealed, on horseback or on foot. It is doubtful whether so sweeping a
statute can be sustained in the light of any of the adjudications
already quoted. But the late Supreme Court of Texas nevertheless did, in
English v. The State, supra, declare that it is neither in conflict with
the second amendment of the federal constitution, nor with the provision
of the constitution of that state quoted at the beginning of this
article. The court (Walker, J.) say: "The word 'arms,' in the connection
we find it in the constitution of the United States, refers to the arms
of a militia-man or soldier, and the word is used in its military sense.
The arms of the infantry soldier are the musket and bayonet; of cavalry
and dragoons, the sabre, holster-pistol and carbine; of the artillery,
the field-piece, siege gun and mortar, with side-arms. The terms dirks,
daggers, slung-shots, sword-canes, brass-knuckles and bowie-knives
belong to no military vocabulary. Were a soldier on duty found with one
of these things about his person he would be punished for an offence
against discipline. The act referred to makes all necessary exceptions,
and points out the place, the time and manner in which certain deadly
weapons may be carried as a means of self-defence; and these exceptional
cases, in our judgment, fully cover all the wants of society. There is
no abridgment of the personal rights, such as may be regarded as
inherent and inalienable to man, nor do we think his political rights
are the least infringed by any part of this law." The court also
understand the word "arms" in the Texas constitution as having the same
import and meaning which it has in the second amendment of the federal
constitution; and they hold that the legislature may regulate the right
to bear arms without taking it away, and that this has been done by the
act under consideration."
So what is Prof. Spitzer's rationale for not counting the 1874 article
as a Standard Model article?
