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> Lloyd R. Parker (lparker@emoryu1.cc.emory.edu) wrote:

>

> I've seen no evidence for this. The Constitution doesn't mention

> "select" and neither does any reference I've consulted. The Const.

> mentions the militia once in the main body -- Congress shall

> provide for organizing, arming, and disciplining the militia; and

> the militia shall be used to execute the laws, repel invasions, and

> suppress insurrections. The militia, one. It is also

> contradictory for RWI's to say the RKBA is so the militia can

> overthrow the gov't if need be when the Const. specifically says

> the militia is to be used to suppress insurrections.



Here we have another example of Mr. Parker's selective scholarship. Or is

it just that if the reference _supports_ the 2nd Amendment as an individual

right, not a state right, then it's not _really_ reference material?



After the successful revolution, the maintenance of a citizen militia was a

primary concern of the framers of the Constitution. General Washington's

Inspector General, Baron Von Steuben, proposed a "select militia" of 21,000

that would be given government issue arms and special government training.[1]

When the proposed Constitution was presented for debate, anti-Federalists

complained that it would allow for the withering of the citizen militia in

favor of the virtual standing army of a "select militia." Richard Henry

Lee, in his widely-read _Letters from the Federal Farmer to the

Republican_, warned ratifiers that a select militia had the same potential

to deprive civil liberties as a standing army, for if "one fifth or one

eighth part of the people capable of bearing arms should be made into a

select militia," the select militia would rule over the "defenseless" rest

of the population. Therefore, wrote Lee, "the Constitution ought to secure

a genuine, and guard against a select, militia ... to preserve liberty, it

is essential that the whole body of the people always possess arms and be

taught alike, especially when young, how to use them."[2]



[1] Hardy, _Armed Citizens, Citizen Armies: Toward a Jurisprudence of the

    Second Amendment_, 9 HARV.J.L. & PUB. POLY 559, 560 (1986), at 600.



[2] W. Bennett, ed., _Letters from the Federal Farmer to the Republican_

    21, 22, 124 (1975). Lee sat in the Senate that ratified the Second

    Amendment.





As for the purported contradiction of "the RKBA is so the militia can

overthrow the gov't if need be" contrasted with the power of Congress to

call up the militia to suppress insurrection:



_The Federalist Papers_ looked to the state militias, comprised of the

armed populace, as the ultimate check on government. As James Madison put

it, "the ultimate authority ... resides in the people alone." Madison

predicted that no federal government could become tyrannical, because if it

did, there would be "plans of resistance" and an "appeal to trial by

force." A federal standing army would surely lose that appeal, because it

"would be opposed by a militia amounting to near half a million citizens

with arms in their hands." Exalting "the advantage of being armed, which

the Americans possess over almost every other nation," Madison contrasted

the American government with the European dictatorships, which "are afraid

to trust the people with arms." Note that half a million was the

approximate unmber of male citizens at that time.



Alexander Hamilton explained that "If the representatives of the people

betray their constituents, there is then no recourse left but in the

exertion of that original right of self-defense which is paramount to all

positive forms of government." Hamilton reassured skeptical

anti-Federalists that no standing army, however large, could oppress the

people, for the federal soldiers would be opposed by state militias

consisting of "a large body of citizens, little if at all inferior to them

in discipline and the use of arms, who stand ready to defend their rights

and those of their fellow citizens."





Many delegates to the state conventions that ratified the Constitution

expressed discontent over the Federalists' assurances about existing

protection of the right to possess arms. New Hampshire provided the key

ninth vote that ratified the Constitution only after receiving assurance

that a Bill of Rights would be drafted with a protection for the right of

individuals to own firearms. The New Hampshire delegates suggested that the

new Bill of Rights provision be worded as follows: "Congress shall never

disarm any citizen unless such as are or have been in Actual Rebellion."



At the Virginia convention, Patrick Henry had stated, "Guard with jealous

attention the public liberty. Suspect every one who approaches that jewel.

Unfortunately, nothing will preserve it but downright force. Whenever you

give up that force, you are ruined. . . . The great object is that every

man be armed. . . . Everyone who is able may have a gun." During the

ratification process five state conventions demanded protection of the

right of citizens to bear arms, more than demanded protection of free

speech.



The first Congress delegated the duty of writing a Bill of Rights to James

Madison.Madison obtained copies of state proposals and attempted to combine

them in a succinct passage that all state delegates would accept. The

original intent of the second amendment remained consistent with the

intentions of the states that demanded it.



Madison's use of the phrase "well-regulated militia" was not a code word

for theNational Guard (which did not even exist). The phrase was not

esoteric, but had acommonly-accepted meaning. Before independence was even

declared, Massachusetts patriot Josiah Quincy had referred to "a

well-regulated militia composed of the freeholder, citizen and husbandman,

who take up their arms to preserve their property as individuals, and their

rights as freemen." "Who are the Militia?" asked George Mason of Virginia.

He answered his own question: "They consist now of the whole people." The

same Congress that passed the Bill of Rights, including the Second

Amendment and its militia language, also passed the Militia Act of 1792.

That act enrolled all able-bodied white males in the militia and required

them to own arms.



Although the requirement to arm no longer exists, the definition of the

militia has stayed the same; section 311(a) of title 10 of the United

States Code declares, "The militia of the United States consists of all

able-bodied males at least 17 years of age and . . .under 45 years of age."

The next section of the code distinguishes the organized militia (the

National Guard) from the "unorganized militia." The modern federal National

Guard was specifically raised under Congress's power to "raise and support

armies," not its power to "Provide for organizing, arming and disciplining

the Militia." (House Report No. 141, 73d Cong., 1st sess. (1933), pp. 2-5.

Congress did so in order that the National Guard could be sent into

overseas combat. The National Guard's weapons cannot be the arms protected

by the Second Amendment, since Guard weapons are owned by the federal

government. 32 U.S.C. $ 105[a][1].)



James Madison wrote the Second Amendment in order to prevent the right to

bear arms from vesting only in "select militias" like state national guard

units. The Second Amendment was written to secure an individual right to

bear arms that provided an ultimate check on government and any of its

"select" militias.



The core of the Second Amendment therefore was that state militias --

comprised of individual citizens bringing their own guns to duty -- would

have the power to overthrow a tyrannical federal government and its

standing army.



To persons accustomed to think of the "right to bear arms" as a privilege

to own sporting goods, it must seem incredible that the authors of the

Second Amendment meant to ensure that the American people would always own

weapons of war. But that is precisely what the historical record

demonstrates. The only commentary available to Congress when it ratified

the Second Amendment was written by Tench Coxe, one of James Madison's

friends. Coxe explained:



	The powers of the sword are in the hands of the yeomanry of America

	from sixteen to sixty. The militia of these free commonwealths,

	entitled and accustomed to their arms, when compared with any

	possible army, must be tremendous and irresistible. Who are the

	militia? Are they not ourselves... Congress have no power to disarm

	the militia. Their swords, and every other terrible implement of

	the soldier, are the birth-right of an American ... The unlimited

	power of the sword is not in the hands of either the federal or

	state governments, but, where I trust in God it will ever remain,

	in the hands of the people.





--

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                 San Diego, CA 92152-6800 | without an apple in its mouth?

 malloy@nprdc.navy.mil < different | It's like a martini without the

 malloy@crash.cts.com < systems | egg.

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