[Bushwacker]

Sorry. Pulled post. Getting carried away. BW

[MCaver]

[MtnGoat]

Adams got it entirely right. The only problem is, those who worship security over liberty, safety over risk, generally will not leave, and are not peaceful, because they're sure everyone else needs the benefit of their moral guidance. The idea of respecting others rights to exist free of their "help" never seems to occur. I generally don't care who or what you support or why, as long as *you* do the supporting for what you claim is a great goal, we're kosher. But it never gets left at that. There seems to be this elemental need to impose their vision of social good upon everyone, and being able to coexist without demanding everyone serve their version of "good" does not seem to be an option for them.

[Dante]

Here's one for you MtnGoat: "It does not require a majority to prevail, but rather an irate, tireless minority keen to set brush fires in people's minds," --Sam Adams

[MtnGoat]

It's never fails to amaze me how simple observations like that are timeless, yet many folks somehow think the human animal has changed over the years. What we learn has changed, our feelings, motivations, and all the rest have changed little. That quote works as well now as the day it was written, and then you can go back and read ancient works thousands of years old and see the same motivations at work, just without the aid of the age of technology.

[Allison]

Somebody please remind me again what the relevance of this thread is to hiking.....this IS a hiking website, now innit? Ah, nutz, I'm starting to sound like Bozo!! Argh!

[MtnGoat]

that's why it is in the bar -n- grill! All hiking all the time makes Jack boring. Some find politics boring. Or obnoxious. Or both. Shoo away now lest ye be deluged with Thomas Paine, Adam Smith and more Adams. With a smattering of Rand, just for you!

[Erik the Nav]

Re: the "isn't this the National Guard" question. Next time we have a social, I'll be glad to show you my (long out of date) National Guard ID card - it is clearly marked "Armed Forces of the United States - Reserve Component of the Army." Perpich v. US (1989? going on memory here, after an evening hike and a glass of wine) ... Anyway, Perpich v. US was a Governor of a State (Mass.?) Suing the US Govt. -- oops, earlier than that, Reagan Era, I think, though maybe the case wasn't heard 'til then.) Ahem. I'll try to stay on track. The Governor (Perpich) sued 'cause he didn't was a Guard Unit from his State deployed to Guatemala. He lost. Annual Training for National Guard units is Federal duty, and Federal Orders override the Governor's privilge of calling out the National Guard of a State for emergency duty. The remnant of the -Organized- Militias of the States exist in about half the States of the Union, which maintain 'State Guards' (or by other names). Washington State's has less than 100 slots, and they are mostly trained to help with Civil Defense and disaster relief - and to occupy and secure Guard armories, which -are- State property. The whole National Guard situation is quite mixed-up. But, from the Dick Act (1905?), establishing the modern National Guard organization, to the Perpich v. US decision, it has become much more a Federal Creature. The National Guard tradition goes back to the militia of the states and other early American Militias (my own Regiment traces its history to the Oregon Volunteers, a territorial militia - but is nonetheless and Regiment of the US Army). First to Assemble! "The Militia" in the general sense is constituted of all who are capable of bearing arms in defense of the State. The existing Militia Acts of the Federal Gov't define the militia as Males aged 18 to 45. I don't think this bears up well under modern sensibility (that is, there's plenty of folks out of the age range and plenty of females more capable bearing arms than many males 18-45). The concept certainly antedates the existence of a US Government. Some of the greatest early writing on the value of a militia is in Machiavelli (the last pre-modern or first modern political theorist? Not to be dismissed without a broader reading than _The Prince_). In Anglo-Saxon political and cultural tradition, the power and importance of the militia has been very strong. It faded drastically after the Civil War in the US. It is often perceived that there was no conscription in the US prior to the Civil War. There was no -Federal- conscription, but most (all?) states required free males of the appropriate age to appear for drill, usually once a month, providing their own arms. This amounted to conscription, and a substantial tax upon those who did not already own arms for other reasons. Ideally, it also amounts to a huge check on centralized power. Article I, Section 8 speaks to how the militia is trained and organized. Note the exception that States may appoint officers - this is still exercised in the National Guard, where some States run Officer Candidate Schools, and of course, Governors select their own Adjutant Generals. There were also volunteer "elite" (or perhaps more accurately "exclusive club") militias - training and equipping themselves to a higher standard. There's an independent militia artillery unit in Boston that has been in existence since the early 17th Century. I believe it now functions mostly as an exclusive club. This whole system pre-dates American Independence, and is part of the Anglo-Saxon tradition. Some of the colonies had a system of labor taxation - that is, you owed so many days a year working on public works, etc. Members of "Elite" militias were excused in lieu of additional service on frontier patrol, etc. So, after a quick (heh, or not so quick, I'm amazed you're still reading) off the top of my head babble of history/background, what is "the militia"? It ain't that simple. Or maybe it is. It's you and me. Notably, a bunch of avid backpackers/hikers/climbers are a good head start on competent up to snuff militia members. Did you know that's what the NRA was founded for? Specifically, to improve marksmanship skills. It was founded after the Civil War by some retired officers who were disturbed by the low level of marksmaship of soldiers during the war. One other note: the initial phrase of the Second Amendment (guaranteeing, not granting, as with the rest of the Bill of Rights) - the initial phrase "A well regulated militia, being necessary to the security of a Free State. . ." is explaining -why- the rest of the Amendment. It is stating the -goal- of securing this right. The ultimate goal being the security of a Free State, this being enabled by a well regulated militia. In our modern common useage, we're used to "regulated" meaning strangled with red tape. That is not the only meaning of the word. It also means "functioning well, according to spec" Websters: 1. To adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws. The laws which regulate the successions of the seasons. --Macaulay. The herdsmen near the frontier adjudicated their own disputes, and regulated their own police. --Bancroft. 2. To put in good order; as, to regulate the disordered state of a nation or its finances. 3. To adjust, or maintain, with respect to a desired rate, degree, or condition; as, to regulate the temperature of a room, the pressure of steam, the speed of a machine, etc. That's more than enough - or just barely a start, really. I've been trying to stay out of these 'gun debates,' properly addressing them taking too much time and thought, but the meaning and history of "militia" has been something of an interest of mine, and I just had to chime in with a little bit on it. sincerely submitted for your consideration, -Erik

[Dante]

[Malachai Constant]

Until the 14 th amendment after the civil war the Bill of rights dd not apply to the states., for this reason the Federarist papers etc. are largely irrelevant. I agree that the 2nd was originally intended to prevent federal tyrany. The Supremes have interpreted it not to be an individual right which is why you can be prosecuted for having a sawed off shotgu, just ask Randy Weaver. The constitution also provides for how to settle disputed presidential elections and that did not stop them. Eric is mostly correct about militia. The reached greatest prominace before the Civil War when they were increased to prevent Slave Rebellions after Nat Turner and later Jim Brown, ever wonder why the sothern states were able to have an army in the civil war? After that war they were largly eliminated with the change becoming official with the National Guard. I believe WA State can still conscript folks in themountains to fight fires etc. but this has not been done since the 50's. I can remenber it happening to my dad once. It would be a disaster at the present time. enough of my mispelled rant.

[Dante]

[Dante]

Second Amendment--Bearing Arms A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed. In spite of extensive recent discussion and much legislative action with respect to regulation of the purchase, possession, and transportation of firearms, as well as proposals to substantially curtail ownership of firearms, there is no definitive resolution by the courts of just what right the Second Amendment protects. The opposing theories, perhaps oversimplified, are an ``individual rights'' thesis whereby individuals are protected in ownership, possession, and transportation, and a ``states' rights'' thesis whereby it is said the purpose of the clause is to protect the States in their authority to maintain formal, organized militia units.\1\ Whatever the Amendment may mean, it is a bar only to federal action, not extending to state\2\ or private\3\ restraints. The Supreme Court has given effect to the dependent clause of the Amendment in the only case in which it has tested a congressional enactment against the constitutional prohibition, seeming to affirm individual protection but only in the context of the maintenance of a militia or other such public force. \1\A sampling of the diverse literature in which the same historical, linguistic, and case law background is the basis for strikingly different conclusions is: Staff of Subcom. on the Constitution, Senate Committee on the Judiciary, 97th Congress, 2d Sess., The Right to Keep and Bear Arms (Comm. Print 1982); Don B. Kates, Handgun Prohibition and the Original Meaning of the Second Amendment (1984); Gun Control and the Constitution: Sources and Explorations on the Second Amendment (Robert J. Cottrol, ed. 1993); Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (1984); Symposium, Gun Control, 49 Law & Contemp. Probs. 1 (1986); Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989). \2\Presser v. Illinois, 116 U.S. 252, 265 (1886). See also Miller v. Texas, 153 U.S. 535 (1894); Robertson v. Baldwin, 165 U.S. 275, 281-282 (1897). The non-application of the Second Amendment to the States is good law today. Quilici v. Village of Morton Grove, 695 F. 2d 261 (7th Cir. 1982), cert. denied, 464 U.S. 863 (1983). \3\United States v. Cruikshank, 92 U.S. 542 (1875). --------------------------------------------------------------------------- In United States v. Miller,\4\ the Court sustained a statute requiring registration under the National Firearms Act of sawed-off [[Page 1194]] shotguns. After reciting the original provisions of the Constitution dealing with the militia, the Court observed that ``[w]ith obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted with that end in view.''\5\ The significance of the militia, the Court continued, was that it was composed of ``civilians primarily, soldiers on occasion.'' It was upon this force that the States could rely for defense and securing of the laws, on a force that ``comprised all males physically capable of acting in concert for the common defense,'' who, ``when called for service . . . were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.''\6\ Therefore, ``[i]n the absence of any evidence tending to show that possession or use of a `shotgun having a barrel of less than 18 inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.''\7\ \4\307 U.S. 174 (1939). The defendants had been released on the basis of the trial court determination that prosecution would violate the Second Amendment and no briefs or other appearances were filed on their behalf; the Court acted on the basis of the Government's representations. \5\Id. at 178. \6\Id. at 179. \7\Id. at 178. In Cases v. United States, 131 F. 2d 916, 922 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943), the court, upholding a similar provision of the Federal Firearms Act, said: ``Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well-regulated militia.'' See Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (dictum: Miller holds that the ``Second Amendment guarantees no right to keep and bear a firearm that does not have `some reasonable relationship to the preservation or efficiency of a well regulated militia'''). --------------------------------------------------------------------------- Since this decision, Congress has placed greater limitations on the receipt, possession, and transportation of firearms,\8\ and proposals for national registration or prohibition of firearms altogether have been made.\9\ At what point regulation or prohibition of what classes of firearms would conflict with the Amendment, if at all, the Miller case does little more than cast a faint degree of illumination toward an answer. \8\Enacted measures include the Gun Control Act of 1968. 82 Stat. 226, 18 U.S.C. Sec. Sec. 921-928. The Supreme Court's dealings with these laws have all arisen in the context of prosecutions of persons purchasing or obtaining firearms in violation of a provisions against such conduct by convicted felons. Lewis v. United States, 445 U.S. 55 (1980); Barrett v. United States, 423 U.S. 212 (1976); Scarborough v. United States, 431 U.S. 563 (1977); United States v. Bass, 404 U.S. 336 (1971). \9\E.g., National Commission on Reform of Federal Criminal Laws, Working Papers 1031-1058 (1970), and Final Report 246-247 (1971). This document is sponsored by the United States Senate on the United States Government Printing Office web site. http://www.access.gpo.gov/congress/senate/constitution/amdt2.html OK--I'm done. What can I say. I don't even own a gun, but I have a strong interest in the debate. I'll shut up now

[MtnGoat]

You seem to have quite a knack for digging up documentation, how about some of the letter and comments of the founders concerning their intent? If I recall correctly, those who wrote about this amendment *specifically* indicated it's application to *individuals* as a natural right to individual means of self defense, wether against individuals or state tryanny.

[Malachai Constant]

Several of the state constitutions under the articles of confederation had bills of rights had language stating it was an individual right for prevention of tryanny and for personal protection. Some also mentioned hunting. I seem to recal Penn and NH. I am sure they are available on search.

[Backpacker Joe]

Well now, this has turned into another good topic! Thanks for all the replys. TB