"Ed Huntress" wrote in message
...
"The Watcher" wrote in message
...
On Sun, 28 Nov 2004 00:37:51 -0500, Cliff wrote:

(snip)
Hence, does the need for the 2nd still exist?

I recommend professional help for this obsession on imaginary "needs".

OTOH It might be an issue of State's Rights ...?

Yeah, or people's rights, like the 2nd Amendment states. :/
Bad case of denial you got going there, Cliffie.

You're going to get in over your head on this one, Watcher, if you keep it
up. In one sense, Cliff is right: the function of the militia has been
superseded, both in fact and under law. The 2nd is at least partially
obsolete and non-functional.

On the other hand, if you're going to use historical references to defend
your case of "people's" rights, you're going to find yourself right back
in
the lap of the militia. Look at the references in the Emerson case, for
example. They don't deny an individual RKBA, but the overwhelming weight
of
the historical support comes from the need for the *common defense*, with
almost nothing that can be tied to the 2nd in relation to *personal
defense*. The versions of the 2nd that were proposed by a few states,
which
included other reasons than the militia phrase, were rejected in the
writing
of the actual amendment.

Furthermore, you have to look at the legal status of the Bill of Rights at
the time it was written. It was a set of prohibitions on the FEDERAL
government -- promises by the federal government to the states that they
wouldn't usurp their authority or the rights that the STATES presumed for
their citizens, to satisfy the demands made by several states, in order
for
them to ratify the Constitution. Nowhere in the history of the
Constitution,
nor in Supreme Court rulings since then, has the 2nd been "incorporated."
In
other words, states' rights still apply to the 2nd, as long as the states
don't construe to deny the federal government its authority to call up
state
militias for federal service.

If you think it's simple, it isn't. It never was. The route by which the
RKBA was reached by the 5th Circuit Court was a back-door one, by way of
the
history supporting an unorganized militia for the common defense. If the
S.C. finds in favor of an RKBA, if it ever hears such a case, it will be
by
the same route. The fact that the unorganized militia is functional only
in
theory might complicate a S.C. ruling, but not necessarily so. Originalist
Justices probably would find about the same way the 5th Circuit Court of
Appeals found in Emerson.

But not by analyzing the grammar of the 2nd. It's a cockeyed sentence,
anyway; a nominative-absolute construction, with only one clause, and a
preamble phrase of questionable relation to the clause. The intent of the
2nd isn't going to be found in a dictionary or a grammar book. The 5th
Circuit Court's analysis in the Emerson case is as close as anyone is
going
to get to it.

Ed Huntress

Title 10 U.S.C. Sec. 311(a): "The militia of the United States
consists of all able-bodied males at least 17 years of age and, except
as provided in section 313 of title 32 [National Guard age
limitations], under 45 years of age who are, or who have made a
declaration of intention to become, citizens of the United States and
of female citizens of the United States who are members of the
National Guard." Section 311(b: "The classes of the militia are (1)
the organized militia, which consists of the National Guard and the
Naval Militia; and (2) the unorganized militia, which consists of the
members of the militia who are not members of the National Guard or
the Naval Militia."

%%%% I'm a member of the unorganized militia in my state.