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To: robertpaulsen
Apparently the majority of that court believed that the militia clause of the amendment modifies the RKBA clause, and therefore the amendment only protects a right to possess arms that are . That would explain why they seem to stress the fact that no evidence was presented to show that a short barreled shotgun has utility as a militia weapon. That has led to a belief by many gun rights advocates that if such evidence had been seen by the court the decision would not have vacated the appellate court's reversal of Mr. Miller's conviction.

For jurists who accept the theory that only arms suitable for militia use were envisioned by Madison when he wrote the amendment, as the majority opinion written by Justice McReynolds indicates the Hughes court did, it naturally follows that they would also believe that possession of a gun that has no utility as a militia arm is subject to regulation by Congress. But I think that theory is inconsistent with the intent of Madison's proposed amendment which was approved by Congress and and ratified by the states. In addition to the comments by Madison himself concerning the people's right to possess private arms, ten days after Madison introduced the 2nd Amendment in Congress Tenche Coxe wrote and published; "As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, . . . the people are confirmed . . . in their right to keep and bear their private arms."

Coxe's comment was given Madison's blessing and was widely reprinted without contradiction by him. That should be enough to give a good indication of Madison's intent for his amendment concerning the possession of private arms of all kinds, and not just those with "utility" as militia armament. Since Madison made no secret of the amendment's intent it must have been known to the members of Congress who ratified the amendment, which indicates their intent as well.

890 posted on 03/10/2007 6:13:53 PM PST by epow (Conservative Republicans win national elections, RINOs lose national elections, history proves it)
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To: robertpaulsen
The old proverb is right, haste does make waste. The first sentence of # 890 should have read;

"Apparently the majority of that court believed that the militia clause of the amendment modifies the RKBA clause, and therefore the amendment only protects a right to possess arms that are suitable for arming a militia."

891 posted on 03/10/2007 6:23:01 PM PST by epow (Conservative Republicans win national elections, RINOs lose national elections, history proves it)
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To: epow
"Apparently the majority of that court believed that the militia clause of the amendment modifies the RKBA clause, and therefore the amendment only protects a right to possess arms that are suitable for arming a militia."

It seems to me that the Miller court was thinking along those lines.

"But I think that theory is inconsistent with the intent of Madison's proposed amendment which was approved by Congress and and ratified by the states."

Not necessarily. Keep in mind the second amendment only applies to the federal government and concerns the preservation of the state militia. It says that the federal government cannot infringe on its formation.

As far as Madison and Tenche Coxe is concerned, their individual RKBA was protected by their state. I doubt either man would turn over the protection of their individual right to the newly formed federal government.

"Since Madison made no secret of the amendment's intent it must have been known to the members of Congress who ratified the amendment, which indicates their intent as well."

I really don't think there was a whole lot of enthusiam for carte blanche gun ownership. I recall Jefferson's proposal to the Virginia legislature in 1776 when they were writing the Virginia State Constitution. He wanted, "No free men shall ever be debarred the use of arms."

It was rejected. Instead, the Virginia legislature opted for:

"SEC. 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power."

A little more wordy than Jefferson's suggestion.

912 posted on 03/10/2007 8:09:27 PM PST by robertpaulsen
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