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Old December 31, 2012, 02:01 AM   #4
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Join Date: February 1, 2011
Posts: 348
There is an argument that can be made, but for years it was an argument that appeared foreclosed by Miller v. US. Miller dealt with the constitutionality of a conviction for possession of a short barrelled shotgun under the 1936 Firearms Act, which it must be remembered, avoided 2A issues by being drafted primarily as a tax measure. Leaving those details aside for now, let's start with the original intent or purpose of the 2A as reflected in the text. The Framers were extremely leery of a powerful central government, an instrument they felt was too easily manipulated to become a tyranny. The original Articles of Confederation are a direct result of this belief ,as they created thirteen sovereign states and a "federated" government that was subservient to the will of the states and intended as an organ for speaking with a single voice to the rest of the world and for providing for the common defense against foreign threats and invasions. But at the same time, State supremacy was key: a standing army was prohibited to the federal government, and the power to make war, as in the current Constitution, was reserved to the states through their Senate representatives. (At the time, senators claimed primary allegience to their originating colonies/states, and were usually positions appointed directly by a state governor or legislature). The main weakness of this form of government is that the central government was too weak, and could not compel the individual states to contribute to the cost of governmental functions, including most notably the maintenance of the Office of the President and the outfitting of the Navy. Without funds or a means to raise them, the government failed.

So we move to the Constitution, in many ways the same as the Articles of Confederation, but providing for a more powerful national government. The principle parts of the document are the descriptions of the three branches of government, a structure again intended to balance the powers against each other such that no branch could usurp total power. This is why there are two houses of Congress, one representing the People and the other representing the states. Powers were expressly delegated from the People and the States to the Federal Government so that it could act and maintain itself; and powers not delegated were reserved.

During the ratification process, numerous amendments were proposed, which eventually were distilled into 12 amendments, each of which was intended to clarify the scope of the federal government and the rights maintained by the People and by the States. AS one scholar has noted, the ten eventually adopted are primarily voiced in the negative, i.e., specifying what powers the federal government does NOT have. (Art. I: "Congress shall make no law"; Art II: the "shall not be infringed"; Art.III: "No soldier shall..."; Art. IV: "The right of the People...shall not be violated"; Art. V:" No person shall be held..., nor shall any person..."; and see also XVIII. IS and S. The Tenth is critical: "The powers not delegated to the United States by the Consitution, nor prohibited to it by the States, are reserved to the States respectively, or to the People."
Now we get to the nitty gritty. Again, the federal government was not permitted to raise a standing army, and the states, through the Senate, reserved to themselves the power to make war. At the time, the idea was that the individual state militias would provide the troops, as necessary, to repel invaders etc, under the unified command of the President as Commander in Chief. (West Point was founded to provide the senior officer corps for this army of militia.) Under this structure, then it was foreseen, in fact absolutely necessary, that the individual militias have and maintain all such implements as were necessary for prosecuting wars, including but not limited to muskets, pistols, cannon, rockets, etc etc etc. To summarize, the People made up the Militias, the Militias made up the companies, battalions, divisions and corps, and they all came together under the unified command of the President of the United States.
Now take a look at the Second Amendment in the context of this historical background. The federal government being forbade an army, only the States could raise the troops, from the People, to make that army. And it was important that those militia be trained to avoid the hazards of war, as was most strikingly observed by Lafayette when he visited Valley Forge and agreed to train the rabble to face on its own terms the most powerful army on the face of the planet. "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." The natural conclusion the Founders intended should be reached is that the federal government was not delegated the power to regulate firearms and implements of war; that power was reserved to the States and the Right to the People.
Bottom line? The logical conclusiuon is that the federal government does not have the authority delegated to it by the People or the States to regulate firearms, and all firearms bans, with the exception of "dangerous and unusual weapons (Miller v. U.S.) that inferentially were designed for nefarious ends and not for weapons of war or other proper uses, could be controlled.

The big caveat to the forgoing is that I haven't figured out the ramifications of the Civil War and the rise of federal sovereignty over the states as a result of and after that War, especially as promulgated through the commerce clause. This battle is still being fought today by states declaring that firearms manufatured locally are not subject to the commerce clause and federal control (in that the commerce clause on its face provides for the regulation of interstate commerce only). Then there is the fact that we do have a standing army, and navy and airforce, etc, and that the militia has in most part been replaced almost entirely in its function by the police and national guard. With these factors in mind, Can the federal government legitimately argue that the right to keep and bear arms is not infringed by the forbidding of interstate sales of particular types of weapons? Or is the better argument that the delegated power (commerce) cannot impair a right reserved to the people--that the balance between a retained power/right and a federal power must necessarily be decided in favor of the right?
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