Re: US Constitution query

["Robert J. Hansen" <rjhansen@xxxxxxxx>]

> A while back - mid-political barney- a list member
> made a comment that the part of the constitution that
> specifically said 'Blah blah organised militia blah
> blah' had never actually been legally interpreted. Do

Correct.  The United States has three independent branches of
government: the Executive, the Legislative and the Judicial.  These
branches are interconnected but independent, and the Constitution itself
is framed in such a manner as to perpetually keep the three branches
clawing at each other's throats.  (Every time I hear someone gripe about
how inefficient and incompetent the US Gov't is, I have to suppress a
smile.  That's a sign the Constitution is working exactly as intended.)

It is the Judiciary's job to determine what the Constitution means; the
Legislature's job to pass laws that are within Constitutional limits;
and the Executive's job to execute those laws.  Thus, it doesn't matter
a tinker's damn what the President or Congress say the Constitution
means (whether in the 2nd Amendment or any other part): the only
opinions which possess any weight are those of the courts, and the only
definitive authority is the Supreme Court.

The United States Supreme Court has not heard a 2nd Amendment case since
1939, and that case was very limited in scope.  Someone was being
prosecuted for possessing a sawed-off shotgun and challenged the law on
Constitutional grounds.  The Supreme Court decided that the purpose of
the militia was a military one, and thus, weapons which possessed no
military value received no Constitutional protection.  That was the
limit of their decision, however; they did not examine the issue in
greater depth.

Many people on both sides of the debate will claim the existence of
Supreme Court precedents to back them up.  Unfortunately, it just ain't
so--the Supreme Court has mentioned the Second Amendment a few times in
passing since 1939, but only once this century has the Supreme Court
ever heard a case directly involving the Second Amendment.

> that for me (off-list if required) if possible. I'd
> like a little legal background on any specific court
> cases that have tried to overthrow that part of the
> constitution and if I understand the comment

No court in the land can overthrow any part of the Constitution.  The
Constitution is inviolate by the government; the only agency which is
capable of overthrowing the Constitution is the people themselves.

Well, that's how it works in theory, at least.  In practice, the US
Gov't has a shameful history of walking all over the Constitution
whenever the people take their eyes off the government for even an
instant.

> correctly, there haven't been any?

Not since 1939, and that case was very narrowly-focused.  It resolved
the matter before the Court, but gave very little insight into the
broader issues of the Second Amendment.

... If anyone on the list has the specific name of the '39 SCOTUS
decision, please feel free to jump in and correct me.  I can't think of
it for the life of me right now.