Bang / Guns
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Title: The GOP War on Private Weapons In America
Source:
ZeroGov
URL Source: http://zerogov.com/?p=4048
Published: Jun 1, 2015
Author: Bill Buppert
Post Date: 2015-06-04 05:54:11 by Deckard
Keywords: None
Views: 28205
Comments: 85
Publisher’s Note: I am a resigned life member of the NRA. I am a non-voter. I think the Constitution is a diabolically clever instrument to make a slave people think they are free. I am in favor to the total decriminalization and deregulation of all weapons systems across the Fetid Plain. There is not a weapons law on the books at any level of government in America I support. The only disarmament program I can get behind is all statist badged armed employees should be totally ungunned of all lethal and non-lethal systems until all government police forces are disbanded nation-wide. Things would be sporty, for about an hour. I have confined this analysis to Republican mischief at the Federal level and not the dishonorable disarmament efforts at the state level which deserves their own examination. I also explicitly say private weapons because Republicans have a child-like reverence for the power of the state and provision an unlimited number of arms to government agents of every stripe at the drop of a hat and using someone else’s money. Their undeniable love affair with the warfare state has metastasized into an orgiastic passion for all things badged government agent domestically. -BB “Black men with rifles marched into the state capitol building in Sacramento. In response to that, a bill was passed which became California’s first gun control law and eventually became the model for a national gun control law. So the (Black) Panthers were really the first gun rights movement. And the response to them — which was, by the way, a Republican response, authored by a Republican Congressman and Ronald Regan who was governor at the time…” – Historian Thaddeus Russell [ Editor’s Note: The first weapons prohibition law in California would be in 1854: “On March 21, 1854, Assembly Bill 80 was passed, making the sale of firearms and ammunition to “Indians” a misdemeanor.”] Philosophically, your stance on gun ownership tells me a lot of what your position is on freedom. If you’re a weapons prohibitionist, you tend to be a coercionist and government supremacist. I dedicate this essay to the fruitless enterprise of voting and hope to show the Republicans or friends who are that the Grand Old Politburo is just as anxious as the Democrats to disarm you. Of course, the post-Second American Revolution Democrats have become a party of weapons prohibition but like all apparatchiks they consistently play philosophical whack-a-mole to plug new holes emerging in the totalitarian dike that separates Helots from their freedom. Two left wings of the same predatory bird. At least the Democrats are honest enough about their economically illiterate Orwellian love affair with the Leviathan state since the 1930s. I would suggest that the only difference between the parties is the spelling and nothing else. Both parties are death cults intent on piling on more and more freedom destroying regulations, laws and edicts that smother every ember of freedom that pokes out of the long-dead scorched earth of liberty that the government has firebombed since 1791. I can’t tell you how many times I’ve heard the limited government apologists mewling about the GOP protection of gun rights and I wish to put that fabrication to rest. The Republicans hate atomistic ownership of weapons as much as the Democrats. Just their consistent hero worship of the cop class and constant fellating of the police state should be enough but it is not. I will destroy the perception in detail. Let’s establish something. You can’t own a thing unless you control it. You don’t own your house even once you pay the mortgage because unless you pay your tribute to local taxing authority, your home will be seized. In America you lease everything from the government and in the case of guns from the Federal government. Unless you managed to be smart and get all your guns off paper and never used a 4473 to buy them, you are on a list. A confiscation list because that is what all registration does. registration just makes the follow-on seizure more bureaucratically efficient. Ask both the holders of gold and German Jews in the 1930s. They were both victims of government seizure via registration. Federal Firearms Licenses (FFL) are simply extensions of the BATFE; gun stores are non-funded field offices of the ATF much like banks are non-funded informant networks that report to the IRS. Interesting that the 4473 is a violation of the Fourth and Fifth Amendment being used to deny the alleged Second Amendment protection. But then again, the Constitution was built to be a predatory doomsday machine to create the largest government the planet has seen in recorded history. The whole notion of the Second Amendment is a sham and a chimera. I’ve spoken on this at length before and won’t bore you with the details here. A conditional right subject to voiding by the mob and their executors in the government is no right at all in any sense. The endless carping and mewling by gun owners and organizations may give the illusion of controlling the debate but the fat lady has already sung. In the sense that a bird doesn’t know what its wings are for since it spent its life in a cage, my notion that I should have free and unrestricted commerce in all weapons to include fully automatic weapons, suppressors, grenades and anything found on the arms market today is received by the Elmer Fudd gun owners as sheer lunacy. Cash and carry, no registration or licensing. None. But…but…but…what about the children as they run screaming to the nearest coproach to inform on their fellow Helot. Again, registration is simply a necessary precondition to confiscation and seizure. As usual, police (the pointy end of political action) antipathy and outright fear towards firearms and the Police Chiefs’ Associations stand behind every major component of disarming legislation coming down the pike is per usual for them. One can see this in the thousands of videos available where cops are frightened and alarmed by any taxpayer with a gun. The atomistic ownership of advanced weapons unregulated and unregistered makes every politicians’ bowels soupy except for a select few one could count on one hand over a span of a hundred years. All statist apparatchiks are deathly afraid of an armed population and always have been. A subject population with firearms that are the equivalent of the armies the government maintains? How absurd. The Grand Old Politburo was built on war, bloodshed and conflict just like the Democratic Party; the GOP cheering on the conflicts created by the Democrats in WWI, WWII, Korea and Vietnam. As a political organ, its birth in fire during the Second American Revolution makes it assume that peace is always secondary to the bludgeon. If one doesn’t believe that, excepting the America First movement and Taft, the GOP has been a booster of the warfare state since the end of the War to Save Josef Stalin. Both Lincoln and Teddy Roosevelt provided plenty of evidence of bloodthirstiness and imperial ambition during their respective reigns of terror in the Offal Office. While the two models accepted by the government-legal complex in America appear to champion a collective and individualist interpretation, the following survey will prove that the collectivist interpretation has won out. This one endorses the notion that in the end only the government has the right to own and regulate weapons without question. How anything beyond an individual can have rights, I don’t know but that is part of what ails the American Orwellian state. In a future essay, I will examine the perfidy and evil the government demonstrated until 1934 to close the loop on that particularly ignored part of firearms history. For the sake of keeping the evidence temporal to Republican distaste for civilian gun ownership in the last eighty years, we’ll concentrate our efforts there. Once the Volstead Act was repealed in December of 1933, the government was desperate to find a way to keep their newly minted police powers and legions of G-men employed to enforce Prohibition so the 1934 National Firearms Act was born. A new Federal prohibition began – the continuous and unrelenting assault on the a priori right to keep and bear defensive instruments in the hands of free men The 1934 NFA federally regulated machine guns, suppressors, short barreled rifles and shotguns, suppressors, and “destructive devices which included grenades and hundreds of items the ATF added at their leisure bureaucratically to a ban list or highly regulated. This was the first notion at the Federal level of using the imprimatur of sporting purposes not the 1968 Gun Control Act as is popularly imagined such as this from the text of the wretched bill: “Any firearm with a bore over 0.50 inch except for shotguns or shotgun shells which have been found to be generally recognized as particularly suitable for sporting purposes.” No Republican opposition. You will also note that America’s preeminence as a firearms innovator, especially in automatic weapons, dropped precipitously after the heavy regulation and ban on garage innovation occurred. The development of the M60 machine gun is Exhibit A. The Federal Firearms Act of 1938 (FFA) imposed a federal license requirement on gun manufacturers, importers, and persons in the business of selling firearms. This created the infamous FFL controls on commerce. No Republican opposition. One should carefully read the nonsense passed by the Supremes in 1939 in US v. Miller in which sawed off shotguns became a regulated item. Here we see the tortured logic on display of how the government can start to enforce restrictions on military-type weapons in spite of the previous hundreds years jurisprudence talking about the military applicability of weapons choices in the individualist interpretation of the Second Amendment. Mind you, in contretemps to their own tortured conclusions in the rendering of the verdict. Neither the defendants nor their legal counsel appeared at the Supreme Court for the case. A lack of financial support and procedural irregularities prevented counsel from traveling. It’s worth noting that the Supremes clearly stated that military weapons were protected but the length of the weapon seemed to be the operative cause for the decision. A mere generation before shotguns had been employed in WWI by US forces. No Republican opposition. Fast-forward to 1967 and we have Republican Governor Ronald Reagan signing the Mulford Act, which repealed a law allowing open carrying loaded firearms in public. He did this in response to the Black Panthers carrying loaded weapons to the steps of the Big House in Sacramento. Tease out the facts and a law was passed to confirm the “bearing” of weapons but repealed? Before that, believe it or not, California had the now popular notion of Constitutional Carry for long arms and side arms. What a tangled web they weave. No Republican opposition. This was just before the infamous passage of the Gun Control Act of 1968 which severely curtailed gun rights across the board. The now extinct JPFO made a brilliant case for Senator Dodd; he was Vice-Chairman of the Review Board and later Executive Trial Counsel at the Nuremberg trials lifting the text almost entirely from the Nazi gun control laws in 1938. This would also create the noxious BATFE in 1968. And please keep in mind that a Democratic President passed this and twice as many Republicans as Democrats voted in favor of passage. You read that right. It was two Democrats, Colmer and Cellar who fought Johnson’s attempt to register all weapons in the United States. No Republican opposition. In 1972, Republican President Richard Nixon floats a proposal to ban handguns in America. To quote the scoundrel himself: “I don’t know why any individual should have a right to have a revolver in his house,” Nixon said in a taped conversation with aides. “The kids usually kill themselves with it and so forth.” He asked why “can’t we go after handguns, period?” Nixon went on: “I know the rifle association will be against it, the gun makers will be against it.” But “people should not have handguns.” The Firearm Owners Protection Act is passed in 1986 which makes illegal all machine guns manufactured after that date and signed by the same man who signed the Mulford Act in 1967. Despite a prohibition on a national registry the act nonetheless enabled the ATF to codify turning in all out of business 4473 transactions and more intensely ramp up inspection that recorded all these “bound book” transactions. In effect, creating a de facto national gun registry in the Federal books codified by law. No Republican opposition. “You do know that I am a member of the NRA and my position on the right to bear arms is well known,” Reagan said, speaking out in support of the 1994 Brady bill to create new background checks and a waiting period for gun buyers. “But I want you to know something else, and I am going to say it in clear, unmistakable language: I support the Brady Bill and I urge Congress to enact it without further delay.” In 1989, Bushevik I declared a ban on the import of cosmetically offensive “assault weapons”. This would be the prototype for the “Assault Weapons Ban“ in 1993. No Republican opposition. The idiotic Gun-Free School Zones Act of 1990 would be signed by Bushevik I in November 1990. Co-sponsored by Republican Senator Strom Thurmond, no less. No Republican opposition. Then the delightful and diabolical Brady Handgun Violence Prevention Act which started the Orwellian NICS system for those stupid enough to purchase weapons from a store-front gun dealer with an FFL. Then in 1993, the US passes the Federal Assault Weapons Ban (AWB). So far, we haven’t even discussed the silliness of infringement on these alleged Second Amendment protections. I am a Constitutional skeptic of the highest order but my friends who still worship the parchment can provide no explanation for how often the 2A is violated yet they happily think the whole wretched system works just fine. What was interesting in this vote on the AWB is that the majority of Republicans opposed it but the Democrats fielded 64 nay votes versus the GOP nay tally of 131 because 46 Republicans voted for the ban when the Democrats owned the Offal Office. Once Bushevik II is in office, he boldly claims that if the AWB comes across his desk for renewal, he will sign it because Americans shouldn’t own those types of weapons. He goes on to sign the NICS Improvement Act of 2007 which another Orwellian in the Federal pre-crime quiver for weapons ownership. Just another Big Brother improvement to data-basing potential malefactors. It’s an interesting thought experiment to replace all these laws with the word book where gun is and one sees that the war of ideas is far more dangerous to political control than anything else. The powers that be just haven’t gotten around to gutting free speech with the merriment they have enjoined destroying personal armament. Nor is there a single well-financed organization in America whose only task is to raze every Federal gun law to the ground and salt the earth. Until the Republican love affair with authority and wood shampoos is eradicated, no accord will be reached as the powerful armed government employee lobby continues to push for wholesale disarmament of all non-agents. Like drunk-driving, the entire predicate of the massive hoplophobic complex in political law enforcement is the concept of pre-crime. And then of course we have the 2008 DC v. Heller case in which the Republican appointed Supremes tell us about “dangerous and unusual” weapons that fly in the face of earlier findings on the germane necessity of military weapons to the 2A. Like Roberts, Scalia must think that pleasing the collectivist intelligentsia with his government supremacist nonsense is more important than mere freedom. Scalia wrote this nonsense in the syllabus for the decision. “Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [United States v.] Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.” I am amused that he hearkens to US v. Miller which on its face supports my contention to carry weapons in present use by the military. I repeat, the Second Amendment is worth as much as the Constitution in defending individual liberty and freedom: worthless. I so wish one vote had gone the other way in DC v. Heller so we could get on to resolving this firearms ownership issue once and for all. Even though it would be the hard way. I am amused that the Republican victories in November 2014 made folks think that freedom would ring. Not a chance. Have you heard any potential or employed functionary of the government propose to destroy every last vestige of Federal involvement over private arms in America? Didn’t think so. Two parties, same agenda; destroy all freedom where they find it. This brief expose simply provides evidence to the notion. Resist. “Guns are an abomination,” Nixon replied. According to Safire, Nixon went on to confess that, “Free from fear of gun owners’ retaliation at the polls, he favored making handguns illegal and requiring licenses for hunting rifles.” – William Safire, 1969
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#21. To: Deckard (#0)
The following is a bit fuller explanation from a law journal article. One minor correction is that at SCOTUS, the two bank robbers were Appellants rather than Defendants. Their attorney represented them pro bono (for free) in the trial court at Fort Smith, Arkansas. He was not obligated to represent them for free at SCOTUS and they offered no payment. Counsel communicated “[s]uggest case be submitted on Appellants brief.” The lower court held “that the NFA violates the Second Amendment by prohibiting the transportation of unregistered covered firearms in interstate commerce.” (Article below at p. 60, 67 PDF 14, 21) http://uknowledge.uky.edu/cgi/viewcontent.cgi?article=1263&context=law_facpub Brian L. Frye, The Peculiar Story of United States v. Miller, 3 N.Y.U. J.L. & Liberty 48 (2008). [36 pp. PDF] citations omitted. Brief pages are numbered 48 thru 82. Part of the Legal History, Theory and Process Commons, and the Second Amendment Commons. This Article is brought to you for free and open access by the Law Faculty Publications at UKnowledge. It has been accepted for inclusion in Law Faculty Scholarly Articles by an authorized administrator of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu. On April 18, 1938, the Arkansas and Oklahoma state police stopped Jack Miller and Frank Layton, two washed-up Oklahoma bank robbers. Miller and Layton had an unregistered sawed-off shotgun, so the police arrested them for violating the National Firearms Act (“NFA”). Surprisingly, the district court dismissed the charges, holding the NFA violates the Second Amendment.1 The Supreme Court reversed in United States v. Miller, 2 holding the Second Amendment does not guarantee the right to keep and bear a sawed-off shotgun as a matter of law. At 49 [PDF 3]: Seventy years later, Miller remains the only Supreme Court opinion construing the Second Amendment. But courts struggle to decipher its holding. Some find Miller adopted an individual right theory of the Second Amendment, some find it adopted a collective right theory, and some find it adopted a hybrid theory, protecting the right to possess a firearm in connection with militia service. Most recently, in Parker v. District of Columbia, the D.C. Circuit concluded Miller assumed the Second Amendment protects an individual right to possess and use weapons “‘of the kind in common use at the time,’” including handguns. Oddly, Second Amendment scholars have largely ignored Miller. While individual and collective right theorists alike claim Miller supports their position, most provide only a perfunctory account of the case. The few exceptions focus on the text of the opinion, rather than the history of the case, and the context in which it was decided. All conclude Miller is an impenetrable mess. At 66 [PDF 20]: As usual, the Solicitor General’s office drafted the government’s brief. In the absence of precedent, the government could not anticipate what theory the Court would adopt. Accordingly, it offered several reasonable but inconsistent arguments supporting the constitutionality of the NFA. The government began by claiming the Second Amendment does not grant a new right, but prohibits Congress from infringing a common law right. So what common law right does the Second Amendment protect? The government argued the Second Amendment “refers to the militia, a protective force of government; to the collective body and not individual rights.” In any case, it only guarantees the right to keep and bear arms “for lawful purposes,” and certainly does not protect weapons used by criminals. The NFA affects “weapons which form the arsenal of the gangster and desperado,” and the Second Amendment “does not, we submit, guarantee to the criminal the right to maintain and utilize arms which are particularly adaptable to his purposes.” Supreme Court Clerk Charles Cropley wrote to Gutensohn on March 15, informing him the Supreme Court had accepted the appeal and expected to hear oral argument on March 31.131 Gutensohn wrote back on March 22, asking why he had not received the record or the government’s brief and emphasizing that he represented Miller and Layton pro bono.132 Cropley replied on March 25, informing Gutensohn that the government had submitted a typewritten brief and he could do the same. In the alternative, Cropley suggested the court could postpone oral argument until April 17. But on March 28, Gutensohn replied by telegram: “Suggest case be submitted on Appellants brief. Unable to obtain any money from clients to be present and argue case = Paul E Gutensohn.” He was probably relieved to be rid of Miller and Layton. On March 30, 1939, seven justices of the Supreme Court heard oral argument in United States v. Miller. Chief Justice Hughes was ill, and the newly appointed Justice Douglas was not confirmed until April 4. Gordon Dean represented the United States and no one represented Miller or Layton. Two days later, Gutensohn finally received four copies of the government’s brief. At p. 67, PDF 21: The decision came quickly. On May 15, 1939, Justice James Clark McReynolds “drawled from the bench: ‘We construe the amendment as having relation to military service and we are unable to say that a sawed-off shotgun has any relation to the militia.’” The unanimous vote was 8-0, as Justice Douglas was recused. At p. 68-69, PDF 22-23: F. POSTSCRIPT In the meantime, Miller resurfaced. On April 3, 1939, Miller, Robert Drake “Major” Taylor, and an unidentified accomplice robbed the Route 66 Club, a Miami, Oklahoma dive. Armed with shotguns, they stole about $80, superficially wounding two bystanders in the process. Apparently, it was an inside job. Earl “Woodenfoot” Clanton, the uncle of notorious bank robbers Herman and Ed “Newt” Clanton, owned the bar. Taylor was a former associate of Newt Clanton’s, and a peripheral member of the O’Malley Gang.145 At about 9 a.m. on April 3, two or three men in a car picked up Miller at his home in Ketchum, Oklahoma. The next day, around noon, a farmhand named Fisher discovered Miller’s bulletridden corpse on the bank of the “nearly dry” Little Spencer Creek, nine miles southwest of Chelsea, Oklahoma. Miller was shot four times with a .38, twice in the chest, once under the left arm, and once through the left arm. The .45 automatic next to him had been fired three times. On April 6, someone found Miller’s torched 1934 sedan off a dirt road in the Verdigris River bottoms, about four miles southeast of Nowata. It was stripped and still smoldering. A farmer said he saw it burning shortly before noon on April 3. Taylor was a suspect in the investigation. On October 8, 1939, Sheriff Ellis Summers arrested him in Kermit, Texas, after he got in a “fight with an oil field worker over a dice game.” Ultimately, what happened on April 4 is unclear. Maybe Miller and Taylor disputed the proceeds of the robbery. Maybe Taylor shot Miller for snitching on the O’Malleys. In any case, Oklahoma charged Taylor with murder, but eventually dropped the charges for lack of evidence. Still, he pleaded guilty to armed robbery and got ten years in McAlester. On January 8, 1940, Layton pleaded guilty to the reinstated NFA charge and [Judge] Ragon sentenced him to five years probation. Ragon expected an appointment to the Eighth Circuit, but died suddenly of a heart attack on September 15, 1940. Layton’s probation ended on January 29, 1944. He died in 1967. Both Miller and Layton were buried at Woodlawn Cemetery in Claremore, Oklahoma.
Seems pretty clear that the U.S. Supreme Court believed the second amendment only protects militia-type arms in relation to a militia, doesn't it? Yet people insist it protects an individual right outside of a militia. An individual right to keep and bear militia-type arms?
It seems clear that the Supremes indicated that in 1939. More recently, they indicated "Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation." District of Columbia v. Heller, 554 U.S. 570, 592 (2008) Note however, this quote from the article. After Heller, there is not much left of Miller. FWIW, my personal opinion is that Scalia's Opinion in Heller is correct. Miller has been sharply narrowed by Heller. Miller does very little. Heller at 625. Heller at 592 Heller at 579-581 a. “Right of the People.” The first salient feature of the operative clause is that it codifies a “right of the people.” The unamended Constitution and the Bill of Rights use the phrase “right of the people” two other times, in the First Amendment’s Assembly-and-Petition Clause and in the Fourth Amendment’s Search-and-Seizure Clause. The Ninth Amendment uses very similar terminology (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”). All three of these instances unambiguously refer to individual rights, not “collective” rights, or rights that may be exercised only through participation in some corporate body.5 Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990): This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people.” We start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.
Heller flat-out ignored Miller and started fresh. Granted, the court in Miller made no ruling and simply remanded the case back to the lower court. BUT, they remanded it asking the lower court to determine if the Stevens sawed-off, double-barreled shotgun was suitable for military use and thereby protected under the second amendment. To me, that's significant. To me, that says the second amendment only protects militia-type arms associated with the preservation of a militia. "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." WHAT??? Miller clearly said that the second amendment does not protect those weapons not typically associated with a militia. Miller questioned whether a sawed-off, double barreled shotgun qualified. "As we will describe below, the “militia” in colonial America consisted of a subset of “the people”—those who were male, able bodied, and within a certain age range." No. The “militia” in colonial America consisted of “the people” —those who were male, able bodied, free citizens and within a certain age range -- and they were a subset of all citizens. "The people" were not everyone.
Nope. That is most definitely not ignoring Miller. Note the limited holding in Miller. Heller's holding prevails over Miller's dicta. As Heller is the more recent opinion, its holding would overrule a conflicting holding in Miller, if there were any. The National Firearms Act, as applied to one indicted for transporting in interstate commerce a 12-gauge shotgun with a barrel less than 18 inches long without having registered it and without having in his possession a stamp-affixed written order for it, as required by the Act, held: 1. Not unconstitutional as an invasion of the reserved powers of the States. Citing Sonzinsky v. United States, 300 U. S. 506, and Narcotic Act cases. P. 307 U. S. 177. 2. Not violative of the Second Amendment of the Federal Constitution. P. 307 U. S. 178. The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon. 26 F.Supp. 1002, reversed. Note the holding in Heller. 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 576–626. (a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 576–595. (b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. Pp. 595–600. (c) The Court’s interpretation is confirmed by analogous armsbearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 600–603. (d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 603–605. (e) Interpretation of the Second Amendment by scholars, courts, and legislators, from immediately after its ratification through the late 19th century, also supports the Court’s conclusion. Pp. 605–619. (f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264–265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i. e., those in common use for lawful purposes. Pp. 619–626. 2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 626–628. 3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition— in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 628–636. Heller (by Scalia) and Verdugo-Urquidez (by Rehnquist) have it right. Miller at 307 U.S. 178: Black's Law Dictionary, 6th Ed.: The Court could not rule on its own, without evidence having been presented, that the sawed-off shotgun was any part of the ordinary military equipment. Miller was indicted on June 2, 1938 and filed a demurrer which was sustained in the District Court. Miller was indicted on June 11, 1938 and filed the below demurrer which was sustained in the District Court. [No. 3926, filed January 3, 1939, Wm. S. Wellshear, Clerk, by J. A. Phillips, Deputy Clerk.] IN THE DISTRICT COURT OF THE UNITED STATES THE UNITED STATES, PLAINTIFF, DEMURRER TO INDICTMENT Comes the defendants, Jack Miller and Frank Layton, and demur to the indictment, and for grounds thereof state: 1. That the indictment fails to state sufficient facts to constitute a crime under the laws and statutes of the United States. 2. That the alleged criminal act contained in the indictment as a violation of Title 26, Section 1132, United States Code, an Act of Congress known as the National Firearms Act, approved June 26th, 1934, and the provisions thereof, is not a revenue measure and is an attempt to usurp the police powers of the State and reserved to each of the States in the United States, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States. 3. That the Second Amendment to the Constitution of the United States provides: "A well regulated militia being necessary to the security of a free state, the right of people to keep and bear arms, shall not be infringed;" that the said "National Firearms Act" is in violation and contrary to said Second Amendment and particularly as charging a crime against these defendants under the allegations of the indictment, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States. 4. That the indictment herein charges the violation of Section 1132 (c) in which it is made unlawful to transfer a firearm which has previously been transferred on or after the 30th day of June, 1934, in addition to complying with subsection (c), transfers therewith the stamp affixed order; that there is no charge in the said indictment that the said defendants made any transfer whatsoever of the double-barrel 12 guage shotgun having less than 18 inches in length, and said indictment, therefore, does not charge facts sufficient to constitute a crime under the laws and statutes of the United States. 5. That the indictment charges the defendants with "not having in their possession a stamp affixed written order for said firearms, as provided and required by Section 1132 (c), Title 26, United States Code, and the regulations issued under the authority of said Act of Congress known as the National Firearms Act, approved June 26th, 1934"; that said Section 1132 (c) does not make it a violation to merely fail to possess a stamp affixed written order for said firearms, and a failure to charge a transfer by or to the said defendants, fails to set forth facts sufficient to constitute a crime under the laws and statutes of the United States. 6. That any provision of the said National Firearms Act, approved June 26th, 1934, which requires a registration of the said firearm as required by Section 1132 (d) of Title 26 United States Code, and not having in their possession a stamp affixed order for said firearm as provided by Section 1132 (c) Title 26 United States Code, is in violation and contrary to the said Second Amendment to the Constitution of the United States, is unconstitutional and does not state facts sufficient to constitute a crime under the statutes of the United States and the indictment further does not state sufficient facts to constitute a crime under the laws and statutes of the United States in that there was a total failure to charge a transfer of said firearms by or to the said defendants. {signed} Paul E. Gutensohn http://www.guncite.com/court/fed/26fsupp1002.html No. 3926. District Court, W. D. Arkansas, Jan. 3, 1939. A provision in National Firearms Act prohibiting delivery of firearms in interstate commerce without a stamp-affixed order is violative of constitutional amendment providing that right of people to keep and bear arms should not be infringed. National Firearms Act §§ 4, 11, 26 U.S.C.A. §§ 1132c, 1132j; U.S.C.A. Const. Amend. 2. Jack Miller and Frank Layton were charged with unlawfully transporting a firearm in interstate commerce without having in their possession a stamp-affixed written order for such firearm. On demurrer to indictment. Demurrer sustained. C. R. Barry, U.S. Dist. Atty., and Duke Fredrick, Asst. U.S. Dist. Atty., both of Fort Smith, Ark. Paul Gutensohn, of Fort Smith, Ark., for defendants. HEARTSILL RAGON, District Judge. The defendants in this case are charged with unlawfully and feloniously transporting in interstate commerce from the town of Claremore, Oklahoma, to the town of Siloam Springs in the State of Arkansas, a double barrel twelve gauge shot gun having a barrel less than eighteen inches in length, and at the time of so transporting said fire arm in interstate commerce they [p.1003] did not have in their possession a stamp-affixed written order for said fire arm as required by Section 1132c, Title 26 U.S.C.A., and the regulations issued under the authority of said Act of Congress known as the National Firearms Act, 26 U.S.C.A. § 1132 et seq. The defendants in due time filed a demurrer challenging the sufficiency of the facts stated in the indictment to constitute a crime and further challenging the sections under which said indictment was returned as being in contravention of the Second Amendment to the Constitution of the United States, U.S.C.A. The indictment is based upon the Act of June 26, 1934, C. 757, Section 11, 48 Stat. 1239, 26 U.S.C.A. § 1132j. The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States, U.S.C.A., providing, "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 demurrer is accordingly sustained. The cited Section 11: A demurrer challenges the prosecution, positing that if everything alleged were admitted to be true, it would be insufficient to sustain the charges. The District Court ruled for Miller, sustaining the demurrer. At SCOTUS, Miller offered no oral argument and no reply to the government brief. Heller at 622-23 (PDF 53-54)
Correct. And the Miller court did ask if the weapon had a "reasonable relation to the preservation or efficiency of a well regulated militia". The Miller court did NOT say anything about weapons "not typically possessed by law-abiding citizens for lawful purposes". The Heller court made that up out of thin air.
Correct. And the Miller court did ask if the weapon had a "reasonable relation to the preservation or efficiency of a well regulated militia". --- The Miller court did NOT say anything about weapons "not typically possessed by law-abiding citizens for lawful purposes". The Heller court made that up out of thin air. ----- misterwhite Both the Miller and the Heller Courts issued opinions. -- SCOTUS opinions are NOT law. Both of you seem to imagine that the other branches of our Fed/state/local governments are constitutionally bound to conform to supreme court opinions. Not true..
Your unsupported opinion does not overturn two centuries of jurisprudence. The Court says what the law is. Marbury v. Madison, 1 Cranch. 137, 177 (1803) provides, - - - - - Not true.. Marbury v. Madison, 1 Cranch. 137, 180 (1803) Thus, the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written Constitutions, that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument. Your claim, taken to its logical conclusion, indicates mass confusion. The Supreme Court issues opinions just to pass the time of day and to amuse itself. The other branches of government are free to ignore such opinions. The failure of Congress to legislate abortion away since Roe v. Wade is merely a legislative failure. And now there will be no more complaints about Obama's open borders as he has no need to pay attention to court opinions. Indeed, should the Court find that subsidies on federal exchanges are not authorized, we should recognize that the Executive is free to ignore that opinion and keep paying subsidies. Only the President interprets the laws as they apply to the President. It's good to be King. Indeed, as the President can interpret the law, and ignore the courts, Obama should be able to interpret the Constitution to permit him a third term and run for reelection. He need not heed anyone else's opinion.
The BOR was very specific about protections. If it protected "citizens" (eg., the 15th amendment) it meant only citizens. If it protected "persons" (eg., the 5th amendment) it meant all human beings. But if it protected "the people" it meant citizens with full rights -- the right to vote, run for office, sign contracts, own land, etc. In other words, the ones with something to lose. Back then, those were adult, white, male citizens. Today, of course, "the people" encompasses a much larger group.
Back then, those were adult, white, male citizens. Today, of course, "the people" encompasses a much larger group. The Fathers and Framers used the term the people in more than one context, and their intended meaning was clear to them. [Italics in original, boldface added.] Thomas M Cooley, LL.D.; The General Principles of Constitutional Law in the United States of America; Boston; Little Brown, and Company; 1880; pages 267-268.
#85. To: nolu chan (#83)
I disagree. The Founders could have easily written "the right of all persons peaceably to assemble". They did not. They chose instead "the right of the people peaceably to assemble".
Top • Page Up • Full Thread • Page Down • Bottom/Latest [Article] One should carefully read the nonsense passed by the Supremes in 1939 in US v. Miller in which sawed off shotguns became a regulated item. Here we see the tortured logic on display of how the government can start to enforce restrictions on military-type weapons in spite of the previous hundreds years jurisprudence talking about the military applicability of weapons choices in the individualist interpretation of the Second Amendment. Mind you, in contretemps to their own tortured conclusions in the rendering of the verdict. Neither the defendants nor their legal counsel appeared at the Supreme Court for the case. A lack of financial support and procedural irregularities prevented counsel from traveling. It’s worth noting that the Supremes clearly stated that military weapons were protected but the length of the weapon seemed to be the operative cause for the decision. A mere generation before shotguns had been employed in WWI by US forces.
At 48 [PDF 2]
#24. To: nolu chan (#21)
"The (Miller) decision came quickly. On May 15, 1939, Justice James Clark McReynolds “drawled from the bench: ‘We construe the amendment as having relation to military service and we are unable to say that a sawed-off shotgun has any relation to the militia.’”
#25. To: misterwhite (#24)
Seems pretty clear that the U.S. Supreme Court believed the second amendment only protects militia-type arms in relation to a militia, doesn't it?
Oddly, Second Amendment scholars have largely ignored Miller. While individual and collective right theorists alike claim Miller supports their position, most provide only a perfunctory account of the case. The few exceptions focus on the text of the opinion, rather than the history of the case, and the context in which it was decided. All conclude Miller is an impenetrable mess.
We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.
c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the Second Amendment. We look to this because it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed ....”
1. Operative Clause.
“‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. . . . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”
#28. To: nolu chan (#25)
"District of Columbia v. Heller, 554 U.S. 570, 592 (2008)"
#47. To: misterwhite (#28)
Heller flat-out ignored Miller and started fresh.
"We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."
Miller clearly said that the second amendment does not protect those weapons not typically associated with a militia. Miller questioned whether a sawed-off, double barreled shotgun qualified.
Syllabus
Held:
Three provisions of the Constitution refer to “the people” in a context other than “rights”—the famous preamble (“We the people”), §2 of Article I (providing that “the people” will choose members of the House), and the Tenth Amendment (providing that those powers not given the Federal Government remain with “the States” or “the people”). Those provisions arguably refer to “the people” acting collectively—but they deal with the exercise or reservation of powers, not rights. Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. As we said in United States v. Verdugo-Urquidez, 494 U. S. 259, 265 (1990):
“‘[T]he people’ seems to have been a term of art employed in select parts of the Constitution. . . . [Its uses] sugges[t] that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.”
In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen 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. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.
Judicial notice. The act by which a court, in conducting a trial, or framing its decision, will, of its own motion or on request of a party, and without the production of evidence, recognize the existence and truth of certain facts, having a bearing on the controversy at bar, which, from their nature, are not properly the subject of testimony, or which are universally regarded as established by common notoriety, e.g., the laws of the state, international law, historical events, the constitution and course of nature, main geographical features, etc. The cognizance of certain facts which judges and jurors may properly take and act upon without proof, because they already know them. Such notice excuses party having burden of establishing fact from necessity of producing formal proof. Hutchinson v. State, Ind., 477 N.E.2d 850, 854. Fed.Evid.Rule 201.
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
VS.
JACK MILLER AND FRANK LAYTON, DEFENDANTS.
Attorney for Defendants UNITED STATES v. MILLER et al.
Fort Smith Division. "Sec. 11. It shall be unlawful for any person who is required to register as provided in section 5 hereof and who shall not have so registered, or any other person who has not in his possession a stamp-affixed order as provided in section 4 hereof, to ship, carry, or deliver any firearm in interstate commerce."
Justice Stevens can say again and again that Miller did not “turn on the difference between muskets and sawed-off shotguns; it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns,” post, at 677, but the words of the opinion prove otherwise. The most Justice Stevens can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General’s argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938, No. 696, pp. 4–5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.
#55. To: nolu chan (#47)
"Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons."
#57. To: misterwhite, nolu chan, Y'ALL (#55)
nolu chan --- "Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons."
#66. To: tpaine, misterwhite (#57)
Both the Miller and the Heller Courts issued opinions. -- SCOTUS opinions are NOT law.
It is emphatically the province and duty of the Judicial Department to say what the law is.
Both of you seem to imagine that the other branches of our Fed/state/local governments are constitutionally bound to conform to supreme court opinions.
It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the Constitution itself is first mentioned, and not the laws of the United States generally, but those only which shall be made in pursuance of the Constitution, have that rank.
#81. To: nolu chan (#66)
"The BOR does not apply only to citizens. It applies to non-citizens as well. For example, the search and seizure clause applies equally to citizens and non-citizens."
#83. To: misterwhite (#81)
But if it protected "the people" it meant citizens with full rights -- the right to vote, run for office, sign contracts, own land, etc. In other words, the ones with something to lose.
The People. — When the term the people is made use of in constitutional law or discussions, it is often the case that those only are intended who have a share in the government through being clothed with the elective franchise. Thus, the people elect delegates to a constitutional convention, and determine by their votes whether the completed work of the convention shall or shall not be adopted; the people choose the officers under the constitution, and so on. For these and similar purposes the electors, though constituting but a small minority of the whole body of the community, nevertheless act for all, and, as being for the time the representatives of sovereignty, they are considered and spoken of as the sovereign people. But in all the enumerations and guaranties of rights the whole people are intended, because the rights of all are equal, and are meant to be equally protected. In this case, therefore, the right to assemble is preserved to all the people, and not merely to the electors, or to any other class or classes of the people.
Replies to Comment # 83. "In this case, therefore, the right to assemble is preserved to all the people ..."
End Trace Mode for Comment # 83.
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