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Title: Here’s How The Supreme Court Already Repealed The Second Amendment
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The Federalist
URL Source: http://thefederalist.com/2018/05/09 ... ady-repealed-second-amendment/
Published: May 9, 2018
Author: Mark Overstreet
Post Date: 2018-05-09 11:31:39 by Deckard
Keywords: None
Views: 44284
Comments: 421
In March, retired Supreme Court justice John Paul Stevens called for repealing the Second Amendment, implicitly admitting that it does what, in his dissent in District of Columbia v. Heller (2008), he pretended it does not: prohibit laws infringing the right to keep and bear arms. Why Stevens called for repeal and dissented in Heller is a mystery, however. The Second Amendment was repealed, in effect, by Heller’s majority opinion. The opinion went beyond questions raised in the case and laid out a rationale by which Congress, states, and courts could ban the private possession of many offensive and defensive arms today and all such arms of the future. Heller asked the court to decide whether Washington DC’s bans on handguns, having a loaded firearm at home, and carrying a firearm at home without a permit violated the Second Amendment. Although on imperfect grounds, the court correctly ruled that the first two bans were unconstitutional. It also said if DC required a permit to carry a gun at home, it had to issue permits to qualified applicants. But, the court added, “[w]e may as well consider at this point . . . what types of weapons [the Court’s decision in U.S. v. Miller (1939)] permits.” Miller asked whether the National Firearms Act of 1934 violated the Second Amendment by requiring that a short-barreled shotgun be registered with the federal government. Oddly, before the court heard the case, one defendant died and the other disappeared, so their lawyer didn’t go to Washington to present evidence on their behalf. The court thus concluded, “[i]n the absence of any evidence tending to show that possession and use of a [short-barreled shotgun] 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” (emphasis added). For the right to “ordinary military equipment” and other arms that “could contribute to the common defense,” the court cited the decision of the Tennessee Supreme Court in Aymette v. State (1840), that “the arms, the right to keep which is secured [by Tennessee’s constitution] are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority.” Heller said, “We think that Miller’s ‘ordinary military equipment’ language must be read in tandem with what comes after: ‘[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.’” However, that mischaracterizes Miller. The arms to which Miller said people have the right are those that have a “relationship to a well regulated militia.” “Ordinary military equipment” is the first example of arms the court said have that relationship, and “what comes after” is a second example: other arms that “could contribute to the common defense.” It was three paragraphs later that the court stated the obvious: people commonly possessed “common” arms. Moreover, Heller didn’t read Miller “in tandem.” It gave weight only to Miller’s comment about “common” arms, while rejecting Miller’s and Aymette’s endorsement of the right to arms relating to militia purposes, “ordinary military equipment,” and other arms that “could contribute to the common defense.” Heller’s mischaracterization of Miller is the first reason why “common” cannot be the standard for arms to which people have the right. “Common” is also vulnerable to deliberate misinterpretation. For example, while the percentage of gun owners who own an AR-15 is about the same as the percentage of drivers who own a Mercedes, judges who oppose the right to arms would likely rule that only Mercedeses are “common.” A second reason “common” cannot be the standard was noted by Justice Stephen Breyer in his dissent in Heller. He explained, “[T]he majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.” Breyer had in mind the majority’s argument that fully automatic rifles, common in the military, could be banned because they aren’t common among private individuals. The circularity is that they aren’t common among private individuals because they have been prohibitively taxed since 1934, banned in about half the states for almost as long, prohibited from importation since 1968, and banned from domestic manufacture since 1986. A third reason is that the U.S. Framers didn’t limit the right to “common” arms. For example, cannons, though not as common as handheld arms, weren’t excluded from the Second Amendment. In protecting the right to arms for defense against tyranny, the Framers intended for the people to win. Several quotations from them illustrate the point. James Madison: “Let a regular army . . . be at the devotion of the federal government. . . . [T]he State governments, with the people on their side, would be able to repel the danger.” Alexander Hamilton: “[The] army cannot be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.” Richard Henry Lee: “To preserve liberty it is essential that the whole body of people always possess arms.” Tench Coxe: “As the military . . . might pervert their power to the injury of their fellow citizens, the people are confirmed by the [Second Amendment] in their right to keep and bear their private arms.” Noah Webster: “[T]he whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretense, raised in the United States.” A fourth, and the most important, reason was pointed out, but rejected by Heller’s majority opinion, written by the late Justice Antonin Scalia, an originalist from whom we might have expected faithfulness to the Framers’ intent. Referring to fully-automatic rifles, Scalia wrote: It may be objected that if weapons that are most useful in military service . . . may be banned, then the Second Amendment right is completely detached from the [amendment’s] prefatory clause. . . . But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. Although some laud Heller for recognizing an individual right to some arms, its false standard allows Congress and the states to ban arms they and the courts claim are not “common” or that are useful “in military service.” As Breyer put it, “On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the authority to do so.” Breyer was mocking his colleagues, but “tomorrow” is important because firearms are near the end of their 500-year era of usefulness for the military purpose the Framers intended. Notwithstanding gun-control supporters’ complaints about the supposed new-fangledness of this or that firearm or firearm accessory, firearms are glorified slingshots. Three thousand years ago, David slew Goliath with a rock ballistically comparable to a .45 caliber pistol bullet. Gunpowder propels a bullet more predictably than a whirling leather thong, but bullets, like rocks, are inert projectiles. Sometime this century, the government will be equipped with offensive and defensive handheld arms and even more futuristic arms that will render firearms as obsolete for defense against tyranny as bows and arrows are today. While our troops should be equipped with the best equipment possible when fighting America’s enemies, it requires little imagination to envision how extraordinary technologies, such as those developed by the Pentagon’s Defense Advanced Research Projects Agency, could be misused against the American people. Of course, regardless of Heller and whether the Second Amendment is repealed, Americans have the right to keep and bear arms, including for defense against tyranny. As a wiser Supreme Court recognized in U.S. v. Cruikshank (1876), the right, which existed before the Constitution, is “not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.” But rights are a concept. Laws that are enforced have tangible effect. In early April, U.S. District Court judge William Young ruled that Heller’s endorsement of restrictions on fully automatic firearms permits Massachusetts to ban semi-automatic firearms and ammunition magazines that many firearms use. Other courts have upheld similar bans. If Americans allow their rights to be choked in this manner, they could find themselves no longer in control of government, but rather at its mercy. The Supreme Court effectively repealed the Second Amendment in District of Columbia v. Heller by restricting the amendment to common arms.
The Court Turned Stare Decisis On Its Head
Why ‘Common’ Can’t Be the Standard for Owning Arms
You Can’t Protect Freedom With a Slingshot
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#263. To: nolu chan (#257)
Again, in 1790 there was only ONE militia. The weapons possessed by the members of that ONE militia were protected by the second amendment.
Remand -- return a case to a lower court for reconsideration. The U.S. Supreme Supreme Supreme Court wanted the District Court to reconsider whether the weapon had any usefulness in a militia. The U.S. Supreme Court was not provided with any facts that said it did. "They REVERSED the judgment of the lower court, and ORDERED the District court to proceed in conformity with the opinion of the U.S. Supreme Court." Bullshit. You're just making things up. If that were the case, the U.S. Supreme Court would have simply reversed the lower court ruling saying that the weapon didn't qualify for second amendment protection. Period. They didn't do that because they didn't know that. And they said so.
How??? See United States v. Gilbert, 286 Fed. Appx. 383 (9th Cir. 2008) The Constitution of the United States provides in part that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI. This necessarily makes the question presented by defendant's motion one of federal law. If the NFA is otherwise consistent with the U.S. Constitution and is a 3 - - - - - - - - - - valid exercise of Congress's power to tax spelled out in the Constitution, then it is "the supreme Law of the Land," notwithstanding "any Thing in the Laws of any State to the Contrary." The defendants argue that Kansas's adoption of the Second Amendment Protection Act (SAPA), K.S.A. § 50-1204, somehow rendered the National Firearms Act unconstitutional. Dkt. 63 at 6. This court has no authority to construe SAPA or to determine what it means; that is a task reserved to the Kansas courts. But the Constitution could not be clearer on one point: if the National Firearms Act is a valid exercise of Congressional taxing power, and if it does not infringe on rights granted in the U.S. Constitution, then it is the "supreme Law of the Land," regardless of what SAPA says.
Remand. To send back. The act of an appellate court when it sends a case back to the trial court and orders the trial court to conduct limited new hearings or an entirely new trial, or to take some further action. Black's Law Dictionary, 6th Ed. Law Dictionary, 2 Ed., Steven F. Gifis The U.S. Supreme Court reversed the lower court ruling and eliminated the 2nd Amendment defense accepted by the lower court, reversed its judgment, reinstated the charges, and issued a mandate ordering the lower court to conduct forther proceedings not inconsistent with the Supreme Court opinion. The defendant, having no 2nd Amendment defense, pleaded guilty. Miller found that there is no 2nd Amendment right to keep and bear weapons not typically possessed by law-abiding citizens for lawful purposes, such as sawed-off shotguns. Short barrel shotgun possession was illegal per the National Firearms Act. See U.S. v. Fincher, 538 F.3d 368 (2008)
[misterwhite #261] Wrong. The U.S. Supreme Court said they didn't know if the weapon was eligible for second amendment protection, reversed the District Court judgement, and remanded the case back to the District Court for clarification. - - - - - - - - - - [misterwhite #262] Sure there is. Today, about half the states have a State Defense Force. Keep in mind, a state militia (by definition) is not a standing army. People are brought together when needed. So how can you say there is none? Running around in the woods, thinking you are Patrick Swayze in Red Dawn, doesn't cut it. I can say it because court opinions say you are full of shit, and people dumb enough to take your arguments to court look like the march of the penguins on their way to prison. - - - - - - - - - - [misterwhite #263] Again, in 1790 there was only ONE militia. The weapons possessed by the members of that ONE militia were protected by the second amendment. - - - - - - - - - - MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 1 The Second Amendment protects those weapons possessed by law-abiding citizens for lawful purposes, ONLY. If the weapon is unlawfully possessed, it is not protected by the Second Amendment. Richard Hamblen reminds me of the sovereign citizens who tell the cop they are not violating the law about needing a license plate while driving, as they are not driving but traveling. http://volokh.com/2010/02/27/united-states-v-miller/ The comment below, by Richard Hamblen, is in response to the article, "Why United States v. Miller was so badly written," by David Kopel on February 27, 2010, at The Volokh Conspiracy. About David Kopel I am the petitioner in Hamblen vs. the United States. US V. Miller does not uphold the NFA. The USSC says it cannot say the Second Amendment protects such a weapon as a short barreled shotgun because there is no evidence in the trial record. The case was remanded for further evidentiary action since the USSC is not an evidentiary body. The surviving defendant, Frank Layton, after seeing the fate of his codefendant Jack Miller, chose not to introduce any evidence such as the purchase of short barreled shotguns by the US Army in the World War to show that such a weapon is part of the ordinary military equipment, but instead pled guilty in exchange for a sentence of probation, a plea he and Miller tried to entered when first indicted. Read the file of all the extant court documents on this case compiled by Patrick Aultice. Scalia in Heller is reduced to lying about Miller, a lie the Sixth Circuit perpetuates. Scalia cannot even get the facts of the case correct, for it was the government appealing the dismissal of the charges against the pair, not the other way around. Scalia is supposed to be one of the best legal minds in the country. He has battalions of law clerks. Do you honestly think not one of them brought this error to his attention? And if he gets the basic facts wrong, what does this say about his analysis? Heller is dicta as far as the NFA is concerned. In an exchange with Justice Scalia in the oral arguments, Solicitor General Paul Clement states the following: "***GENERAL CLEMENT: Well, Justice Scalia, I think our principal concern based on the parts of the court of appeals' opinion that seemed to adopt a very categorical rule were with respect to machine guns, because I do think that it is difficult -- I don't want to foreclose the possibility of the government, Federal Government making the argument some day -- but I think it is more than a little difficult to say that the one arm that's not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that's what the machine gun is. CHIEF JUSTICE ROBERTS: But this law didn't involve a restriction on machine guns.***" [emphasis added] Chief Justice Roberts cuts him off, because Heller has nothing to do legally with the NFA because the NFA was not under consideration. Scalia's remarks about Miller and the NFA in Heller are the very definition of a gratuitous remark. The Court is reduced to sustaining the Gun Laws by lying about its own decisions. It is apparent from the oral arguments in McDonald that the Court wants to go nowhere near Miller and my case. We are submitting our second and final petition for writ of certiorari with the USSC at the end of the month. If you have any interest at all in my case and in the protection of your constitutionally recognized RTKBA, please assist me. I can be contacted at rahamblen@gmail.com. My attorney, Jeffrey S. Frensley can be contacted at chipfrensley@yahoo.com. I have posted a good many of the case documents and background information at http://www.esnips.com/web/HamblenvsUnitedStates Hamblen was convicted and sentenced to 15 months in federal prison. His petition to the Supreme Court for writ of cert was denied. His motion to vacate was denied, see below. Channel misterwhite, act accordingly, take your bullshit to court, go to a well-regulated prison. https://www.leagle.com/decision/infdco20081208529 No. 3:08-1034. RICHARD HAMBLEN v. UNITED STATES OF AMERICA. United States District Court, M.D. Tennessee, Nashville Division. December 8, 2008. MEMORANDUM TODD J. CAMPBELL, District Judge. I. Introduction Pending before the Court is a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside Or Correct Sentence (Docket No. 1), filed by counsel for the Movant/Petitioner (hereinafter "Petitioner"). The Government has filed Responses to the Motion (Docket No. 3, 7), and the Petitioner has filed a Memorandum In Support Of His Motion (Docket No. 6). The Court has reviewed the pleadings and briefs filed by both parties, the record of Petitioner's underlying conviction, and the entire record in this case. For the reasons set forth below, the Court concludes that Petitioner's Motion To Vacate is DENIED, and this action is DISMISSED. II. Procedural and Factual Background In the underlying criminal case, the Petitioner was charged in an Indictment with possession of certain machine guns, in violation of 18 U.S.C. §§ 922(o) and 924(a)(2) (Count One), and with possession of certain machine guns that were not registered, in violation of 26 U.S.C. §§ 5841, 5861(d) and 5871 (Count Two). (Docket No. 1 in Case No. 3:05-00226). The charges were based on Petitioner's possession of nine machine guns and other firearms kept in a safe at the back of his place of business. (Transcript of Trial, Vol. I, at 23-92 (Docket No. 36)). At the conclusion of a two-day trial, the Defendant was convicted of both Count One and Count Two. (Docket Nos. 17, 18, 23 in Case No. 3:05-00226). At the subsequent sentencing hearing, the Court sentenced the Petitioner to a total term of 15 months of imprisonment. (Docket No. 28 in Case No. 3:05-00226). The Petitioner appealed his conviction to the Sixth Circuit (Docket No. 39 in Case No. 3:05-00226; United States v. Richard Hamblen, 239 Fed. Appx. 130, 2007 WL 1804393 (6th Cir. June 21, 2007)), and the Sixth Circuit affirmed. Id. The Petitioner then filed a Petition for Writ of Certiorari in the United States Supreme Court, but the Petition was subsequently denied. (Docket Nos. 41, 42 in Case No. 3:05-00226). III. Analysis A. The Petitioner's Claims Petitioner contends that his conviction should be vacated because the statutes under which he was convicted violate the Second Amendment. B. The Section 2255 Remedy/Evidentiary Hearing Not Required. Section 2255 provides federal prisoners with a statutory mechanism by which to seek to have their sentence vacated, set aside or corrected.1 The statute does not provide a remedy, however, for every error that may have been made in the proceedings leading to conviction. The statute contemplates constitutional errors, and violations of federal law when the error qualifies as a "fundamental defect which inherently results in a complete miscarriage of justice." Reed v. Faley, 512 U.S. 339, 114 S.Ct. 2291, 2296, 2299-2300, 129 L.Ed.2d 277 (1994); Grant v. United States, 72 F.3d 503, 505-06 (6th Cir. 1996). Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that the Court shall consider the "files, records, transcripts, and correspondence relating to the judgment under attack" in ruling on a petition or motion filed under Section 2255. In addition, where the same judge considering the Section 2255 motion also conducted the trial, he may rely on his recollections of the trial. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996). An evidentiary hearing is not required if the record conclusively shows that the Petitioner is not entitled to relief. 28 U.S.C. § 2255; Rule 8 of the Rules Governing Section 2255 Proceedings For The United States District Courts; Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999). No hearing is required "if the petitioner's allegations 'cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" Id. (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)). In this case, the Petitioner does not seek an evidentiary hearing to introduce new evidence in support of his constitutional claim. (Docket No. 6). The Court agrees that an evidentiary hearing is not warranted in this case. C. Procedural Default The Government argues that the Court need not reach the Petitioner's constitutional claim because that claim has been procedurally defaulted. Petitioner defaulted the claim, according to the Government, because his Second Amendment argument to the appeals court focused on his collective rather than individual right to bear arms. In the trial court, Petitioner's primary, if only, defense rested in his belief that his firearm possession was protected by the Second Amendment. (Docket Nos. 16, 26, 29 and 38). The Court rejected the Petitioner's argument under the then-prevailing view that the Second Amendment guaranteed only a collective right to bear arms, and that collective right required that the Petitioner show his possession had some reasonable relationship to the preservation or efficiency of a well-regulated militia. (Transcript of Trial, Vol. II, at 273-74, 334-35 (Docket No. 37)). The Court also charged the jury to that effect. (Id.) In considering Petitioner's Second Amendment argument on appeal, the Sixth Circuit reiterated the state of the law at that time that the Second Amendment guarantees a collective rather than an individual right to bear arms, and that under United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 806 (1939), the Petitioner was required to show that his possession of machine guns had some reasonable relationship to the preservation or efficiency of a well-regulated militia. 239 Fed. Appx. at 134-35. Finding that the Petitioner had failed to make that showing, the Sixth Circuit rejected his Second Amendment argument. Id. As noted above, Petitioner then filed a Petition for Writ of Certiorari in the United States Supreme Court, which was denied. (Docket Nos. 41, 42 in Case No. 3:05-00226). Approximately one year after the Sixth Circuit affirmed Petitioner's conviction, on June 26, 2008, the Supreme Court issued its decision in District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), recognizing for the first time an individual right to bear arms guaranteed by the Second Amendment. Relying primarily on Heller, Petitioner now argues that his conviction and sentence violate his Second Amendment rights. The Court is persuaded that the Petitioner fairly presented to this Court and the Sixth Circuit on direct appeal the Second Amendment argument he now raises in the pending motion to vacate. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed. 438 (1971)(In the context of a state prisoner habeas case, the Court explains that claims must first be "fairly presented" to state court); United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)(Procedural default rules developed in state habeas corpus cases apply in federal habeas corpus cases). The Petitioner clearly presented to the Sixth Circuit his claim that his conviction violated his Second Amendment rights. Picard, 404 U.S. at 277 (A mere variation in legal theory does not automatically indicate that the defendant has failed to fairly present a claim). See also Dye v. Hofbauer, 546 U.S. 1, 126 S.Ct. 5, 163 L.Ed.2d 1 (2005). Accordingly, the Court concludes that the Petitioner has not defaulted the claim by failing to raise it on direct appeal. D. Second Amendment In raising the Second Amendment claim here, Petitioner primarily relies on District of Columbia v. Heller. In Heller, the Court held that the District of Columbia's prohibition on the possession of handguns in one's home violates the Second Amendment. 128 S.Ct. at 2814-18. In reaching its decision, the Court held that the Second Amendment confers an individual right to keep and bear arms. Id. At the same time it recognized a Second Amendment right for an individual to bear arms, the Heller Court limited the scope of that right within the context of its own opinion: * * * Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should 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. We also recognize another important limitation on the right to keep and carry arms. Miller [United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939)] said, as we have explained, that the sorts of weapons protected were those 'in common use at the time.' 307 U.S., at 179, 59 S.Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.' Heller, 128 S.Ct. at 2816-17 (footnote and citations omitted). Thus, the Heller Court made clear that the Second Amendment right it recognized did not include possession of weapons by certain categories of individuals, or possession of weapons in certain places, or possession of certain types of weapons. The Court specifically discussed the types of weapons that were not protected by the Second Amendment in distinguishing the Miller case: 128 S.Ct. at 2815-16. The conclusion that the Heller Court did not extend Second Amendment protection to machine guns, in particular, is supported by the lower federal courts that have addressed the issue. In United States v. Fincher, 538 F.3d 868, 873-74 (8th Cir. 2008), the Eighth Circuit held that the defendant's possession of a machine gun was not protected by the Second Amendment under Heller: "Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use." In United States v. Gilbert, 286 Fed. Appx. 383, 2008 WL 2740453 (9th Cir. July 15, 2008), the Ninth Circuit approved a jury instruction that an individual does not have a Second Amendment right to possess a machine gun or a short-barreled rifle. The court explained that under Heller, "individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did . . ." 286 Fed. Appx. at 386.2 The Petitioner argues that the limitations placed on the Second Amendment right to bear arms by the majority opinion in Heller can not square with the Court's earlier decision in Miller. Whatever merit there is to that argument, however, this Court is bound by the Heller opinion as written. IV. Conclusion For the reasons set forth herein, the Court concludes that Petitioner is not entitled to relief under 28 U.S.C. § 2255. Therefore, the Petitioner's Motion Under § 2255 is denied, and this action is dismissed. Should the Petitioner give timely notice of an appeal from this Memorandum and Order, such notice shall be treated as an application for a certificate of appealability, 28 U.S.C. 2253(c). The Court concludes that Petitioner has made a substantial showing of the denial of a constitutional right as to his Second Amendment claim, and reasonable jurists could find the Court's assessment of the constitutional claim debatable. See, e.g., Castro v. United States, 310 F.3d 900 (6th Cir. 2002). Accordingly, the Court will issue a certificate of appealability on Petitioner's Second Amendment claim. It is so ORDERED. FootNotes 1. 28 U.S.C. § 2255 states, in part: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence. 2. The defendants in Fincher and Gilbert, like the Petitioner here, were charged with possession of machine guns in violation of 18 U.S.C. §§ 922(o) and 924(a)(2), and possession of unregistered firearms in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. See 538 F.3d at 870; 286 Fed. Appx. at 385.
Miller had a 12ga, sawed-off, double-barreled shotgun. Not even close to the actual WWI combat shotgun -- the Winchester Model 1897 trench gun, a 5-round, pump-action, 12ga shotgun with a 20" barrel, sling swivels, barrel shroud, and bayonet lug. "His motion to vacate was denied, see below." Yeah, because the idiot appealed based on his second amendment collective right to keep and bear arms (ie., had some reasonable relationship to the preservation or efficiency of a well-regulated militia). Which, of course, he couldn't demonstrate.
So I can order a brand-new, full-auto M-16 from Colt as long as I pay the tax?
No it didn't. Miller found that there is no 2nd Amendment right to keep and bear weapons not typically possessed by
Correct. And that opinion was that the second amendment only protected weapons suitable for use by a militia. Meaning, the District Court had to provide evidence that a sawed-off shotgun fell into this category.
- - - - - - - - - - [misterwhite #269] So I can order a brand-new, full-auto M-16 from Colt as long as I pay the tax? - - - - - - - - - - [misterwhite #270] Miller found that there is no 2nd Amendment right to keep and bear weapons not typically possessed - - - - - - - - - - [misterwhite #271] And that opinion was that the second amendment only protected weapons suitable for use by a militia. MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 2 Channel misterwhite, act accordingly, take your bullshit to court, go to prison. Hollis Wayne Fincher argued "that he has the right to possess these weapons [a machinegun and a sawed-off shotgun] under the Second Amendment of the United States Constitution because his possession has some reasonable relationship to the maintenance of a well regulated militia." As that was a matter a law, it was a matter for the judge to decide. The Court did not err in prohibiting Fincher from presenting such bullshit to the jury. Fincher presented his bullshit to the court, out of the presence of the jury, and the court found it to be bullshit. The court imposed concurrent sentences of 78 months imprisonment on each of two counts. Channel misterwhite, act accordingly, take your bullshit to court, go to a well-regulated prison. https://www.leagle.com/decision/infco20080813073 Nos. 07-2514, 07-2888. 538 F.3d 868 (2008) UNITED STATES of America, Appellee, v. Hollis Wayne FINCHER, Appellant. United States Court of Appeals, Eighth Circuit. Submitted: March 10, 2008. Filed: August 13, 2008. Attorney(s) appearing for the Case Quentin M. Rhoades, argued, Missoula, MT, for appellant. Wendy L. Johnson, AUSA, argued, Fort Smith, AR, for appellee. Before WOLLMAN, BOWMAN, and MELLOY, Circuit Judges. WOLLMAN, Circuit Judge. Hollis Wayne Fincher was convicted by a jury on one count of possession of a machine gun, in violation of 18 U.S.C. §§ 922(o), 924(a)(2), and one count of possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Fincher does not dispute that he possessed these guns or that he did so without a license. He appeals his conviction, however, arguing that he has the right to possess these weapons under the Second Amendment of the United States Constitution because his possession has some reasonable relationship to the maintenance of a well regulated militia. Fincher also challenges the district court's determination that he is not eligible for court appointed counsel and challenges the district court's request to resentence him. We affirm the conviction and remand the issue of Fincher's eligibility for court appointed counsel to the district court for further inquiry. I. Second Amendment A. Background Before Fincher's trial began, the government became aware of Fincher's intention [538 F.3d 871] to argue to the jury that his possession of guns was protected under the Second Amendment. Because that issue is a matter of law, the government filed a motion in limine asking the district court to prevent Fincher from arguing matters of law to the jury. After hearing oral argument on the motion, the district court granted the motion in part and denied it in part. In doing so, the district court stated that matters of law are "quintessentially within the province of the judge and not matters to be addressed to the jury." Nevertheless, the district court stated that it would allow Fincher to present evidence outside the presence of the jury that under United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), and United States v. Hale, 978 F.2d 1016 (8th Cir.1992), his possession of the guns was reasonably related to a well regulated militia. At the close of the government's case, Fincher moved for judgment of acquittal. The district court denied the motion, stating that it was based on an attack on the law and not the evidence, and that under Hale, 978 F.2d 1016, the fact that a particular weapon may be susceptible to military use does not by itself establish a Second Amendment right to possess the weapon. During his case-in-chief, Fincher presented his own testimony, which the district court heard in camera. Fincher testified that he possessed the guns as part of his membership in the Washington County Militia ("WCM"), an organization he helped found in 1994. He testified that the purpose of the WCM is to ensure the militia can operate as effectively militarily as possible in a time of state emergency and that the WCM has regular meetings and training sessions for its members. Fincher testified that between seven and nine individuals attend any given meeting of the WCM, though it is not always the same individuals in attendance. The WCM does not maintain a roster of its members or an inventory of weapons. The WCM is not a secret organization. In fact, along with the other members of the WCM, Fincher wrote and sent letters to federal agencies via certified mail informing them of the WCM's existence and attempting to put them on notice that the WCM was lawful under state law. Fincher also sent at least one letter to the governor of Arkansas, informing him about the WCM, seeking approval, and stating that the governor's failure to object to the WCM's declaration would provide affirmation that the state of Arkansas did not object to the WCM. Fincher denied receiving a letter from the governor stating that the state records did not contain any reference to the WCM and that no such organization was registered with, or sanctioned by, the office of the governor or the state of Arkansas. In addition to sending written notice of the WCM to various governmental offices, Fincher invited local sheriffs to view the WCM facilities and weapons. Fincher also told state officials that the WCM possessed machine guns, which the public could observe at any one of the three annual picnics sponsored by the WCM, and he showed the machine guns to at least one sheriff. Fincher also testified about how the weapons used by the WCM were chosen and stored, some at the WCM facility and others at the individual members' residences. When asked about the procedures for activating the WCM in the case of an emergency, Fincher stated that if an emergency occurred while he was the commander of the WCM, he would contact "the sheriff if — if I was able, you know, depending on the emergency, or the governor, or probably any other — or maybe the mayor of a city or any — anyone or no one. If there was an emergency that had to be [538 F.3d 872] taken care of, we have the right to preserve life, liberty, and pursuit of happiness. We have the duty to. You don't stand around and wait for someone to tell you you can protect your life or perform emergency medical assistance or put out a fire. These are natural offices of the people." He also testified that the state could call up the militia at any point, and that even though the written notices that WCM sent to various governmental offices did not contain any phone numbers or other direct contact information, the governor would know how to contact them. The district court ruled that Fincher's proffered testimony would not be admitted because the WCM, despite its attempts to receive state recognition, was an unorganized and unregulated militia and therefore, as a matter of law, did not fall within the auspices of the Second Amendment. The district court also noted that even if the WCM was a state-sponsored or state-connected militia, there was no evidence that the person in charge of that militia would determine that possession of machine guns or sawed-off shotguns was necessary to the preservation of a well regulated militia. B. Discussion Fincher asserts that the district court erred by not allowing the jury to determine whether his possession of firearms was reasonably related to a well regulated militia and therefore protected by the Second Amendment. We review a district court's grant of a motion in limine for abuse of discretion, Robinson v. Potter, 453 F.3d 990, 995 (8th Cir.2006), and we accord it great deference on evidentiary rulings such as the admissibility of proffered testimony, United States v. Wilson, 103 F.3d 1402, 1406 (8th Cir.1997). We review de novo the district court's legal conclusions, such as whether possession of firearms in relation to membership in a non-state-sponsored militia is protected by the Second Amendment. United States v. Lippman, 369 F.3d 1039, 1043 (8th Cir. 2004). The role of the jury is to decide facts, not legal issues. United States v. Peck, 161 F.3d 1171, 1174 (8th Cir.1998). Accordingly, the district court did not err in prohibiting Fincher from arguing or presenting evidence regarding a question of law to the jury. We turn to the question whether the district court erred by concluding that Fincher's possession of the guns did not fall within the protection of the Second Amendment. We conclude that the district court's determination that the WCM was not affiliated with the state militia and therefore not subject to the protections of the Second Amendment under Miller and Hale is well supported by the record. Fincher contends that our decision in Hale, 978 F.2d 1016, established an affirmative defense to the charge of unlawful possession of firearms. In Hale, we stated that the possession of firearms is not protected unless the possession bears a reasonable relationship to a well regulated militia. 978 F.2d at 1020; see also United States v. Pfeifer, 371 F.3d 430, 438 (8th Cir.2004) (citing Hale); United States v. Farrell, 69 F.3d 891, 894 (8th Cir.1995) (same). Although the WCM is not a secretive organization and has held relatively regular training sessions and meetings over the years, we stated in Hale that "'[t]echnical' membership in a state militia (e.g., membership in an 'unorganized' state militia) or membership in a non-governmental military organization is not sufficient to satisfy the 'reasonable relationship' test." Hale, 978 F.2d at 1020 (citing United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977)). In Arkansas, the state militia is defined as: [538 F.3d 873] (a) The militia shall be divided into two (2) parts: the organized, consisting of the active and inactive Army National Guard and Air National Guard; and the unorganized, consisting of all those persons of the militia not in the active or inactive Army National Guard or the Air National Guard. (b) The militia shall consist of all able-bodied male residents of the state between the ages of seventeen (17) and forty-five (45) years who are, or intend to become, citizens of the United States, unless exempt by law, together with all other acceptable volunteers, waiving necessary requirements. Ark.Code. Ann. § 12-61-101 (emphasis added). Thus, despite WCM's attempts to contact the governor's office and become an organized state militia, the district court correctly concluded that Fincher's testimony, even if believed by the jury, would not support his Second Amendment argument because Fincher is not a member of an organized state militia. Rather, Fincher's testimony established that the WCM was an "unorganized" militia because it is not the Army National Guard or the Air National Guard and is not formally connected with the state of Arkansas. Therefore, under Hale, Fincher's possession of firearms is, as a matter of law, not reasonably related to a well regulated militia and is thus not protected by the Second Amendment. In reaching this conclusion, we have taken into account the Supreme Court's recent decision in District of Columbia v. Heller, ___ U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008),1 in which the Court held that the District of Columbia's complete prohibition on the possession of usable handguns in one's home violated the Second Amendment. Id. at 2817-18. In holding that the Second Amendment guarantees "the individual right to possess and carry weapons in case of confrontation," Id. at 2797,2 the Court also stated that the right to possess firearms is not beyond the reach of all government regulation. Id. at 2799, 2816 ("Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose."). In discussing the limitations the government can place on an individual's right to possess firearms, the Court noted that Miller does not protect "weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Heller, 128 S.Ct. at 2815-16. The Court also articulated a nonexclusive list of what it viewed to be acceptable government regulation of firearms: [T]he majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons [538 F.3d 874] 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. We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those in common use at the time. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Id. at 2816-17 (internal citations and footnote omitted). Accordingly, under Heller, Fincher's possession of the guns is not protected by the Second Amendment. Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use. Furthermore, Fincher has not directly attacked the federal registration requirements on firearms, and we doubt that any such attack would succeed in light of Heller. Accordingly, because Fincher's possession of guns is not protected by the Second Amendment, the district court did not abuse its discretion in preventing him from arguing otherwise to the jury. II. Court Appointed Counsel A. Background The circumstances surrounding Fincher's court appointed counsel are fully recited in the district court's order, United States v. Fincher, No. 06-50064-001, 2007 WL 2177062 (W.D.Ark. July 27, 2007), and are largely undisputed by Fincher. For the purpose of our analysis, we will highlight the main facts. Fincher was arrested on November 9, 2006, for violating 18 U.S.C. § 922(o). When he made his initial appearance later that day, he requested the appointment of an attorney because of his financial inability to retain counsel. He executed a "Financial Affidavit In Support of Request For Attorney or Other Court Services Without Payment Of Fee" ("the financial affidavit"), which indicated that he had no personal income, that his wife made $10.50 an hour, that he had $2,000 in savings, that he owned two vehicles of unknown value, one on which he was still making payments, and that he owned his home and 120 acres of real estate in Fayetteville, Arkansas, which had unknown value. Based upon that information, the district court appointed counsel to represent Fincher pursuant to the Criminal Justice Act. On December 13, 2006, Fincher's appointed counsel withdrew because Fincher had retained other counsel. Thereafter, Fincher was convicted on both counts charged in the indictment. On March 8, 2007, Fincher informed the district court that he no longer had counsel and requested that counsel be appointed for him, which was done. Before Fincher was sentenced, he executed a quitclaim deed conveying the 120 acres of real estate to his daughters in exchange for consideration of "One dollar ($1.00) and other good and valuable consideration," and reserving a life estate in the property for himself and his wife. Thereafter, the district court imposed concurrent sentences of 78 months' imprisonment on each count. Fincher was also subject to a fine of up to $250,000. Although the guidelines range called for a fine of between $12,500 and $125,000, the district court imposed a fine of only $1,000 under the belief that Fincher had no significant assets. After sentencing, Fincher requested release on bond pending appeal. The district court conducted a hearing on the [538 F.3d 875] matter and agreed that Fincher could be released on $100,000 bond. Fincher indicated that he could not post bond in that amount. The district court noted that Fincher might be able to use his real estate to secure the bond, whereupon Fincher's daughters executed a mortgage for that purpose. As a result, the district court became aware that Fincher's property had significant value, and that Fincher had conveyed it to his daughters. As a result of these circumstances, on July 3, 2007, the district court held an evidentiary hearing to determine Fincher's financial eligibility for court appointed counsel. The district court received testimony from Fincher, his wife, and his two daughters. The district court also requested that Fincher provide supporting documents, such as his contract with retained counsel and the deed transferring the real estate. In addition, the district court ordered an independent appraisal of the property, which estimated that it had a value of $455,000. On July 27, 2007, the district court entered an order stating that Fincher "is not now, nor has he ever been at any time material to this proceeding, financially unable to obtain counsel to represent him in this proceeding and that appointments of counsel for him were improvidently made." Fincher, 2007 WL 2177062, at *10. Accordingly, the district court ordered Fincher to reimburse the United States Treasury $8,357.55 for the legal services provided to him by the attorneys appointed under the Criminal Justice Act. Id. B. Discussion Fincher asserts that the district court's July 27, 2007, order revoking his eligibility for court appointed counsel should be reversed because he did not misrepresent the value of his real estate when he stated that the value was unknown. He also challenges the appraised value of the property and the district court's conclusion that he owns the property free and clear. Fincher asserts that he was subjectively unaware of the value of the property when he filled out the affidavit, that the property is not worth nearly as much as the appraised value because it is landlocked, and that he owned it as a joint tenant with his wife. Fincher further contends that the transfer of the property to his daughters was legitimate because he informed the Assistant United States Attorney who was working on the case about the transfer. The Criminal Justice Act provides a framework for ensuring that individuals who are financially unable to afford defense counsel are provided counsel as required by the Sixth Amendment. United States v. Brockman, 183 F.3d 891, 897 (8th Cir.1999). The Act requires that each United States district court create "a plan for furnishing representation for any person financially unable to obtain adequate representation...." 18 U.S.C. § 3006A(a). A person is eligible for court appointed counsel if, after the United States magistrate judge or court conducts an "appropriate inquiry," the court is satisfied that "the person is financially unable to obtain counsel." 18 U.S.C. § 3006A(b). Financial inability to obtain counsel is not the same as being indigent or destitute, but the defendant has the burden of establishing that he or she is financially unable to obtain counsel. Brockman, 183 F.3d at 897; Museitef v. United States, 131 F.3d 714, 716 (8th Cir.1997). "If at any time after the appointment of counsel the United States magistrate judge or the court finds that the person is financially able to obtain counsel or to make partial payment for the representation, it may terminate the appointment of counsel or authorize payment as provided in subsection (f), as the interests of justice may dictate." 18 U.S.C. § 3006A(c); see also 18 U.S.C. § 3006A(f) ("Whenever the United States [538 F.3d 876] magistrate judge or the court finds that funds are available for payment from or on behalf of a person furnished representation, it may authorize or direct that such funds be paid...."); Museitef, 131 F.3d at 715. Thus, our review of the district court's determination of financial eligibility for court appointed counsel is a three-step process. See United States v. Parker, 439 F.3d 81, 92 (2d Cir.2006) (reviewing district court's mid-case appointment of counsel). We must ask, (1) whether the district court conducted an "appropriate inquiry" into the defendant's financial eligibility, (2) whether the district court correctly determined the defendant's financial eligibility, and (3) whether the district court erred when it weighed the "interests of justice." Id. at 92-93. Because we ultimately remand this issue to the district court for further review, we reach only the first of these three questions. To determine a defendant's financial eligibility, the district court should make a "full inquiry" into the defendant's actual ability to retain counsel. Museitef, 131 F.3d at 716. A full-scale adversarial hearing is not required, however, before a district court may order repayment of attorney's fees under the Criminal Justice Act. United States v. Vale, 140 Fed.Appx. 302, 303 (2d Cir.2005) (unpublished opinion) (citing United States v. Crosby, 602 F.2d 24, 28 (2d Cir.1979)); see also Parker, 439 F.3d at 93 ("The task necessarily varies with the circumstances presented, and no one method or combination of methods is required." (internal quotation omitted)). We review de novo the adequacy of the district court's inquiry. Parker, 439 F.3d at 93 n. 12. In this case, the district court's initial inquiry was based upon the financial affidavit submitted by Fincher. See id. at 93 (noting that in some cases the court's inquiry may be limited to the defendant's statements on the financial affidavit). Based upon the limited information available at that time, the district court did not err in appointing counsel for Fincher. Brockman, 183 F.3d at 897 (any doubt about the defendant's eligibility for court appointed counsel should be resolved in the defendant's favor); United States v. Cohen, 419 F.2d 1124, 1127 (8th Cir.1969) (district court's determination that defendant was ineligible for court appointed counsel based upon the ownership of real estate with an unknown value and without a more searching inquiry was error). Although a district court should investigate information contained in an affidavit when the information provided renders the defendant's eligibility questionable, the district court's initial determination of eligibility can be amended when new information comes to light. See In re Boston Herald, Inc., 321 F.3d 174, 179 (1st Cir.2003) (erroneous eligibility determinations can be corrected at a later time). In this case, the district court became aware of the fact that Fincher's property had significant value when it was mortgaged to secure Fincher's $100,000 bond and Fincher testified that he knew that property in the same area had recently sold for between $2,000 and $4,000 an acre. This new information was sufficient to warrant a reexamination of Fincher's eligibility.3 [538 F.3d 877] Fincher argues that the district court erred in determining that he was not eligible for court appointed counsel because the district court did not take into consideration the fact that the property is landlocked and therefore is not as valuable as the appraisal indicates. Fincher testified at the hearing, however, that the property is located one mile off a public road and that there is an unpaved road that goes directly to the property. Fincher also informed the district court that the property has a right-of-way that, although not currently used, is attached to ownership of the property. Furthermore, it is undisputed that Fincher and his wife currently reside on the property, suggesting that the property is not in fact inaccessible. The appraisal acknowledges that any ingress and egress to the property would need to be improved, as the current road is not paved. Accordingly, we conclude that the district court did not err in accepting as accurate the appraiser's opinion that the property had a value of $455,000, which falls within Fincher's estimate that the property is worth between $2,000 and $4,000 an acre. Fincher argues for the first time on appeal that because he owned the property as a joint tenant with his wife, he did not own it free and clear, and that the district court therefore erred by concluding otherwise. This late-raised assertion is directly contradicted, however, by the testimony of Fincher's daughter, who testified that Fincher's name is the sole one on the title. Furthermore, Fincher's wife testified that she did not know if she had ever been deeded any portion of the property. Although the quit claim deed that transferred the property to Fincher's daughters in early 2007 recites that Fincher and his wife each owned an undivided one-half interest in the property as tenants in common, there is no evidence in the record that Fincher and his wife owned the property as joint tenants. Accordingly, the district court did not err when it found that Fincher owned the property free and clear because Fincher has not established that there are any mortgages or liens on the property. Regarding Fincher's transfer of the property to his daughters via quit claim deed, we conclude that Fincher's letter to the Assistant United States Attorney regarding the transfer of the property does not insulate the transfer from later question. Testimony at the evidentiary hearing from Fincher, his wife, and his two daughters, as well as the letter sent to the AUSA, all indicate that the property was transferred after Fincher's conviction to avoid the possibility of the property being sold to pay any fine imposed by the district court as part of Fincher's sentence. Accordingly, the district court did not err in concluding that the attempted transfer of the property should be considered when determining Fincher's eligibility for court appointed counsel. Despite these conclusions and the fact that the district court conducted a more thorough inquiry into Fincher's eligibility in July 2007 than it did initially, the district court's analysis leaves factual questions unanswered. Thus, we remand this issue to the district court for further consideration of whether Fincher's wife has any ownership in the property and, if so, whether that affects Fincher's ownership of the property or the application of the Arkansas Homestead Exemption. Specifically, the district court must consider whether the entire 120 acres of real estate is protected by the Homestead Exemption, making Fincher eligible for court appointed counsel despite his ownership of the property, or whether the exemption protects [538 F.3d 878] only a portion of the real estate. See Ark.Code Ann. § 16-66-210; see also United States v. Trevino, 679 F.Supp. 636, 636 (S.D.Tex.1987) (doubting that defendants should have to sell their homestead to appeal criminal conviction); Perry v. Chief of Police of City of Marianna, Ark., 660 F.Supp. 1546, 1552 (E.D.Ark.1987) (in determining indigency, defendant should not be required to sell his inexpensive car or his home).4 Additionally, the district court should consider whether Fincher has the current ability to reimburse the United States Treasury for the legal services he received in light of the transfer of the real estate to Fincher's daughters. III. IFP Status on Appeal We turn next to Fincher's request for in forma pauperis ("IFP") status on appeal. Because we remand to the district court for further review the issue of Fincher's eligibility for court appointed counsel, we do not reach this issue. Nevertheless, Fincher's IFP status on appeal is dependent upon his eligibility for court appointed counsel at the trial level. If the district court concludes that Fincher is eligible for court appointed counsel and therefore should not be required to reimburse the cost of the legal services he received, and Fincher's financial circumstances do not change between the time of the district court and the appellate court proceedings, he should be granted IFP status on appeal. See United States v. Danielson, 325 F.3d 1054, 1077 (9th Cir.2003) (court appointed counsel continues on appeal unless defendant's financial situation changes and he or she is no longer financially eligible). IV. Sentencing On the basis of its conclusion that Fincher misrepresented his financial eligibility for court appointed counsel, the district court seeks a remand for resentencing. In light of our conclusion that the district court must conduct a more searching inquiry into Fincher's eligibility for court appointed counsel, we decline the request for remand. Moreover, it is questionable whether we have jurisdiction to remand in the absence of an appeal or cross-appeal from the government, or whether the district court has jurisdiction to resentence a defendant in the absence of statutory authority to do so. See Greenlaw v. United States, ___ U.S. ___, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008) (holding that a circuit court cannot increase a defendant's sentence without a government appeal or cross-appeal); United States v. Ross, 245 F.3d 577, 585-86 (6th Cir.2001) (district court may not resentence defendant without statutory authority); see also United States v. Sadler, 234 F.3d 368, 373-74 (8th Cir.2000) (a district court's "change of heart as to the appropriateness of the sentence, rather than a correction in the application of the guidelines," is not the type of "clear error" that can be corrected under Rule 35(c) (internal quotation and citation omitted)); cf. United States v. Fortino, No. 07-3476, 2008 WL 2388893, ___ Fed. [538 F.3d 879] Appx. ____ (8th Cir. June 13, 2008) (per curiam). V. Conclusion The conviction is affirmed. The order directing Fincher to reimburse the United States Treasury $8,357.55 for the legal services he received pursuant to the Criminal Justice Act is vacated and the case is remanded the district court for further proceedings consistent with the views set forth in this opinion. FootNotes 1. At trial, Fincher's Second Amendment argument focused on his claim of right to possess the guns because they are military weapons and he is a member of the militia and not a claim of an individual right to possess a machine gun or unregistered sawed-off shotgun. Nevertheless, we think it is clear that even if Fincher had made the latter argument at trial, his possession of the guns is not protected under Heller. 2. We note that the Supreme Court did not address the question whether the Second Amendment is incorporated through the Fourteenth Amendment and thus applicable to the states. 3. In its July 27, 2007, order, the district court noted that it should have conducted a investigation beyond Fincher's financial affidavit before it initially appointed him counsel. Fincher, 2007 WL 2177062, at *7. Nevertheless, the district court reasoned that the defendant has the burden of establishing financial eligibility for court appointed counsel and that Fincher did not meet this burden and in fact misrepresented his financial eligibility by listing the 120 acres as having an unknown value when, in fact, he knew that real estate in the same area had recently sold for between $2,000 and $4,000 an acre. See id. (citing United States v. Lefkowitz, 125 F.3d 608 (8th Cir.1997)). 4. Generally, cases in which a defendant's ineligibility for court appointed counsel has been affirmed are based upon the defendant's income and cash flow, not a requirement that the defendant sell his homestead to facilitate the payment of defense costs. See, e.g., Lefkowitz, 125 F.3d at 621 (defendant had recently spent several hundred thousand dollars on other attorney's fees and personal expenses and district court found defendant's own testimony of indigence to be lacking credibility); United States v. Harris, 707 F.2d 653, 661 (2d Cir. 1983) (district court found that defendant had "substantial income" in the past two years and might have had other undisclosed income); United States v. Wetzel, 488 F.2d 153, 157 (8th Cir. 1973) (affirming reimbursement order (for about $350) because defendant received $19,000 for the sale of cattle and owned real estate (the opinion provides no indication that the real estate was defendant's homestead)).
[misterwhite #269] So I can order a brand-new, full-auto M-16 from Colt as long as I pay the tax? The quote at #265 was correctly attributed by me to the opinion of the court in United States v. Gilbert, 286 Fed. Appx. 383 (9th Cir. 2008). They are not my words, but those of the court, copied verbatim. Assuming you are neither a licensed firearms dealer, nor purchasing for a police department, regarding your purchase of a brand new machinegun, when you report to federal prison, I promise to make a donation to your commissary fund. https://law.justia.com/codes/us/2016/title-18/part-i/chapter-44/sec.-922/ (2) This subsection does not apply with respect to— (A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or (B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect. The date that title took effect was May 29, 1986. https://www.gpo.gov/fdsys/pkg/STATUTE-100/pdf/STATUTE-100-Pg449.pdf Public Law 99-308, 100 Stat. 451 (29 May 1986) Section 102. Amendments to Section 922. [...] (9) by inserting after the subsection added by paragraph (8) of this section the following: "(o)(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun. (2) This subsection does not apply with respect to— (A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or (B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect. Section 110. Effective Date. (c) MACHINEGUN PROHIBITION.—Section 102(9) shall take effect on the date of the enactment of this Act. Approved May 19, 1986. http://www.thefirearmblog.com/blog/2014/09/11/atf-approves-post-86-machine-gun-form-1/
MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 3 [misterwhite #244] For those not in the state militia, their State Constitution spells out their personal RKBA. The 2nd Amendment protects the individual right of the people to keep and bear arms. It protects the right of civilians to keep and bear arms. It is not to protect the right of the active duty organized militia to carry machineguns while on duty. As unlicensed possession of a machinegun is a federal crime, no state law can authorized possession of such a weapon by an off-duty member of the militia at home. From United States v. Hale, 978 F.2d 1016 (8th Cir. 1992), quoted in full below: [...] Since the Miller decision, no federal court has found any individual's possession of a military weapon to be "reasonably related to a well regulated militia." "Technical" membership in a state militia (e.g., membership in an "unorganized" state militia) or membership in a non-governmental military organization is not sufficient to satisfy the "reasonable relationship" test. Oakes, 564 F.2d at 387. Membership in a hypothetical or "sedentary" militia is likewise insufficient. See Warin, 530 F.2d 103. Channel misterwhite, act accordingly, take your bullshit to court, go to a well-regulated prison. https://law.justia.com/cases/federal/appellate-courts/F2/978/1016/183710/ 978 F.2d 1016 (8th Cir. 1992) U.S. Court of Appeals for the Eighth Circuit - 978 F.2d 1016 (8th Cir. 1992) Submitted June 10, 1992. Michael A. Skipper, Little Rock, Ark., argued, for defendant-appellant. Clarence Dan Stripling, Little Rock, Ark., argued (Charles A. Banks and Robert L. Roddey, on the brief), for plaintiff-appellee. Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BEAM, Circuit Judge. JOHN R. GIBSON, Circuit Judge. Wilbur Hale appeals his conviction of thirteen counts of possession of a machine gun pursuant to 18 U.S.C.A. § 922(o) (West Supp. 1992) and three counts of possession of unregistered firearms pursuant to 26 U.S.C. § 5861(d) (1988). He argues that the statutes under which he was prosecuted have no nexus with interstate commerce, and are therefore beyond the constitutional power of Congress; that the indictment violates his Second Amendment right to bear arms; and that the trial court erred both in admitting affidavits as to the nonregistration of his weapons and in refusing to take judicial notice of material concerning the reliability of firearm registration records. We affirm the judgment of the district court.1 On March 8, 1991, agents of the Bureau of Alcohol, Tobacco and Firearms executed a search warrant on Hale's residence and seized numerous weapons and gun parts. These included one MAC-10 .45 caliber submachine gun, three "Sten-type" 9 millimeter fully automatic submachine guns, two M-1 carbines with kits for enabling fully automatic fire, one .22 caliber pistol with a silencer, and five .223 caliber assault rifles modified into "M-16 type" fully automatic machine guns. The agents also seized the principal components or "receivers" of one MAC-10, one Sten, and one "M-16 type" machine gun. Hale was charged in a sixteen-count indictment and a jury convicted him of all counts. Hale asserts pro se that there is no federal jurisdiction because the statutes under which Hale was prosecuted, 18 U.S.C. § 922(o) and 26 U.S.C. § 5861(d), assert no nexus with interstate commerce, and thus are beyond the power granted to Congress under the Constitution.2 The Supreme Court recognized the breadth of the commerce power in Perez v. United States, 402 U.S. 146, 91 S. Ct. 1357, 28 L. Ed. 2d 686 (1971), explaining that Congress could properly regulate a class of activities that affected interstate commerce without proof that any particular intrastate activity within that class had an effect on interstate commerce. Id. at 152 to 153, 91 S. Ct. at 1360 to 1361. "Where the class of activities is regulated, and that class is within the reach of federal power, the courts have no power to 'excise, as trivial, individual instances' of the class." Id. at 154, 91 S. Ct. at 1361 (emphasis in original) (citation omitted). 18 U.S.C. § 922(o) regulates the possession of machine guns. The legislative history of section 922(o) indicates that Congress considered the relationship between the availability of machine guns, violent crime, and narcotics trafficking. See H.R.Rep. No. 495, 99th Cong., 2d Sess., at 1-5, reprinted in 1986 U.S.C.C.A.N. 1327, 1327-31. When it first enacted section 922, Congress found facts indicating a nexus between the regulation of firearms and the commerce power. See Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 197, 225 (1968). The 1986 amendments to section 922 added sub-section (o) without substantially altering the findings of fact on this point. See Firearm Owner's Protection Act, Pub. L. No. 99-308, 100 Stat. 449 (1986). We conclude, as did the Ninth Circuit on similar grounds, that 18 U.S.C. § 922(o) is within the authority granted to Congress by the Commerce Clause. See United States v. Evans, 928 F.2d 858, 862 (9th Cir. 1991). The same general argument is applicable to 26 U.S.C. § 5861(d). Furthermore, the Ninth Circuit has upheld § 5861(d) as a valid exercise of the taxing power of Congress. United States v. Tous, 461 F.2d 656, 657 (9th Cir. 1972) citing United States v. Giannini, 455 F.2d 147 (9th Cir. 1972). The Sixth Circuit has upheld section 5861 as a "reasonable regulation for the maintenance of public order." United States v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948, 96 S. Ct. 3168, 49 L. Ed. 2d 1185 (1976). Therefore, we reject Hale's arguments and conclude that both 18 U.S.C. § 922(o) and 26 U.S.C. § 5861(d) are within the authority granted to Congress under the Constitution. Hale next argues that the indictment violates his Second Amendment rights: "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." U.S. Const. amend. II. Relying on United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939), Hale argues that the Second Amendment bars the federal government from regulating the particular weapons seized because the weapons are susceptible to military use and are therefore, by definition, related to the existence of "a well regulated militia". In Miller, the Supreme Court upheld a conviction under the National Firearms Act for transporting a sawed-off shotgun in interstate commerce. In so doing, the Court rejected the argument that the Second Amendment protected the possession of that weapon: Miller, 307 U.S. at 178, 59 S. Ct. at 818 (citation omitted). Hale wants to find in Miller the rule that individual possession of true military weapons is protected under the Second Amendment. When the Second Amendment was ratified in 1791, the state militias functioned as both the principal units of military organization and as an implicit check on federal power. See generally Keith A. Ehrman & Dennis A. Henigan, The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?, 15 U.Dayton L.Rev. 5 (1989). These militias were comprised of ordinary citizens who typically were required to provide their own equipment and arms. The Second Amendment prevented federal laws that would infringe upon the possession of arms by individuals and thus render the state militias impotent. Over the next 200 years, state militias first faded out of existence and then later reemerged as more organized, semi-professional military units. The state provided the arms and the equipment of the militia members, and these were stored centrally in armories. With the passage of the Dick Act in 1903, the state militias were organized into the national guard structure, which remains in place today. Id. More recently, the Supreme Court in Perpich v. U.S. Department of Defense, 496 U.S. 334, 110 S. Ct. 2418, 110 L. Ed. 2d 312 (1990), has analyzed the early history of the militia, including the Act of 1792 which required militia members to provide themselves "with a good musket or firelock," as well as cartridges and other equipment. The Court observed that these requirements were virtually ignored for more than a century. Id. at 341, 110 S. Ct. at 2423. Perpich discusses in detail the relationship between the militia and the National Guard and recognizes that the "Federal Government provides virtually all of the funding, the materiel, and the leadership for the State Guard units." Id. at 351, 110 S. Ct. at 2428. While Perpich does not deal with the Second Amendment issue present here, its discussion of the militia gives further dimension to our analysis. Considering this history, we cannot conclude that the Second Amendment protects the individual possession of military weapons. In Miller, the Court simply recognized this historical residue. The rule emerging from Miller is that, absent a showing that the possession of a certain weapon has "some reasonable relationship to the preservation or efficiency of a well-regulated militia," the Second Amendment does not guarantee the right to possess the weapon. Miller, 307 U.S. at 178, 59 S. Ct. at 818. Miller simply "did not hold ... that the Second Amendment is an absolute prohibition against all regulation of the manufacture, transfer and possession of any instrument capable of being used in military action." Warin, 530 F.2d at 106. This court has on at least three occasions, citing and relying on Miller, denied challenges to the constitutionality of arms control legislation, because there was no evidence of a reasonable relationship to the maintenance of a militia. See United States v. Nelsen, 859 F.2d 1318 (8th Cir. 1988); Cody v. United States, 460 F.2d 34 (8th Cir.), cert. denied, 409 U.S. 1010, 93 S. Ct. 454, 34 L. Ed. 2d 303 (1972); United States v. Decker, 446 F.2d 164 (8th Cir. 1971). In Nelsen and Cody we also cited and relied on the decisions of other circuits discussed in this opinion.3 The Supreme Court has not addressed a Second Amendment issue since the Miller decision. Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert. denied, 319 U.S. 770, 63 S. Ct. 1431, 87 L. Ed. 1718 (1943) remains one of the most illuminating circuit opinions on the subject of "military" weapons and the Second Amendment. Cases states that "under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual, as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well-regulated militia." Id. at 922. After carefully examining the principles and implications of the then recent Miller decision, the First Circuit concluded that the existence of any "reasonable relationship to the preservation of a well regulated militia" was best determined from the facts of each individual case. Id. Thus, it is not sufficient to prove that the weapon in question was susceptible to military use. Indeed, as recognized in Cases, most any lethal weapon has a potential military use.4 Id. Rather, the claimant of Second Amendment protection must prove that his or her possession of the weapon was reasonably related to a well regulated militia. See id. at 923. Where such a claimant presented no evidence either that he was a member of a military organization or that his use of the weapon was "in preparation for a military career", the Second Amendment did not protect the possession of the weapon. Id. Since the Miller decision, no federal court has found any individual's possession of a military weapon to be "reasonably related to a well regulated militia." "Technical" membership in a state militia (e.g., membership in an "unorganized" state militia) or membership in a non-governmental military organization is not sufficient to satisfy the "reasonable relationship" test. Oakes, 564 F.2d at 387. Membership in a hypothetical or "sedentary" militia is likewise insufficient. See Warin, 530 F.2d 103. Applying these principles to the present case, we conclude that Hale's possession of the weapons in question was not reasonably related to the preservation of a well regulated militia. The allegation by Hale that these weapons are susceptible to military use is insufficient to establish such a relationship. Hale introduced no evidence and made no claim of even the most tenuous relationship between his possession of the weapons and the preservation of a well regulated militia. Citing dicta from United States v. Verdugo-Urquidez, 494 U.S. 259, 265, 110 S. Ct. 1056, 1060, 108 L. Ed. 2d 222 (1990), Hale argues that the Second Amendment protections apply to individuals and not to states or collective entities like militias. This argument is inapplicable to this case. The purpose of the Second Amendment is to restrain the federal government from regulating the possession of arms where such regulation would interfere with the preservation or efficiency of the militia. See Miller, 307 U.S. at 178, 59 S. Ct. at 818; United States v. Oakes, 564 F.2d 384 (10th Cir. 1977), cert. denied, 435 U.S. 926, 98 S. Ct. 1493, 55 L. Ed. 2d 521 (1978); Cody, 460 F.2d 34. Whether the "right to bear arms" for militia purposes is "individual" or "collective" in nature is irrelevant where, as here, the individual's possession of arms is not related to the preservation or efficiency of a militia. Hale next argues that the trial court's acceptance of affidavits as to the non-registration of his weapons violated his rights as guaranteed by the confrontation clause of the Sixth Amendment. The government introduced two affidavits signed by a Bureau of Alcohol, Tobacco and Firearms specialist stating that, after a diligent search of the its National Firearms Registration Branch records from 1934 to the present, the Bureau had located no record of any application by Hale to register his weapons. The court admitted the affidavits over hearsay objections by Hale's trial counsel. The Federal Rules of Evidence provide for an exclusion from the hearsay rule: Fed.R.Evid. 803(10). The trial judge correctly admitted the affidavits under this rule. Numerous cases have held that the admission of "negative records" under Rule 803(10) does not violate the constitutional right of confrontation. United States v. Metzger, 778 F.2d 1195 (6th Cir. 1985), cert. denied, 477 U.S. 906, 106 S. Ct. 3279, 91 L. Ed. 2d 568 (1986); United States v. Neff, 615 F.2d 1235 (9th Cir. 1980), cert. denied, 447 U.S. 925, 100 S. Ct. 3018, 65 L. Ed. 2d 1117 (1980); United States v. Harris, 551 F.2d 621 (5th Cir.), cert. denied, 434 U.S. 836, 98 S. Ct. 125, 54 L. Ed. 2d 98 (1977). At oral argument, Hale's counsel admitted that Rule 803(10) is "firmly rooted" in the common law as an exception to the hearsay rule and that the affidavits complied with the self-authentication standard of Federal Rule of Evidence 902(1). Hale's reliance on Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980) is misplaced. The trial court's ruling discussed records regularly made and preserved by a public agency; Brown addressed the admissibility at trial of testimony given in a preliminary hearing by a declarant unavailable to give live testimony at trial. Id. at 58-62, 100 S. Ct. at 2535-2537. The availability of the declarant is immaterial under Fed.R.Evid. 803. Hale further argues that the trial court erred in failing to admit or take judicial notice of material regarding the reliability of Bureau firearm registration records. Hale attempted to introduce portions of a transcript of hearings held before a Senate subcommittee in 1979. These excerpts included material which Hale alleged would show that the recordkeeping system used by the Bureau for firearm registration records was unreliable. The trial court denied admission because the transcripts were hearsay and were too old to be deemed reliable. The trial court also declined to take judicial notice of the transcript's contents. Hale has failed to demonstrate that the district judge abused her discretion in making either of these determinations. Hale raises numerous other arguments, particularly in his pro se brief, but these do not merit discussion. The judgment of the district court is affirmed. BEAM, Circuit Judge, concurring specially. I concur in the result reached in Judge John R. Gibson's opinion in this matter. I agree completely with the portions dealing with Hale's hearsay and confrontation contentions. I also agree that Hale's possession of the particular weapons at issue in this case is not protected by the Second Amendment. I disagree, however, that Cases v. United States, 131 F.2d 916 (1st Cir. 1942); United States v. Warin, 530 F.2d 103 (6th Cir. 1976); United States v. Oakes, 564 F.2d 384 (10th Cir. 1977) and United States v. Nelson, 859 F.2d 1318 (8th Cir. 1988) properly interpret the Constitution or the Supreme Court's holding in United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939) insofar as they say that Congress has the power to prohibit an individual from possessing any type of firearm, even when kept for lawful purposes. Judge Gibson's opinion seems to adopt that premise and with that holding, I disagree. 1 The Honorable Susan Webber Wright, United States District Judge for the Eastern District of Arkansas 2 Where a party is represented by counsel, our court policy is to refuse to consider pro se briefs. However, as the issue raised here questions our jurisdiction, which we must independently ascertain, we consider Hale's argument 3 The concurrence flies in the face of stare decisis in arguing that this court did not properly interpret the Second Amendment or Miller in Nelsen, which is consistent with our earlier decisions in Cody and Decker. The concurrence would also flout uniform precedent from other circuits, particularly since Nelsen cites and relies on Oakes and Warin, and Cody on Cases 4 It is evident that Hale's weapons were of a military nature and most undoubtedly of them possessed the capability of killing or maiming groups of persons
Fincher's "militia" did not meet the criteria of a "well-regulated state militia with officers appointed by the state". Horrible case example. I would call it a "posse" at best.
Using what as their authority? Because they're scary? How are ordinary citizens supposed to gather and form an effective state militia without fucking machine guns?
The entity to challenge a second amendment violation should be the state itself. And I bet they'd win. Local police departments have machine guns. Why not local militiamen? Police machine guns are kept at the police department. Militiamen machine guns can be kept at an armory.
Convicted. 78 months. Only enlistment or commission in the National Guard would meet the requisite militia definition. The court opined Fincher would have lost on an individual right argument as well. Civilians, to include those enrolled in the unorganized militia, have no right to possess an unlicensed machinegun. From Fincher, supra. [...] In Arkansas, the state militia is defined as: (a) The militia shall be divided into two (2) parts: the organized, consisting of the active and inactive Army National Guard and Air National Guard; and the unorganized, consisting of all those persons of the militia not in the active or inactive Army National Guard or the Air National Guard. [...] Accordingly, under Heller, Fincher's possession of the guns is not protected by the Second Amendment. Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use. Furthermore, Fincher has not directly attacked the federal registration requirements on firearms, and we doubt that any such attack would succeed in light of Heller. Accordingly, because Fincher's possession of guns is not protected by the Second Amendment, the district court did not abuse its discretion in preventing him from arguing otherwise to the jury. [...] FootNotes 1. At trial, Fincher's Second Amendment argument focused on his claim of right to possess the guns because they are military weapons and he is a member of the militia and not a claim of an individual right to possess a machine gun or unregistered sawed-off shotgun. Nevertheless, we think it is clear that even if Fincher had made the latter argument at trial, his possession of the guns is not protected under Heller.
[misterwhite #276] Using what as their authority? Because they're scary? How are ordinary citizens supposed to gather and form an effective state militia without fucking machine guns? The Firearm Owners' Protection Act of 1986 (FOPA) is federal law, upheld as constitutional power of Congress. It is the law of the land, supreme over anything the state may say. Everyone in a State National Guard is also enlisted or commissioned in the U.S. National Guard. The Federal Government provides virtually all of the funding, materiel, and leadership for the state Guard units. The unorganized militia (CIVILIANS) is prohibited, by law, from running around with unlicensed machine guns, or machine guns manufactured after May 19, 1986. Ordinary citizens are not expected to gather and form a militia with machine guns. The authority to provide for organizing, arming, and disciplining, the militia was granted to the Federal Congress by the U.S. Constitution. The Federal Government reorganized the militia as the National Guard.
Keep your bet. The Federal gun regulations have been held to be constitutional. They are the supreme law of the land because the U.S. Supreme Court has repeatedly said so. Federal law regulates civilian possession of machineguns. Membership in the Wolverines, and running around in woods playing Patrick Swayze in Red Dawn does not count. Such "patriots" have no right to possess a machinegun. Members of a police department may be authorized to possess a brand spanking new machinegun. It's the law. Hale broke the law and was convicted. Everyone who goes to court and argues your silly crap gets convicted. The unorganized militia, that great mass of people meeting certain qualifications between ages 17 to 45 are CIVILIANS. Civilian possession of machineguns is strictly regulated. The organized militia are in the National Guard. Their machineguns, for on duty use, are provided by the Federal government. From Hale, supra, Applying these principles to the present case, we conclude that Hale's possession of the weapons in question was not reasonably related to the preservation of a well regulated militia. The allegation by Hale that these weapons are susceptible to military use is insufficient to establish such a relationship. The former state militias are now organized as the National Guard. Joining the State National Guard means also enlisting or being commissioned in the U.S. National Guard. When federalized, the members of a state National Guard are considered discharged from that organization. Members of the National Guard of the United States may be ordered to active federal duty for purposes of training outside the United States without either the consent of a state governor or the declaration of a national emergency. During such periods, the second Militia clause is no longer applicable. This merely recognizes the supremacy of federal power in the military affairs area.
MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 4 [misterwhite #244] For those not in the state militia, their State Constitution spells out their personal RKBA. The 2nd Amendment protects the individual right of the people to keep and bear arms. It protects the right of civilians to keep and bear arms. It is not to protect the right of the active duty organized militia to carry machineguns while on duty. As unlicensed possession of a machinegun is a federal crime, no state law can authorized possession of such a weapon by an off-duty member of the militia at home. An off duty military member caught running around in the woods with his M-16 would be court-martialed by the military, and may be prosecuted by the civilian authorities. Federal law is supreme and prohibits a state from authorizing machinegun possession at home of military weapons. Weapons provided to the National Guard are provided by the Federal government. Members of the State National Guard are also enlisted or commissioned in the United States National Guard. From United States v. Gilbert, 286 Fed. Appx. 383 (9th Cir. 2008), quoted in full below. And, Channel misterwhite, act accordingly, take your bullshit to court, go to a well-regulated prison. Keith Gilbert was sentenced to eight years in prison. The court did not permit him to testify as to his bullshit about the Second Amendment. Pleading bullshit in court is not allowed. In court, you cannot argue your personal belief of what the law is. The court determines what the law is and so instructs the jury. https://casetext.com/case/us-v-gilbert-35 United States v. Gilbert, 286 Fed. Appx. 383 (9th Cir. 2008) United States Court of Appeals, Ninth Circuit, Jul 14, 2008, 286 Fed. Appx. 383 (9th Cir. 2008) MEMORANDUM This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. - - - - - - - - - - Keith Gilbert appeals his jury conviction on one count of conspiracy to manufacture unregistered firearms in violation of 18 U.S.C. § 371, one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), seven counts of possession of a machinegun in violation of 18 U.S.C. § 922(o), and two counts of possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). Gilbert challenges the refusal of a requested jury instruction, the propriety of a given jury instruction, and the court's exclusion of testimony regarding his beliefs about the Second Amendment. We have jurisdiction under 28 U.S.C. § 1291. We affirm. Gilbert's criminal history includes felony convictions which prevent him from possessing firearms, including two separate 1966 convictions, one for receiving stolen property and unlawful possession of explosives, and another for assault with a deadly weapon. Between 2003 and 2004, a police informant made four controlled purchases of AK rifles from Gilbert. Portions of all of the transactions were recorded and agents conducted surveillance during the last three transactions. In 2005, a search of Gilbert's residence yielded approximately 70 firearms, multiple firearm parts, over 23,000 rounds of ammunition, and books and videos about firearms. At trial, Gilbert admitted to participating in each of the four controlled purchases and testified that he knew the buyer was acting as an informant. Gilbert maintains that he sold the guns to the informant intentionally, to challenge the constitutionality of firearms laws. Gilbert attempted several times to testify, twice successfully, that he believed the Second Amendment gave an individual the right to bear arms. Each time, the court sustained government counsel's objections and instructed the jury to disregard Gilbert's answers. The court also denied Gilbert's request for an additional jury instruction to the effect that the Second Amendment affords an individual right to possess firearms for personal use. The final jury instructions included, at the government's request, the following instruction: I. Jury Instructions Gilbert argues that the district court erred by giving this instruction and refusing to instruct the jury that the Second Amendment affords an individual right to possess firearms for personal use. We review de novo the district court's refusal to give a defendant's jury instructions when that decision is based on a question of law. See United States v. Eshkol, 108 F.3d 1025, 1028 (9th Cir. 1997). A district court's formulation of jury instructions is reviewed for an abuse of discretion. See United States v. Shipsey, 363 F.3d 962, 966 n. 3 (9th Cir. 2004); United States v. Garcia-Rivera, 353 F.3d 788, 791-92 (9th Cir. 2003) ("In reviewing jury instructions, the relevant inquiry is whether the instructions as a whole are misleading or inadequate to guide the jury's deliberation."). Although a defendant is entitled to have the judge instruct the jury on his theory of defense, that theory must be supported by law and have some foundation in the evidence. United States v. Kayser, 488 F.3d 1070, 1073 (9th Cir. 2007). We conclude that the challenged instruction did not make the instructions as a whole misleading or inadequate to guide the jury's deliberation. Garcia-Rivera, 353 F.3d at 792. The district court's instructions were particularly appropriate to rebut inferences created by Gilbert's counsel's statements that Gilbert believed the Second Amendment allowed him to possess, sell, and manufacture firearms, Gilbert's stricken statements about his beliefs regarding the Second Amendment, and his statement that he was challenging the constitutionality of the law. The Supreme Court's recent decision in District of Columbia v. Heller, 554 U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), holding that the Second Amendment protects a limited individual right to possess a firearm — unconnected with service in a militia — does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms. Id., 128 S.Ct. at 2802. II. Exclusion of Testimony Gilbert also argues that the district court erred by preventing him from testifying as to his understanding and beliefs concerning the Second Amendment. Gilbert maintains that by sustaining the government's objections to his attempt to testify to that effect, the court prevented him from presenting a defense. We review a district court's ruling excluding evidence for abuse of discretion. See United States v. Plancarte-Alvarez, 366 F.3d 1058, 1062 (9th Cir. 2004). In firearms prosecutions, the government is not required to prove that a defendant knew that his possession of the firearms at issue was unlawful. United States v. Freed, 401 U.S. 601, 607, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971). Accordingly, the charges against Gilbert did not require, as an element of proof, evidence that Gilbert knowingly broke the law, only that he knowingly possessed weapons and knew the characteristics of those weapons. The only elements of proof which required inquiry into Gilbert's mental state were met: the government proved that Gilbert joined the conspiracy knowing its object and intending to accomplish it, and that he knowingly possessed machineguns and a rifle with a barrel less than 16 inches in length. Thus we conclude that the district court acted well within its discretion to exclude Gilbert's testimony regarding his beliefs about the Second Amendment as inadmissible under Fed.R.Evid. 402. For the same reason, we conclude that the district court's exclusion of Gilbert's testimony did not violate his right to present a witness in his own defense. AFFIRMED.
Again, we have to go back. What was the original intent of the second amendment? It was added to the Bill of Rights to protect state militias from federal infringement. Anything the federal government did that interfered with or obstructed the state from organizing and arming their citizen militia was unconstitutional. Period. End of story. That's the way it was for hundreds of years. Until, of course, Heller. Screw the National Guard … the "organized" and "unorganized" militia … the "active" and "inactive" militia. Weasel words used because you're trying to fit a round peg into a square hole with your stupid Heller and McDonald decisions.
If they had machine guns back in 1790 they would have been. You disagree? You are depriving ordinary Americans of the very weapons they need to form a citizen's militia to defend against a foreign invasion or a rogue government. Worse, you're saying it's constitutional.
Uh-huh. Is that what the Founding Fathers wanted -- to write a constitution that gave supreme military power to this newly formed federal government? The Founders were scared to death of what they were creating. Which is why the U.S. Constitution was written such that the states gave only certain, defined, limited powers to it and kept the rest of the powers to themselves. You're not only misreading the second amendment. You're ignoring the intent.
Then who or what protects their right to keep and bear those arms? You continue to refuse to answer that question.
[misterwhite #282] It was added to the Bill of Rights to protect state militias from federal infringement. Anything the federal government did that interfered with or obstructed the state from organizing and arming their citizen militia was unconstitutional. Period. End of story. That's the way it was for hundreds of years. Until, of course, Heller. Screw the National Guard … the "organized" and "unorganized" militia … the "active" and "inactive" militia. Weasel words used because you're trying to fit a round peg into a square hole with your stupid Heller and McDonald decisions. Once again, a lot of truly ignorant noise with no research or knowledge of the subject matter. In Heller' fault, because — Benghazi. The militia was reorganized into the National Guard in 1903, 105 years before Heller. And Heller and McDonald are the law of the land. 32 Stat. 775, The Dick Act of 21 January 1903, an Act to promote the efficiency of the militia, and for other purposes. Be it enacted by the Senate and House ofRepresentatives of the United States of America in Congress assembled, That the militia shall consist of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age, and shall be divided into two classes—the organized militia, to be known as the National Guard of the State, Territory, or District of Columbia, or by such other designations as may be given them by the laws of the respective States or Territories, and the remainder to be known as the Reserve Militia. The National Guard was Federalized in 1916, 92 years before Heller. 39 Stat. 188, 211; National Defense Act of 3 Jun 1916 § 111,
[misterwhite #283] If they had machine guns back in 1790 they would have been. You disagree? You are depriving ordinary Americans of the very weapons they need to form a citizen's militia to defend against a foreign invasion or a rogue government. Worse, you're saying it's constitutional. I'm not depriving anybody of anything. The Congress was empowered by the Constitution "to provide for organizing, arming, and disciplining, the militia...." The Congress has provided for organizing and arming the militia. You don't seem to like the way they have done it. I am not concerned with your personal problems. It is not 1790 and personal possession of unlicensed machineguns is a violation of Federal law. The law has been upheld as constitutional on multiple occasions. It is the law of the land. Your pretending otherwise is insane bullshit. When your bullshit is taken to court, sovereign morons get convicted and sent to a well regulated prison.
[misterwhite #284] Uh-huh. Is that what the Founding Fathers wanted -- to write a constitution that gave supreme military power to this newly formed federal government? That was a fishhook for your dumbass to bite on. It is taken from a unanimous opinion of the U.S. Supreme Court. - - - - - - - - - - Tell it to the unanimous U.S. Supreme Court.
[misterwhite #285] Then who or what protects their right to keep and bear those arms? You continue to refuse to answer that question. The 2nd Amendment to the U.S. Constitution still protects the individual right of the people to keep and bear arms. You keep mumbling some bullshit about how states protect the right to keep and bear arms through their constitutions, but your are absolute crickets about how they do it. Anything in a state constitution which is contrary to the Federal Constitution, any Federal law or treaty, falls to the Federal provision which is the law of the land, and is supreme over all state laws. It is called the Supremacy Clause. See Article VI, § 2: Your most profound legal claim thus far is in your #282: Yeah, you should stick with blaming the transition from State Militia to the National Guard (in 1903) on the stupid Heller decision in 2008. And Supreme Court decisions are just to be dismissed as stupid. The same with Federal laws. At least it is a true statement of your legal reasoning, such as it is.
Supreme Court decisions are just to be dismissed as stupid Damn few are in compliance with the Constitution, so you're full of it! That's correct. Disregard most of them since they're not in compliance with the US Constitution either. You're a STUPID scofflaw copy & paste wanabe SCOTUS tyrant! Nolu Chump has spoken
Perpich v. DOD, 496 U.S. 334 (1990) was a ruling limited to the federalization of state militias. I agree with the ruling. Had you been honest with your quote, rather than trying to pull a "Gotcha", I wouldn't have to waste my time with you.
Then who or what protects the right of the active duty organized militia to carry machineguns while on duty? The 2nd Amendment to the U.S. Constitution still protects the individual right of the people to keep and bear arms. Machine guns? We're discussing machine guns. Who or what protects the right of the active duty organized militia to carry machineguns while on duty? I'm sure Heller has the answer. Go spend a week trying to find it.
How? It's written in their state constitution. Alabama, for example, has this: "That the great, general and essential principles of liberty and free government may be recognized and established, we declare.... That every citizen has a right to bear arms in defense of himself and the state. (Ala. Const. art. I, § 26) (1819)." Each state is different, of course. Here's a summary: https://www.nraila.org/articles/20140703/guarantees-of-the-right-to- arms-in- stat&sa=U&ved=0ahUKEwjv_4yk0dXbAhWFv1MKHWwuCSoQFgggMAI&usg=AOvVaw1W5NrmjvNiodO8M F-QerxD If the second amendment protects the individual RKBA, why do we need these state constitutions? You don't know. Heller has completely fucked you up.
I don't. The Heller court tried to muddy the waters with their "State Militias no longer exist" bullshit argument. The real problem with Heller was this fact -- he lived in the District of Columbia, not in one of the 50 states. As such, his RKBA had no constitutional protection. The Heller court should have simply ruled that way. Tought shit, Heller. Move. But they saw this as an opportunity for the federal government to take over gun rights, and they wrapped their decision in the "individal rights" flag. You bought it, hook, line, and sinker, thinking this was a good thing. You're a fool.
[nolu chan #289] It is called the Supremacy Clause. See Article VI, § 2: Your [nc - misterwhite] most profound legal claim thus far is in your #282: Yeah, you should stick with blaming the transition from State Militia to the National Guard (in 1903) on the stupid Heller decision in 2008. And Supreme Court decisions are just to be dismissed as stupid. The same with Federal laws. At least it is a true statement of your legal reasoning, such as it is. Hondo68 version, deleting all context: And the Hondo68 comment which does not address the issue, but just excretes more bullshit: That's correct. Disregard most of them since they're not in compliance with the US Constitution either. How do states protect individual the 2nd Amendment right to keep and bear arms through the state constitution? Do you have an answer? The Federal Constitution, law, or treaty strikes down any inconsistent provision of any state constitution or state law. See U.S. Const., Article 6, § 2. Some people possess unlicensed machineguns in violation of Federal law. Some get caught. I have documented some who have argued misterwhite's bullshit in court. They have been convicted and sent to federal prison.
Ah, you agree with it now. At #284, you commenting differently: [misterwhite #284] Uh-huh. Is that what the Founding Fathers wanted -- to write a constitution that gave supreme military power to this newly formed federal government? The Founders were scared to death of what they were creating. Which is why the U.S. Constitution was written such that the states gave only certain, defined, limited powers to it and kept the rest of the powers to themselves. You're not only misreading the second amendment. You're ignoring the intent. When you a hit over the head with the fact that you said that of a comment by a unanimous U.S. Supreme Court, you try to make believe you didn't say it. Good try. The quote was perfectly honest and in context. Your bullshit answer was just a typical example of your bullshit, detached from reality.
Then who or what protects the right of the active duty organized militia to carry machineguns while on duty? Active duty organized militia do NOT have a RIGHT to carry machineguns on duty. If they are required by their job to carry a machinegun, one is issued to them. Some are not allowed to carry a machinegun or otherwise be armed, for example, medics. The Lautenberg Amendment supplements the Gun Control Act of 1968, and became law on September 30, 1996. It is a felony for anyne convicted of a misdemeanor crime of domestic violence to possess or receive firearms or ammunition. The law applies to soldiers throughout the world who have been convicted of a misdemeanor crime of domestic violence. The soldier should be detailed to duties that do not require bearing or arms or ammunition. The Congress is empowered by the Constitution, Article 1, § 8. Clause 16, "To provide for organizing, arming, and disciplining, the militia...." The active duty organized militia is provided with arms by the Federal government. Members of the organized militia are enlisted or commissioned in the United States National Guard. Machine guns? We're discussing machine guns. Who or what protects the right of the active duty organized militia to carry machineguns while on duty? On duty, they are provided with whatever arms are deemed necessary, to include new M-16 machineguns. On duty members of the organized militia are enlisted or commissioned in the United States National Guard. Civilian possession of unlicensed machineguns is a Federal crime.
How? It's written in their state constitution. Alabama, for example, has this: That does not permit a citizen in Alabama to possess an unlicensed machinegun. If you think that is what it says, then it is null and void as contrary to Federal law. In a Federal court, it offers no defense to the poor dumb bastard who reads your bullshit, believes it, and gets caught in possession of an unlicensed machinegun. U.S. v. Cox and Kettler just happened to be my case of the day which I will provide in full. See United States v. Cox and Kettler, 235 F. Supp. 3d 1221 (D. Kan. 2017), at pages 3-4: The Constitution of the United States provides in part that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI. This necessarily makes the question presented by defendant's motion one of federal law. If the NFA is otherwise consistent with the U.S. Constitution and is a 3 - - - - - - - - - - valid exercise of Congress's power to tax spelled out in the Constitution, then it is "the supreme Law of the Land," notwithstanding "any Thing in the Laws of any State to the Contrary." The defendants argue that Kansas's adoption of the Second Amendment Protection Act (SAPA), K.S.A. § 50-1204, somehow rendered the National Firearms Act unconstitutional. Dkt. 63 at 6. This court has no authority to construe SAPA or to determine what it means; that is a task reserved to the Kansas courts. But the Constitution could not be clearer on one point: if the National Firearms Act is a valid exercise of Congressional taxing power, and if it does not infringe on rights granted in the U.S. Constitution, then it is the "supreme Law of the Land," regardless of what SAPA says. When defendants try your bullshit arguments in court, they get brushed aside and the defendant gets sent to a well-regulated prison. Why is that? Just as an aside, the 1819 Alabama constitution that you quoted is quite dead and buried, many times over, including the provision that reads: Section 1. The general assembly shall have no power to pass laws for the emancipation of slaves, without the consent of their owners, previous to such emancipation, a full equivalent in money for the slaves so emancipated. ... There is the Alabama constitution of 1819, 1861, 1865, 1867, 1875, and 1901. The current Alabama constitution, as amended, states, Right to bear arms. That every citizen has a right to bear arms in defense of himself and the state. Nowhere does it claim that Alabama citizens have the right to possess unlicensed machineguns in defiance of Federal law.
[nolu chan #289] Yeah, you should stick with blaming the transition from State Militia to the National Guard (in 1903) on the stupid Heller decision in 2008. And Supreme Court decisions are just to be dismissed as stupid. The same with Federal laws. At least it is a true statement of your legal reasoning, such as it is. Or as you abbreviated it in your #294: I don't. Ah, but the text of your #282 demonstrates that you did. The U.S. National Guard and the State National Guard exists. Joining the State National Guard requires enlisting or being commissioned in the United States National Guard. The decision in Heller is the supreme law of the land. The real problem with your insane, infantile argument is that Heller lived in a Federal district upon which the 2nd Amendment applied directly and did not need any application via incorporation into the 14th Amendment. As is your typical interpretation, you interpret the legal effect backwards. Heller did not recognize an individual right that was applicable against the states. It was applicable in the District of Columbia because it was a Federal district. McDonald incorporated the 2nd Amendment into the 14th Amendment and made it fully applicable to the states. Just because you believe your own insane, infantile bullshit does not mean the U.S. Supreme Court is wrong or invalidated. Heller and McDonald are the supreme law of the land, your insane, infantile bullshit nothwithstanding. Why you want to deny an individual right to keep and bear arms is your personal problem.
So what protects the individual right to keep and bear arms? State constitutions. - - - - - - - - - - [misterwhite #221] A brand-new machine gun, for starters. Or a brand-new full-auto battle rifle. - - - - - - - - - - - - - - - - - - - - MISTERWHITE'S BULLSHIT GOES TO COURT, Chapter 5 Channel misterwhite, act accordingly, take your bullshit to court, go to a well-regulated prison. https://www.leagle.com/decision/infdco20170131g61 United States v. Cox and Kettler, 235 F. Supp. 3d 1221 (D. Kan. 2017) Case No. 15-10150-01,02-JTM UNITED STATES OF AMERICA, MEMORANDUM AND ORDER This matter is before the court on defendant Shane Cox's motion to dismiss (Dkt. 63). Defendant Jeremy Kettler joins in the motion. The motion argues that the National Firearms Act (NFA) is unconstitutional because it amounts to "regulatory punishment" rather than imposition and enforcement of a valid federal tax. Defendants further argue that the NFA violates the Second and Tenth Amendments to the U.S. Constitution. Dkts. 63, 78. This case has generated significant interest within the District of Kansas and beyond. Many concerned persons have written emails or called the court's chambers to express their views. Judges are not allowed to publicly comment on pending cases, but I believe it is important to give a clear explanation of the court's decision and the reasons behind it to all who are interested. In order to do that, I begin with a summary of the court's obligations, the relevant law, and how the law applies to the facts of the case. 1 - - - - - - - - - - Before assuming office, every justice or judge of the United States courts must take the following oath: I [name], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [a judge] under the Constitution and laws of the United States. So help me God. 28 U.S.C. § 453. This oath requires a judge to uphold the Constitution and laws of the United States, as interpreted by the United States Supreme Court and the Tenth Circuit Court of Appeals. Where there is a decision on any point of law from the Supreme Court or the Tenth Circuit, or both, I am bound to follow those decisions. This is true whether the decision is absolutely identical, or whether it sets out a principle of law that applies equally to different facts. As a district court judge, I am not empowered to do what I think is most fair - I am bound to follow the law. The U.S. Constitution provides in part that the Constitution and laws of the United States "shall be the supreme Law of the Land," binding all judges in every state, "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." In other words, United States District Courts are bound by federal law, even if a state law says something to the contrary. The National Firearms Act (26 U.S.C. § 5861 et seq.) is a federal law that imposes a tax and licensing requirement on firearms dealers. It includes silencers among the items subject to registration and taxation. Eighty years ago, the Supreme Court upheld the NFA as a valid exercise of Congressional taxing power. Sonzinsky v. United States, 2 - - - - - - - - - - 300 U.S. 506 (1937). The Supreme Court reaffirmed this point in Nat'l. Fed'n of Indep. Bus. Women v. Sebelius, 132 S.Ct. 2566 (2012). Further, the Supreme Court has held that if Congress has exercised a valid power, such as its taxing power, then the Tenth Amendment "expressly disclaims any reservation of that power to the States." New York v. United States, 505 U.S. 144, 156 (1992). This leaves the Second Amendment. The Supreme Court, while recently recognizing that individuals have a right to "keep and bear Arms," also said that the Second Amendment is not absolute, and that nothing in its decision should be interpreted "to cast doubt on ... laws imposing conditions and qualifications on the commercial sale of arms." Dist. of Columbia v. Heller, 128 S.Ct. 2783, 2816-17. The National Firearms Act is such a law. As is more fully set out below, the Constitution and Supreme Court decisions discussed in this opinion compel the result this court reaches in upholding the constitutionality of the National Firearms Act and in denying the defendants' motion to dismiss. I. Supremacy Clause. The Constitution of the United States provides in part that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., art. VI. This necessarily makes the question presented by defendant's motion one of federal law. If the NFA is otherwise consistent with the U.S. Constitution and is a 3 - - - - - - - - - - valid exercise of Congress's power to tax spelled out in the Constitution, then it is "the supreme Law of the Land," notwithstanding "any Thing in the Laws of any State to the Contrary." The defendants argue that Kansas's adoption of the Second Amendment Protection Act (SAPA), K.S.A. § 50-1204, somehow rendered the National Firearms Act unconstitutional. Dkt. 63 at 6. This court has no authority to construe SAPA or to determine what it means; that is a task reserved to the Kansas courts. But the Constitution could not be clearer on one point: if the National Firearms Act is a valid exercise of Congressional taxing power, and if it does not infringe on rights granted in the U.S. Constitution, then it is the "supreme Law of the Land," regardless of what SAPA says. II. Is the NFA a valid exercise of Congress's taxing authority? The Constitution gives the Congress certain enumerated powers. Among those is the authority to impose and collect taxes, and to enact laws for carrying out the taxing regimen. See U.S. Const., art. I, § 8 (The Congress shall have Power to lay and collect Taxes,. to pay the Debts and provide for the common Defence and general welfare of the United States" [and] "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers"). In 1937, the Supreme Court of the United States addressed "whether section 2 of the National Firearms Act which imposes a $200 annual license tax on dealers in firearms, is a constitutional exercise of the legislative power of Congress." Sonzinsky v. United States, 300 U.S. 506, 511 (1937). The case involved the criminal conviction of a 4 - - - - - - - - - - man charged with unlawfully carrying on a business as a dealer in firearms without having registered or paid the tax required by the NFA. The defendant argued "that the present levy is not a true tax, but a penalty imposed for the purpose of suppressing traffic in a certain noxious type of firearms, the local regulation of which is reserved to the state because [it is] not granted to the national government." Id. at 512. He argued that the cumulative effect of imposing taxes on the manufacturer, dealer, and buyer of a covered firearm was "prohibitive in effect and disclose[s] unmistakably the legislative purpose to regulate rather than to tax." Id. at 512-13. The Supreme Court flatly rejected the argument, finding that because the NFA "is not attended by an offensive regulation, and since it operates as a tax, it is within the national taxing power." Id. at 513. Sonzinsky has never been reversed, vacated or modified by the Supreme Court. Only recently, in Nat'l Fed'n Of Indep. Bus. Women v. Sebelius, 132 S.Ct. 2566 (2012), where the Supreme Court upheld the Affordable Care Act's "individual mandate" as a valid exercise of Congress's taxing power, the Court cited Sonzinsky for the proposition that a tax is not invalid merely because it seeks to influence behavior, noting "we have upheld such obviously regulatory measures as taxes on selling sawed-off shotguns," and observing that "[e]very tax is in some measure regulatory" because it "interposes an economic impediment to the activity...." Nat'l Fed'n of Indep. Bus. Women, 132 S.Ct. at 2596 (citing Sonzinsky, 300 U.S. at 506, 513)). Because Sonzinsky remains a valid Supreme Court decision, it is "the supreme Law of the Land" on this issue. 5 - - - - - - - - - - Defendant urges the court to find the NFA invalid based on the observation in Nat'l Fed'n of Indep. Bus. Women that "there comes a time in the extension of the penalizing features of [a] so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment." Id., 132 S.Ct. at 2599-2600. That argument, however, is precisely the one rejected by the Supreme Court in Sonzinsky. Unless or until the Supreme Court decides otherwise, this court is bound by Sonzinky's conclusion that the NFA represents a valid exercise of Congress's constitutional power to levy taxes. See also United States v. Houston, 103 Fed.Appx. 346, 349-50 (10th Cir. 2004) ("Mr. Houston fails to establish 26 U.S.C. § 5861(d) and its parent act are beyond Congress's enumerated power to either regulate commerce through firearms registration requirements, or impose a tax thereon."); United States v. Roots, 124 F.3d 218 (Table), 1997 WL 465199 (10th Cir. 1997) ("Lopez does not undermine the constitutionality of § 5861(d) because that provision was promulgated pursuant to Congress's power to tax"). The same conclusion has been reached by every federal court of appeals to have addressed the issue since adoption of the NFA. 6 - - - - - - - - - - Defendant cites the Tenth Amendment and argues that the NFA is invalid because it has "invaded an area of law that has traditionally been reserved to the States." Dkt. 63 at 6. But if the NFA is otherwise consistent with the Constitution and constitutes a valid exercise of Congress's taxing power - as the Supreme Court said it did in Sonzinsky - then it does not run afoul of the Tenth Amendment. See New York v. United States, 505 U.S. 144, 156 (1992) ("If a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States."). Again, the Supreme Court in Sonzinsky specifically rejected the defendant's claim that the NFA was invalid because it regulated on a matter that was reserved to the states. Sonzinsky, 300 U.S. at 512. III. Is the NFA consistent with the Second Amendment? Defendant's original motion to dismiss did not argue that the NFA violates the Second Amendment. See Dkt. 63. His response to the State of Kansas's brief, however, relies almost exclusively on the Second Amendment. Dkt. 78. Be that as it may, a review of case law shows that defendant's Second Amendment argument is also foreclosed by Supreme Court precedent. The Second Amendment provides that "the right of the people to keep and bear Arms shall not be infringed." U.S. Const. amend II. In striking down a District of Columbia statute that essentially prohibited the possession of useable handguns in the home, the Supreme Court held that the Second Amendment "confer[s] an individual 7 - - - - - - - - - - right to keep and bear arms." Dist. of Columbia v. Heller, 128 S.Ct. 2783 (2008). This amendment protects the right of law-abiding citizens to keep and bear arms that are in common use for traditionally lawful purposes, such as self-defense. See also McDonald v. City of Chicago, Ill., 561 U.S. 742, 767 (2010) ("in Heller, we held that individual self-defense is 'the central component' of the Second Amendment right.") (citing Heller, emphasis in original). "Like most rights, the right secured by the Second Amendment is not unlimited." Id. at 2816. Heller noted the amendment did not confer a right to keep and carry any weapon for any purpose whatsoever. For example, the Court observed that prohibitions on carrying concealed weapons had long been upheld under the Second Amendment and under similar state laws. Id. Without defining the precise scope of the right to keep and bear arms, the Supreme Court pointed out that "nothing in our opinion should 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." Id. at 2816-17 (emphasis added). In United States v. Miller, 307 U.S. 174 (1939), two defendants were criminally charged with violating the NFA by transporting a short-barreled shotgun in interstate commerce without paying the tax and obtaining the approval required by the NFA. A U.S. District Court dismissed the charge, finding that it violated the Second Amendment. But the Supreme Court reversed that ruling because "we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument." Id. 8 - - - - - - - - - - at 178. In Heller, the Supreme Court reviewed Miller and indicated that it remains good law, stating: "We therefore read Miller to say ... that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope" of the Second Amendment right. Heller, 128 S.Ct. at 281516. So, as Miller holds, the Second Amendment protects the sorts of weapons "in common use" but does not extend to "the carrying of 'dangerous and unusual weapons.'" Heller, 128 S.Ct. at 2817. Defendant Cox was convicted of three different types of NFA violations. The first (Count 3) was for possessing a short-barreled rifle without registering it and paying the tax required by the NFA. Such a weapon is clearly comparable to the short-barreled shotgun at issue in Miller. No suggestion or showing is made that short-barreled rifles have been in common use by law-abiding citizens for lawful purposes. The court must therefore conclude under Miller that they fall outside the scope of the Second Amendment. See Heller, 128 S.Ct. at 2814 ("Miller stands ... for the proposition that the Second Amendment right extends only to certain types of weapons."); United States v. Thompson/Center Arms Co., 504 U.S. 505, 517 (1992) ("It is clear ... that the [NFA's] object was to regulate certain weapons likely to be used for criminal purposes, just as 9 - - - - - - - - - - the regulation of short-barreled rifles, for example, addresses a concealable weapon likely to be so used"); United States v. Gonzales, 2011 WL 5288727 (D. Utah Nov. 2, 2011) (short-barreled rifle was not a constitutionally protected arm under Heller); United States v. Barbeau, 2016 WL 1046093, *4 (W.D. Wash. Mar. 16, 2016) (defendant's possession of a short-barreled rifle was not protected by the Second Amendment); United States v. Gilbert, 286 F.App'x 383, 386, 2008 WL 2740453 (9th Cir. 2008) ("Under Heller, individuals still do not have a right to possess [machine guns] or short-barreled rifles"). The second type of violation at issue here was making, possessing, or transferring silencers without registering or paying the tax required by the NFA. While it is certainly possible to possess silencers for lawful purposes, no showing is made that they are a type of arm "in common use" covered by the Second Amendment. See United States v. McCartney, 357 F.App'x 73, 77, 2009 WL 4884336, *3 (9th Cir. 2009) ("Silencers, grenades, and directional mines are not 'typically possessed by law-abiding citizens for lawful purposes' . and are less common than either short-barreled shotguns or machine guns."); United States v. Perkins, 2008 WL 4372821, *4 (D. Neb. Sept. 23, 2008) ("silencers/suppressors 'are not in common use by law abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use'"); United States v. Garnett, 2008 WL 2796098, *4 (E.D. Mich. July 18, 2008) ("Nothing in [Heller] ... casts doubt on the constitutionality of federal regulations over [machine guns] and silencers at issue in this case."). Because the foregoing arms are outside the scope of Second Amendment 10 - - - - - - - - - - protection, the application of the NFA to persons possessing, transferring or making such items does not infringe on Second Amendment rights. Finally, defendant Cox's third type of conviction was for engaging in business as a dealer or manufacturer of silencers without paying the appropriate federal tax and registering. Defendant's motion does not address this charge specifically, but it is clearly one of the federal "laws imposing conditions and qualifications on the commercial sale of arms" that Heller said were permissible under the Second Amendment. Regardless of the level of scrutiny applied, a long-standing NFA regulation requiring a commercial firearms dealer to obtain a federal license and pay the federal tax required by the NFA before engaging in the firearms business would clearly pass muster under the Second Amendment. See United States v. Hosford, 843 F.3d 161, 166 (4th Cir. 2016) ("the prohibition against unlicensed firearm dealing is a longstanding condition or qualification on the commercial sale of arms and is thus facially constitutional"). In sum, binding Supreme Court precedent - i.e., Sonzinsky, Miller, and Heller - shows that the NFA, both on its face and as applied, is a valid and constitutional exercise of Congress's authority to levy taxes. 11 - - - - - - - - - - IV. Congress's authority to regulate interstate commerce. The U.S. Constitution also gives Congress the power "To regulate Commerce ... among the several States...." U.S. Const., art. I, § 8. The Supreme Court has held that this clause does not permit Congress to regulate purely local activities. See United States v. Lopez, 514 U.S. 549 (1995). But Supreme Court case law also "firmly establishes Congress's power to regulate purely local activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce." Gonzales v. Raich, 545 U.S. 1, 17 (2005). Thus, "[w]hen Congress decides that the 'total incidence' of a practice poses a threat to a national market, it may regulate the entire class." Id. The court's conclusion that the NFA is a valid exercise of Congress's taxing power makes it unnecessary to decide whether the NFA is also a valid exercise of Congress's power to regulate interstate commerce. Cf. Montana Shooting Sports Ass'n. v. Holder, 727 F.3d 975, 982 (9th Cir. 2013), cert. denied, 134 S.Ct. 955 (Jan. 13, 2014) (finding that under Raich, Congress can exercise its commerce power to validly regulate manufacture of firearms made within the State of Montana, notwithstanding Montana 12 - - - - - - - - - - Firearms Freedom Act declaring otherwise). Accordingly, the court does not address that issue. V. Conclusion. The Supreme Court cases cited above establish that the NFA provisions under which defendants were convicted are valid and constitutional acts adopted by Congress pursuant to its authority to levy and enforce the collection of taxes. As such, they constitute the "the supreme Law of the Land," notwithstanding "any Thing in the Laws of any State to the Contrary." U.S. Const., art. VI. IT IS THEREFORE ORDERED this 31st day of January, 2017, that the defendants' motion to dismiss (Dkt. 63) is DENIED. s/ J. Thomas Marten 13 - - - - - - - - - -
They really don't need to, but redundancy when dealing with tyrants seems like a good idea. If you understood the Supremacy Clause you'd acknowledge that the Second Amendment being a part of the Constitution applies to all States, illegal legislation and bad court decisions to the contrary notwithstanding. You & teh Donald ain't taking our guns, so F' off!
Two words for that. Bull and Shit. Your quote made no reference to federalizing State Militias and sending them overseas. It was a generalized statement, out of context, with no reference to the case itself.
They really don't need to, but redundancy when dealing with tyrants seems like a good idea. If you understood the Supremacy Clause you'd acknowledge that the Second Amendment being a part of the Constitution applies to all States, illegal legislation and bad court decisions to the contrary notwithstanding. I see you can't help your partner in crime, Dumb, explain how the states protect the individual right to keep and bear arms through the state constitution. As for your blather, if you understood the law surrounding the Bill of Rights, you would know that it did not apply to the States at all until provisions were incorporated into the 14th Amendment piecemeal by the judicial branch. McDonald at 754: "The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government." The Second Amendment was incorporated into the 14th Amendment, making it enforceable against the states, by McDonald v. Chicago, 561 U.S. 742 (28 June 2010). Some of the Bill of Rights has yet to be incorporated and is not applied to the States. This is fact, hondo68 bullshit notwithstanding. If you pulled your head out of your ass, you would realize the Supremacy Clause did not make any part of the Bill of Rights applicable to the states, or it would all now apply to the states. It does not so apply. If you opened your eyes, you would realize that some parts of the Bill of Rights still have no application to the states. The 5th Amendment is part of the Bill of Rights. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.... That has not been incorporated into the Fourteenth Amendment and does not apply to the states. Many, many cases are brought in state court on presentment of an information. Function of an "information" is to inform defendant of the nature of the charge made against him and the act constituting such charge so that he can prepare for trial and to prevent him from being tried again for the same offense. While the Fifth Amendment of the U.S. Constitution requires federal government to prosecute infamous crimes only upon presentment of grand jury indictment, in most states the information may be used in place of grand jury indictment to bring person to trial. Black's Law Dictionary, 6th Ed., case citations omitted. I'm not taking any of your guns. If you have an unlicensed machinegun or short-barrel shotgun and get caught with it, the Federal government will take your illegal weapons and throw your ass in prison.
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Top • Page Up • Full Thread • Page Down • Bottom/LatestWere there one, and had they full-auto weapons, such weapons would still be illegal for the UNORGANIZED militia (civilians). Such weapons could only be given to serving members of the ORGANIZED militia, those dressed in war suits, for use on duty only.
#264. To: nolu chan (#256)
they REVERSED the District court and remanded. They did not ask for clarification of jack shit.
#265. To: misterwhite (#260)
[misterwhite #260] My state ptotects my rights.
I. Supremacy Clause.
#266. To: misterwhite (#264)
[misterwhite #264] Remand -- return a case to a lower court for reconsideration.
Reverse. To reverse a judgment means to overthrow it by contrary decision, make it void, undo or annul it for error.
Reversal. as used in opinions, judgments, and mandates, the setting aside, annulling, vacating, or changing to the contrary the decision of a lower court or other body. [italics added]
Remand. to send back, as for further deliberation; to send back a matter to the tribunal [or body] from which it was appealed or move. When a judgment is reversed, the appellate court usually remands the matter for a new trial to be carried out consistent with the principles announced in its opinion. Often, the court will simply direct that "the matter remanded [to the lower court] for further proceedings not inconsistent with this opinion."
[misterwhite #264] You're just making things up. If that were the case, the U.S. Supreme Court would have simply reversed the lower court ruling saying that the weapon didn't qualify for second amendment protection. Period.
In discussing the limitations the government can place on an individual's right to possess firearms, the Court noted that Miller does not protect "weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." Heller, 128 S.Ct. at 2815-16.
#267. To: misterwhite (#261)
"The U.S. Supreme Court REVERSED the judgment of the District court, holding that a sawed-off shotgun was not the type of weapon eligible for Second Amendment protection, and reinstated the charges." [Verbatim quote from Oyez https://www.oyez.org/cases/1900-1940/307us174]
"There is no modern state militia."
Were there one, and had they full-auto weapons, such weapons would still be illegal for the UNORGANIZED militia (civilians). Such weapons could only be given to serving members of the ORGANIZED militia, those dressed in war suits, for use on duty only.
Research Director, Independence Institute. Associate Policy Analyst, Cato Institute. Adjunct Professor of Advanced Constitutional Law, Denver University, Sturm College of Law.
Richard A. Hamblen • 8 years ago
HAMBLEN v. UNITED STATES
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.
Read in isolation, Miller's phrase 'part of ordinary military equipment' could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. . . . 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. . . .
#268. To: nolu chan (#267)
"chose not to introduce any evidence such as the purchase of short barreled shotguns by the US Army in the World War to show that such a weapon is part of the ordinary military equipment"
#269. To: nolu chan (#265)
If the NFA is otherwise consistent with the U.S. Constitution and is a valid exercise of Congress's power to tax spelled out in the Constitution, then it is "the supreme Law of the Land," notwithstanding "any Thing in the Laws of any State to the Contrary."
#270. To: nolu chan (#266)
Miller found that there is no 2nd Amendment right to keep and bear weapons not typically possessed by law-abiding citizens for lawful purposes, such as sawed-off shotguns
law-abiding citizens for lawful purposes the militia, such as sawed-off shotguns, unless it could be shown that sawed-off shotguns were useful to a militia.
#271. To: nolu chan (#266)
The U.S. Supreme Court reversed the lower court ruling and eliminated the 2nd Amendment defense accepted by the lower court, reversed its judgment, reinstated the charges, and issued a mandate ordering the lower court to conduct forther proceedings not inconsistent with the Supreme Court opinion.
#272. To: misterwhite (#270)
[misterwhite #268] Yeah, because the idiot appealed based on his second amendment collective right to keep and bear arms (ie., had some reasonable relationship to the preservation or efficiency of a well-regulated militia). Which, of course, he couldn't demonstrate.
by law-abiding citizens for lawful purposes the militia, such as sawed-off shotguns, unless it could be shown that sawed-off shotguns were useful to a militia. U.S. v. FINCHER
#273. To: misterwhite (#269)
[nolu chan #265] If the NFA is otherwise consistent with the U.S. Constitution and is a valid exercise of Congress's power to tax spelled out in the Constitution, then it is "the supreme Law of the Land," notwithstanding "any Thing in the Laws of any State to the Contrary."
(o)(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.
Section 922 of Title 18, United States Code, is amended—
[...]
There are 186,619 transferable machine guns in the USA, and this number is as fixed as fixed gets. The 1986 FOPA banned the new production of fully automatic firearms for civilians, and that’s that. What is perceived as a loophole by addressing a technicality, will not undo this act of congress.
#274. To: misterwhite (#244)
Under my interpretation (the correct one) a machine gun is protected by the second amendment for state militia members. The state decides if he takes the machine gun home or stores it in an armory.
Relying on United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939), Hale argues that the Second Amendment bars the federal government from regulating the particular weapons seized because the weapons are susceptible to military use and are therefore, by definition, related to the existence of "a well regulated militia".
United States of America, Plaintiff-appellee,
v.
Wilbur Hale, Defendant-appellant
Decided Oct. 20, 1992.
Rehearing Denied Nov. 20, 1992 In the absence of any evidence tending to show that the 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.
To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.
#275. To: nolu chan (#272)
#276. To: nolu chan (#273)
The 1986 FOPA banned the new production of fully automatic firearms for civilians, and that’s that.
#277. To: nolu chan (#274)
#278. To: misterwhite (#275)
[misterwhite #275] Fincher's "militia" did not meet the criteria of a "well-regulated state militia with officers appointed by the state". Horrible case example.
Hollis Wayne Fincher was convicted by a jury on one count of possession of a machine gun, in violation of 18 U.S.C. §§ 922(o), 924(a)(2), and one count of possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Fincher does not dispute that he possessed these guns or that he did so without a license. He appeals his conviction, however, arguing that he has the right to possess these weapons under the Second Amendment of the United States Constitution because his possession has some reasonable relationship to the maintenance of a well regulated militia.
#279. To: misterwhite (#276)
[The Firearm Blog] The 1986 FOPA banned the new production of fully automatic firearms for civilians, and that’s that.
#280. To: misterwhite (#277)
[misterwhite #277] The entity to challenge a second amendment violation should be the state itself. And I bet they'd win.
[misterwhite #277] Local police departments have machine guns. Why not local militiamen?
[misterwhite #277] Police machine guns are kept at the police department. Militiamen machine guns can be kept at an armory.
Since the Miller decision, no federal court has found any individual's possession of a military weapon to be "reasonably related to a well regulated militia." "Technical" membership in a state militia (e.g., membership in an "unorganized" state militia) or membership in a non-governmental military organization is not sufficient to satisfy the "reasonable relationship" test. Oakes, 564 F.2d at 387. Membership in a hypothetical or "sedentary" militia is likewise insufficient. See Warin, 530 F.2d 103.
#281. To: misterwhite (#244)
Under my interpretation (the correct one) a machine gun is protected by the second amendment for state militia members. The state decides if he takes the machine gun home or stores it in an armory.
The final jury instructions included, at the government's request, the following instruction:
A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.
The Supreme Court's recent decision in District of Columbia v. Heller, 554 U.S. ___, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), holding that the Second Amendment protects a limited individual right to possess a firearm — unconnected with service in a militia — does not alter our conclusion. Under Heller, individuals still do not have the right to possess machineguns or short-barreled rifles, as Gilbert did, and convicted felons, such as Gilbert, do not have the right to possess any firearms. Id., 128 S.Ct. at 2802.
U.S. v. GILBERT
A person does not have the right under the Second Amendment, or under any other provision of the Constitution, to possess a machinegun. A person does not have a right, under the Second Amendment, or under any other provision of the Constitution, to possess a rifle with a barrel shorter than 16 inches that the person has not registered in the National Firearms Registration and Transfer Record.
#282. To: nolu chan (#278)
Only enlistment or commission in the National Guard would meet the requisite militia definition.
#283. To: nolu chan (#279)
Ordinary citizens are not expected to gather and form a militia with machine guns.
#284. To: nolu chan (#280)
This merely recognizes the supremacy of federal power in the military affairs area.
#285. To: nolu chan (#281)
It is not to protect the right of the active duty organized militia to carry machineguns while on duty.
#286. To: misterwhite (#282)
Again, we have to go back. What was the original intent of the second amendment?
CHAP. 196.—An Act To promote the efficiency of the militia, and for other purposes.
SEC. 111. NATIONAL GUARD WHEN DRAFTED INTO FEDERAL SERVICE.—When Congress shall have authorized the use of the armed forces of the United States, for any purpose requiring the use of troops in excess of those of the Regular Army, the President may, under such regulations, including such physical examination, as he may prescribe, draft into the military service of the United States, to serve therein for the period of the war unless sooner discharged, any or all members of the National Guard and of the National Guard Reserve. All persons so drafted shall, from the date of their draft, stand discharged from the militia, and shall from said date be subject to such laws and regulations for the government of the Army of the United States as may be applicable to members of the Volunteer Army, and shall be embodied in organizations corresponding as far as practicable to those of the Regular Army or shall be otherwise assigned as the President may direct. The commissioned officers of said organizations shall be appointed from among the members thereof, officers with rank not above that of colonel to be appointed by the President alone, and all, other officers to be appointed by the President by and with the advice and consent of the Senate. Officers and enlisted men in the service of the United States under the terms of this section shall have the same pay and allowances as officers and enlisted men of the Regular Army of the same grades and the same prior service.
#287. To: misterwhite (#283)
[nolu chan #279] Ordinary citizens are not expected to gather and form a militia with machine guns.
#288. To: misterwhite (#284)
[nolu chan #280] This merely recognizes the supremacy of federal power in the military affairs area.
The Governor argues that this interpretation of the Militia Clause has the practical effect of nullifying an important State power that is expressly reserved in the Constitution. We disagree. It merely recognizes the supremacy of federal power in the area of military affairs.
You're not only misreading the second amendment. You're ignoring the intent.
#289. To: misterwhite (#285)
[nolu chan #281] It is not to protect the right of the active duty organized militia to carry machineguns while on duty.
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Screw the National Guard … the "organized" and "unorganized" militia … the "active" and "inactive" militia. Weasel words used because you're trying to fit a round peg into a square hole with your stupid Heller and McDonald decisions.
#290. To: nolu chan, undercover Deep State SCOTUS Tyrant, Walter Mitty (#289)
This Constitution, and the laws of the United States which shall be made in pursuance thereof;
#291. To: nolu chan (#288)
It is taken from a unanimous opinion of the U.S. Supreme Court.
#292. To: nolu chan (#289)
It is not to protect the right of the active duty organized militia to carry machineguns while on duty.
#293. To: nolu chan (#289)
You keep mumbling some bullshit about how states protect the right to keep and bear arms through their constitutions, but your are absolute crickets about how they do it.
#294. To: nolu chan (#289)
Yeah, you should stick with blaming the transition from State Militia to the National Guard (in 1903) on the stupid Heller decision in 2008.
#295. To: hondo68 (#290)
You [nc - misterwhite] keep mumbling some bullshit about how states protect the right to keep and bear arms through their constitutions, but your are absolute crickets about how they do it. Anything in a state constitution which is contrary to the Federal Constitution, any Federal law or treaty, falls to the Federal provision which is the law of the land, and is supreme over all state laws.
This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Screw the National Guard … the "organized" and "unorganized" militia … the "active" and "inactive" militia. Weasel words used because you're trying to fit a round peg into a square hole with your stupid Heller and McDonald decisions.
This Constitution, and the laws of the United States which shall be made in pursuance thereof;
Supreme Court decisions are just to be dismissed as stupid
Damn few are in compliance with the Constitution, so you're full of it!
#296. To: misterwhite (#291)
Perpich v. DOD, 496 U.S. 334 (1990) was a ruling limited to the federalization of state militias. I agree with the ruling.
[nolu chan #280] This merely recognizes the supremacy of federal power in the military affairs area.
Had you been honest with your quote, rather than trying to pull a "Gotcha", I wouldn't have to waste my time with you.
#297. To: misterwhite (#292)
It is not to protect the right of the active duty organized militia to carry machineguns while on duty.
The 2nd Amendment to the U.S. Constitution still protects the individual right of the people to keep and bear arms.
#298. To: misterwhite (#293)
You keep mumbling some bullshit about how states protect the right to keep and bear arms through their constitutions, but your are absolute crickets about how they do it.
"That the great, general and essential principles of liberty and free government may be recognized and established, we declare.... That every citizen has a right to bear arms in defense of himself and the state. (Ala. Const. art. I, § 26) (1819)."
I. Supremacy Clause.
SLAVES.
SECTION 26
#299. To: misterwhite (#294)
Your most profound legal claim thus far is in your #282:
Screw the National Guard … the "organized" and "unorganized" militia … the "active" and "inactive" militia. Weasel words used because you're trying to fit a round peg into a square hole with your stupid Heller and McDonald decisions.
Yeah, you should stick with blaming the transition from State Militia to the National Guard (in 1903) on the stupid Heller decision in 2008.
The Heller court tried to muddy the waters with their "State Militias no longer exist" bullshit argument.
The real problem with Heller was this fact -- he lived in the District of Columbia, not in one of the 50 states. As such, his RKBA had no constitutional protection.
The Heller court should have simply ruled that way. Tought shit, Heller. Move. But they saw this as an opportunity for the federal government to take over gun rights, and they wrapped their decision in the "individal rights" flag.
#300. To: misterwhite (#221)
[misterwhite #2] The second amendment doesn't protect arms for ordinary citizens. It protects state militias and the arms of state militia members from federal infringement. What are those arms? They are the arms selected by the state militia as necessary for the protection of the state. Round peg. Round hole.
[nolu chan #218] Identify a weapon that a member of the militia has a right to possess under the Second Amendment individual right to keep and bear arms, that he does not have the right, at age 46, to possess under the Second Amendment individual right to keep and bear arms.
[misterwhite #230] Infringing on the right of an individual in a state militia to possess a machine gun interferes with the effectiveness of the state militia and is therefore unconstitutional. Now, the state militia will probably insist that weapon remain in the state armory, but that's their decision to make, not the federal government's.
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
Plaintiff,
v.
SHANE COX and JEREMY KETTLER,
Defendants.
J. THOMAS MARTEN, JUDGE
#301. To: nolu chan, Molon Labe (#295)
(Edited)
How do states protect individual the 2nd Amendment right to keep and bear arms through the state constitution?
#302. To: nolu chan (#296)
The quote was perfectly honest and in context.
#303. To: hondo68 (#301)
How do states protect [the individual] 2nd Amendment right to keep and bear arms through the state constitution?
Amendment V
Information. An accusation exhibited against a person for some criminal offense, without an indictment. An accusation in the nature of an indictment, from which it differs only in being presented by a competent public officer on his oath of office, instead of a grand jury on their oath. A written accusation made by a public prosecutor, without the intervention of a grand jury.
You & teh Donald ain't taking our guns, so F' off!
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