There's No Such Thing As Sensible Gun Laws

News By Us ^ | Dec 02, 06 | John Longenecker

[William Tell]

zbigreddogz said: "But it is idiocy to say that the founders intended it to mean you could own a nuke."

How much gunpowder does the Second Amendment permit one to own? How much dynamite? Please define the "fringes" of the right to keep and bear arms for us.

[William Tell]

zbigreddogz said: "That's totally different from the indiscriminant killing offered up by a nuke or chemical or biological weapons."

If the United States, itself, had not already proved just how wrong you are by ending World War II using two nuclear weapons, your argument might be more convincing. Or do you support the banning of the possession or use of such weapons world wide?

[El Gato]

I don't think the weapon qualifies as a militia-type weapon -- it's much shorter than what had been traditionally used (the shorter the barrel, the less effective the weapon). We'll never know.

While true of rifles, it's not much of an effect at shotgun ranges. Many short single and double barreled shotguns were used by calvary, particularly Confederate calvary, during the Civil War.

See for example : The Evolution of the Military Shotgun

It's true that modern military shotguns, starting with the Winchester Model 1897, which had an 18" barrel (and probably the reason that limit was set for shotguns, while 16" was set for rifles). But the reason the modern pump and semi-auto shotguns have 18 or 20 inch barrels is for increased magazine capacity, the magazine being directly under the barrel, not some real advantage to the longer barrel. In fact it's a disadvantage in close combat, and why the M-4 Carbine version of the M-16 has a 14" inch barrel, and why police cruiser's hold shotguns with shorter than 18" barrels (so much for them being exclusive gangster weapons).

But, assuming that it did qualify, does the tax stamp pose an undue burden? Miller was allowed to possess the shotgun -- that right was not denied. He simply neglected to obtain a stamp. Wasn't that the federal charge?

It was, but a requirement for a stamp is an "infringement", one that hits the poor particularly hard. The tax stamp was $200, . the value of the shotgun probably $5-10. It was effectively a ban, for all but the rich and corporations.

Secondly, assuming the shotgun is a militia-type weapon, doesn't Miller have to be at least registered in the militia -- per the Militia Act?

No, the decision made it clear that Miller need not have been registered as part of any organized militia, although the government argued thusly. The Second Amendment protects a right of the people, not of the militia, organized or not.

Third, the National Firearms Act also covered machine guns, weapons that are undeniably militia-type weapons. Per your argument, it would follow that a tax stamp on those weapons also would be unconstitutional.

It sure would and it sure is. But that's never been tested at the Supreme Court. I suspect even the Supreme Court would not have ruled that "Judicial Notice" could be taken that a machine gun, even a submachine gun like a Thompson, is "part of the ordinary military equipment" and "that its use could contribute to the common defense." It would have been even more ludicrous to have asserted that a BAR was not such a weapon.

[El Gato]

100 years after the 14th amendment was ratified, activist courts started using it to selectively "incorporate" the Bill Of Rights, making them applicable to the states.

And a mere 4 years after the 14th was passed, the Supreme Court, which didn't like the notion, nullified the "Privileges and Immunities Clause of the 14th amendment, in the infamous Slaughter House Cases Now that was real Judicial Activism. I'm sure you're proud of the Court's parsing of the amendment, it was in the finest tradition of determining the meaning of "is".

Today the P&I clause means essentially nothing as far as the Courts are concerned. Did it's authors intend that it mean nothing? I don't think so. When asked, one of them indicated that it was to apply the protections of the first 8 amendments against the states.

[El Gato]

Use a firearm in the commission a crime - +5 years.
Fire a firearm during the commission of a crime - +10 years.
Injure someone with a firearm during the commission of a crime: +20 years.

So a crime committed with a firearm is more deserving of punishment than one committed with a machete, or a bomb for that matter?

Match the punishment to the crime, not to the tool used to commit it.

[tpaine]

Bumpkin. -- Gotta love that old anti-BOR's parsing..

[El Gato]

I have read that Miller's attorney told the Supreme Court to use the prosecution's evidence.

There was no brief, and no appearance by Miller or Layton's attorney. The case had been dismissed by the lower court, Miller and Layton were not to found by the time of the Government's appeal. No one ever said they were good guys. Miller was killed, .45 in hand, before the SC's decision was handed down. Layton on the other hand accepted a plea bargin, was given 5 years probation, by the same federal judge who had dismissed the case on the basis of the law being in violation of the Second Amendment. He successfully served out the probation, keeping his nose clean, or at least not getting caught.

[El Gato]

I found that no member of the U.S. Army in Alaska may carry a concealed weapon on or off base by order of Major General Charles H. Jacoby Jr.

While within his power, its pretty stupid to treat your soldiers as less responsible than the local civilians of the same age group.

I don't know about the Army, but the Air Force at least allows carry of shotguns and other anti-bear weapons on it's Alaskan bases.

[El Gato]

That's an absured arguement, no doubt, but it's no less absured then the arguement you are attempting to make. Clearly, the Founders didn't intend the Second Amendment to apply to nuclear weapons, they didn't exist at the time, they bare no resemblance to what existed at the time, they would serve no purpose they could have envisioned at the time, and thus, by original intent, would not be included.

Original intent was to apply it to all arms, and it applied to the most powerful weapons of the day.

If you want it to not apply to some modern weapons, you must amend the Second Amendment.

Otherwise you'd be able to limit newspapers and magazines to the use of simple hand operated presses. No modern high speed "assault" presses would be allowed. Similarly, free speech or press protections would not apply to TV, Radio, or the Internet, as someone else has pointed out, you could have to purchase a several thousand dollar tax stamp for the privilege of posting here.

[El Gato]

I don't know too many nuclear-armed infantrymen,

Ever hear of the "Davey Crockett" ? It was deployed by infantry grunts, and it's launcher was similar to a recoilless rifle.

"The Mk-54 weighed about 51 lb (23 kg), with a selectable yield of 10 or 20 tons (very close to the minimum practical size and yield for a fission warhead). The complete round weighed 76 lb (34.5 kg). It was 31 in. (78.7 cm) long with a diameter of 11 in. (28 cm) at its widest point;"

I even found a video, which contains some inaccuracies as documented at the link above, but has some great shots of the weapon being loaded and fired, *with a live warhead*. It was more commonly mounted on a Jeep, but as you can see could be carried by the grunts and mounted on a tripod, like a heavy machine gun, or antitank missile.

Then there were the "Atomic Demolition Munitions" aka "backpack nukes".

SADM in it's travel case.

[El Gato]

If I were to interpret the Constitution in the same was as you William Tell, we'd need to pass a Constitutional Amendment in order to stop someone from walking down the middle of a quiet street at 2am with a bullhorn, expressing his political views as loudly as the bullhorn would allow him to, because otherwise he would be protected by the 1st Amendment because he's engaging in "Free Speech."

A better analogy to gun control would be to ban bullhorns. Or to tape people's mouths shut upon entering a theater, lest they shout fire, when there is no fire. Of course they couldn't shout warning if there *was* a fire either. Very much like gun control. It about "prior restraint". The first amendment is about prior restraint, and content. Disturbing the peace with a bullhorn is no different than firing into the air at 2 AM. Both are punishable as misuses of rights and as violations of the rights of others. My ownership (I wish!) of a .50 Browning Machine gun, would violate no ones rights. Nor would my ownership of a cannon. (In fact I met a couple of guys who owned cannons. Since they were reproductions of old muzzle loaders, they are not in violation of the National Firearms Act. Many folks own more modern cannon, and electrically powered Gatling type machine guns, by paying the tax, which for those guns doesn't really raise the cost significantly. Course you can't do that anymore, unless the weapon was manufactured before '86 because Congress banned new manufacture of machine guns for private use, tax or no tax, in 1986.

[El Gato]

The judge is not going to allow the presentation of evidence as part of a motion to dismiss,

Then why did the Supreme Court rule that they should not have taken "judicial notice"?

Of course I was thinking of the pretrial motion in the first (dismissed) case, not a putative second trial.

But I'll take your word for the required procedure, at least pending consultation with my (lawyer) daughter and her (lawyer) husband.

[El Gato]

Where in the opinion does the court hold that the right to keep and bear arms is a collective right,

It doesn't of course. That doesn't keep the gun grabbers from claiming otherwise. Actually the "collective rights" argument preexisted the case, and was made by the Government. The Court chose not to address the point, IOW they ignored the argument.

[El Gato]

Where does it say the court held 2A does not apply to individuals?

It doesn't, but if you read the Government's brief, *they* asked the court to rule that such is the case.

Here's the Summary, from their brief. The actually body of the argument is worse, actually nauseating to read.

The Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its infringement by Congress. It cannot be doubted that the carrying of weapons without lawful occasion or excuse was always a crime under the common law of England and of this country. In both countries the right to keep and bear arms has been generally restricted to the keeping and bearing of arms by the people collectively for their common defense and security. Indeed, the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided for by law. The "arms" referred to in the Second Amendment are, moreover, those which ordinarily are used for military or public defense purposes, and the cases unanimously hold that weapons peculiarly adaptable to use by criminals are not within the protection of the Amendment. The firearms referred to in the National Firearms Act, i.e., sawed-off shotguns, sawed-off rifles, and machine guns, clearly have no legitimate use in the hands of private individuals, but, on the contrary, frequently constitute the arsenal of the gangster and the desperado. Section 11, upon which the indictment was based, places restrictions upon the transportation in interstate commerce of weapons of this character only, and clearly, therefore, constitutes no infringement of "the right of the people to keep and bear arms," as that term is used in the Second Amendment.

(Emphasis added)

[El Gato]

But, could someone then make the case that the average soldier does not carry a sidearm?

Plenty do. Officers, especially staff officers, for instance often carry only a pistol. Aircrew in all services usually carry a pistol. Tanks and other vehicle operators often carry pistols. Military police carry pistols. They are certainly "part of the ordinary military equipment".

[El Gato]

Perposterous, there is no reason to amend the Constitution to give them a power they clearly already have.

That they have the legitimate power is what is in dispute.

The second amendment would seem to indicate that they do not. YMMV, but you can't assume your conclusion in your argument. It's called circular reasoning, IIRC.

[El Gato]

What could the founders have possibly meant by "Arms" other then "Guns"? Well, OK, they could also mean sharp object. The only other sorts of "Arms" that existed at the time were swords, knives, axes etc.

Well, cannon for one. And ships armed with them. The Constitution provides that Congress has the power to issue letter of Marque and Reprisal. That wouldn't make much sense if individuals to whom the letters would be issued could not own cannon, and ships that could mount them. They could and did, for quite some time after the passage of the Bill of Rights. You can still own those sorts of cannon today, no tax stamp, no permit required. At least in Texas, I've seen 'em and heard 'em. And here they are: (Me too, I think, but am not sure)

[El Gato]

Don't have my books for calculation any more but it seems to me that 1.7 miles is a tad too close to an 18 kiloton explosion.

It would be, but if look again, you'll see the yield was 18 tons, not 18 kilotons

[El Gato]

The Bill of Rights was selectively incorporated -- it was not totally incorporated.

That was just the courts fixing their earlier error in ruling that the "privileges and immunities" of US citizens did *not* include those protected by the Bill of Rights. Of course they only chose to "incorporate" those rights they approved of. (Save the 3rd, for which there is virtually no jurisprudence, either way).

[El Gato]

They had 20" barrels.

Actually mostly 18"

But earlier, much shorter barreled shotguns were common in military use, before the advent of the pump action. They are so much "handier", but the advantage of more rounds was thought to outweigh the disadvantage of the longer length.