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“GOD GUNS & GUTS MADE AMERICA FREE”
American Heritage Magazine ^ | February/March 1978 | John G. Mitchell

Posted on 12/29/2006 12:24:50 PM PST by neverdem

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To: neverdem

Thanks for the ping!


21 posted on 12/29/2006 9:27:37 PM PST by Alamo-Girl
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To: William Tell
They kicked it back to the lower courts because there was no evidence, there were no arguments. The appeals court pronounced the National Firearms Act unconctitutional on its face.

"A duly interposed demurrer alleged: The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution, U.S.C.A.-'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.' [307 U.S. 174, 177] The District Court held that section 11 of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment."

As no facts were presented during the appeal, there were no facts to provide the evidence the Supreme Court desired when they said, "In the absence of any evidence tending to show . . ."

To the best of my knowledge, the Supreme Court can't just announce that it wants a case to be heard another time becuase they want more information. Hence they reversed it and remanded it.

22 posted on 12/29/2006 10:29:14 PM PST by sig226 (See my profile for the democrat culture of corruption list.)
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To: sig226
"and ruled that the National Firearms Act was unconstitutional on its face."

That is correct, though they did not provide any details as to why they thought it was. The U.S. Supreme Court, on the other hand, seemed to focus their attention on weapons with "some reasonable relationship to the preservation or efficiency of a well regulated militia".

“The High Court was unaware of the fact that some 30,000 shotguns, including a great number of ‘sawed-off’ shotguns, were purchased by the U.S. Government for use in World War I as ‘trench guns’.…”

Unaware? Perhaps.

But even if they were aware, they'd hardly compare Miller's "less than 18 inch sawed-off" double-barreled shotgun to the Winchester Model 1897 shotgun with a 20" barrel, bayonet lug, barrel handguard and sling swivels as used in WWI.

23 posted on 12/30/2006 5:13:46 AM PST by robertpaulsen
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To: William Tell
"but the Court disagreed with the prosecution's other argument that only militia members are protected."

Did they disagree? Or were they silent? Big difference.

24 posted on 12/30/2006 5:16:55 AM PST by robertpaulsen
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To: robertpaulsen
They were unaware of it in the sense that that fact was not presented at the trial, nor at the appeal. Since it wasn't in the record, they're not supposed to use it in the decision. Rather than list the short barreled shotguns types issued in war, the appeal should have argued that if a shotgun with a barrel of less than 18" in length has no value for military or public safety use, why are the military and police specifically exempted from this law prohibiting their possession?
25 posted on 12/30/2006 6:01:59 AM PST by sig226 (See my profile for the democrat culture of corruption list.)
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To: sig226
"why are the military and police specifically exempted from this law prohibiting their possession?"

Prohibiting? The National Firearms Act of 1934 was passed as a revenue measure. Congress chose to raise this revenue only from private citizens, not public employees.

26 posted on 12/30/2006 6:17:16 AM PST by robertpaulsen
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To: robertpaulsen
robertpaulsen said: "Did they disagree? Or were they silent? Big difference."

To the lower court which received the remand, there would be no difference whatever. The District Court was not instructed to modify its interpretation of the Second Amendment in any way other than with respect to the usefulness of the shotgun to a militia.

The Supreme Court's decision was intended, as with all Supreme Court decisions, to permit final disposition of the specific case brought to it. The prosecution's argument that militia membership was required for Second Amendment protection was included in their brief and was not granted by the Court.

27 posted on 12/30/2006 11:00:33 AM PST by William Tell (RKBA for California (rkba.members.sonic.net) - Volunteer by contacting Dave at rkba@sonic.net)
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To: Joe Brower
That was then this is now. Now there is an entire new generation (or two), the majority of which neither understand nor want freedom, that is voting for more government, that thinks the police are there "to protect them" etc. Not good for the future of our fundamental rights, because these people not only vote, but they also reproduce.

Remember the "Katrina refugee" chant of "when's someone going to do something for us?"

28 posted on 12/30/2006 3:20:14 PM PST by from occupied ga (Your most dangerous enemy is your own government)
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To: robertpaulsen
A $200.00 tax on a $5.00 shotgun is not a revenue measure, and Miller's lawyer argued exactly that. The appellate court agreed, which is noted in US v. Miller: "A duly interposed demurrer alleged: The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional."

Another case before the Supreme Court specifically upheld this ruling, although it was decided much later. I'll be damned if I can find it on the internet, I need a library with the Supreme Court Reporter to get the case and citation.

29 posted on 12/30/2006 4:43:48 PM PST by sig226 (See my profile for the democrat culture of corruption list.)
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To: sig226
"The appellate court agreed, which is noted in US v. Miller: "A duly interposed demurrer alleged: The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional."

We don't know what they agreed to. The demurrer stated that the NFA usurped state police power and it stated that it violated the second amendment. The District court sustained the demurrer.

When it got to the U.S. Supreme Court however, they cited a number of cases supporting their position that "the objection that the Act usurps police power reserved to the States is plainly untenable."

ie., BS.

I don't think a later court upheld the claim that it usurped state police power -- don't we still have this tax today?

30 posted on 12/31/2006 5:30:38 AM PST by robertpaulsen
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To: robertpaulsen

Yes, we do. The remanded hearing was never held. Miller died and the other guy was unable to be located. In fact, Miller's lawyer did not appear at the Supreme Court pleading of this case. Since he couldn't find his client, he didn't bother to travel to Washington to plead a case that would only result in a large, unpaid bill.


31 posted on 12/31/2006 5:48:16 AM PST by sig226 (See my profile for the democrat culture of corruption list.)
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To: sig226
No, I was referring to your statement, "Another case before the Supreme Court specifically upheld this ruling, although it was decided much later."

Were you saying a later Supreme Court upheld the ruling that the National Firearms Act "is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional"?

32 posted on 12/31/2006 6:15:12 AM PST by robertpaulsen
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To: robertpaulsen

Oh. There is a Supreme Court case that specifically addressed fees and taxes that were created to use the power to tax and turn it into a prohibition by making the fee excessive. The test was whether the tax or fee was designed to generate revenue, or whether it was designed to prevent action. The decision is no more than 20 years old, I think it was in the late 1980s or early 1990s. If I knew where there was a law library around here, I could find it. Perhaps I should go and look, since law libraries are handy things.


33 posted on 12/31/2006 3:07:19 PM PST by sig226 (See my profile for the democrat culture of corruption list.)
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To: sig226
"There is a Supreme Court case that specifically addressed fees and taxes that were created to use the power to tax and turn it into a prohibition"

Even if you find the case you're looking for, what's the relevance? You've agreed that Congress has maintained the tax on guns, so obviously the ruling you're looking for didn't apply to that.

The Supreme Court, in Sonzinsky v. United States, 1937, held that the National Firearms Act was sustainable only as a revenue raising measure. Congress (and the states) have blatantly imposed taxes to discourage use -- "sin" taxes come to mind. I'm sure the taxes on cigarettes have prohibited many from smoking. Yet all are constitutional.

(Perhaps you're thinking of the 1991 case, US v. Rock Island Armory, Inc., where the court ruled the tax on machine guns unconstitutional. This resulted because the government completely ceased accepting registrations for machine-guns upon passage of section 922(o), thus removing the "constitutional legitimacy of registration as an aid to tax collection.")

34 posted on 01/01/2007 6:10:59 AM PST by robertpaulsen
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To: robertpaulsen

bttt


35 posted on 01/01/2007 6:24:21 AM PST by litehaus (A memory tooooo long)
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To: PeterFinn
And atheism, gun control, and "tolerance" will make us slaves.

"Free" trade is beating those three by a mile.

36 posted on 01/01/2007 6:25:45 AM PST by Wolfie
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To: robertpaulsen
It wasn't a gun case. That and the fact that insane machine gun prices have made the $200 tax seem cheap are the reasons it hasn't been applied. While a $200 tax for a $300 silencer is prohibitive, we are also dealing with inflation and a stupid majority in many states. They will say that $200 isn't much to keep these things out of the hands of criminals . . .

It would be nice if the congress did what the laws mandate it to do, but that only happens in the Bizarro World.

37 posted on 01/01/2007 6:34:52 AM PST by sig226 (See my profile for the democrat culture of corruption list.)
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To: absolootezer0
"(stop repeat offenders - don't re-elect them!)"

This is an absolutely teriffic tag line!!!

:-)

38 posted on 01/01/2007 6:40:15 AM PST by Nancee ((Nancee Lynn Cheney))
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To: neverdem
"...the U.S. Constitution gives them a personal right to keep and bear arms."

No question about it! Thanks for a great article!!

39 posted on 01/01/2007 6:44:42 AM PST by Nancee ((Nancee Lynn Cheney))
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To: neverdem

...Rugers and Lugers and Colts...oh my!


40 posted on 01/01/2007 7:04:29 AM PST by woollyone (a man self-deceived is twice deceived)
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