Posted on 08/05/2018 1:40:52 PM PDT by E. Pluribus Unum
I would also recommend the Second Amendment Foundation.
They did some great work by suing the state of Illinois and winning. They collected about $400,000 in legal fees from the losers and now, much to my surprise, Illinois now has better gun laws than the People's Republik of Kalifornia.
Yup.
You might be interested in the following two 2nd Amendment decisions that never got any press (the NRA should have been all over them at the time). The government didn't appeal the decisions to a higher court because a loss would have devastated all important gun control.
This is one of the most important, though little known appellate court decisions concerning the second amendment in recent years. This decision basically struck down the 1934, 1968 and 1986 gun control acts. It was not appealed by FedGov, I assume because a loss of this magnitude at the Supreme Court level would have been devastating to all federal gun control laws. See also Emerson below.
U.S. v. Rock Island Armory, Inc.
Similar to the Dalton case above, this case would be extremely important to gun owners if only people knew about it. It held that the National Firearms Act was "originally passed as a taxing statute". Since Fedgov is not allowing citizens to purchase weapons covered under the act (machine guns and the like) because they will not allow them to purchase new tax stamps for them, they have effectively removed the 'tax nexus' from the act, which is what made it constitutional in the first place. Therefore, the entire house of cards of gun control at the federal level is struck down. That would include the 1934, 1968, and 1986 gun control acts.
Why did we never hear anything about these 2 huge victories from the NRA?
Very interesting. I will research these cases. What is your theory as to why the NRA is hush about them? I’m don’t know why the NRA stays clear of the NFA. The NFA is the root of all gun control.
I think it goes way back. The NRA has been around for a long time. It hasn't been until relatively modern times that they've really taken point on a lot of the legal side of things. The NRA still, to this day spends more on education and 'hunter' issues than they do actually combating legislation or backing challenges to gun control acts in court. To the best of my knowledge, according to the research I've seen, the NRA did not oppose the 1934 or 1968 'gun control' acts. They weren't behind Heller when it first came up. You'd never know that from media accounts, but it's true nonetheless.
IMO, they are cowards who aren't really completely comfortable with the full meaning of the 2nd Amendment. They have never really ever disputed (that I've seen anyway) the complete misreading of the Miller decision that you see in most commentary about it.
Here's a direct quote from U.S. v. Miller
"In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158."
In other words, the government lied to the court to its face and said sawed off shotguns were not used by the military. Sawed off shotguns played an important part in the trench warefare of WWI just a few years prior. So, what the court essentially said was that if they'd been shown that a sawed off shotgun were a military weapon, it would have been covered under the Second Amendment. (The case had nothing at all to do with full-auto weapons, so they weren't considered for the purposes of the ruling).
The excellent book "Unintended Consequences" covers the Miller case rather well, and accurately IMO.
The above Miller link on my website has more information about the case than you'll find pretty much anywhere.
The Dalton and Rock Island Armory cases are interesting IMO, as I've found references online where the cases were cited as a positive defense, but the judges involved twisted themselves into pretzels to claim that the binding precedent did not apply in the cases at hand.
As to why the NRA (and other orgs I could name) haven't made a bigger deal of these opinion (which are still good precedent as far as I can tell), I can't really say, other than to comment on the weak-kneed nature of the NRA. They don't care about NFA weapons at all it seems. I'd like to see the NFA struck if for no other reason than that it would remove the incredibly stupid regulations on suppressors. To me, that is a safety issue that should have been removed via legislation years ago.
“...Sawed off shotguns played an important part in the trench warefare of WWI just a few years prior. So, what the court essentially said was that if they’d been shown that a sawed off shotgun were a military weapon, it would have been covered under the Second Amendment. (The case had nothing at all to do with full-auto weapons, so they weren’t considered for the purposes of the ruling)...” [zeugma, post 24]
Shotguns of any type were not an agreed-upon type of military armament at the time, in the international community. Imperial Germany actually filed legal protests against the US during World War One, against the United States for using them in action - at the International Court of Justice (or whatever it was called then), at The Hague in the Netherlands. If anybody else finds irony in Germany making any sort of protest like that, I cannot say I disagree.
By the 1930s, the United States was not respected as any sort of leader - not in moralistic causes, not in power politics, and certainly not by the “international community.”
Other forum members might find this lack of regard entirely satisfactory, but the truth was America was still resented for its late involvement in World War One, and the flaccid, fence-sitting attitudes displayed by Americans generally, when it came to the Allies versus the Central Powers. America was not looked on as a wellspring of impartiality and moral probity; it was still dismissed as a fifth-rate agricultural experiment that didn’t look all that worthy, a gaggle of uncultured hicks and hucksters, pointing moralistic fingers at all combatants from their high horses, yet not too proud to refrains from scrambling to make the extra buck off of Allied nations in desperate straits.
During President Wilson’s 1919 dance at treaty negotiations, one member of the US party was upbraided by a French negotiator; American bargaining gambits and negotiating strategies were being rejected - not on any merits, but because the Americans had not sacrificed nor suffered enough during the war, to have earned any moral authority to wield.
When the US Senate voted down proposed American participation in the League of Nations, the former Allies took all of it as further proof that their low opinion of Americans was justified: unruly and unreliable.
US domestic gun control legislation efforts make sense in this international-respect context; it doesn’t matter if the former Allies were right or wrong, justified or unjustified. The intellectual and administrative classes and power brokers at the highest levels of the American government, in legal, business, academic, and managerial circles, were mortified, acutely embarrassed that the rabble had undercut their moves to transform Progressive dogma into the Law of the Land. They were as determined as ever to make the nation “look like Europe.”
US v Miller must be seen in this context: elite powerbrokers were desperate to retrieve what they saw as the country’s “international reputation” and weren’t above undercutting the military; Constitutional rights mattered even less, especially in the depths of the Depression.
The military establishment itself was not a factor. The War Dept was floundering in the midst of severe budget constraints, lagging greatly in the development of newer technologies, the impact to organization, logistics, tactics, and strategies; the Navy Dept faced budget woes of its own but maintained its insularity, struggling to keep inviolate the notion that the Fleet could do its job just fine if the public paid the bills and ignored it, once it sailed over the horizon.
There was some public anti-gun sentiment; on the strength of it, government attorneys were pleased to toss any implement aside, military or otherwise. And while shotguns had enjoyed some success in the front lines during the Great War, they weren’t exactly a war-winning weapon. So officialdom was more than willing to agree with stuff like the earlier German protests, in hopes of winning their case. They did.
Americans did not expect another war anyway.
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