The Supreme Court’s District of Columbia v. Heller decision in 2008 was a landmark case. While it did confirm our right to keep and bear arms, it stopped short of overturning the plethora of bad laws that it should have. In this essay, I will demonstrate that the logic that the court applied in Heller was significantly flawed. In Heller, while addressing the 1939 Miller v. United States decision, the Supreme Court applied the standard of “the sorts of weapons protected were those ‘in common use at the time.’”
Some background: Jack Miller and Frank Layton were small-time crooks that had been convicted of illegal possession of a short-barreled shotgun–which had effectively been banned by the National Firearms Act of 1934. (NFA-’34.) The case was heard with Miller in absentia — he was still in prison on a string of charges. The illogical Miller decision revolved around the fact that in 1937, militias did not issue shotguns with barrels measuring less than 18 inches, so, therefore, Mr. Miller’s constitutional rights were not infringed by the National Firearms Act of 1934. That was a specious argument. Instead of addressing the constitutional issue squarely, they deflected off into “in common use” semantics. The Miller decision was bad law, and more recently the Supreme Court has compounded the Miller decision’s error, by echoing it in the Heller ruling.
Heller’s “in common use” test has been debated by legal scholars for the past 12 years. A piece authored by Nicholas J. Johnson published in Harvard Law and Policy Review is fairly typical. But both the Supreme Court and later analysts have overlooked a key logical flaw in this standard. The flaw is this: The “In Common Use” standard ignores the potential common use by the citizenry that failed to develop because of previously-enacted unconstitutional laws or edicts. Looking retrospectively, the restraint on commerce created by gun laws is incalculable. For instance, consider how many machineguns or submachineguns would now be “in common use”, if it were not for the onerous federal tax that congress established in 1934, or the ban on new manufacture (for private sale) with the Hughes Amendment, in 1986? It is impossible to quantify, but it is safe to assume that there would now be millions of machineguns now circulating in private hands if it were not for those two laws. Simply stated: They never achieved “common use” because congress unconstitutionally taxed and banned them!
Even in 1937, when the Miller decision was handed down, there had been restrictions on the commerce in machineguns and short-barreled rifles and shotguns for about four years. Who is to say that if were not for NFA-’34 that the popularity of the famed Model 1928 Thompson Submachinegun wouldn’t have flourished by 1937? Or that competing brands (presumably with more simplified blow-back designs and lower manufacturing costs) wouldn’t have hit the market, and sold in even greater numbers? But we will never know, because congress slapped on an enormous $200 Federal transfer tax, registration, and background check requirements in 1934, and those have been in place ever since. While $200 might not seem like a huge sum of money today, but in 1934 it was a princely sum. A quick visit to The Inflation Calculator web site shows that $200 in 1934 equates to $3,826.78, today! The cumulative rate of inflation since then has been 1,813.4%.
The Heller decision affirmed that the Second Amendment — with rights later incorporated by the Fourteenth Amendment — forbade any bans on self-defense weapons. In Heller, the court rightly showed that the Second Amendment was much more than a collective right (to raise state militias), but also an individual right. In that part, they did well. But in ignoring the absurdity of “in common use” tests, the Supreme Court was in serious error. If they had discarded the flawed “in common use” legal standard, as they should have, then we’d be living in a much more free country, with our right to keep and bear arms restored. That right should trump all legislation. But our rights haven’t been restored. We are still living under the tyranny of unconstitutional laws. Having the Supreme Court repeatedly deny writs of certiorari for firearms-related cases is dangerous. It is as if they are playing Monkey Hear No Evil.
In Heller, by relying on the Miller precedent, the court also failed to point out the arbitrary and capricious nature of legislation that attempts to distinguish between “legal” and “illegal” weapons, based on design factors or metrics such as how many cartridges it can fire with the press of a trigger, or a precise barrel length. How can the courts say with a straight face that a shotgun with an 18.1″ barrel is good, but that a shotgun with a 17.9″ barrel is evil? Oh, and don’t forget that for rifles, the standard is different: 16 inches. Can’t they see the absurdity of such arbitrary legal standards? They might just as well say that we have the freedom of speech, except on Tuesdays, or when the moon is full. Or that a car with a 301 cubic inch engine is good, but one with a 302 cubic inch engine is evil.
In 2016, the Supreme Court reversed an absurd ruling by a Massachusetts appellate court that electric stun guns could be banned because they were not in common use in 1791. Thankfully, the court slapped down that silliness. But again, it did not go far enough. If they had instead applied genuine logic, what the court should have ruled is that the “in common use” standard itself is inherently flawed, and thrown it out. They should have replaced it with a standard that recognizes that the right to keep and bear arms is an inherent, pre-existing right that was only re-affirmed by the constitution. The true standard is objective and straightforward. I’d call this The Inherent Right Standard. This test for this is quite simple, requiring only two questions:
- Question: Is what is at issue an “arm” (weapon) of any sort or size, or ammunition, or an accouterment to a weapon?
- Answer: Yes.
- Question: Is the party in question an adult citizen? (That is, someone who is part of “The People.”)
- Answer: Yes.
- Immediate Ruling: Both the owner and his “arm” is constitutionally protected, and any law, policy, tax, or edict that denies, restricts, licenses, or taxes the manufacture, ownership, control, purchase, import, export, carry, transport, maintenance, use, transfer, bequest, sale, or other disposition of any weapon, ammunition, magazine, related optics, or accouterments (regardless of its size, barrel or blade length, bore diameter, wattage, sound decibels, rapidity of fire, or any other specification) in any way is summarily null and void, nunc pro tunc.
“Reasonable” According to Whom?
Another flaw with District of Columbia v. Heller is that it vaguely leaves the door open to what the court called “reasonable regulation” of arms. But that would be in direct contravention of the Second Amendment’s unambiguous “…shall not be infringed” wording. Any infringement, even if some people consider it “reasonable” is unconstitutional, on its face.
Similarly, the Heller decision attempted to distinguish what it called “dangerous and unusual” weapons, such as machine guns. But that is ludicrous. By their very nature, weapons are supposed to be dangerous. If they aren’t dangerous, then they aren’t weapons. Furthermore, militias–whether private or public–require the most dangerous weapons that the technological state of the art can muster, in order for them to be effective fighting forces. And, as I’ve already pointed out, a weapon can become “unusual” because of the prior restraint of laws, enforcement policies, or court rulings that unconstitutionally restrict them.
In summary, the courts cannot arbitrarily define “reasonable regulation” based on the political winds of the day nor can they determine something to be “dangerous and unusual”. Neither of these is in their purview because “…shall not be infringed” is an absolute and definitive phrase, with no leeway for “except on Sundays” sorts of hedging, weaseling, or gradual degradation, based on a decline in popularity or media acceptance.
Take Action
Please take a few minutes to read this article: SCOTUS Rejection of 2A Cases Moves Up Likelihood of a Forced Choice for Gun Owners. After digesting that, please contact your elected representatives, and impress upon them the gravity of this situation, some legal background, and where you stand on this issue.
I’ve often written about the legal maxim: bad law is no law. (Lex mala, lex nulla.) In Common Law that essentially dates back to the Magna Carta in the year 1215. And more recently in our own nation — an inheritor of English Common Law — this maxim was confirmed in 1803, with the Marbury v. Madison decision.
We must also consider stare decisis. The term stare decisis is Latin for “to stand by things decided” — the whole concept of legal precedent. However, any precedent set by a bad legal decision that restricts our rights is not genuine, legitimate, or binding. Again: Lex mala, lex nulla. And let’s not forget that this maxim applies to all three branches of government: legislative, judicial, and executive.
If the Supreme Court continues to deny writs of certiorari for firearms ownership (i.e. “keep”) cases or carry (i.e. “bear”) cases, then they risk pushing the American citizenry into a corner. That is a lot like pushing a Grizzly Bear into a corner. It usually does not end well. If the courts dawdle too long, then the Law of Unintended Consequences may come into play. – JWR
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Note: Permission to repost this article is granted, as long as it is re-posted in full, with all links intact, and credit given to the author (James Wesley, Rawles) and to SurvivalBlog.com.
Great article and reminder that “somebody” is trying to take our rights from us and “they” have a reason to do this.
I must confess that there was a period when I tried to “accept” some gun laws and that was a slippery slope. My mood has hardened. All gun laws and restrictions are unconstitutional. Rescind them. Now.
Agreed. 100%.
Agreed. 100%
JWR: Thank you for a GREAT article!
I was home-schooled by my extended family and neighbors.
For comparison, my teachers insisted I participate in occasional forays in enemy territory — the government schools.
In the government schools, I instantly noticed the bias of the government agents.
By hyping their ‘three branches’ agenda, the government agents trivialize everybody else.
I believe the folks living in these united states of America have at their disposal four branches of governance — legislative government agents, jurors (and government judges), executive government agents, and just plain folks with access to the four voting boxes.
Of course, this definition ignores those individuals wishing to be left alone… those folks with zero interest in external governance.
These individuals are not represented by the government agents at any level.
These individuals are the most vulnerable to the excesses of the government agents… and voters.
In my experience, the vast majority of folks just want to be left alone.
To quantify this in a number, I would guess we are at least ninety-nine percent of humanity.
*****
Today’s op-ed piece reminds me of another set of words — the biblical book of Acts.
In Acts, ‘talk-ers’ and ‘thinking about it-ers’ and ‘we can form a steering-committee to consider the issue-ers’ are separated from ‘do-ers’.
Of note are the folks in the ‘we shall send a Strongly-Worded Missive, that will convince them!’ camp.
I hope my interpretation of Acts doesn’t ruffle any feathers.
If I ruffled your feathers, maybe it’s time to visit the land of Acts.
And yet, I realize the land of Acts is a frightening place.
On SurvivalBlog, I enjoy reading about Editors’ Progress and the contribution of the commenters.
During each reading, I list my progress in these areas:
* How much progress am I making toward minimizing the intrusion of the government agents?
* How much progress am I making toward eliminating the government agents?
God bless you James for the ability He has worked in you to know the the truth, articulate it clearly and your lack of fear in proclaiming His Standard.
An expanded interpretation of Lex Mala – Lex Nulla is Gubernatio Mala – Gubernatio Nulla. A government which is not upholding and protecting our God bequeathed rights is no government at all…
HEAR! HEAR! I Concur!
Thank You.
There appears to be only one response to the disregard of our Constructional rights. To wit; ignore any infringements.
“One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws.”
Martin Luther King Jr. (from the Birmingham jail)
It appears that the Supremes have always been willing to ignore facts and bend to the winds of politics.
US v Miller was decided on the scales of “military utility” of a sawed off shotgun, with the Court finding that “Certainly, it is not within judicial notice that this weapon is any part of the ordinary military equipment”.
They could say that because no one represented Miller in the hearing to raise the issue of Trench Guns being issued in the Great War. In fact, several of the Supremes had served during the Great War and were well aware that the military used short barreled shotguns to great effect.
Modern gun controllers wont cite Miller because it actually contradicts the National Firearms Act in that machine guns, sub-machine guns or Automatic Rifles are in common use in the Army, and would be in common use by the Unorganized Militia if they werent prohibitively expensive due to the restrictions of the NFA.
I’ve worked with State Guard organizations in several states, and every State Guardsman I’ve talked to owns an AR 15 pattern rifle. A few have spent the necessary money to provide themselves with an M16.
And with the military’s M26 shotgun with it’s 7 1/4″ barrel, it might be time to call Miller back.
Excellent article pointing out the absurdities of the government in general. I usually run as far and fast as I can when JWR prints these kinds of articles so I’m not tempted to write a comment and have people find out what a total nutjob I am. But today, I can’t hold back.
If I thought voting did the slightest bit of good, which it doesn’t, then I would vote straight Demoncrat ticket in November. (I vote every election, but only for state and local referendums, never for power-hungry humans.) For those of you who don’t have any kids or grandkids, I can see why you want things to remain as they are and just get to the end of your life in one piece. That’s understandable. But for me, I have a double digit number of grandkids. Because of what’s known as “liberal creep” my grandkids have no idea what this country used to be like, or where we’re headed, and why they don’t want to go there. The older an individual is, the more they can see that. As an example, if NRA member JFK were alive today, he’d be considered a Republican. The Demoncrats would disown him so quickly his head would spin. He would be considered a Republican not just because the Demoncrat party has gotten so ultra liberal, but just as much because Republicans have become so liberal compared to what they used to be. Everything in this country has shifted way to the left, hence “liberal creep.” Anybody who thinks it’s ever going to go back to conservative, or that there’s a snowball’s chance in hell of regaining anything remotely close to what the Founders had in mind, is just plain nuts IMO. They are ignorant of both human nature and history and the ONLY thing that can save this country at this point is a Carrington event, IMO. We would need to have the entire world grid go down so that the 95% of people in cities, who are mostly Demoncrats, all die, like in One Second After. The rural folks, who are by and large conservatives, would survive in much greater numbers and hopefully start doing some of that reproduction stuff where they make lots of conservative babies. We need the grid to go down so that all that technology and the info the government and Deep State has on all of us would be rendered meaningless and irrelevant. Just my opinion but anything short of a Carrington event will accomplish very little and just buy us time.
The reason I would vote straight Demoncrat ticket is so that we can get conservatives and 2A people backed up against the wall and show us what they really got, and to get the collapse of Amerika speeded up so we can get whatever revolution that’s coming underway before we have any more liberal creep. I’m sorry but I’m really tired of hearing all the blather about non-violent revolutions. Anything short of a revolution where a lot of people get shot and killed, good against evil, isn’t going to do any good. Too many people are sitting around waiting for something to happen, hoping that good will prevail. Well folks, it won’t! My dad always said, “Wish in one hand and pee in the other and see which gets full first.” For those of us with grandkids, why do I want to sit cowering in my corner hoping this will all go away and leave the revolution to be their problem? I HOPE they come after our guns. I hope the Second Amendment gets totally trashed. Nothing else is going to get all these “I’ll give up my guns when they pry them from my cold dead fingers,” wishful thinkers off their arses and DO something. Nothing short of a violent revolution is going to do a darn thing to make this country any better. We’re headed over the waterfall, we’re so close I can hear the roar and see the mist up ahead, and the longer we wait the less likely a good outcome will occur. Technology is only getting exponentially better so that the government has more and more ways to shut us down and make revolution impossible. I’m an old fart who’s sick and tired of government intrusions in my life, and would rather die in a revolution if it means giving my grandchildren a fighting chance for a non-tyrannical future, than sit on my backside hoping and praying for goodness to prevail. History is on my side when I say we’re on that last spin around the bowl before going down the toilet and a revolution similar to the one in 1776 is the only practical thing that will give my grandkids any sort of a hope for a brighter future. We can’t make a Carrington Event happen, but we sure as heck can quit writing to our sell-out Congressmen begging them to save our guns, licking their boots while everything else in the Constitution continues to get trashed. We can start thinking in more realistic terms of what needs to take place. Very few people wanted a revolution in 1776 but once it got underway, there was enough support to guarantee a victory.
My grandpa Fred St. Funogas Patton said, “Revolution isn’t about dying for your cause, it’s about making the other bastard die for his.” Wake up folks, stop dreaming, read and internalize some history.
JFK didn’t have much of an imagination 50+ years ago when he said, “Although it is extremely unlikely that the fears of governmental tyranny which gave rise to the Second Amendment will ever be a major danger to our nation…”
The left and the Deep State have used every dirty trick in the book to make this world the piece of fecal matter that it is. They teach lies in the public schools, re-write history, indoctrinate kids with all the wrong ideas. The left has bankrolled all the liberal movements like the current Antifa group, and rich guys like Bill Gates are bankrolling and pushing for technology that will make all our lives worse and enslave us even further. Why haven’t the good people of this planet taken a few pages from the Liberal Handbook, from the Deep State Manual, and applied those same tactics for making the world a better place instead of standing idly by while griping about how bad things are getting? They’ve pulled off two coups in the United States and countless coups across the world, just in my lifetime. They think nothing of killing an anti-deep state president like JFK to accomplish their purposes. I’m going to learn how to write fiction just so I can write a story about a group of 75 or 100 Navy Seal/Special Forces type guys, who on a certain coordinated day, will take out the top 50 or 100 evil doers on this planet who are responsible for 85% of the screwing everything up for the rest of us. They’ll take out guys like Bill Gates and George Soros, and anyone who gets missed on the day will be hunted down until they’re got. The last chapter will be about an aviation festival timed for the same day as the Bilderberger annual meeting. Airplanes of all types will veer off course and head for the Bilderberger meeting and bomb the holy bejeepers out of the place, hopefully killing off the last of the major evildoers the Navy Seal/Special Forces type group missed. The rest of the liberals will hopefully take note. Until conservatives start using tactics from the Leftist Handbook, they may as well be selling Girl Scout cookies as continue to do the useless things that have accomplished very little in my lifetime. “But we’re too good to do those things, to stoop to their level.” If that’s the case, then we’re too good to deserve what this country once was and we deserve what’s coming, IMO.
Gotta quit now, the men in the white coats are knocking on my front door, two black Crown Vics just cruised past, and I don’t think they’re here to get my chili recipe.
JFK and his brother were liberal to the core and RFK was taking medicine for a psychological problem. The social programs pushed through by Johnson were originally JFK’s.
Saint,
We need more men and women like you.
I love your fiction book idea because you think like me…
Revelations says there will be no more money, plus no buying or selling without the mark of the beast on one’s hand or forehead. I don’t understand how that could happen unless there was electricity world wide. You thoughts are welcome.
Blessings to you for sharing.
You are awesome!
From your post, St. Funogas: “Gotta quit now, the men in the white coats are knocking on my front door, two black Crown Vics just cruised past, and I don’t think they’re here to get my chili recipe.”
Even in the face of such a serious subject, I couldn’t help but smile and enjoy a hearty laugh reading your post. A moment of levity is a helpful digestive aid while working through an otherwise serious conversation — and they don’t get much more serious than this one.
Oh my goodness. I laughed so hard reading that!! I’m at the same level of frustration you are. Been wracking my brain and praying trying to figure out what in the world I can do that will effect enough change to make a difference.
In discussion with my adult daughters recently, as they were expressing their concerns and fears, I said, “well, everyone has to decide where their red line is”. And I wasn’t being philosophical. The reason I moved into the hinterboonies was to get away from the danger zones. I feel like the best thing I can do for my children and grandchildren is to set an example and stay in discussions with them, as well as let them all know the “safe house” is where I live.
Personally, all my red lines have already been crossed. It takes everything in me to not scream at the top of my lungs, “Get out of there NOW! Get as far away as you possibly can from the liberal cities and urban areas!!”
I, too, have wished for a Carrington event! So, you’re not crazy, or we both are.
As they say, Praise God and pass the ammunition.
SaraSue! Read your note, and agree 100%. Wild horses could not drag us from the hinterboonies back into any major metro area. We are the “safe house” for our family as well, and everything we do (every effort) is to strengthen and restrengthen this as a place of safety and security.
It’s not going to get better until you get rid of all the Republicans, as they are just stooges or cronies of the Ultra-rich, wall street, and corporate CEOs. Republican policies mainly benefit their masters, and hurt everyone else. Understanding why isn’t reported in the news and most of the population finds the details boring so they don’t want to learn or understand. How the economy works isn’t found on video or radio news, and only in select print or books. You also need to get rid of many of the Democrats as they have some of the same masters though some of their policies do help the average worker. Remember this. Every market has rules, every state has rules, government creates rules and people create rules because the absence of rules is anarchy which doesn’t create wealth, may not preserve life or liberty, etc. The best and most essential part of capitalism is competition (many parts of our economy have lost this). We need the ability of markets to allocate capital, assign value, and facilitate trade. Totally free markets will eventually produce a few rich people who live off of the labor of the masses (look at history, study economic theory). Think of it this way totally free markets lose competition, develop monopolies, the rich gain pricing power for labor and the sale of goods, after which they can keep most of the wealth generated by the economy. We have been moving in this direction since the 1960’s. The most productive capitalism that produces the greatest wealth and most common good for all will be regulated. That regulation is the rules of the marketplace like enforcement of anti-trust laws to maintain competition and stop monopolies from forming, laws that stop business from externalizing costs of production while keeping all the profits, etc. The rules of the economy must be balanced, and not provide excessive advantages to a few. Right now the rules are biased, slanted, tilted to provide benefits to the owners of capital compared to the workers. The more money you have the more you have access to rules that enable you to keep or make more money compared to those with little capital. The rules are rigged and that is why so many are struggling to pay for food, afford their medicines, pay the rent, find a decent paying job, etc. A good example of how rules benefit the rich is bankruptcy. I could create a corporation, invest 1M, run the business, make 20M in profits, borrow 30M from banks, pay myself a 50M dividend, declare bankruptcy, not repay the banks the 30M, leave 70M worth of contamination cleanup behind, and walk away with the 50M. You can’t do this as an individual in bankruptcy. Different rules. All this probably doesn’t sit well with most of you and what you have chosen to believe but its still true. The country has been going downhill since the 1960’s and that is when politicians started changing the economic rules to benefit corporations and the rich that own them.
To Anonymous’s question;
I’m no scholar but at least the Constitution can answer part of your question. ” The right of the people to keep and bear arms SHALL NOT BE INFRINGED ”
I submit that felony crimes were known and committed acts by some long before and during the writing of The Constitution. The creators of said document made no special provisions to exclude felons from keeping and bearing arms. One then must conclude that it was either an oversight, or that they purposely intended no such restrictions. Now as abhorrent as it may seem in modern times for felons to have firearms. In truth the current state of the Judicial System fails to protect the public from serious felons through its soft practices for criminals. If a murderer or other felony offender is incarcerated or otherwise dealt with then the question is quite moot.
1934 NFA was a joke! Just because something becomes “law” doesn’t mean it’s right. I choose to stick with my moral compass.
The book “Unintended Consequences” by John Ross (1996) is one of the best books I have read. It is a novel that deals with the history of firearms laws, government overreach, and insurrection. It is hard to find/expensive, but truly every person who reads survivalblog and every second amendment supporter should make the effort to find and read this book!
Yeah, I bought “Unintended Consequences” when it was first published…and just this past week i started my 3rd reading of it.
Three points.
The first is shotgun use by the military. See the M26-MASS (Modular Accessory Shotgun System).
Second is the tax on the right of firearms purchased. Argument tax on the right to vote.
Third is some places require classes or license for purchase or ownership of firearms. Argument the same restrictions on voting.
Awesome article
Don’t worry about trolls commenting on this article. As most probably couldn’t get past the second sentence. Plus, since it doesn’t talk about the Kardashians or LBGTQ+-= rights.
The problem is the vast majority of Americans have no idea of their rights except that they can protest. They think the Second Amendment is about carrying a ‘gun’. Look at all the states with their varying degrees of gun control laws including the Red Flag laws. The recent rulings show how far this country has deviated from being a Constitutional Republic. The recent rulings might have as well have been made by CNN or MSNBC reporters. The outcome is the same.its almost as if the Supremes (with a couple of exceptions) are calling Pelosi, Schumer, or Schiff to see which way they should vote to make sure they all stay on the same page ideologically speaking.
Lex mala, lex nulla— there are most likely thousands of ‘laws’ that could be wiped out on that basis.
Again, awesome article.
This is Clarence Thomas’s dissent to the Supreme’s refusal to hear a 2A case,
THOMAS ROGERS, ET AL. v. GURBIR GREWAL,
ATTORNEY GENERAL OF NEW JERSEY, ET AL.
https://www.supremecourt.gov/orders/courtorders/061520zor_f2bh.pdf#page=33
I suggest 2A supporters read this. I have, so should you. Sadly, Clarence Thomas and Brett Kavanaugh were the only dissenters.
Charles…
The Federalist opined with an interesting theory that the 4 ‘conservative’ Justices didn’t agree to take on the 2nd Amendment cases this year (ten of them?) because none of them truly trusted Chiefy Justice Roberts to cast a vote and rule on them!
https://thefederalist.com/2020/06/17/scotus-gun-case-denials-signal-conservative-justices-dont-trust-roberts-with-the-second-amendment/
That’s an incredible statement, if true. I’m apt to believe this theory now, having watched Tumbleweed Roberts side with the radical liberal activists lately.
In what should have been judicial and no-brainer slam-dunks with at least a handful of these 2nd Amendment cases sent to the SCOTUS, Tumbleweed Roberts probably would have knocked them down with the far-left-wing of the Court.
Amazing times we live in… SMH
Hadn’t read that, but it makes sense. Roberts wants to be liked and get invited to Washington parties more than he wants to do his job. He’s always been squishy in his support for the Constitution as written. The lack of trust by other conservatives on the court makes perfect sense to me.
While the National Guard did not issue short-barreled sawed-off shotguns in 1934, their armories certainly did contain Thompson Submachine Guns and Browning Automatic Rifles. The “common use” standard in Miller should have been challenged just on that basis.
The Articles of Confederation refer to “tents and field pieces” as being the responsibility of the state, while the portable weapons are to be furnished by the individual militiaman. But that was simply a matter of expense. No law forbade a wealthy individual from supplying a cannon to his town guard. The movie “Rough Riders” depicts the Tiffany family delivering two Colt machineguns to the regiment in which their son was serving. No doubt, they purchased it for cash direct from the Colt factory with no government intervention.
As late as 1917, when ship owners demanded protection from the German U-Boat menace, the government told them if they wished to arm their commercial vessels they could buy their own deck guns. There was no law against it, and no one thought there should be.
By the way, on a related subject, the only licensing authority granted to the federal government by the Constitution is the power to license privateers to attack enemy shipping during times of declared war. Unlicensed armed vessels were regarded as “pirates” under international law. But vessels armed strictly for self defense were regarded as prudent during dangerous times.
“Federal authority to license privateers to attack enemy shipping”
Any idea of where to apply for a license?
Thought about giving one to Sidney Powell(Gen. Flynn atty) to go after deep state,let her keep 50% of fines or what is saved on pensions from anyone she can get convicted.
Thank you, JWR! An excellent article, very well reasoned. Your work is informative, edifying, thought provoking, and very, very much appreciated!
There is an interesting book I’m reading called “Unintended Consequences” by John Ross published in 1995. Even though it is fiction, it touches on much of this. I’m about halfway through it so far.
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For the people who talk about 2A only being about muskets, I give you the Puckle Gun, invented in 1718.
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BTW: The book is available free online.
People have to become politically active, and actually vote for candidates supporting our gun-rights for citizens. … There also a need to have a reform of the legal system in the USA.
The US Constitution, itself, does NOT provide for the Supreme Court to call any law unconstitutional. … Even local county and municipal judges are calling laws unconstitutional now days (referring to our Federal US Constitution).
Judges are suppose to apply the law: not create it. … +The documents of the USA state the obvious with; our rights come from God, and not a piece of paper.
Declaration of Independence: ~all men are created equal, that they are endowed by their Creator with certain unalienable Rights~
God wants people to live in peace with each other. Here’s a godly idea from the old days: = “God made man, Sam Colt made men equal, but John Browning keeps men free.”
I read articles like JWR’s post, or some of the links in his post, I look at the country, I watch the news and I still don’t feel any more comfortable that I will be able to pass the guns I own today to my son upon my death. The reasons are diverse.
Only about 1/3 of the country owns a gun, maybe a little over 40% if you count wives who have access. This means 60% don’t see a need for owning a gun, feel safer without a gun, don’t like guns, they have all made value judgments as millions of those people could purchase a gun if they chose.
There is a tiny portion of gun owners who now believe its ok to intentionally shoot people they have a grudge with or randomly go shoot people. It’s not neighborhood based, its not based on characteristics easy to identify with and its not predictable as to where it will occur so it’s a difficult risk to mitigate or avoid.
I read about men who go shoot wives and girlfriends, kids who find guns and shoot other kids playing with them, gun owners who accidentally shoot friends of loved ones, and the suicides.
I’ve read the 2nd amendment and can think of a different interpretation than JWR has that is logical, probably believed by a hundred million +, and has been believed by the courts. Dissected.
A well-regulated Militia – the amendment applies to Militia, and not just an ad hoc one, a well regulated one which implies state or government regulation.
being necessary to the security of a free State – purpose of militia, to protect the country, to protect the state, to protect smaller areas of the state, to track down slaves, some people were afraid the federal government might take over the states, etc.
the right of the people to keep and bear Arms, shall not be infringed. – those serving in a militia would need a weapon to effectively protect the state so weapons can’t be taken away.
Now I could wander down all the legal interpretation roads, what did the founders mean, what does it mean today, do we take an originalist view (which would mean Arms refers to weapons of the 1700s), or do we interpret it as it would apply today to mean guns of today (but this also means other words of the constitution need to be interpreted similarly.) All this seems like rabbit holes, different people will have different interpretations, what does it mean to 60% of the population who don’t own a gun or even to the 40% who have access to a gun? How does technical interpretation reduce the risks and fears everyone feels?
People want to feel safe. People want to walk the street without worrying about an active shooter (not true anywhere). They want to walk the street and not worry about gangs or random gun violence (possible in 99% of country). Women don’t want to be shot by angry or jealous men in their present or past lives (true in few places). They want their kids and grand-kids to be able to go over to friends houses without worrying about unlocked guns that the kids can find and play with (??). Legalese doesn’t change any of this.
What I see is fear felt by 100% of the people, but different fears, different understandings of risk, misunderstandings about guns, and much of the fear not fully justified for any of the people. I’ve been to 47 states, camped all over the country, visited cities, and never needed a gun in 60 years. Only wanted a gun to feel secure in a couple lonely campsites. I live in a state where I can’t get a CC license, but then almost no one else can either. In the rare shooting I’ve read about with random violence people had to leave bars or parties and go get guns from home, and then come back. I just avoid alcohol and people who get angry. Many probably leave and cool down. We don’t have road rage cases involving guns that I hear about. The restrictions gun lovers lament are not impacting my security yet. A gun doesn’t provide most gun owners that much protection away from their castle anyway. Few regularly train to shoot while moving or at moving targets. How many shoot every month even at a range. Then put yourself in the shoes of a robber or someone intending to do you harm. If they want something you have or want to do you harm its easy to devise multiple ways to attack. They might attack when you are away from your house and more vulnerable. Maybe they break into your house and attack when you are asleep or wait for your return home. An attacker could recruit an accomplice or more and attack from two or more directions. They could attack from cover using the element of surprise. They could pick places to attack advantageous to them but not you, the ambush. They could just shoot you before you reach for your gun. If they are willing to rob you why not shoot you too. Just think about all the articles on SB about bug out location security. It isn’t easy. I acknowledge the limits of guns as a weapon and plan other means to mitigate daily risks to my safety. The 60% obviously don’t feel owning a gun would make their lives safer or the number of gun owners would be higher.
I’ve also looked at murder statistics and in the big picture not that many people die by homicide, and even fewer by active shooters. Gun ban and gun restriction advocates energy would be better spend preserving the capability of antibiotics, preparing for pandemics, and preventing or reducing a multitude of other causes of premature death that yearly kill in much higher numbers than guns. This means the 60% that doesn’t own a gun or might be afraid of guns should turn their efforts elsewhere if they really want to reduce premature deaths.
Personally I want to keep my guns (Guns can be a force multiplier) because I see a collapse coming, maybe not in my remaining life, but a much higher probability in my son’s. Asteroids, Carrington event, major volcano, neutron bomb are all low probability. Major economic collapse from mismanagement, fraud, wall street gambling with taxpayer money, tax cuts for the rich, borrowing, etc more likely to collapse civilization. Climate change is real and is going to be a major headache in my son’s lifetime (think famines, climate refugees that will dwarf the current undocumented immigrant problems, droughts, mitigation costs which could lead to revolution). Pandemics are still a risk too. This one is mild compared to what could come out of wild animals, thawing permafrost, etc and this one was bad enough that even dictators shut down their economies to stop its spread. All these could collapse civilized behavior and society.
We still live in a country where the government is responsible to the will of the people. How will that manifest itself?
“A well-regulated Militia – the amendment applies to Militia, and not just an ad hoc one, a well regulated one which implies state or government regulation.”
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In 1789, the Militia was the people, all-able-bodied men of the time…
In 1789, ‘well-regulated’ meant properly working and well provisioned…
(not an invitation for government oversight and restriction)
You present more theoretical discussions on the issue, fun to discuss and think about, but still only mental exercises. Almost everyone seems to want to believe they have high moral ground, or high legal ground as if to justify their fears and courses of action to reduce those fears. I contend these are just distractions, or rabbit holes because all participants can make valid arguments, and those arguments really don’t decide what the rules will be with respect to our guns. I’ll still bite.
I researched some more, see interesting article at end. Each state had a militia that was all the able bodied men. The purpose was as I described above in terms of protecting the state, protecting the collection of states from invaders, slave control, suppressing insurrection and sedition, etc.. Since it was citizen soldiers and not a standing body somebody had to call it up, either the applicable state or the federal government. This means it had some regulation or everyone in the militia would be at home, trying to make a living, grow enough food to survive to the next season, etc. There are other interpretations out and about, including your definition.
https://www.minnpost.com/eric-black-ink/2013/04/gun-rights-1780s-and-today/
Sorry, but I disagree… I don’t believe in arbitrary relativism.
Gravity cannot simultaneously go up and down. The sky (to the human eye) is not blue and green. 2+2 cannot equal 4 and 5.
It’s 2020 and one can find any article or citation on the Internet to back up their “interpretation”. In 1789, the able-bodied-men of the time, the Militia, were the farmers, innkeepers, printers, etc. They did have ranks and organization, but were not subject to the usual Army enlisted rules. My 1789 definition for well-regulated and Militia was succinct and accurate. It falls in line with the Founding Fathers, their created Constitution, their intents, and their writings.
This is not theory.
Because of these “free-for-all” times, when one fervently tells you that gravity goes up, the sky is green, and 2+2=5 (with an inference that ‘you’re a racist, sexist, homophobic bigot if you believe otherwise’), you and I as rational, reasonable, logical thinkers have a duty to notify this reality-challenged ignoramus that they do not get to sit at the adult discussion table of ideas. Their opinion and “facts” are not valid.
With regards to the 2nd Amendment of the United States, the words are very clear… There is not ambiguity. And I find it insulting that a made-up “right” like abortion enjoys near absolute protections (as just witnessed by the SCOTUS) while an EXPLICIT right acknowledged in the Bill Of Rights still has renegade states requiring “just cause” and “proving a need” just to exercise their 2nd Amendment.
Justifying made-up-rights and ignoring (or ‘misinterpreting’) the words of actual acknowledged rights is going to lead to conflict or a split/break-up of our country.
“You present more theoretical discussions on the issue…”
“all participants can make valid arguments…”
“There are other interpretations out and about, including your definition”
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Our Founding Fathers would disagree with you.