There's No Such Thing As Sensible Gun Laws

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

[El Gato]

Can you target a briefcase nuke to take out a single person? Is there any concieveable way that anybody could use it for self defense? No and no. It clearly isn't the same thing.

No but the little ones make great (military) engineering demolitions. You can close passes, dig trenches, and so forth.

Cannon, especially armed with grapeshot or cannister, can't be targeted against a single individual either. It took some skill to hit a line of soldiers when using solid shot, especially when the proper tactic is to fire from their flank, making that line a pretty small target.

[El Gato]

May non-militia members own militia-type guns?

Where in the Miller decision does it say that "the people" in the Second Amendment means "member of the militia"?

[El Gato]

But the second amendment protects a well regulated Militia from federal infringement, not an unorganized militia.

The right is said to belong to the people, not the militia, organized or not. The "militia clause" gives a justification for protecting the right, but does not restrict it. If there was an amendment that read

"A well educated electorate being necessary to the success of a free country, the right of the people to keep and read books shall not be infringed"

would only well educated voters be protected in keeping and reading books?

[zbigreddogz]

Well, cannon for one

A cannon is a gun.

[William Tell]

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

El Gato then asked: Then why did the Supreme Court rule that they should not have taken "judicial notice"?

I'm not sure to whom the word "they" applies.

So, I'll make a few statements that I think will help clarify.

The District Court judge, the only court besides the Supreme Court to concern itself with this matter, dismissed the case as a result of a motion by the defense. The defense claim was that the NFA 34 violates the protection of the Second Amendment. The judge agreed and dismissed the case. This decision was a matter of "law", and not a matter of "fact".

Had there been any facts which could have convinced the judge that Miller could be convicted, then the prosecution would have been afforded an opportunity to conduct a trial to determine those facts.

The judge was taking judicial notice that the Second Amendment protects persons and that Miller was a person. The judge was further taking judicial notice that a shotgun is an "arm" and that the Second Amendment protects the keeping and bearing of it. These are facts of such obvious nature that proof would not be required. Basically the prosecution, by not challenging the idea that Miller was a person and that a shotgun is an arm, is "stipulating" to these facts by not challenging them.

In their brief to the Supreme Court, the prosecution made two arguments to support their request to overrule the District Court judge.

One argument was that only arms useful to a militia are protected by the Second Amendment and that a short-barreled shotgun is not protected.

The other argument was that only people who are members of organized militias or certain other people are protected by the Second Amendment.

Appeals courts, including the Supreme Court, make their rulings based on law and on the facts that have been decided by trial courts.

As a matter of law, the Supreme Court refused to agree that only members of organized militias are protected by the Second Amendment. They pointed out that people called to militia duty were expected to appear bearing arms supplied by themselves.

Further, as a matter of law, the Supreme Court decided (and I disagree with them) that the Second Amendment ONLY protects the keeping and bearing of arms useful to a militia. In this matter, the Supreme Court agreed with the prosecution.

However, the Supreme Court did not rule on whether a short-barreled shotgun was useful to a militia and thus they also did not rule on whether the Second Amendment protects the keeping and bearing of a short-barreled shotgun.

Because the fact, of whether a short-barreled shotgun is useful to a militia, is not a trivial matter, and because the trial court had not considered this matter, the Supreme Court COULD not take judicial notice of such a fact. Therefore, this fact remained to be determined by the trial court. (I don't understand why your comment used the word "should".)

The very clear result of the Miller decision is that Miller would have been acquitted if the prosecution failed at trial to demonstrate that a short-barreled shotgun has no usefulness to a militia. The fact would have been decided by a jury after evidence in the trial, with an opportunity for the defense to cross-examine witnesses, rebut prosecution evidence, and present their own evidence.

Further, there was no burden on the prosecution to prove that Miller was not a member of an organized militia, because such a fact was not relevant to the Supreme Court decision. Only the usefulness of the shotgun was in question. The Supreme Court decision in Miller was very clearly an "individual rights" decision, in that Miller could expect acquittal if the arm he was accused of possessing was useful to a militia.

The Supreme Court decision makes clear that, in the Supreme Court's opinion (with which I disagree) only arms that are useful to a militia are protected by the Second Amendment. The District Court cannot dismiss the case against Miller a second time without having taken into consideration this factual matter.

If, after presentation of the prosecution's case, the District Court judge had decided that the evidence presented by the prosecution, even if believed by the jury, would not establish that a short-barreled shotgun was not useful to a militia, then the judge would have an opportunity to dismiss for insufficient evidence. The judge is not required to submit a case to a jury if the facts submitted by the prosecution do not support the charge. Otherwise, the judge would have to allow the defense to conduct its presentation and then submit the matter to the jury. The judge would be expected to explain that the charge of violating the National Firearms Act of 1934 cannot be applied to arms useful to a militia. And that the jury should acquit Miller if they decide that the prosecution has not established beyond a reasonable doubt that a short-barreled shotgun is not useful to a militia.

[robertpaulsen]

The Militia Act of 1792, passed one year after the second amendment was ratified, spelled out exactly what the Founding Fathers meant by a "well regulated militia".

[robertpaulsen]

"As you can see they repeatedly say that it is the individual citizens not a military right."

I agree. But we were discussing what the second amendment protects. The second amendment protects a well regulated state militia from federal infringement. The states protect the individual RKBA.

[robertpaulsen]

"The Supreme Court in US vs. Miller makes it clear that demanding a tax stamp on arms which are useful to a militia is not permitted."

If that was indeed the "clear" conclusion, don't you find it odd that the National Firearms Act of 1934 was never challenged again at the U.S. Supreme Court level by anyone? Especially those caught with a machine gun -- an obvious militia-type weapon?

[robertpaulsen]

"Today the P&I clause means essentially nothing as far as the Courts are concerned."

Not at all. The courts have listed the P&I of a United States citizen. These P&I are not to be confused with the rights of the people, which is what the Slaughter House Cases corrected.

"When asked, one of them indicated that it was to apply the protections of the first 8 amendments against the states."

He may have been the only one. No one else thought so -- not the courts, not even Congress. Not for 100 years (well, 58 anyways until the initial amendment was incorporated), and some still aren't.

[robertpaulsen]

"No, the decision made it clear that Miller need not have been registered as part of any organized militia"

They said nothing about it.

The U.S. Supreme Court asked about the weapon itself. If it was a militia-type weapon, the U.S. Supreme Court could have very well concluded that Miller was not the one to claim an infringement -- the state would have to bring the case that their right to form a well regulated Militia was being infringed by this tax stamp.

[robertpaulsen]

"The Supreme Court in US vs. Miller makes it clear that demanding a tax stamp on arms which are useful to a militia is not permitted."

I don't think it's that clear at all.

The U.S. Supreme Court asked about the weapon itself. If it was a militia-type weapon, the U.S. Supreme Court could have very well concluded that Miller was not the one to claim an infringement -- the state would have to bring the case that their right to form a well regulated Militia was being infringed by this tax stamp on this militia-type weapon.

[robertpaulsen]

"with a selectable yield of 10 or 20 tons (very close to the minimum practical size and yield for a fission warhead)."

A fission warhead's yield is expressed in kilotons, not tons. A ten kiloton field nuke is equivalent to 10,000 tons of TNT.

[robertpaulsen]

I said "average soldier". You listed the exceptions.

[robertpaulsen]

"A well educated electorate being necessary to the success of a free country, the right of the people to keep and read books shall not be infringed""

"A well stocked library, being necessary to an educated electorate, the right of the people to keep and read books shall not be infringed."

That's seems to protect a library from being infringed, yes?

[wku man]

Well, fortunately, the Militia Act cleared that up for those for whom it needed clearing. It re-established and supported the 2d Amendment, by codifying the unorganized militia, referred to as the "well regualted" in the 2A. Don't let the words trip you up...their meanings are clear enough.

There is no requirement for registering members and/or their weapons either in the 2A or the Militia Act. Don't split hairs over this most important of rights.

Scouts Out! Cavalry Ho!

[wku man]

No, Bob. That would protect the right of the people to keep and read books, just as it says. The "library clause", just as the "militia clause", is subordinate to the main clause(s). That being that the right of the people (you, me, my family, Santa Claus, the Abominable Snowman) to keep and read books, or to keep and bear arms, shall not be screwed around with. The library, and the well regulated (trained, disciplined) militia are merely justifications for the right being reserved for the people, just as our buddy The Cat said.

But I think you already know this, and you're being a gadfly just to get your jollies. Or maybe you're an anti-gun activist trying to work out your strategy for when the Rat Congress convenes in January.

Scouts Out! Cavalry Ho!

[archy]

"with a selectable yield of 10 or 20 tons (very close to the minimum practical size and yield for a fission warhead)."

A fission warhead's yield is expressed in kilotons, not tons. A ten kiloton field nuke is equivalent to 10,000 tons of TNT.

Among other training and duties I suffered while in the Army [first tour, enlisted] was that of the less-than-always-happy role of a engineer Armored Vehicle-Launched Bridge [AVLB] track commander, usually a Combat Engineer's job, but USAREAUR was short on tracked vehicle crewmen at the time, priority troop levies for Vietnam then being in efect.

Since there was no gun other than a .50 machinegun aboard our AVLB, they were pretty useless once the bridge was dropped; they were essentially an M48 tank with the turret removed and the hydraulic pumps and fittings for dropping and recovering the 60-foot folded *scissors* bridge. Our routine assignment after dropping a bridge, if we didn't remain with it, was as a tracked vehicle *recovery* tow truck for the battalion motor pool. Our not-routine assignment was the emplacement and operation of the M159 Small Atomic Demolition Munition, or SADM, which used the same W-54 warhead and *physics package* of the previous Davy Crockett recoilless launcher and missile.

Accordingly, I'm VERY familiar with the expected yield of the W54 and its predicted effects [especially including REM] at varying distances, in particular those relating to the W54's relatively unreliable mechanical timer and its variable yield *dial-a-yield* feature offering the atomic equivalent of between 10 tons and 250 tons equivalent TNT/yield. The preproduction XW-51/XW-54 devices had been test fired more times than any preceding US nuclear weapon prior to its successful introduction in service, indicating the difficulty of successfully making this small and low yield design work reliably and safely. We hoped, as we were running like bunnies.

Three hundred of the damned things remained in the US military inventory until 1989, whereupon my reserve status and clearance to drive around in a turretless tank with one of those hellboxes aboard was thankfully cancelled.

BTW, as part of our training, we saw film of the *Little Feller I* test in Nevada in July 1962, during Operation Sunbeam, where an actual launch from a vehicle-mounted Davy Crockett was shown. The crew set the thing to detonate 20 feet above the ground with an 18 ton yield, fired the thing off, then jumped into their well-prepared foxholes as it flew on its mile-and-a-half merry way and exploded, followed by the resulting shock wave flipping a nearby M38A1 jeep over end-over-end- they'd launched from a M113 armored personnel carrier- mounted launcher, and use of the M151A1D jeep-mounted M29 launchers declined and the M29s were refitted on cut-down M113 tracked personnel carriers after that. The Little Feller I detonation had occurred at 40 feet Above Ground Level, only a 100% discrepency, a happy thought as we considered the similar reliability of those mechanical timing units, less and less accurate as they were set for longer duration. And then someone came up with that swell SADM-AVLB idea.

Moral of the story: Never volunteer for nothin'.

[archy]

There is no requirement for registering members and/or their weapons either in the 2A or the Militia Act.

Only this one: Troop, what's the serial number of your rifle....

[tpaine]

Yep , as most here can see, -- the founders repeatedly said that it is the individual citizens right to carrry arms.

Then we have the brady types among us, who parrot the anti-gun claim that the second amendment is only intended to protect well regulated state militia's from federal infringement.

Our state & local governments are obligated by Article VI to protect our individual RKBA's. -- A fact frequently ignored by socialistic 'legislators' bound by oath to support the US Constitution as written.

[archy]

If that was indeed the "clear" conclusion, don't you find it odd that the National Firearms Act of 1934 was never challenged again at the U.S. Supreme Court level by anyone? Especially those caught with a machine gun -- an obvious militia-type weapon?

It probably helped a lot that the original defendent was dead. And there appears to be a very good possibility that he was in fact killed on the federal government's behalf, to prevent his court case from becoming a wrench in the works for the Treasury Department.

The strange case of United States v. Miller

Miller had no resources to finance his argument against the government's appeal and it is doubtful that he had any interest in defending Constitutional rights. In fact, he died before the decision was rendered. His body was discovered in April of 1939, with multiple .38 caliber bullet wounds. His own .45 pistol lay by his side with four rounds expended. Perhaps he had a legitimate need for that shotgun after all.