The Right of the People to Keep and Bear Arms - Neal Shaffer

The Rutherford Institute - oldSpeak ^ | Neal Shaffer

[calenel]

"Good post. I agree with the contention that any weapon that couldbe carried by a "militiaman" is protected for keeping and bearing. This includes bazooka, rocket launcher, and all matter of autos."

Suitcase nuke?

[calenel]

"Suitcase nuke?"

After all, it is intended to be carried and used by a single person.

[hoosierham]

So no married person can have one ?

[calenel]

exactly ;-)

[ExSoldier]

Don't forget the ban on hi-cap magazines!

[Myrddin]

Don't forget the ban on hi-cap magazines!

.223 is usually sold in boxes of 20 cartridges. One box, one magazine. The limit to 10 rounds is annoying and expensive (you have to carry 2 mags).

[Ancesthntr]

The clause in the Constitution providing for Letters of Marque basically gives Congress the power to hire privateers to act on behalf of the country. This necessarily implies that the privateers have better weapons than mere rifles, MG's, etc. Back in the 1700's, such people had ships with cannon, which would suggest that in the present day they would have destroyers,cruisers, etc. with missiles, gatling guns, helicopters, etc. I would suppose that this would apply to tanks (the equivalent of armored cavalry) and planes (no equivalent but so what - there was no equivalent to computers and the Internet, and the 1st Amendment still applies to limit government censorship). Of course, were someone to abuse their right to keep and bear a tank, for example, then he or she could expect to have some other citizen (or group of us) with tanks or fighters to take it (and likely his life) away. This would be similar in nature to penalties for abusing the right of freedom of speech (slander is punishable, as is shouting "fire!" in a crowded theater when there is, in fact, no fire)

I draw the line at nukes or other WMDs, because these are area weapons (i.e. indiscriminate in their action). All other weapons can be utilized with a degree of precision (if the user is skilled, same as with a rifle), but WMDs are different. Of course, one can say that since the government derives its power from individual citizens, it cannot have more power than any one individual, but I can't buy into that. That would be anarchy, or at least a tyranny of the minority (no better than any other kind of tyranny). In any case, I'm not holding out for my suitcase nuke - right now, I'd be quite satisfied if the '34, '68, '86 and assorted Clinton-era gun control acts disappeared. In fact, we best not waste any effort on more than these unconstitutional acts, as such effort will be totally wasted efforts and will take away from what might be accomplished with a concerted effort over time.

[Ancesthntr]

I wonder why Oliver Wendenll Holmes didn't rule that side. He saw action in the Civil War.

Because the concept of "judicial notice" in this context requires that one party in the case actually raise the issue. It isn't a judge's job to argue a party's case - quite the opposite, it is forbidden (if it wasn't forbidden, who would trust a judge to be impartial?). All that would have been necessary was for Miller's attorney to ask that the justices give judicial notice to the fact that short-barreled shotguns were used by American military forces in WW1, and this would have been agreed to, probably even without testimony from soldiers who had actually used them. Of course, as we all know, Miller disappeared and had no one representing him at oral arguments before the USSC, so the point is moot. However, that ought not to be the case the next time a 2nd Amendment case comes before the Court.

[Basil Duke]

Thank you for your informative post. I didn't mean to infer that MY personal interpretation of the Second Amendment posits that it pertains exclusively to military arms. I was conveying - or at least trying to - the general thrust of Miller. One thing about Miller himself; I can't cite a source on this, but vis a vis the proverbial "somewhere," I read the man failed to appear in court because he died before the case came up.

[wcbtinman]

This guy needs to go back and re-read the Miller decision.

Also, there is only ONE comma in the 2nd. It comes after the word 'state'.

[wcbtinman]

Your take on the Miller case is spot on.

Another interesting aspect of this case is that some years after the decision, one of the judges involved in the decision admitted that he had, in fact, used a short barreled shotgun in his service during WWI. However, as you (and the court) stated, there was no judicial notice and the govt lied it's ass off with the result being the foundation for almost all gun control laws to follow.

[asformeandformyhouse]

Also, there is only ONE comma in the 2nd. It comes after the word 'state'.

I don't believe that is correct.

http://www.constitution.org/cons/constitu.txt

Do a search on 'Militia'.

[dcwusmc]

You are correct, AFAIK... However the prosecution apparently also misrepresented and said that sawed-off shotguns were NOT in use as a military weapon (or maybe it was that specific one, not sure)... however, when I was in Vietnam, sawed-off shotguns and even a sawed-off M-14 were in common use as close-quarters weapons and I can but imagine how many were used in WWI in the trenches. It may not have been ISSUED, but a sawed-off 12ga would be PERFECT for that circumstance, just as it was 50 years later!

[mvpel]

The Supreme Court cannot hear evidence, they can only review what was presented in lower court. There was no presentation of evidence or testimony in lower courts that the short-barrelled shotgun was in fact used during WW-I as "trench guns," and the Supreme Court could not simply acknowlege that fact (take judicial notice of it, in other words) without presentation of evidence, so they remanded the case back to the lower court for further hearings which never took place.

[aeronca]

bump

[Ancesthntr]

Re: your take on Miller: I had a feeling that you were just giving a summary interpretation. Obviously, you read and understood the case. BTW, take a look at the 5th Circuit's Emerson decision of last year for a GREAT read on the 2nd Amendment and Miller.

Re: Miller himself, I believe that he was freed after the appellate court decision, but I'm not sure that he died in the intervening time until the USSC case. I am pretty sure that the other guy charged with him died. In any case, it hardly matters, as the gov't lied to the Court and no one was there to refute the lies.

[Ancesthntr]

Another interesting aspect of this case is that some years after the decision, one of the judges involved in the decision admitted that he had, in fact, used a short barreled shotgun in his service during WWI. However, as you (and the court) stated, there was no judicial notice and the govt lied it's ass off with the result being the foundation for almost all gun control laws to follow.

I believe you, but do you have a source for this? It would be interesting to add to my "gun control" files, and to show to anti-gun morons to prove that "their case" is a big lie. Thanks.

[TERMINATTOR]

How about lifting any and ALL of the illegal arms legislation? Infringments on the peoples right to keep and bear arms, are prohibited by the Second Amendment!

[TERMINATTOR]

I guess I could make the argument that if Hillary is elected and has a nuke, we need one too. Once you start down the slippery slope of "reasonable arms control", well... you've seen where that leads. It's for the chillrun, blah, blah.

[wcbtinman]

"Do a search on 'Militia'."

I did better than that. I looked at the original document. Writers and the media have for years inserted or deleted the commas in the 2nd for various reasons I guess, but the original document in Washington has only one.