By Richard L. Guion
The US Constitution is not and can never be used as a limit upon the people. All too often people regard the introductory statement of the Second Amendment, “A well-regulated militia, being necessary to the security of a free state…” as a clause upon which the right of the people depends. Nothing could be further from the truth.
As opined in US v. Miller back in 1939, the Supreme Court unanimously agreed that the introductory statement of the Second Amendment specifically protects arms of efficacy to the military for the militia…which is comprised of the people.
Since Miller wasn’t represented in the arguments, and as such, no evidence that a short barreled shotgun was of efficacy to the military was presented, they upheld the convictions of Jack Miller and Frank Layton for violating the the National Firearms Act. I’m sure that our special forces would have a different opinion of the efficacy of such a weapon today.
Regardless, in Miller SCOTUS correctly cited the introductory statement in support of the true meaning of the Second Amendment…for the People to retain their natural right to fight all enemies, foreign and domestic.
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.
United States v. Miller
This is the proverbial writing on the wall for the entire NFA et seq. in a post-Bruen world.
It’s quite surprising that this logical challenge to the NFA, based upon this ruling, has never been brought forth by some young, industrious attorney looking to make a name for himself. Enter the post-Bruen era, which is likely to see an end to ridiculous laws restricting weapon types and magazine capacities. A common-sense, overarching challenge to the NFA also seems inevitable.
A win against the NFA restrictions of machine guns, short barrel rifles, and suppressors would usurp and preemptively overrule individual states’ unconstitutional laws that have clearly defied SCOTUS rulings.
The only operative statement in the Second Amendment is “the right.” As the did with all of the enumerated rights in the Bill of Rights, the Founders chose their words carefully. When they referred to “the right” in the Second Amendment, they acknowledged and affirmed that all rights are natural or inherent and pre-exist, independent from the document.
The Bill of Rights doesn’t grant or give us rights. It’s intended to protect them, especially those the Founders thought were most important. We must honor and fight for those principles and not seek to undermine them.
As for how we “interpret” these words today, I agree that SCOTUS’s opinions regarding historical tradition and “common use” are fundamentally wrong. Rights, by their very definition, are absolute and not subject to infringement, restriction, or governmental control in any way. Full stop, period.
That’s not to say that laws punishing the exercising of a right that harms others wouldn’t be constitutional. So, yes Virginia, one can yell fire in a crowded theatre when none exists. We have never even suggested crafting laws to ban the word “fire” in fear it may be misused. We have laws to punish that act. Just as we have laws to punish speech which defames or slanders. But we have no such speech laws that are equivalent to gun bans, which would seek to take away the tools of exercising the First Amendment.
Laws don’t prevent, they punish. Are laws passed with the intent of deterrence? Certainly. Those of us who believe we are law-abiding perform a rational cost/benefit analysis before violating laws on almost a daily basis. We roll through stop signs. We exceed the speed limit. Sometimes we simply choose not to scan every item in our grocery basket.
But we also choose not to shoot our neighbor because his dog frequently tears up our yard. This is all down to personal choice, not a prevention. Nothing is stopping anyone from changing their cost/benefit analysis paradigm.
A portion of our society does that daily, too. We call them criminals. The law doesn’t prevent their deeds, it can only punish them. And they’re clearly undeterred by the existence of the laws on the books.
These are the simple truths of the matter. As long as we fail to understand what our rights truly mean and fail to bear true faith in their meaning, we will continue to have this seemingly gap in understanding of the Second Amendment. SCOTUS is equally at fault here, as they too seem to miss the true meaning of a right, and through their error, perpetuate the fallacy that rights have limits. Only by holding to the principles upon which this great nation was founded, can we end this absurdity.
If you’re uncomfortable with our government banning particular words or thoughts or religions then you should be equally uncomfortable with our government banning guns, or the right to buy or bear them in any way. Justice Thomas was certainly correct when he said that that the Second Amendment is not a second class right. All rights are first class. And that is the simple truth.
Give Gun Control an inch and it’ll take a mile. The only way to deal with such a diabolical agenda is to Define it by its History and Abolish it like Slavery.
technically speaking…ALL gun laws are unconstitutional…good luck getting that across to them
The Miller decision also has a major flaw in that the Second Amendment uses the word “Arms” which has no restriction. We the People, being the members of the Militia of these united states have the guaranteed right to keep and bear arms. No restrictions on what arms or how we shall carry or bear them.
‘The US Constitution is not and can never be used as a limit upon the people.’
Well, there WAS the 18th Amendment.
The 18th was just a case of history repeating itself. The Georgia Colony in 1734. Remember it was a ‘for-profit’ corporation, the investors and the King expected profits. Governor Oglethorpe decided that the colonists weren’t working hard enough. “No liquor”. He would import beer from England to sell to the colonists. Liquor came in overland, down the coast in ships, and of course, home-brew. All of which was repeated in the 1920’s.
Why do American historians start their “history” from 1776? (Alfred The Great, King of England, ordered his subjects to arm themselves in the late 800’s, to repel Viking raiders.)
I’m totally going to claim I’m Gov. Oglethorpe at some point on line.
‘Why do American historians start their “history” from 1776?’ – Uh… because that’s the year ‘America’ became an independent country, maybe? I’m sure Egyptian historians go back a bit farther.
the year we came into existence as a nation…would seem an appropriate starting point….
There’s still a lot of US ‘laws’ carried over from “English Common Law”, little things, like “Jury Nullification”, and many others.
The Second Amendment was discussed in depth historically in Carol Anderson’s book “The Second: Race and Guns in a Fatally Unequal America”.
The Second Amendments origin lies in pure racism. The violent slave revolt in Haiti caused slave owners there to flee to America and they brought some of their slaves with them. Both Jefferson and Madison the chief architects of 2A were horrified that the Haitian Slave Revolt might spread to the U.S. Their surviving letters prove this beyond all doubt.
The Second Amendment was also used to convince the States to join the Federal Government and it promised to permit the States to raise their own private armies to murder any slaves that rose up in revolt. Many State Militias even locked up their weapons in State Armories and those that did not obey Militia laws were barred from access to said weapons.
No Constitutional Rights are unlimited, none.
The Supreme Court has stated this before in regards to the “gun problem” in the U.S. as well as other Constitutional Rights when they endanger the lives and well being of its citizens.
Even freedom of speech has its limitations when it results in the deaths of innocent people much as the out of control “gun problem” has done. Racist Far Right Groups promoting racial hatred and paranoia have been prosecuted in the past and the present when their actions resulted in attacks on innocent minorities.
Lastly the corrupt Founders of the U.S. new they could not outright ban weapons to the common man for several reasons, the most pressing was the ongoing mass genocide of the American Indian Tribes. As a result of all of this they deliberately wrote 2A in the vaguest of terms which would allow the courts to “regulate” firearms. None of the preceding gun bans in pre-revolutionary America were abolished after 2A was signed, and they in fact actually began to increase up to the present day. History certainly proves America’s first politicians were every bit as corrupt, conniving, and deceitful as they are today.
TLDR try squaring it with the federalist papers and resubmit.
Even freedom of speech has its limitations
Clearly you have a reading comprehension issue.
Rights, by their very definition, are absolute and not subject to infringement, restriction, or governmental control in any way. Full stop, period.
That’s not to say that laws punishing the exercising of a right that harms others wouldn’t be constitutional. So, yes Virginia, one can yell fire in a crowded theatre when none exists. We have never even suggested crafting laws to ban the word “fire” in fear it may be misused. We have laws to punish that act. Just as we have laws to punish speech which defames or slanders. But we have no such speech laws that are equivalent to gun bans, which would seek to take away the tools of exercising the First Amendment.
“As opined in US v. Miller back in 1939, the Supreme Court unanimously agreed that the introductory statement of the Second Amendment specifically protects arms of efficacy to the military for the militia…which is comprised of the people.”
Damn straight, re-open the select fire registry post-haste, and since you can’t tax a civil right, that’s out of there, as well… 😉
Let’s not forget Caetano:
“… the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding…”
Flippy knives, halberds, ninja stars, nunchaka, pitch forks, disruptors, narwhal teeth, yadda yadda.
Restrictions on the watt range of phased plasma rifles…
They hate short barrel weapons because they have never liked concealed carry.
They can keep trying to rewrite history. But the history books are filled with the truth and they will never be able to get rid of that.
The ordinary citizen knows far more about the second amendment history. In this country than most people with a P. H. D.
“They can keep trying to rewrite history. But the history books are filled with the truth and they will never be able to get rid of that.”
Wrong, seen what’s been happening recently? Some libraries in some schools are ‘de-colonizing’ their stacks, and some book publishers are bowing to demands to remove ‘offensive’ parts of books…
“They hate short barrel weapons because they have never liked concealed carry.”
Strange then, that so many jurisdictions have legal concealed carry permits, while outlawing open carry. If a person went town to town, visiting all 48 of the contiguous states, and shopped in Walmart, then ate dinner at whatever restaurant they chose, while open carrying, he should NEVER be accosted by either the law, or “concerned citizens”.
You have EVERY right to scream “FIRE” in a theater PROVIDED there is in fact a fire happening..
You may NOT FALSELY induce panic by screaming “FIRE” when there is none in progress…
Better stated (IMO) – you are responsible – ie, liable – for your actions. Period. That’s true for 1A and yelling “Fire”, as well as discharging a firearm. While you may have justified liability in your actions – that is for the court to decide, both criminally and civilly.
300Blackout,
Right on brother! The one thing that SCOTUS has been relatively consistent on (for a couple of centuries, now), is that they have been death on “prior restraint”. There are certainly SOME limits on speech, but they don’t extend to saying “you may not say this”. The MOST the gummint can do is say “If you say that, your are responsible for the consequences”, but even THAT is fairly strictly limited to actual incitement of violence, and the standards for such a finding are pretty strict.
Just more evidence that our Leftist/fascist “friends” like MajorLiar and dacian the demented are just poorly-disguised fascists.
300BOF is on target here. One has every right to exercise free speech even if it harms others. But one is also responsible for the consequences of exercising that right. You say “may not”. That is incorrect. One “should “ not but certainly can. Nothing prevents you. It’s a choice.
RH – I contend that one has a duty (at least morally) to shout in order to protect the lives of innocents in such a situation.
“You may NOT FALSELY induce panic by screaming “FIRE” when there is none in progress…”
Yes, you may; but that carries a risk of punishment for doing so. Laws punish, not prevent.
“You may NOT FALSELY induce panic by screaming “FIRE” when there is none in progress…”
The difference is, the staff at the movie theater doesn’t duct-tape you mouth shut, keeping you from yelling “Fire!”, if one happens to break out.
‘Gun Free Zones’ are where your mouth gets duct-taped shut, against your will…
The trench clearing Doughboys in WWI would disagree about short barreled shotguns ‘not having any military application…’
Excellent point
just a testament to how ignorant the court was on this issue….
“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…”
Then we need a case which notifies this judiciary.
Stuck – and loudly echoed by the grunts who toted shottties in the Nam (among a lot of other places) as well.
That is true until some CRIMINAL uses (or abuses) said weapon. At that opportunity those leaning left conflate the weapon with the crime. It appears that those who lean left know what is best for the public, in their own humble (ha-ha) opinion and the great unwashed just go along as long as it doesn’t effect them directly.
The German didn’t like those shotguns at all. Neither did tbe Moro’s. The short barrel shotgun performed well and the fact the Justices did know this seems rather odd.
These gunm haters need to put the blame where it belongs
The Chinese.
Had it not been for them I’m positively certain humans would still be whacking each other over the head with the jaw bone of an ass.
The Bone of Biden
possum. (rolling my eyes)
Unfortunately we have many in our society today who don’t realize or want to realize the harm they do to themselves by accepting the ideas of either the far left or the far right. In a civilized society we have rules and laws to Govern inappropriate behaviors that hurt others when something bad happens. Punishments used to be administered in terms of the punishment fitting the crime. Now we have a jumble of confusing situation where rioters. smash and grabbers, and real insurrectionist are not held accountable for their actions under the guise of race, socioeconomic level, or even their own persistent criminality being excused. The ethical and moral fabric of our society has come apart and is being replaced by irrational thinking and irrational ways of behaving. How is it that in Blue cities and states they have the most violence, most firearm instances, most homelessness, despite having some of the strictest gun laws and many are sanctuary cities who are now overwhelmed and crying the blues. I believe if something doesn’t change soon we are headed for a civil war in this Country.
Gun control is people control. That has been the goal of the anti-Second Amendment crowd since the early 1960’s. Except for the ‘useful idiots’ who chant against ‘gun violence’, the core group of anti-gun activists are Communist-influenced people who eventually want to turn America into a dictatorship — with them in power. Privately owned firearms are the last line of defense for freedom and the Commies know it. Those same privately owned firearms are what won America’s freedom from Great Britain. Our Founding Fathers understood that also. That’s why we have a Second Amendment. Never give up your guns. Never.
“Gun Free Zones” do not prevent someone from entering these zones with a gun and murdering people. What these zones do prevent, however, is people in these zones who obey these restrictions having the opportunity to defend their lives from armed killers. Gun control advocates insist on having more of these zones because they really want more of these mass shootings that grab the headlines and fuel the push for more gun laws that will eventually disarm the populace resulting in an unarmed nation of sheep that can be more easily controlled. The push for an all-powerful government in this country is their ultimate aim. Tyranny is their goal and an armed citizenry is their enemy.
Comments are closed.