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Monday, February 11, 2013

Some interesting court cases

I have been thinking about how the courts have been ruling on the Second amendment lately. It seems that after many decades of ignoring it they have been looking at it more closely. I have been looking at the more well known cases and have a few thoughts.

One of the earliest cases involving the Second amendment was US V. Miller in 1939. In this case the defendant, Jack Miller, was stopped by Oklahoma State police and arrested for possession of an unregistered short barreled shotgun. This was a violation of the National Firearms Act of 1934 (NFA) which required a $200 tax stamp and background check to own several types of firearms, including shotguns with a barrel shorter than 18 inches. The district court dismissed the case on the grounds that the NFA violated the Second amendment. This ruling was appealed by the government and eventually made it to the Supreme Court, which reversed the decision, stating (incorrectly) that "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". Other arguments made by the government included 1) the theory that the NFA was a revenue collecting measure, 2) since the defendant transported the shotgun across state lines it was used in interstate commerce, 3) the Second amendment protects military style firearms for use in a well regulated militia and 4) the shotgun in question was never used in any military organization.

Let's start with the last argument first. Whether or not a piece of hardware was ever used in a military organization or not should have been of no consequence. The fact that it was a personally owned piece of property means that the government had no right or authority to take it away. Any firearm can be used in a militia, which according to founding father George Mason consists of "the whole people, except a few government officials".

Since we have determined that the militia is the whole of the people that eliminates the third argument as well. The whole "well regulated" part is often misunderstood by the left, usually intentionally. You need to go back to when the phrase was used to get the context and meaning. At the time (and in certain circles today) the phrase "well regulated" meant either "well trained" (pertaining to men or groups) or "well adjusted" (pertaining to equipment). It had absolutely NOTHING to do with government control, and still doesn't.

The second argument, that the firearms was transported across state lines and so was used in interstate commerce, comes from one of the most tortured misreadings of any part of the Constitution ever. First, the defendant already owned the firearm, it wasn't being bought or sold. Second, commerce doesn't apply to private transactions but to businesses. I'll try to go more into depth on the proper (and improper) application of the interstate commerce clause some other time.

On the first argument, while it may be true that the NFA was and is a revenue collecting measure, it was put into place as a punitive measure. At the time it was instituted the cost of fully automatic firearms was around $200, the amount of the tax. The stated goal was revenue collection, but even the BATFE admits that the real goal was to discourage purchase of those firearms.

The NFA also covers short barrel shot guns, "destructive devices", silencers/suppressors and what are termed "any other weapons". In most European countries, the use of suppressors is considered polite and is even mandated in some areas. Most industrial equipment anywhere near as loud as a firearm is required to have some form of noise reduction, Cars, trucks and motorcycles, even on some race tracks, are required to use mufflers. Why would the same device for firearms be so regulated as to need a $200 tax and 6-9 month wait for government permission to own? (sorry for the side rant).

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