Wednesday, October 20, 2004

Absolutism 101: Prior Restraint

This will be the first of several posts dealing with the Absolutists' views concerning the Right to Arms.
There's been some talk here & there about the next step for gun owners who support the Right to Arms. Some argue that we should simply try to maintain the level of gun control laws we have now. Others argue that we should press forward & start repealing some of the more heinous gun control laws. Still others argue that we should launch a massive offensive on multiple fronts & eradicate all the gun control laws.
But why?
There are a number of people who favor less gun laws but not a total lack of them. & to a point I can agree: some gun control laws are necessary, but not in the way you think.
Gun control encompasses two types of laws: those that punish an action & those that punish a condition. The latter is commonly called prior restraint based law. It seeks to stop someone from harming another by stopping them from having the means to do so (in general at least). For example one could argue that since sawed off shotguns are used in robberies that if we punish people when we find sawed off shotguns on their persons then we keep them from committing a robbery. To an extent this is true, but it is no more valid than saying that we can stop robberies by arresting & incarcerating everyone for speeding. It can also be said that if we arrest people for breathing that we will stop them from committing robberies. In individual cases yes, it does prevent that person from robbing another person, but at the same time it prevents them from choosing not to rob another person. In any event you get the idea. Prior restraint based gun control laws punish a person for merely carrying or possessing a weapon.
The former type of law (that punishes actions that are directly, not just potentially harmful) are not what most talk about when abolishing all gun control is brought up. No one wants robbery or murder to be legal. Not even me. So I do support some gun control laws, just not ones based on the concept of prior restraint.
But why are prior restraint based laws so bad? On the most basic level because they rob us of Free Will. They set out ot say that if you have a certain weapon, or if you're a certain class of person, or carrying a weapon in a certain manner, then you're going to commit some other, more serious confrontational crime. It assumes we have no choice as to whether or not to commit the more serious confrontational crime. It punishes us for having the potential, not the intent, of harming someone else unjustifiably.
I assume most of my readers are men. Imagine a law that punished you for possessing a penis. If you have trouble imagining such a law then ask your wife (or girlfriend) to explain it to you the next time she's pissed (especially if it's due to some real or imagined jealousy). The law that punishes you for possessing male genitalia would be based on the idea that since you have the means to be a rapist, then you cannot or will not choose to refrain from ravaging some helpless lady, & therefore you will be punished for it.
Now for the two lady readers I have, imagine a law that punished you for having a vagina; the theory being that since you have the potential to engage in prostitution then you're guilty & will be punished as such.
Both of those examples are no different (in theory) than prior restraint based gun control laws: because you have the potential to do something wrong then you must be punished for it. It does not matter if you never dreamed of hurting another soul in any way, you will be punished if you possess the capability for it.
An argument I frequently hear is that law enforcement needs to be able to make an arrest based on mere potential in order to prevent crime. The classic straw man is a guy gets stopped for a broken tail light & during the course of the encoiunter the cop finds the machine gun he was going to use to rob a bank. If laws didn't heavily restrict the possession of machine guns then the cop would have been powerless to stop him from robbing a bank.
Here's what wrong with that: substitute cars for machine guns. If the person had been arrested for possessing a car that would have prevented him from robbing the bank just as effectively right? So why not ban all cars? Here you have the root of the problem: arresting everyone with the potential for harmful action is impossible unless you simply arrest everyone. As much as pro-law enforcement folks want to give cops every "tool" they ask for even they wouldn't go so far as to advocate banning all cars to prevent the handful of bank robberies we have every year.
In South Carolina it's a crime to possess "burglary tools". I know this because a dear old friend from high school (actually elementary school) is sitting behind bars right now for possessing them. & to be clear, he should be sitting behind bars because he possessed them before, during an after breaking into several places in order to feed his crack habit, but that's another topic altogether. I haven't looked it up in a while, but if I recall correctly "burglary tools" are defined simply as tools useful for breaking & entering. We're not talking about lock picks or other specialized items; we're talking common tools you probably have in your house right now. My friend used a crow bar, a screwdriver & a hammer. In other words South Carolina has more than a few Eastwings (a brand of hammer) lying in evidence rooms marked "burglary tools".
Now imagine if the SC cops started arresting people, & the local D.A's started prosecuting people because they possessed "burglary tools". Every hammer, screwdriver, tire iron, crow bar, etc. would be grounds for arrest. Have you ever driven someplace with a hammer or tire iron in plain sight? It's not practiced, but in theory SC could start doing just that: arresting everyone for possessing hammers as they'd qualify as "burglary tools" under state law. Luckily SC has a little more sense than to vigorously prosecute under the burglary tools law, but you get the point.
So the first reason that prior restraint gun control laws are bad is that they punish potentiality rather than actuality. The second reason is that they're largely ineffective.
I'll skip over the lecture on the laws of supply & demand & summarize by saying that a person with harmful intent will get whatever item he/she deems necessary. The ones who are affected most severely are the ones who would follow the law (even unconstitutional laws) no matter what. Let's look at two hypothetical people: a church going accountant & a career burglar. Odds are the church going accountant will try his damndest to not disobey the law. He won't be acquiring any verboten weapons, or carry weapons in a proscribed manner. The career criminal however will disregard laws concerning mere possession. He's looking to break into house, or rob people face to face. Do you really think he'll seek new career options because it's illegal for him to own a certain type of gun or carry it in a certain manner? So the criminals simply turn to the black market while the law abiding folks do without.
The third reason they're bad is that they set a dangerous precedent: that it is alright to punish some potential. Here's where Eugene Volokh should chime in about the slippery slope. Once it's established that you can punish people for having mere potential for harm, then it's not a far stretch to enter a system of negative law (where everything is illegal unless specifically allowed) in that area. In other words if machine gun possession is banned it's not a far stretch to ban possession of semi-automatics & from there manually operated repeating firearms. (In fact the "Assault Weapons" Ban had an appendix that listed semi-automatic firearms that were specifically exempted, which would be a precursor to outlawing everything except what the government lists as okay, as opposed to now where we have a list of the types of firearms banned & all others not falling within the specifications of the list are legal.)
Now people within the Right to Arms community have been debating on the course of action to take (as I mentioned at the beginning of this essay). I think a great deal of confusion still exists as to what gun control encompasses & what people mean when they advocate an elimination of all gun control laws. as I said before most people assume laws prohibiting murder or robbery would be include in the Right to Arms Absolutist's wish list. This is not the case. What the Absolutists are speaking of is prior restraint based law.
Now we get into something a bit stickier: how to execute the Absolutist's plan. See most gun owners stall when they think of a fellow getting out of prison after three years when they robbed someone or tried to kill someone & that person being able to walk in the local hardware store & buy a Tommy gun. Never mind that on the black market anyone can get anything they wish, the thought of it being legal bothers them.
What we have now is a system where certain offenses (those punishable by more than one year incarceration, or those misdemeanors involving domestic violence) result not only in jail time, but in a lifetime (in most cases) denial of certain Rights. Voting, traveling freely (at least for a certain amount of time) free association, & owning & possessing firearms are all lost upon a felony conviction. Some people can accept this as a suitable punishment for certain crimes, but when it's brought up that the person could be convicted of a non violent felony & be sentenced to only one day in jail & still be subject to the disqualifications then they usually start seeing that it isn't quite right.
There are still some who will argue that any violation that constitutes a felony shows poor judgment on the offender’s part & therefore it's reasonable to use non-violent offenses to prohibit weapon possession. The problem with this is in defining the disqualifying offense. We've all done things that were regrettable to one extent or another & generally we learn from our mistakes. So messing up & getting caught when your 20 should not mean that when you're 50 you are a felon for owning a shotgun for home defense. Also most people are capable of being extremely responsible in one area of their life while not being as responsible in another. Know someone with perfect credit but an extremely messy house? Or vice versa? I know a few people who can't seem to stop drinking though they never even contemplate driving while drunk. A lack of judgment in one area does not mean they'll have a similar lack of judgment in all areas. & mistakes made are not eternal evidence of unworthiness. Now before the straw men start flying, I'm speaking of non violent offenses.
What about the violent confrontational crimes? The solution for those types of criminals lies not in prohibiting their behavior once they get out, but in not letting them out until they can be trusted. Rob a bank? 20 years with no parole. Murder?
Then if you miss your appointment with the firing squad after 30 years or so actual time served we can start talking about letting you out. In other words lock away the violent offenders for long periods of time to separate them from society. If they serve their time then restore them fully. If they can't be trusted don't let them back into society period.
Now I'll grant these are all generalizations & each facet can be explored much more in depth, but there are reasonable plans for the Absolutists goal of eliminating all prior restraint based gun control. Nothing will work out perfectly, but I for one am a firm believer in the idea that the problems associated with too much freedom are preferable to the ones stemming from too little freedom. We understand our way won't lead to utopia; we just believe it'll lead to a better way.

Sunday, October 10, 2004

Star Wars; The Unreconstructed Strikes Back

Just to make sure we’re all on the same page I’ll briefly summarize what occurs:
A galaxy is host to a Republic comprised of many, but not all, star systems contained within. The Republic is at least 1,000 years old. The star systems are represented in the senate. A group of star systems becomes unhappy with the ineptitude & corruption in the Republic & attempt to split off. The senate temporarily abrogates its power to the Supreme Chancellor, who brings the secessionist systems in line through force. The Chancellor then becomes an emperor. He eventually disbands the Senate. A rebellion is formed by a group that seeks to restore the Republic. The emperor is eventually defeated by this rebellion.
Now that’s the brief political view of the Star Wars films. Here it is with a little more substance:
A young Jedi called Anakin Skywalker is seduced by the Dark Side of the Force. He aligns himself with a Sith master called Dart Sidious. Sidious is also Palpatine, who rises from Senator to Chancellor to Emperor. Palpatine claims he longs for order in the Republic instead of the petty bureaucracy of the Senate & he launches a very elaborate plan involving the Jedi & the secessionists to gain more power to achieve his alleged ends. An alliance is formed to counter Palpatine’s moves towards empire. Part of that alliance is a young Jedi named Luke Skywalker. He’s the son of Anakin. Anakin helped Palpatine hunt down the Jedi & so Luke remains one of the last of that order. Through several battles & many years the rebel alliance defeats the emperor but not without paying a great price.
Now what does this have to do with the usual content of Publicola? Everything.

Tuesday, August 10, 2004

Just an update to remind everyone that the new blog can be found via this link. (& to keep the blogspot site open in case a back up is ever needed.)

Monday, April 19, 2004

We're moving. Pixy has graciously offered space over at for Publicola & we're going to give it a go. As far as I know this site will still be here & accesible, but the new posts will be at the new site (makes sense doesn't it?).

The new address is

It'll take a few days to a few weeks to get everything in order over there, but the new posts will be there as of today.

Sunday, April 18, 2004

Cheney spoke at the NRA convention on Saturday. Kerry made a statement prior to Cheney's address. Tom Mauser (father of a victim at Columbine High School) was denied entrance to the NRA convention despite his literally wearing his murdered son's shoes. Here's the article from which the following fisk is based.

"PITTSBURGH - Vice President Dick Cheney (news - web sites) portrayed President Bush (news - web sites) and himself as champions of the Second Amendment ?— and Democratic candidate John Kerry (news - web sites) as a potential threat to gun owners ?— in a speech at the National Rifle Association's 133rd annual convention Saturday."

Oddly enough, if I portray myself as cantaloupe that does not make it so. Champions of the Second Amendment? Not the one I've been reading all these years. Perhaps he should have portrayed himself & Bush as champions of the 2nd Amendment with reasonable exceptions.

"John Kerry's approach to the Second Amendment has been to regulate, regulate and then regulate some more,' Cheney said, citing votes against legislation that would protect gun makers from lawsuits and in favor of allowing federal authorities to randomly inspect gun dealers without notice."

& Bush's approach has been to enforce, enforce & enforce so more the gun control laws we have on the books - despite their conflict with that whole "...shall not be infringed..." thing.

"Cheney lauded the NRA for its safety programs and said the best way to prevent gun crimes was to enforce existing laws. Federal prosecutions of crimes committed with guns increased 68 percent under President Bush, he told the crowd."

Funny, the lying bastard didn't mention how many of those laws he seeks to enforce pass constitutional muster. Nor was it mentioned how many of those gun crime prosecutions involved a person or persons with no harmful intent who just happened to possess something verboten or not have their papers in order.

"Bush 'has shown you respect, earned your vote and appreciates your support,' Cheney said."

Bush showed me respect? Earned my vote? Appreciates my support? Damn skippy I'm not included in the "you". Bush has bitch-slapped gun owners, told them eveything'll be okay if they just use a little more make-up to cover the bruise so the family won't talk, & then tells us he's a saint compared to the other abusive pimps out there.

"Cheney did not address the federal assault weapons ban, which expires in September, and which the NRA maintains has been ineffective."

Damn right he didn't address that. Neither would a prudent man discuss his approval of wife beating with his wife right before he takes a nap. Cheney didn't bring it up cause he knows that gun owners wouldn't be able to cling to the "Bush is pro-gun" lie if confronted so directly with his bullshit.

"Kerry, in a statement issued before Cheney's address, said 'most voters don't know that (Bush and Cheney) are standing against major police organizations and breaking their promise to renew the assault weapons ban ?— which helps keep military-style assault weapons out of the hands of criminals and terrorists."

& Kerry doesn't know that all federal gun control laws based on prior restraint stand against the 2nd amendment of the constitution of the united States. But one good thing about Kerry is that most people see through his bullshit. I don't think anyone - Republican or Democrat - will actually argue that Kerry is pro-gun. But both Republicans & Democrats think Bush is.

"Earlier in the day, Tom Mauser, whose son, Daniel, was killed with an assault weapon in the Columbine High School killings five years ago, tried to enter the convention hall where the NRA was meeting, seeking to urge Cheney to support extending the assault weapons ban. Mauser was turned away by a security guard..."

I do not know for certain Daniel Mauser was Murdered with an "assault weapon" or not. The murderers had a Tec-9 which was mentioned specifically by the "assault weapons" ban, but I never heard if they determined who was killed by what. Since the Tec-9 fires the 9x19mm cartridge it is very possible that he was killed by either that particular weapon or a pistol chambered in that cartridge. I seriously doubt Mr. Mauser recognizes the problems with ballistic matching of a projectile to a particular firearm, but it is possible that the Tec-9 was the only 9mm weapon they had, or that the rifling differed significantly from the pistols they may have had.

In any case Mr. Mauser doesn't seem to grasp that the "assault weapons" ban did not prevent two deranged people from committing a horrific act of murder. Neither does he realize that since they were prepared to break the laws concerning murder, possession of weapons & explosives on school grounds & a host of other laws that the AWB probably wouldn't have made them alter their plans.

Mr. Mauser also does not realize that the problem wasn't the instruments used - it was the people who were using them. Daniel Mauser would be just as dead if they'd have used muzzle-loaders. In fact if you average the number of people killed or wounded at Columbine from the time they started shooting until the time they presumably killed themselves you'll find that the rate of fire was under 3 rounds per minute per murderer. That's a little slower than the Minutemen were expected to accomplish in the 1770's. So "assault weapons" didn't enable the murderers to do anything they couldn't have done using230 year old technology & techniques.

But Mr. Mauser is a sad case. I cannot fathom the pain he went through in losing his son & feel a great amount of pity for him because it has warped his logic.

"Mauser, who marched three blocks to the convention hall literally in his son's shoes, said before the march that continuing the ban would be common sense.
'What is the useful purpose to these weapons? ... They are the weapons of gangs, drug lords and sick people.' Mauser said. 'It is a weapon of war and we don't want this war on our streets."

They are also the weapons of freedom fighters, of people who will be free & of people who will not be forced to give up that freedom even to their own government. A sick person is not one who espouses the ownership of arms, but one who thinks that through a law the good as well as the bad will give up their arms & leave peaceably forever. It is further evidence of sickness that a person thinks that I & others such as myself will acquiesce to a law demanding us to give up our arms without first enduring the war in our streets that Mr. Mauser claims is a bad thing.

"Mauser called the NRA 'an organization with a Field-and-Stream-magazine membership but a Soldier-of-Fortune-magazine leadership."

Ya know, I keep hearing about this radical leadership in the NRA. Where the hell are they & who the hell are they?

I'm tired of everyone getting it backwards: the NRA membership is typically more pro-gun than the NRA leadership. If you presented detailed questions to both, I think you'd find that it's the leadership who are in favor of gun control far more than the members.

But some of this is starting to leak out in the mainstream press. This MSN video touches on that. Angel Shamaya of is interviewed & has some pretty harsh (well for him mild) words for Bush's support of the AWB. However you should keep in mind that the press is mainly interested in this angle because it's anti-Bush.

I have no problems with airing grievances against Bush - as long as the grievances are based on substantive issues instead of a general bias. If you want to trash Bush on his record or his views then I can understand that. But the bulk of the opposition to Bush is based on either a personal dislike of him (he's uneducated; he has no tact, etc...) or a misunderstanding of him (he's shrinking the government too much; he's too pro-gun, etc...).

The video has a couple of interesting thing sin it;

First of all they reporter says the NRA has launched its own news network to "get around" campaign finance laws. That's like saying a person joined the military to "get around" federal firearms laws. The NRA started its own news network simply because that was the only legal avenue left to them to get their message out in the months prior to an election. It'd have been real nice if the reporter had mentioned the constitutionally questionable nature of those campaign finance laws (yes I know how SCOTUS ruled - they were wrong) but since reporters are immune to those same laws I doubt she was aware. After all if it doesn't affect a reporters livelihood it couldn't violate the 1rst Amendment could it?

Next we have LaPierre saying that gunowners know the difference between Bush & Kerry on the 2nd Amendment. What difference? What freakin' difference is there between a man who calls them reasonable regulations & a man who calls them common sense gun laws? One fakes to the left while the other fakes to the right but they both try an end run around the constitution. Now I have no doubts Kerry would be a messed up president, but I don't think he'd be much worse than Bush. Their methods would differ but they'd both be the wrong methods to achieve the wrong goal. But focusing strictly on the firearms issue I see abo-freakin'-lutely no difference between Bush & Kerry.

"President Bush's support of the "assault weapons" ban is an embarrassment. He should hang his head in shame." A bit harsh you say? Those were the words of Angel Shamaya. Considering the source I'd think it was on the mild side. Honestly I'd expect Mr. Shamaya to start talking about tar & feathers, but perhaps he did & the reporter thought it best to not air that portion of the interview.

In the introduction to Mr. Shamaya's statement the reporter said his website ( has "tens of thousands of followers" (emphasis mine). First I'd be surprised if didn't have a hit count of 6 digits, but I suppose that it could be in the 70 to 80 thousand range. But does it strike you as odd that a web site & political organization has "followers'? I can understand "members" & I could understand "visitors" but "followers"? Maybe I'm just reading too much into it but it seems like the reporter was trying to subtly plant the idea that you should equate the people who visit with a religious group. After all, the word "followers" is rarely used unless you're talking about a cult of some sort. The NRA has "members", not "followers". Jim Jones had "followers". But as I said perhaps I'm just reading too much into it.

Just for laughs pay close attention to the segment of Kerry with the side by side & orange vest. I'd be hard pressed to find a better visual for "Fuddite".

It goes on to say that most NRA members are supportive of Bush. The two people interviewed to support this statement never said they support Bush wholeheartedly; rather they feared Kerry would be worse than Bush.

Don't be fooled - the only reason the mainstream media is airing this story &/or others like it is not to spread the truth but to garner opposition against Bush. They don't care if he's pro or anti gun as long as they can use it against him. But despite their ill intent the word is getting out. It'd be a beautiful thing if Bush did a turn around & started being actively pro-gun, but the skeptic in me doubts that will ever happen. What I do think is possible is for the election to send a message to the Republicans that the half assed approach to being pro-gun (i.e. relying more on reputation than action) isn't going to cut it. But that's real difficult when the NRa leadership is constantly being called extreme.

Just out of curiousity if the leadership of agroup who supports every federal gun law on the books is consiered pro-gun in the extreme, then what would I be labeled as? Extreme extreme? ultra extreme? Uber-extreme? Course if you're thinking that most of the mainstream press couldn't even imagine people with my beliefs exist let alone label them, then you're probably correct.

Thursday, April 15, 2004

I can't say I wholeheartedly agree with David Kopel on everything although I must confess I'm more in agreement with him than Ted Kopel. But over at the High Road someone linked an article Mr. Kopel & Stephen D'Andrilli wrote in 1990 about Switzerland & its militia system. It's called The Swiss & G U N S ~A Success Story~. It's a bit dated as some changes to the gun laws in Switzerland occurred in the 90's. In fact the Swiss pro-gun group Pro-Tell is busy fighting these efforts as we speak. But the bulk of the article is correct in its assessment of Swiss firearm laws.

Now here's something to think about:

"Indeed, the militia is virtually synonymous with the nation. 'The Swiss do not have an army, they are the army', says one government publication. Fully deployed, the Swiss army has 15.2 men per square kilometre; in contrast, the U.S.A. and U.S.S.R. have only .2 soldiers per square kilometre. Switzerland is 76 times denser with soldiers than either superpower. Indeed, only Israel has more army per square kilometre."

I'd venture to guess that only certain parts of the American South & Southwest could even begin to approach that kind of coverage by the militia. If I'm looking at the correct conversion table (hey - it's late) a square kilometer is 0.3861 square miles, & a square mile is about 640 acres. So the U.S.A. figure mentioned above would equate to (if my calculations are accurate) about 2.5 soldiers per square mile. Now a mile is 1,760 yards so at the dead center of a square mile you'd have 880 yards in all directions (actually a little more than that in the corners). That's along way to shoot. But throw in the other man & a half & you could cut it down to something a bit more reasonable - say just shy of 600 yards. Now for a rifleman with a rifle that'd be no problem, but for a soldier with an M16...let's just say I'm not optimistic. After all, no matter how good Hank Aaron was ain't no way in hell he could've hit anything in a meaningful way if he substituted his Louisville Slugger for a flyswatter.

But the Swiss can field 38 men per square mile. That's a man for every 16.8 acres. They'd be spaced so close together that they could effectively cover each other with rifled muskets!

Now Kopel & D'Andrilli don't take into account the U.S. militia which would boost our numbers a bit. But probably not by that much. If someone tried to invade Switzerland almost the whole citizenry would show up to stop them. In the U.S. we'd expect the Marines & Army to show up & do something. But the average citizen for years & even decades has been bombarded with the idea of letting the professionals handle things. Hell, lowly peasants often get arrested for shooting criminals in self defense or merely partrolling private land on the borders. So it wouldn't surprise me in the least to hear a chorus of "let the Marines handle things - that's what we pay them for" echoing through the countryside if anyone ever tried to invade the U.S.

In Texas, the Carolinas, Georgia, Tennessee, Virginia, Alabama, Mississippi, Louisiana, Colorado, New Mexico & Arizona I'd expect a little more turn out than average but only in the rural parts of those states. Any state with a medium to large urban area (i.e. a big city) can almost write that part of the state off. This isn't so much because people in big cities are cowards but rather they've been indoctrinated so long into government dependence that it'd be difficult to get them to change their views in time to do any good. The rural areas of every state won't have the same mindset as most rural folk are used to doing for themselves - well at least to a greater degree than their citified brethren.

Another reason is that in urban centers (i.e. big cities) gun control is usually more strictly enforced. That means the confidence that comes with developing skills in arms will be lacking & create another psychological barrier. & that's not even dealing with the issue of having arms in the first place. After all, would you feel positive about repelling invaders when your most potent weapon is a bottle filled with gasoline & a lighted rag? I'd like to think the city dwellers in D.C., Chicago, NYC & other places where possessing arms is legally difficult to impossible ignore those laws, but I can't see more than 10% or so being armed with anything more than a small pistol.

The Geek With A .45 touched on a related subject in a post of his a few days back. His focus was on gun control laws on the federal level being harmful to small arms development that is essential to national defense. A few months ago I wrote about an article on the National Matches & their relationship to national defense, or more specifically how the government has been withdrawing its support of this important primer for national defense. But as important as those two issues are to address I feel they are insignificant compared to the one I'm talking about now, which is an apathy on the part of the populace. After all, if we could buy newly designed & manufactured machine guns over the counter & the government was actively involved in civilian matches as it once was it would accomplish very little if the majority of people simply looked to the government to protect them.

Pay attention over the next week or so to the news & other forms of mass communication. In newspaper articles, news stories, billboards & magazine ads & articles you'll see that anytime the public's role is mentioned in anything its merely to be a good witness &/or informant. No cop has ever said (in recent times at least) for a citizen to get directly involved in preventing crime. Illegal aliens crossing on your land? Call the cops. A little old lady getting her ass kicked? Call the cops. Someone's being gang raped in the alley beneath your window? Call the cops.

What this message is doing is conditioning the populace to not getting directly involed. It's taking them out of their proper place in society a sparticipants & making them mere spectators. Now I'm not saying you should go out on "patrol" every night looking for drug lords & pimps to place under citizens arrest. But if you see a person getting beaten up & robbed, even if its by the cops, you should try to intervene if you can. Yes, it's risky as hell; you don't know if the attacker will turn on you or just run away. But here's the thing - that attacker whom you let get away because you feared for your own safety could very well be the attacker your wishing someone will save you from 3 weeks from now. Or worse: he'll be the one who beats up &/or kills your wife or daughter or son 3 weeks from now. C'mon - didn't you watch Spider-man? He let a guy go because he didn't want to get involved & that same guy ended up killing his uncle. There's a message in that which most people seem to ignore: if you tolerate someone you don't know being mistreated then don't be all shocked when it happens to someone you care about.

That's one of our problems as a society: we do not want to get personally involved. If we won't get involved when crime threatens our community, then what makes you think it'll be different if an invasion threatens out community? Do you think the Jews in Hitler's Germany just accepted their fate? Do you think they were all pacifists up till the very end? No, it was conditioning that made them too susceptible to inaction. That same conditioning is present today in the U.S. It's perhaps a bit more varied than what the Jews in Nazi Germany were taught, but everytime you here that "it can't happen here" or "we'd be no match for a modern military so resisting would be futile" I hope you'll recognize it as a modern variant of the reasoning that caused millions of people to allow themselves to be murdered with little if any resistance.

More from the article:

"Since 1291, when the landsgemeinden (people's assemblies) formed circles in the village squares, and only men carrying swords could vote, weapons have been the mark of citizenship. As a Military Department spokesman said, 'It is an old Swiss tradition that only an armed man can have political rights.' This policy is based on the understanding that only those who bear the burden of keeping Switzerland free are entitled to fully enjoy the benefits of freedom."

I can't say that I'd be opposed to something like that over here. Hell, can you imagine the looks on Schumer's, Feinstein's & Brady's face if on election day everyone showed up at the polls with their pistol, rifle & best web gear?

"In 1977, the Münchenstein Initiative proposed allowing citizens to choose social or hospital work over military duty. It was rejected at the polls, and in both houses of parliament (the Bundesversarnmlung's Nationalrat and Ständerat). There are provisions for conscientious objectors, but this group only numbers .2% of conscripts."

& keep in mind Swiss militia service isn't about getting job training or money for college. These people are very serious about defending their country. They want to serve.

"In 1978, Switzerland refused to ratify a Council of Europe Convention on Control of Firearms. Since then, Switzerland has been pressured by other European governments, which charge that it is a source for terrorist weapons. As a result, in 1982 the central government proposed a law barring foreigners in Switzerland from buying guns they could not buy in their own countries and also requiring that Swiss citizens obtain a license to buy any gun, rather than just handguns.
Outraged Swiss gun owners formed a group called 'Pro Tell,' named after national hero William Tell. In 1983, the Federal Council (the executive cabinet) abandoned the restrictive proposal because "the opposition was too heavy" and suggested that the cantons regulate the matter. A few months earlier, the Cantonal Council of Freiburg had already enacted such a law by a one-vote margin. A popular referendum overturned the law the next year, by a
60%-40% vote."

Apperently they want to vote as well. Can you imagine what the press would do if gun owners got off their ass, stopped making excuses for the lesser of two evils & elected pro-gun politicians to repeal gun control laws? Imagine every time a gun control law is passed it gets repealed right after the next election. But imagine is all we can do because gun owners are petrified of Kerry even though Bush isn't all that different on the gun issue.

But go read the rest of the article. It does a good job of explaining the Swiss mindset when it comes to guns & culture. I still think in theory America has the best system going, but in practice the Swiss aren't that far behind, if at all as far as arms ownership goes. Switzerland isn't perfect by a long shot, but if you read your history you'll note that several American institutions were copied from the Swiss. One of those was the militia. It's a shame it's more a part of history for us than anything else, especially when the Swiss seem to be doing well with it after 500 years or so.
At End the War on Freedom I found a rather interesting link: a fellow by the name of Larken Rose has put together a flash presentation called "The 861 Evidence: A Disturbing Exposé of the United States Income Tax System". It takes a while to load & it's rather lengthy but considering the day I thought I'd pass it on.

Monday, April 12, 2004

April 15th. It's only 3 days away so you have to get moving.

No, I'm not trying to encourage you to send your yearly extortion payment to the IRSS; I'm telling you about B.A.G. day.

Aaron the Liberal Slayer came up with this last year. His original goal was for everyone to buy a gun on April 15th just to piss off Michael Moore. Can't say his heart wasn't in the right place with that one, but he decided to shorten it to B.A.G. so it'd be a little catchier this time around.

Unfortunately due to a lack of finances & a recent purchase I won't be able to join in with y'all this year. But that will not stop me from vicariously shopping through you - so if you're undecided on what you want to purchase feel free to drop me a line & I'll give you my $0.02 for free.

But allow me to go over what in my opinion is a complete battery for anyone in the U.S. to have in their gun safe:

First & foremost a .22LR chambered firearm is essential. No, it won't stop a tank with one shot nor will it shoot flying saucers down from a low orbit. It will put food on the table. I've never seen a squirrel or rabbit that's immune to a .22LR. It will also keep pests out of your garden. In a pinch it'll keep the two legged vermin from doing much damage to you (although there are better choices). Most importantly it's cheap to feed. You can still get a 100 round box of decent quality ammo for around $3.50. Three cents a round ain't anything to laugh at & you can find plinking ammo for a bit less than that. But the beauty of its economic friendliness is that for under $10 you can have a nice little practice session. & practice, even with the lowly little .22LR, will help your shooting skills to develop.

As far as which .22LR to get it's hard to go wrong with damn near any well know make of firearm. Ruger makes a superb autoloading pistol as well as a decent single action revolver in .22LR & .22 Magnum. CZ makes a much talked about line of .22LR bolt action rifles. Browning makes fine autoloading pistols in .22LR. Smith & Wesson & Taurus have both pistols & revolvers to choose from. Remington makes a superb line of .22 rifles as does Marlin. But my favorite for a host of reasons is the Ruger 10/22.

Next I'd list the shotgun. In fact if a pragmatist was limited to one firearm a repeating shotgun of some sort would not disappoint. The main virtue of the shotgun is its versatility. By switching the ammo you can have a firearm that propels multiple projectiles or a very large single projectile. It's ideal for close range hunting of damn near any game in North America & is an ideal choice for close range defense against bipedal predators. I would also advise getting a 12 gauge. For the recoil sensitive people out there (& it's nothing to be ashamed of) you can use target loads in your 12 gauge to reduce the perceived kick. If it comes down to it Aguila makes a 1 & 3/4" (as opposed to 2 & 3/4" or 3") shotshell they call the Minishell. They make slug, buckshot & birdshot loads. As you might imagine it doesn't have as much projectile as the longer shotshells but a 7/8 slug or 5/8 ounce of birdshot will get most jobs done that you need done at close range. The big plus is that they generate very little recoil so those who are sensitive to kick don't have to settle for a smaller gauge (not that there's anything wrong with 16, 20 or 28 gauge guns).

Remington makes perhaps the best pump action shotgun available in the model 870. There are other very reliable & very decent pump action shotguns out there but I've always had a soft spot for the 870. One other one I will mention is the Ithace model 37. It's another one of JMB's designs & as such I wouldn't feel slighted with it at all. (For more on JMB look here, here & here.)

Of course being somewhat of a traditionalist I have a big soft spot for double barrel shotguns; particularly side by sides. My grandfather was an avid bird hunter in his youth & the first firearm I ever had any exposure to was his L.C. Smith 12 gauge field grade. Unfortunately it was stolen from him when I was still a teenager. I'm primarily a rifle person so I could never justify spending a grand or two on a long gun that doesn't have any rifling although when I think of the old man & the look in his eyes when he'd tell me about dove hunting with his favorite pointer I'm tempted to sell something & find an L.C. Smith that needs a good home. In the meantime however I'm making due with a rather enjoyable & economical Brazilian side by side imported by Stoeger called the Uplander. I doubt my grandfather would turn his nose up if he'd have been handed one though I'm sure he wouldn't have favored it to his Smith.

But there are automatics as well as single shots & over/unders made by many manufacturers. Depending on your needs finding something suitable won't be nearly as difficult as narrowing the selection down.

Handguns are next on the list. Revolver or auto is strictly a matter of preference. Personally I'm intrigued by the S&W model 610 although I haven't acquired one for various reasons. The steel frame 10mm EAA Witness is another one I've had my eye on. Keep in mind though that the fit & feel of a handgun are the most important things to consider. A gun that fits comfortably in your hand may feel awkward in mine. & recoil that you're comfortable with may cause me to flinch. So try to narrow your choices to handguns that feel comfortable in your hand when you hold it & cartridges that are tolerable when you shoot them.

Now if you're thinking I'm a fan of the 10mm you'd be correct. It's odd because I don't own one & can't honestly say I've ever fired one, but the external ballistics have me hooked. A full powered 10mm load would be ideal for hunting medium to large sized thin skinned game & I wouldn't feel too peevish about carrying one into brown bear country. But the thing that has me most intrigued is that in my opinion the 10mm would make the ideal cartridge for military use. It'd be a much more decisive fight stopper than the 9x19mm & I'd wager it'd be more effective than the much revered .45 ACP. But that's another discussion all by itself.

The important thing to remember about handguns is that their main purpose is to allow you to fight you way to your long guns. So without further ado...

Rifles are what make my world go round. & nothing spins it faster than an accurate rifle. Remington, Browning, Ruger, Savage & many other make brand spanking new bolt rifles that will usually shoot better than you can right out of the box. Those same companies also make fine auto-loading rifles. A few companies even make single shot break open rifles.

But in my opinion there is no finer product offered today than the ones offered by the Civilian Marksmanship Program. They sell government surplus 1903 Springfields, 1903A3 Springfields, 1917 Enfields & M1 Garands. All four rifles are chambered for the .30-06 Springfield cartridge & as such I cannot think of any man or beast in North America that would not be deterred by its judicious use. Now in keeping with the original theme of B.A.G. can anyone think of a way to piss off Michael Moore, Sarah Brady or any others of their particular ilk more than to buy a battle rifle from the U.S. government? I think not.

Another reason to buy the Garand in particular is that it can have 5 (count 'em - 5!!!) of the features that make a semi-automatic firearm into an evil "assault rifle". Reese Surplus has some BM-59 folding stocks that will fit on the Garand. That'd knock out the folding stock & conspicuously protruding pistol grip. The Garand's gas system uses a threaded part on the barrel that will accept a flash suppressor so even if you don't have one that knocks out that requirement. All Garands come with a bayonet lug - it's part of the gas system. & finally Numrich Gun Parts among others offers grenade launchers for the Garand. So all 5 of the evil features can be on your rifle at the same time. The only thing lacking is the "high capacity" detachable magazine.

One rifle, sold to you by the government that can have 5 of the 6 features that the hoplophobes feared so much they sought to make them illegal. I'd say that alone would be reason enough to buy a Garand. Of course I am of the opinion that the Garand is the finest piece of machinery available, so forgive me if my bias shows.

But just as important as the platform you select to launch projectiles from are the projectiles themselves. Or more precisely the cartridge. If you only want one or two rifles in your collection then a general purpose cartridge such as the .30-06 or .270 Winchester would be what to look for. But if you don't mind having two or more cartridges in your ammo locker then I'd say there are three areas you'd want to focus on: a small bore, a medium bore & a large bore. Now keep in mind these are all dependent upon your needs: I'm only offering an opinion.

For a small bore I'd look at one of the medium velocity .22's such as the .223 or the .222 Remington Magnum. They're not the fastest out there but they're close enough to give good performance without the decreased barrel life offered by the .220 Swift or the .22/250 Remington. & I'd prefer a decent bolt action but I wouldn't be opposed to an accurate autoloader since these cartridges would be limited to target shooting & varmint hunting. So don't misunderstand - I am not telling you to get an AR-15 for defense from anything other than prairie dogs. A decent variable powered scope would be a must no matter what type of rifle as the targets are often small & far away, but occasionally closer than you'd need a 14x scope for.

I also wouldn't discount the .243 Winchester or some other 6mm cartridge to bridge the gap between a small bore & medium bore. Truth be told for deer (not elk) & varmints a .243 is pretty close to ideal as long as you use the appropriate bullet weights for the game you're hunting.

For a medium bore I'm all set with the .30-06 Springfield. But the .270 Winchester, .280 Remington or any of the .30 caliber magnums would work just fine. & almost any action type will work depending on your needs. Bolt actions have a reputation for accuracy, but I've seen Garands that will shoot 1 inch groups at 100 yards.

For a large bore I'd look somewhere between the .338/06 & the .375 H&H Magnum. Personally I don't see a need for anything larger than the .375 H&H for any North American game, although if I were in Alaska amongst the grizzlies I might consider revising my standards considerably. But for me a .35 Whelen would be about ideal for anything that could be hunted. This has nothing to do with the fact that Garands can be chambered in that particular cartridge. I'm sure that's just a coincidence.

If you plan to hunt in Africa then that's a whole ?nother ball game. I'm sure there's a host of people that could give more accurate detailed advice on which cartridges are best for Cape buffalo & other dangerous quadrupeds. But feel free to ask & I'll try to point you in the right direction.

I'd be remiss in not pointing out that the pistol caliber carbines such as the Ruger PC4, High Point carbine & M1 carbine fill a very unique, if somewhat limited niche & they'd be worth considering. Also the cheap surplus rifles aren't a bad idea especially for those on a budget. The SKS in 7.62x39mm, Mosin-Nagant in 7.62x54R, & 98 Mauser in 8mm can still be found relatively cheap.

So to sum it up I think everyone should have a .22LR (either handgun or long gun but preferably both), a shotgun, a centerfire handgun, & at least one rifle.

I regret that I won't be able to make any new (or used) purchases this week but by all means let me know if you do. Hearing from a reader who buys a firearm isn't quite as good as getting one myself, but it's definitely the next best thing. Thanks again to Aaron for not only coming up with the idea but for doing a lot of footwork on its behalf.

So do him, me & yourself a favor - go buy a firearm on the 15th.

Tuesday, April 06, 2004

The Volokh Conspiracy, Instapundit & Kim du Toit along with a few others are talking about the number of dissenting judges & the intensity of their dissents in 2nd amendment cases. What seems to be of interest are the dissents in Nordyke v. King. Of particular interest is that Justice Kozinski concurred with the majority opinion to deny an en banc hearing. This is the same Justice Kozinski who wrote a passionate dissent in Silveira v Lockyer & wrote the majority opinion in U.S. v Stewart(which stated that privately manufactured machine guns do not affect interstate commerce & therefore can't be used as a basis for NFA prosecutions).

I am simply not heartened by the dissents. their intensity is admirable & many good points are made in them, but they are still an underwhelming minority. The main reason I'm not as optimistic is that despite their personal feelings all these judges are bound by precedent. Justice Kozinski is arguably the most outspoken supporter of the Right to Arms on the federal bench today, yet he has denied 2nd amendment claims because he was bound by previous rulings of the court. He even concurred with the majority in Nordyke for what he deemed "prudential considerations".

If you haven't read "Game Over, Man. Game Over." by Kevin of The Smallest Minority then please do so. It sums things up quite nicely.

What we have is a judiciary that keeps building on very bad decisions even when the judges disagree with those decisions. Some will say this is a triumph of the rule of law or the impartiality of the courts. I disagree. I'm more inclined to say it's a sign of failure of the rule of law & shows the bias of the courts.

The rule of law is a very simple idea: a ruler is bound by the law just as the common person is. In this country we have a pecking order as far as the law goes. Deference must be given to the federal constitution when a conflict arises between it & a federal or in some cases a state law. The main purpose of the federal constitution is to place limits on government authority. What the courts have been doing with regards to the 2nd amendment is not to make the common folk & government equals in the eyes of the law but to side with the government against the common folk despite the constitutions limitations on government. They have done this through exercises in acrobatics of logic that are at times quite astonishing.

This demonstrates not only their personal prejudice in the matter but a deference to the government rather than the constitution. When a judge who openly agrees that the 2nd amendment protects an individual right feels compelled to abide by a system that whittles all the substance from said amendment he is not acting impartially. What he's doing is showing deference not to the constitution but to the courts.

You might disagree with my view on this. A very good argument could be made that without the system of precedent that the courts have long honored we'd have judicial activism of the worst sort. But I fail to see how that would be any worse than a system in which a man must forsake common sense & his oath to defend the constitution (assuming judges are still sworn in with an oath that affirms such) because he is verboten to rule against the government (i.e. the courts).

Let me make this clear - the judiciary is a branch of government. Some will say that the courts are not swayed as easily by politics & other factors which seem to drive the legislative & executive branches, but supposing that's true they are still swayed by considerations other than what their original purpose was: protecting the people.

Courts were instituted so that the ruler would be seen as fair in matters that directly effect the people. A murderer could not be summarily executed w/o a trial to determine if he was in fact a murderer. Similarly a person could not be punished for refusing to abide an unlawful act on the part of the government. (& yes I realize this is a rather simplistic explanation but bear with me as I'm a bit rushed.) For these reasons the courts were viewed as a good idea as a way to impose fairness on a government which by its very nature is unfair.

In our system the constitution is supposed to be the highest law in the land. No law that conflicts with the constitution is supposed to be upheld as valid by any court. In this way the courts are supposed to check the excesses of the legislature which in most circles are a recognized & unavoidable part of a legislative system.

But now it seems the courts are (& have been for some time) bending over backwards to explain why the laws which seem unconstitutional on their face are in fact quite constitutional. As many others & myself have said the lengths some courts have gone to in order to justify laws they approve of despite conflicts with the constitution are simply amazing.

But what discourages me is not so much that the courts are doing this, but that even judges who see this as blatently wrong are going along with it. Sixty four years of bad precedent is more compelling to them than their own conscience. That to me is the main source of my discouregment & disgust with the courts.

Some have opined that for reasons similar to what I stated above that we should be glad that a lot of 2nd amendment based cases are not heard by the higher courts. The idea being that until the courts are more favorable we should thank judges who vote against hearing such cases. & this I disagree with as well.

There is simply no practical effect that a Supreme Court ruling would have as far as the 2nd amendment goes unless it reversed those 64 years of bad precedent. If they sustain a federal courts ruling in whole that the 2nd amendment means the states have a right to a militia but individuals have no right to arms, then what difference will it make? Since the Supreme Court hasn't heard a direct 2nd amendment case in the last 64 years the district court rulings are binding on all lower courts. In other words the practical effect is the same whether the Supreme Court upholds a bad ruling or they simply refuse to address it.

This is because all federal district courts have promoted a collective rights view of the 2nd amendment. The 5th Circuit is the only notable exception & as yet hasn't been tested in their district. Considering the lengths judges have gone to in order to refute the meaning of a constitutional amendment I have no doubts that the 5th Circuit ruling in Emerson will be worked around in some fashion. Perhaps by a direct reversal or possibly even by stating that the 2nd amendment shouldn't have been addressed & the opinion concerning it was merely dicta (which is part of an judicial opinion that holds no legal weight). & as the recent Parker v DC demonstrates the 5th's view of the 2nd amendment is not seen as persuasive by other districts.

& you must remember that in Emerson the court did say that the 2nd amendment protected an individual right, but it was subject to reasonable government restrictions. To me there is little if any practical difference between the "collective right" view & the "reasonable government restriction of an individual right" view. It all revolves around what is considered reasonable & given what I've seen of the courts I'd wager that their idea of reasonable is a lot closer to Sarah Brady's than mine.

I wish I could share the optimism expressed by some, but for the reasons stated above I cannot put any more faith in the judiciary than I can in the legislative or the executive branches of government.

Friday, April 02, 2004

A decision was made in Parker v D.C.: the 2nd amendment does not guarantee an individual right to own or possess arms unless it is directly related to service in a state militia, therefore D.C.'s firearms laws are valid.

Again we see a court take U.S. v. Miller & misinterpret it. Then they cite 60+ years of circuit court decisions that also misinterpret Miller. & on top of that they claim that since the Supreme Court has not reviewed Miller or any direct 2nd amendment cases since Miller that the highest court in the land must approve of the interpretation of Miller.

They do spend a little time downplaying the 5th Circuit's decision in U.S. v. Emerson. Well downplaying isn't the proper description: they explain why they feel Emerson was an incorrect decision based on precedent as well as reasoning. I thought that was interesting since Emerson is the only circuit court decision issued recently that would support an individual as opposed to a collective right. & perhaps even more so because the Emerson decision was a 5th circuit matter: not binding on any other circuit. Yet the D.C. court went to some trouble to argue against it.

The court explained in some depth that a person had to be sanctioned by the state to qualify as a member of a militia. They reasoned that a militia must be trained & organized by the state & subsequently that enrollment in such a militia is the only means of claiming to be part of the militia. In other words, they suggest that unless you are actually on a roll of a state's militia then you're not a member of the militia. This despite the evidence presented in Miller that the militia was composed of all capable people within certain a certain age frame.

But the D.C. court held that since the plaintiffs raised no argument that they were members of a militia that they had no claim under the 2nd amendment & ruled against them.

Kevin of The Smallest Minority has a post up entitled "Game Over, Man. Game Over." that has more than a little relevance to the situation with the courts generally.

Parker is further proof that we have no redress in the courts. The only thing that could alter my view of that would be for the Supreme Court to hear & reverse the findings in Parker or a similar 2nd amendment case, but they've been ducking the issue since 1939 & I doubt they'll grow a conscience & courage at the same time.

Thursday, April 01, 2004

So I get this nasty, shrill message in my KABA mailbox this morning from a British panty-wetter reporter, who is apparently irate that we repeatedly use articles in UK publications to point out how ineffective, absurd and positively medieval their gun control laws are.

Greg Truscott writes:




The message resulted in an email exchange between myself, KABA Executive Director Angel Shamaya and Mr. Truscott, detailed here.

Give it a read. It will give you a chuckle. Not only are the Brits unilaterally disarmed, but they are prosecuted for defending their lives without permission from their tyrannical government and they try to threaten those who expose this savagery with legal action!

Mr. Truscott's email address is:

I imagine he will be quite irate tomorrow when he gets to work and finds his email box full of love letters from gun rights supporters.

A friend of mine wrote the following in an email:

I was born and raised in the UK.

I live in the US now.

It's very sad to see the festering sh*thole Britain is becoming.

Under the US Constitution, we have free speech and press.

By federal law and Supreme Court decision, anyone may post links to
anything on their site, as free speech and free press.

It's sad that your articles prove our point. But your lawyers can't do
a damned thing about it, and you won't find an honest US lawyer to take
the case. A shyster will take your money, lose and get us lots of free
publicity. I urge you to do so.

Are all British reporters incompetent and irrational fools? That's all
I seem to read anymore from over there.


Wednesday, March 31, 2004

Now I am not the first to tackle the problems with Miller: Brian Puckett wrote a piece entitled United States v. Miller and Short-Barreled Shotguns which I would encourage you to read. (He has more modern examples of shotgun use in the military - with pics!) I've previously touched on Miller here & here But for my own reference felt a more in depth refutation of Miller was necessary.

Many federal courts rely on U.S. v. Miller in which the Supreme Court remanded a case back to the District Court that had overturned the National Firearms Act of 1934. The District Court agreed with Miller that the NFA violated the 2nd Amendment. Justice McReynolds delivered the opinion of the Supreme Court that the weapon in question, a shotgun with a barrel of less than 18?, was not known to the court to have use in the militia & therefore the NFA didn't conflict with the 2nd Amendment.

Most federal courts since then have misconstrued this to mean that unless a person was actually serving in a state militia with a state approved weapon then the 2nd Amendment is inapplicable to them. This is flawed simply because the findings in Miller did not state or even imply such a conclusion. In fact Miller went to great lengths to establish that "militia" meant every person capable of serving in the common defense.

Before I get into the Supreme Court's decision in Miller there are a few facts I would like to point out about the case. First of all a gentleman named Patrick L. Aultice compiled all the available information on Miller that he could find. It contains every document from the district court's grant of bail to the Supreme Court decision itself as well as a brief summation of Jack Miller himself.

It should be noted that Miller was indicted twice for the same violation of the NFA; once on June 2nd, 1938 & again on September 23rd, 1938. In the first instance a demurrer to the indictment listing 5 items was filed on June 11th, 1938 with a memo opinion from Judge Ragon on June 11th, 1938. In the second instance a demurrer to the indictment listing 6 items was filed on January 3rd, 1939 & a memo opinion was given by Judge Ragon on January 3rd, 1939. In Mr. Aultice's chapter on Jack Miller, he mentions that Miller originally plead guilty but the judge advised him to withdraw his plea & he appointed counsel for both him & Mr. Layton (who was indicted along with Miller). I think if you have an interest in the case you'll find all the documents & summaries provided by Mr. Aultice interesting, but I'll leave it to you to click on the link above for the detailed story.

This is Judge Ragon's opinion as stated on January 3rd, 1939:

"The defendants in this case are charged with unlawfully and feloniously transporting in interstate commerce from the town of Claremore, Oklahoma, to the town of Siloam Springs in the State of Arkansas, a double barrel twelve gauge shot gun having a barrel less than eighteen inches in length, and at the time of so transporting said fire arm in interstate commerce they did not have in their possession a stamp-affixed written order for said fire arm as required by Section 1132 c, Title 26 U. S. C. A., and the regulations issued under the authority of said Act of Congress known as the National Fire Arms Act.

The defendants in due time filed a demurrer challenging the sufficiency of the facts stated in the indictment to constitute a crime and further challenging the sections under which said indictment was returned as being in contravention of the Second Amendment to the Constitution of the United States.

The indictment is based upon the Act of June 26, 1934, C.757, Section 11, 48 Statute 1239. The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States providing, 'A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.'

The demurrer is accordingly sustained."

That & the demurrer itself are all the Supreme Court had to go on from the defense. They did not submit a brief or attend oral arguments.

The briefs from the government in objection to the lower court's ruling were very detailed. Common law was cited as far back as 1686 in England to support the idea that restrictions on arms were justifiable. What they failed to do was demonstrate that the 2nd Amendment sought to adopt the common law of England in its restrictive view of the Right to Arms. But oddly enough the Supreme Court decision itself fills in many gaps that the government left in its briefs concerning militias.

This is an excerpt from Miller where Justice McReynolds states his overall findings concerning the case:

"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"

He then goes on to explain the Congressional power concerning the militia that was granted in the Constitution & concludes that

"With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

He then continues about the militia:

"The Militia which the States were expected to maintain and train is set in contrast with Troops which they [307 U.S. 174, 179] were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia- civilians primarily, soldiers on occasion.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

Justice McReynolds spends a great deal of time in discussing the history & purpose of a militia:
"Blackstone's Commentaries, Vol. 2, Ch. 13, p. 409 points out 'that king Alfred first settled a national militia in this kingdom' and traces the subsequent development and use of such forces.

Adam Smith's Wealth of Nations, Book V. Ch. 1, contains an extended account of the Militia. It is there said: 'Men of republican principles have been jealous of a standing army as dangerous to liberty.' 'In a militia, the character of the labourer, artificer, or tradesman, predominates over that of the soldier: in a standing army, that of the soldier predominates over every other character; and in this distinction seems to consist the essential difference between those two different species of military force.'

'The American Colonies In The 17th Century', Osgood, Vol. 1, ch. XIII, affirms in reference to the early system of defense in New England-

'In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to [307 U.S. 174, 180] cooperate in the work of defence.' 'The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former.' 'A year later (1632) it was ordered that any single man who had not furnished himself with arms might be put out to service, and this became a permanent part of the legislation of the colony (Massachusetts).'

Also 'Clauses intended to insure the possession of arms and ammunition by all who were subject to military service appear in all the important enactments concerning military affairs. Fines were the penalty for delinquency, whether of towns or individuals. According to the usage of the times, the infantry of Massachusetts consisted of pikemen and musketeers. The law, as enacted in 1649 and thereafter, provided that each of the former should be armed with a pike, corselet, head-piece, sword, and knapsack. The musketeer should carry a 'good fixed musket,' not under bastard musket bore, not less than three feet, nine inches, nor more than four feet three inches in length, a priming wire, scourer, and mould, a sword, rest, bandoleers, one pound of powder, twenty bullets, and two fathoms of match. The law also required that two-thirds of each company should be musketeers."

He then continues with examples of regulations concerning militias in the states before he concludes:

"Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below.

In the margin some of the more important opinions and comments by writers are cited. 3 [307 U.S. 174, 183] We are unable to accept the conclusion of the court below and the challenged judgment must be reversed.

The cause will be remanded for further proceedings."

Justice McReynolds never mentions that Miller was not a member of a state militia & therefore had no standing. Rather he concludes that the weapon Miller had was not of a benefit to the militia, but he even left that open by mentioning that it was not within judicial notice.
Now once again here's the relevant passage of Miller:

"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"

Matters of fact are usually left to the trial court, unless it is something very obvious such as the capital of Oregon or the allegation that a river runs from the upper midwest to the Gulf of Mexico or that cars use gasoline. But what is curious is that the Supreme Court at the time had two justices with prior military experience, three if you count a newly appointed justice who recused himself from the case due to his missing the oral arguments. From this site the JPFO put together on Miller I found the following:

"...Two of the Court's members had seen military service, Justice Hugo Black as a Captain in the Field Artillery in 1918 and Justice Felix Frankfurter as a Major in the Army's Legal service. Justice William O. Douglas, who did not take part in the decision, had been a private in the U.S. Army in 1918."

So it should have been possible that at the least Justice Black had some exposure to the military's use of short barreled weapons. From the same article from the JPFO we see numerous examples of the military use of short barreled weapons.

"The British issued a Sea Service flintlock blunderbuss with a 16-inch brass barrel, circa 1760..."

Jumping to the Late Unpleasantness 'Twixt the States:

"The degree to which barrels were amputated depended upon the whim of the cavalryman, or was dictated by battle damage sustained by the gun. Thin gun barrels were often dented or bent. Since weapons were scarce, the damaged portion was simply cut-off to restore the gun to action. This resulted in the discovery that shortened guns were more controllable while mounted; therefore, they were better suited for fighting purposes."

& further:

"In 1861, the Federal government purchased 10,000 Austrian-made carbines (KammerKarabiner, Model 1842). This muzzle-loading .71 caliber firearm resembled a shotgun: it had a 14.5" rifled barrel and no bayonet...The government issued three types of ammunition for this carbine: buckshot and ball combined, ordinary buckshot, and round balls..."

& from WW1:

"...The Ordnance Department procured some 30,000 to 40,000 shotguns of the short-barrel or sawed-off type, ordering these from the regular commercial manufacturers..."

But it is entirely possible that none of the justices were aware that short barreled shotguns not only could be of use, but had & currently were in use by the U.S. military.

Now Article 1 Section 8 of the U.S. Constitution provides in part for Congress to have the authority to:

"To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water..."

A letter of marque is defined at as: "a letter from a government formerly used to grant a private person the power to seize the subjects of a foreign state" & more specifically: "authority granted to a private person to fit out an armed ship to plunder the enemy (usu. used in pl.) (often used in the phrase letters of marque and reprisal)".
Private citizens were granted permission to engage an enemy nation on the seas. Now if any of you have ever spent time aboard any ship you'll understand what a commodity space is. A short barreled shotgun or rifle, not to mention a belt fed machine gun, would be the preferred weapons aboard any ship. I am sure that the U.S. Navy employed shot barreled weapons, including shotguns, aboard her vessels & it would be foolish to conclude that given the options we have today short barreled automatic weapons as well as shotguns would not have been coveted by the early American Navy.

The same part of the Constitution also states that Congress is empowered:

"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions..."

Up until the mid 1800's the military (including the militia) was expected to perform the same duties as police officers do today. & considering that in most states citizens have power of arrest when they see a felony or other dangerous crime being committed it would not be unreasonable to conclude that weapons similar to what the police departments use would be well suited to the private citizen. If you weren't aware police departments & other law enforcement agencies do use short barreled shotguns among other NFA weapons.
The justification used in Congress to pass the NFA was that certain weapons such as short barreled shotguns were particularly suited to criminal use. Criminals did use them on occasion. But this points to a another class of people at whom the sale of short barreled shotguns was targeted: law abiding citizens.

Miller was decided foremost on an inaccurate assumption of fact: that short barreled shotguns had no militia use. It's obvious to anyone with more than a moderate knowledge of firearms that literally any weapon is suited to militia use, just as any weapon is suited for criminal use, or police use. It is not the type or design of the weapon that determines their suitability to a specific class of person, but the intent of the individual wielding the weapon.
Moving on to Justice McReynolds finding of law, I cannot begin to fathom how he would have (if indeed he would have) justified the NFA once he was shown that the short barreled shotgun, as well as all other weapons covered by the NFA, do in fact have a use for the militia. But let's just forget that point of fact for the sake of argument.

Justice McReynolds states that, "...With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." The preceding part of his statement merely recited the powers Congress was granted concerning the militia.

So the continuance & possibility of an effective militia was considered the reason for the amendment & all interpretations must be consistent with that goal. To which I must point out that the militia was to be called forth to "...execute the Laws of the Union, suppress Insurrections and repel Invasions". Justice McReynolds states a little later on that "...The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia--civilians primarily, soldiers on occasion." (emphasis added)

The same weapons useful for one of the purposes would be useful for the others, providing the wielder of said weapon was proficient with them. Naturally a belt fed machine gun would be useful in repelling an invasion, but also in suppressing a riot or to stop or discourage looters during a black out. & equally a short barreled shotgun would be useful in repelling invaders, as it would be in suppressing a riot or discouraging looters during a black out. The same could be said of any weapon as long it was used by someone who knew its strengths & limitations.

If a person one day finds himself behind a belt fed machine gun, or a short barreled shotgun in the course of his lawful duties within the militia the type of weapon he has will do him little good if he is not properly trained in its use. So if the 2nd Amendment must be interpreted with the goal of keeping a well trained militia capable of acting for the public defense, then the courts must strike down laws which impose burdensome fess or other restrictions on the individual obtaining & practicing with weapons suited to militia use. That would encompass all weapons as a militia may find itself in what we today would consider a military combat role; a military peacekeeping role; an irregular military role; a general police role; or a specialized police role (such as a SWAT team).

A militia was expected at the time to perform the duties of soldiers as well as policeman. Fighting an invading army is the most common thought of use for the militia, but fighting an oppressive government, suppressing insurrections, enforcing laws, controlling & dispersing riots, as well as helping an area during & after a natural disaster would all fall under the duties of the militia. That these duties have been neglected is bad for us not just because of the misunderstanding surrounding the 2nd Amendment, but because our obligations to our communities, states & country have been neglected along with them.

I believe Justice McReynolds own findings established that the militia is any able bodied person capable of acting in the public defense. But I will add a few quotes from those around at the time of the Revolution as well as some who lived to see the Constitution ratified:

"A militia, when properly formed, are in fact the people themselves...and include all men capable of bearing arms." - Richard Henry Lee, Additional Letters from the Federal Framer (1788) at p. 169

"It is reported that the Governor has said, that he has Three Things in Command from the Ministry, more grievous to the People, than any Thing hitherto made known. It is conjectured 1st, that the Inhabitants of this Province are to be disarmed." - "ABC" (PSEUD., SAMUEL ADAMS)

"The said Constitution be never construed to prevent the people of the United States who are peaceable citizens from keeping their own arms." - Samuel Adams, during Massachusetts's Convention to Ratify the Constitution (1788).

"The people are not to be disarmed of their weapons. They are left in full possession of them." - Zachariah Johnson, 3 Elliot, Debates at 646

"Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American... The unlimited power of the sword is not in the hands of either the federal or state government, but, where I trust in God it will ever remain, in the hands of the people." - Tench Coxe, Pennsylvania Gazette, Feb. 20, 1788.

"No kingdom can be secured otherwise than by arming the people. The possession of arms is the distinction between a freeman and a slave. He, who has nothing, and who himself belongs to another, must be defended by him, whose property he is, and needs no arms. But he, who thinks he is his own master, and has what he can call his own, ought to have arms to defend himself, and what he possesses; else he lives precariously, and at discretion." - James Burgh, Political Disquisitions: Or, an Enquiry into Public Errors, Defects, and Abuses [London, 1774-1775].

"The right of the people to keep and bear...arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country..." - James Madison, I Annals of Congress 434, June 8, 1789.

"As civil rulers, not having their duty to the people before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the article in their right to keep and bear their private arms." - Tench Coxe in `Remarks on the First Part of the Amendments to the Federal Constitution' under the Pseudonym "A Pennsylvanian" in the Philadelphia Federal Gazette, June 18, 1789 at 2 col. 1.

"The right of the people to keep and bear arms has been recognized by the General Government; but the best security of that right after all is, the military spirit, that taste for martial exercises, which has always distinguished the free citizens of these States....Such men form the best barrier to the liberties of America" - Gazette of the United States, October 14, 1789.

"Americans have the right and advantage of being armed - unlike the citizens of other countries whose governments are afraid to trust the people with arms." - James Madison, The Federalist Papers No. 46 at 243-244.

"...but if circumstances should at any time oblige the government to form an army of any magnitude, that army can never be formidable to the liberties of the people, while there is a large body of citizens, little if at all inferior to them in discipline and use of arms, who stand ready to defend their rights..." - Alexander Hamilton speaking of standing armies in Federalist No. 29.

"The supreme power in America cannot enforce unjust laws by the sword, because the whole body of the people are armed, and constitute a force superior to any band of regular troops." - Noah Webster, An Examination into the Leading Principles of the Federal Constitution Proposed BV the Late Convention (1787).

You get the idea: the militia was thought of as the body of the people that were capable of bearing arms. The law that currently defines the militia in the United States can be found at 10 U.S.C. § 311. While it only includes males between the ages of 17 & 45 I would say its safe to say that with the case law concerning equality between the sexes that women should not count themselves out of the militia just yet. & it should be noted that whether this age range is applicable depends entirely on the occasion for which the militia is called up; should a hurricane ravage a town along one of our coasts or an invading force attempt entry at our borders then I would think the tie honored definition of "any able bodied person capable of acting" would be what's required.

& I'll beg your forgiveness as the next bit of information I was going to present isn't where I thought it was. It's a case the Supreme Court decided in the early 1900's or possibly the last decade of the 1800'2. The name escapes me but it was a tax case & it more or less held that taxation must not be for any regulatory purpose but solely for raising revenue. I'd kindly ask for anyone who recalls the name of this case to drop me a note as I don't expect anyone to merely rely on my word that such a case exists or that it found what I say it found. So if you'll pardon the lack of citation I'll submit that a taxing measure must not be for regulation: its sole purpose must be to generate revenue.

I must ask, is a $200 tax on a short barreled shotgun (which prior to the NFA sold for between $10 & $40) something that you would do to generate revenue? I could possibly see a tax of 10% or even 50% of certain items, but 200%? & instead of requiring a tax stamp that is transferable without any further oversight, a request for permission for the tax stamp, as well as much paperwork must be delivered to the government & your request could very well be denied. Further in 1968 all weapons in existence that fell under the NFA & that were not registered & taxed were declared contraband & wouldn't be able to be registered after a grace period ended. In 1986 all newly manufactured weapons were prohibited from being added to the registration. I realize these last two things happened long after Miller was decided, but can there be any doubt about the NFA's purpose being one other than taxation?

To further that I offer you this testimony from the congressional debate concerning the NFA in April & May of 1934. In it Mr. Frederick (President of the NRA) discusses his views on the proposed NFA. Several times it is mentioned that the purpose of the bill is a regulatory measure under the guise of a revenue measure & towards the end there is open discussion about the goals of the legislation, which is to target gangsters.

In Murdock v. Pennsylvania it was found that:
"A state may not impose a charge for the enjoyment of a right granted by the federal constitution... The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down... a person cannot be compelled 'to purchase, through a license fee or a license tax, the privilege freely granted by the constitution."

So even if on the surface the NFA was a revenue raising measure it would not be applicable to possession of firearms. I would offer that a sales tax as is common to other items similar in value & collectible at the retail purchase of a firearm would not fall under the provision of Murdock, but I cannot see how a $200 tax on items that at the time were as cheap as $2 (sound suppressors) & currently could still be half the value of the tax (single barrel shotguns are commonly available for $100) would not run afoul of Murdock.

The militia is comprised of the people which would include anyone capable of acting in the militia. To preserve that militia the individuals who comprise it must be able to own & train with suitable weapons. Given the wide range of duties the militia may be called up for any weapon may have valid militia use. Short barreled shotguns & all other NFA weapons would have militia use & are in current use with the military & police forces of the U.S. A tax law must be designed with the sole purpose of revenue & not regulation. A Right guaranteed by the Constitution may not be taxed or licensed.

Because of these conclusions the finding of the lower courts that the 2nd amendment relates to a collective, rather than an individual Right & that Congress has the authority to regulate firearms is absurd & is not supported by the facts or the law.

Tuesday, March 30, 2004

More about Mr. Lancaster.

The Nashville Files has published a little more on the background of Mr. Lancaster, specifically dealing with the motives behind the ATF & their informants:

"Someone (who I can't name) that works for the Federal government added an interesting perspective to this entire issue. He said that the BATF might be in the hot chair. The BATF spent lots of money going after Lancaster, and if they don't get a good sentence out of it, it will look bad on paper...
When Lancaster was arrested, there were approximately 15 law enforcement people of various capacities at his residence, and there was at least one and possibly two experts flown from D.C. It takes a lot of money to undertake a raid and investigation like this. In fact, the source listed above said it probably goes into the tens of thousands of dollars.""

This seems likely because it appears to be a pattern with the ATF. They spend X amount of time & money on an "investigation" & they feel obliged to produce "results" to justify their expenditure & provide arguments for increasing their expenditure. & considering they just asked for another budget increase I can see how important any & every conviction would be for them. Never mind that they don't bother to differentiate between the arrest of violent people & those with no prior criminal records who made some error relating to paperwork or mere possession as that wouldn't endear them to the hearts of congress now would it? Too bad Rep. Ron Paul isn't on the committee that Acting Director Domenech addressed his statement to. Course I can't let that pass: considering this report on the ATF's practices, I'd say they didn't just need an acting director, but acting lessons.

If you're interested in learning more about how the ATF does its thing to the people, look here.

& in answer to a complaint of mine Blake goes on to give some details of what & who started this mess:

"First off, this entire fiasco started because of a church budget. And you thought that your church had rought budget battles. Two associate pastors were going to be getting big raises (we're talking in the 20% range). A large group of members couldn't understand why and they wanted to get answers, and Lancaster took the side of the people wanting answers...
We know for certain the names of two of the Confidential Sources of Information listed in the affidavit for the search warrant. According to the affidavit, an annonymous caller tipped the BATF off (with confirmed lies about Lancaster being a Nazi sympathizer, manic depressive, dangerous, and having explosives). During the supression hearing, it was learned that an associate pastor at the church (James of the ones getting a raise in the budget) made that call to the BATF and was also CSI2 in the affidavit (on a side note, Mason was later arrested for beating his wife...his wife has since fled while he is out free)...
CSI3 gave the most information, but he was essentially coerced into talking (because of the coersion, I will not give his name here). The BATF apparently threatened him with jail time if he didn't talk, and James Mason was also present during part of the questioning (CSI3 would have been considered a subordinate of Mason at that time)."

So because of a church budget battle members of that church ratted out Mr. Lancaster to the feds & he's looking at federal time????? Judas Iscariot betrayed Jesus to the Romans & Chief Priests for his own profit. You'd have thought that members & especially leaders of a church would have remembered this story. Not that Mr. Lancaster was the equivilent of Jesus, but that Judas' crime would have been just as treacherous no matter the state of his victim: the betrayal of someone who has done you no harm in exchange for your own profit.

Now I grew up in Charlotte, NC back when tele-evangalism was getting popular. I couldn't tell you the number of times my living room was standing-room-only 'cause everyone wanted to watch Billy Graham together. Coming from the same area as Jim & Tammy Baker I know a little something about how vicious conflicts within the church can be. But turning a person over to the feds so you can get a 20% raise? Did James Mason ever bother to read any of the literature inside the church? I'm positive there had to be a New Testament lying around somewhere. & in that New testament the Gospels tell us repeatedly about how Jesus condemned the religious leaders as hypocrites. Ratting someone out who has never harmed anyone while you're slappin' your old lady around would qualify as hypocritical in most people's minds. There are also numerous condemnations of betraying someone in the Gospels, as well as throughout the rest of the Bible.

Turning someone in to the ATF is not drastically different than turning someone in to Tomas de Torquemada. Despite not having caused any harm to any person, they are persecuted with the might of a government & could suffer anything from loss of property to imprisonment to death. We look back on the Spanish Inquisition as a gross injustice that not only harmed innocents but contradicted the goals sought by the Inquisition (a conversion of all to Catholocism). One's only hope in either case was to admit to & repent of acts which you may not have been guilty of or caused no harm to others, or to turn in other people.

& to make it worse on a different level, James Mason & his companions in treachery turned in a good church going fella to the damn revenuers! I know that this events didn't take place in Appalachia, but wouldn't they be close enough to realize how lod down this sort of behavior is? But I guess if you can't expect Christian charity you can't be surpised at a lack of down home ethics.

I'm much obliged to The Nashville Files for posting this information. I can understand how someone would feel that someone who is coerced shouldn't bear the blunt of public disapproval for their actions. However I will point out that what this does is give a free pass to anyone who claims they did it to save their own skins. The ATF routinely theatens people into infroming on others with the promise of dropping some BS charge they claim they have on them. More gun owners inform for the ATF than non gun owners & because of this I'd be more inclined to hold them as accountable as those who inform for some other motive. don't get me wrong - the bastards at the ATF who use this strategy should all be forced to serve out the sentences of those they seek to charge, but unfortunately there's enough blame to go around.

& I'm still disappointed that a very large group of concerned citizens haven't demanded Mr. Lancaster's release & kicked the statist bastards that did this to him out of the state. At the very least I hope James Mason, Special Agent Patrick W. Hand & all others who advocated Mr. Lancaster being punished for violationg an unconstitutional law will be treated as persona non grata wherever they go.