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.
Friday, April 02, 2004
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 Findlaw.com 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.
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 Findlaw.com 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 Mason...one 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.
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 Mason...one 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.
Angel Shamaya wrote an article about concealed carry that's been published in the Ft.-Wayne News-Sentinel. I understand they contacted Mr. Shamaya & asked him to write a piece for them to print after one of their own reporters admitted to having a concealed carry permit.
So I'll give them credit for trying to display both sides of the issue. Mr. Shamaya tells me that the article is completely unedited so again I must say I they've acted admirably in this instance. Other papers could learn from them.
Give it a read.
So I'll give them credit for trying to display both sides of the issue. Mr. Shamaya tells me that the article is completely unedited so again I must say I they've acted admirably in this instance. Other papers could learn from them.
Give it a read.
Monday, March 29, 2004
NJ is following NYC's example.
"It is just a big mess,' Bogdan said. 'This is definitely out of the ordinary. He (Garcia) was in the wrong for shooting at him. The other guy was in the wrong for stealing the van and the other guy was in the wrong for having a gun."
That was from NJ Trooper David Bogdan regarding a situation where a man (Horn) stole a van that had another man (Garcia) sleeping in the back seat . Garcia was awakened when his friend (Jimenez) discovered the van missing as he came out of the truck stop & called Garcia on his cell phone. Garcia pulled a gun, made Horn pull over & kicked him out of the van. Then Garcia fired a shot in Horn's direction but didn't hit him. Meanwhile back at the rest stop Jimenez had called the cops to report a stolen van. So when Garcia arrived back at the rest stop the troopers searched the van & arrested Garcia & Jimenez as well as Horn. The charges?
"Horn was charged with carjacking, burglary and theft.
Garcia was charged with possession of a weapon, possession of a weapon for an unlawful purpose, aggravated assault and possession of hollow-point bullets.
Jimenez was charged with possession of a weapon and possession of hollow-point bullets.
All three were being held Friday at the Warren County Jail."
I'll agree that barring some circumstances we do not know about from the article that Garcia shouldn't have fired at Horn & should be charged for it. But charging either of them for mere possession of a firearm or a certain kind of ammunition that the state troopers had in their guns is outrageous.
So I would add to Trooper Bogdan's quote above that he (Bogdan) was in the wrong for arresting anyone for mere possession of a weapon or ammo & his fellow troopers were in the wrong for not arresting Bogdan for flagrantly violating at least two people's Right to Arms.
The usual applies: if you see Trooper Bogdan or any other NJ law enforcement agent who you know would arrest someone for mere possession of arms or ammo then explain to him why he can't do business or interact socially with you until he changes his evil ways.
"It is just a big mess,' Bogdan said. 'This is definitely out of the ordinary. He (Garcia) was in the wrong for shooting at him. The other guy was in the wrong for stealing the van and the other guy was in the wrong for having a gun."
That was from NJ Trooper David Bogdan regarding a situation where a man (Horn) stole a van that had another man (Garcia) sleeping in the back seat . Garcia was awakened when his friend (Jimenez) discovered the van missing as he came out of the truck stop & called Garcia on his cell phone. Garcia pulled a gun, made Horn pull over & kicked him out of the van. Then Garcia fired a shot in Horn's direction but didn't hit him. Meanwhile back at the rest stop Jimenez had called the cops to report a stolen van. So when Garcia arrived back at the rest stop the troopers searched the van & arrested Garcia & Jimenez as well as Horn. The charges?
"Horn was charged with carjacking, burglary and theft.
Garcia was charged with possession of a weapon, possession of a weapon for an unlawful purpose, aggravated assault and possession of hollow-point bullets.
Jimenez was charged with possession of a weapon and possession of hollow-point bullets.
All three were being held Friday at the Warren County Jail."
I'll agree that barring some circumstances we do not know about from the article that Garcia shouldn't have fired at Horn & should be charged for it. But charging either of them for mere possession of a firearm or a certain kind of ammunition that the state troopers had in their guns is outrageous.
So I would add to Trooper Bogdan's quote above that he (Bogdan) was in the wrong for arresting anyone for mere possession of a weapon or ammo & his fellow troopers were in the wrong for not arresting Bogdan for flagrantly violating at least two people's Right to Arms.
The usual applies: if you see Trooper Bogdan or any other NJ law enforcement agent who you know would arrest someone for mere possession of arms or ammo then explain to him why he can't do business or interact socially with you until he changes his evil ways.
Sunday, March 28, 2004
Kevin of The Smallest Minority has a thoughtful post up regarding the 5th Circuit's decision on the 4th amendment from last week. In case you haven't heard the 5th Circuit decided that a warrant, consent or even probable cause aren't needed to conduct a cursory search of a person's home if done it under the guise of "officer safety". The majority opinion was 32 pages & there are a further 30 pages of dissent. 3 judges dissented & 1 dissented in part from the majority opinion; that's out of 16 judges who heard this case. 3 to 1 odds against protecting a constitutionally enumerated Right. Not heartening is it?
Kevin does a good job of discussing the case & its implications. Go read what he has to say.
Kevin does a good job of discussing the case & its implications. Go read what he has to say.
There's been some bad news from the courts this week.
For starters Mark Lancaster had a sentencing hearing on Friday (for some background on Mr. Lancaster's circumstances I refer you to this previous post). The blog Nashville Files provides an account of what happened at the hearing. Bottom line is Mr. Lancaster is facing 30 to 33 months in jail & that will be decided after a ten day wait so the respective attorneys can file arguments for or against a shorter sentence. All this because he didn't have the correct paperwork for the machineguns found in his home. Chief District Judge Robert L. Echols wouldn't allow Mr. Lancaster to change his plea from guilty to not guilty despite the recent 9th Circuit decision where they held that home made firearm were not subject to the NFA.
Another name y'all should remember is that of ATF Special Agent in Charge James Cavanaugh. He was the statist bastard who organized the raid & arrest of Mr. Lancaster. Ditto for BATF Agent Hand who, according to the Nashville Files account, was sitting with thestatist bastards persecutor prosecutor during the trial.
What is not mentioned are the names of the "informants" who ratted Mr. Lancaster out to the ATF. All I can tell you is to be careful of whom you trust. The ATF has a long history of "recruiting" informants who are actively looking to save their own hides from a federal weapons charge.
No Quarters tells us that Francis Warin was sentenced to 33 months earlier this week. Mr. Warin is a U.S. citizen that emigrated from France & started challenging federal firearms laws in the 1970's. His latest conviction is for mailing & possessing NFA firearms w/o having the proper permission slips, as well as being a felon in possession of a firearm (his felony conviction came from earlier attempts to challenge the NFA). For more details on Mr. Warin's history please look at this previous post as well as this post from Say Uncle which links to his previous posts on Mr. Warin.
Of note is that Assistant U.S. Attorney Thomas Weldon thought it was a just sentence according to this article. U.S. District Judge David Katz sentenced Mr. Warin to much less than the maximum he could have, but he also fined Mr. Warin $2,500 & 2 years of supervised probation after he's released. ATF Agent Dennis Bennett testified against Mr. Warin according to this article.
Ravenwood tells us of a raid where the cops confiscated a person's firearms & involuntarily committed him to a mental institution for observation. When he was released (as his sanity wasn't questionable & he'd committed no crime) they refused to return his firearms because he had been involuntarily committed! This was the work of a special "firearms unit" set up to handle the tips from the D.C. Sniper incident in 2002. Yep, the bastards got so many tips they decided to keep the special unit that focused on firearms. Lt. Michael Mancuso and Sgt. Kenneth Berger are two of the thugs & are pictured in this article.
FreedomSight has a post up about the 10th circuit's collective right interpretation of the 2nd amendment as handed down earlier in the week. The case was U.S. v Parker. Paul M. Warner and Diana Hagen were the U.S. Attorneys who argued against an individual interpretation & Kelly, McWilliams and Briscoe were the presiding circuit judges. Judge Kelly dissented in part to their reasoning regarding the 2nd amendment but concurred with them in their decision. It was decided that no oral arguments were necessary & the case was decided purely on the briefs. Mr. Parker accidentally carried a pistol onto a military base & it was found under the seat of his truck. This was an offense under the Assimilative Crimes Act which allows federal prosecution for violating state firearms laws on federal property. It was a misdemeanor & he was fined around $100. He appealed on 2nd & 10th amendment grounds. While they agreed he had standing to bring a 2nd amendment claim they denied his having 10th amendment grounds to argue his case. they then explained why the 2nd amendment confers only a collective right to arms & repeated a 4 part test (originally used in U.S. v Haney) that must be met to have a successful 2nd amendment case. More or less it'd take a note from the governor to have a valid 2nd amendment Right according to those bastards.
I'll try to examine the court decisions more in depth in a later post.
What I do want to stress is this: gun owners don't have many friends apart from other gun owners. There are a few who are on our side on general principles but don't own guns themselves, but the majority of people you will see that believe in an individual having the Right to Arms are gun owners. & hell, even some gun owners aren't our friends. We do have a lot of enemies, both in ideology & fact.
So what I would recommend is if you know anyone who advocates civilian disarmament or who actively advances it (such as those people named above) then politely try to change their minds. Convince them that what they're doing or encouraging hurts not only themselves but everyone in our society. If you honestly attempt to sway them & they still persist in their encouragement of civilian disarmament then politely but firmly tell them that you've got no choice but to take it personally & as such you'll be disassociating yourself from them. Don't do business with them; don't go to social events with them; don't invite them to dinner, etc. Leave an invitation open to discuss their views on civilian disarmament but make it clear that that's it.
A little harsh you might think? No. After all if you're neighbor was actively lobbying for your taxes to be jacked up by 20% more than you're paying now & he was behind organizing special audit teams in the IRSS to check on people like you then you wouldn't think snubbing them socially or professional was too harsh at all, now would ya? If you're neighbor was advocating a Nazi-like "solution" to a minority group that you were a member of then ostracizing them wouldn't even be a question would it?
& I don't see why it should be any different for gun owners. Gun control proponents are in favor of disarming you; they wish to make it illegal for you to have the means to defend yourself & your family. I'd say that is pretty harsh - far harsher than making them find a new golf partner or buying their groceries from another store. & remember that this is a practical decision as well: if a law was passed banning a certain type of firearm & your anti-gun neighbor/co-worker knew you had one of those banned weapons it'd be more consistent for him to rat you out than someone who thought the law was unjust (well, except for those ATF "informants" who are usually given the choice between facing criminal charges or "informing" on someone else to be prosecuted in their place).
So try to convince people that civilian disarmament is a bad thing. But if they still persist then cut them out of your professional & personal life. It's sad that it might be necessary to do this but I'm afraid it is necessary.
For starters Mark Lancaster had a sentencing hearing on Friday (for some background on Mr. Lancaster's circumstances I refer you to this previous post). The blog Nashville Files provides an account of what happened at the hearing. Bottom line is Mr. Lancaster is facing 30 to 33 months in jail & that will be decided after a ten day wait so the respective attorneys can file arguments for or against a shorter sentence. All this because he didn't have the correct paperwork for the machineguns found in his home. Chief District Judge Robert L. Echols wouldn't allow Mr. Lancaster to change his plea from guilty to not guilty despite the recent 9th Circuit decision where they held that home made firearm were not subject to the NFA.
Another name y'all should remember is that of ATF Special Agent in Charge James Cavanaugh. He was the statist bastard who organized the raid & arrest of Mr. Lancaster. Ditto for BATF Agent Hand who, according to the Nashville Files account, was sitting with the
What is not mentioned are the names of the "informants" who ratted Mr. Lancaster out to the ATF. All I can tell you is to be careful of whom you trust. The ATF has a long history of "recruiting" informants who are actively looking to save their own hides from a federal weapons charge.
No Quarters tells us that Francis Warin was sentenced to 33 months earlier this week. Mr. Warin is a U.S. citizen that emigrated from France & started challenging federal firearms laws in the 1970's. His latest conviction is for mailing & possessing NFA firearms w/o having the proper permission slips, as well as being a felon in possession of a firearm (his felony conviction came from earlier attempts to challenge the NFA). For more details on Mr. Warin's history please look at this previous post as well as this post from Say Uncle which links to his previous posts on Mr. Warin.
Of note is that Assistant U.S. Attorney Thomas Weldon thought it was a just sentence according to this article. U.S. District Judge David Katz sentenced Mr. Warin to much less than the maximum he could have, but he also fined Mr. Warin $2,500 & 2 years of supervised probation after he's released. ATF Agent Dennis Bennett testified against Mr. Warin according to this article.
Ravenwood tells us of a raid where the cops confiscated a person's firearms & involuntarily committed him to a mental institution for observation. When he was released (as his sanity wasn't questionable & he'd committed no crime) they refused to return his firearms because he had been involuntarily committed! This was the work of a special "firearms unit" set up to handle the tips from the D.C. Sniper incident in 2002. Yep, the bastards got so many tips they decided to keep the special unit that focused on firearms. Lt. Michael Mancuso and Sgt. Kenneth Berger are two of the thugs & are pictured in this article.
FreedomSight has a post up about the 10th circuit's collective right interpretation of the 2nd amendment as handed down earlier in the week. The case was U.S. v Parker. Paul M. Warner and Diana Hagen were the U.S. Attorneys who argued against an individual interpretation & Kelly, McWilliams and Briscoe were the presiding circuit judges. Judge Kelly dissented in part to their reasoning regarding the 2nd amendment but concurred with them in their decision. It was decided that no oral arguments were necessary & the case was decided purely on the briefs. Mr. Parker accidentally carried a pistol onto a military base & it was found under the seat of his truck. This was an offense under the Assimilative Crimes Act which allows federal prosecution for violating state firearms laws on federal property. It was a misdemeanor & he was fined around $100. He appealed on 2nd & 10th amendment grounds. While they agreed he had standing to bring a 2nd amendment claim they denied his having 10th amendment grounds to argue his case. they then explained why the 2nd amendment confers only a collective right to arms & repeated a 4 part test (originally used in U.S. v Haney) that must be met to have a successful 2nd amendment case. More or less it'd take a note from the governor to have a valid 2nd amendment Right according to those bastards.
I'll try to examine the court decisions more in depth in a later post.
What I do want to stress is this: gun owners don't have many friends apart from other gun owners. There are a few who are on our side on general principles but don't own guns themselves, but the majority of people you will see that believe in an individual having the Right to Arms are gun owners. & hell, even some gun owners aren't our friends. We do have a lot of enemies, both in ideology & fact.
So what I would recommend is if you know anyone who advocates civilian disarmament or who actively advances it (such as those people named above) then politely try to change their minds. Convince them that what they're doing or encouraging hurts not only themselves but everyone in our society. If you honestly attempt to sway them & they still persist in their encouragement of civilian disarmament then politely but firmly tell them that you've got no choice but to take it personally & as such you'll be disassociating yourself from them. Don't do business with them; don't go to social events with them; don't invite them to dinner, etc. Leave an invitation open to discuss their views on civilian disarmament but make it clear that that's it.
A little harsh you might think? No. After all if you're neighbor was actively lobbying for your taxes to be jacked up by 20% more than you're paying now & he was behind organizing special audit teams in the IRSS to check on people like you then you wouldn't think snubbing them socially or professional was too harsh at all, now would ya? If you're neighbor was advocating a Nazi-like "solution" to a minority group that you were a member of then ostracizing them wouldn't even be a question would it?
& I don't see why it should be any different for gun owners. Gun control proponents are in favor of disarming you; they wish to make it illegal for you to have the means to defend yourself & your family. I'd say that is pretty harsh - far harsher than making them find a new golf partner or buying their groceries from another store. & remember that this is a practical decision as well: if a law was passed banning a certain type of firearm & your anti-gun neighbor/co-worker knew you had one of those banned weapons it'd be more consistent for him to rat you out than someone who thought the law was unjust (well, except for those ATF "informants" who are usually given the choice between facing criminal charges or "informing" on someone else to be prosecuted in their place).
So try to convince people that civilian disarmament is a bad thing. But if they still persist then cut them out of your professional & personal life. It's sad that it might be necessary to do this but I'm afraid it is necessary.
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