alamo5000
11 March 2018, 17:59
Recently I, like the rest of you have gotten into arguments about the 2A. I have been looking up a bunch of nerdy legal stuff to back up my arguments and I found reference to a case that I found interesting. It's kind of deep but read on if you are so inclined. I am certain there would be opposing views so chime in if you would like. People are trying to argue that the Heller decision didn't guarantee the right to AR platformed firearms, but this case discussed and cited below, as I am reading it, most certainly does.
---
Background
In 1939, shortly after the enactment of the National Firearms Act, arrests were made because individuals were in posession of a sawed off double barrel shotgun. The defendants argued that this was an infringement on their 2nd Amendment rights--while the Supreme Court ruled against those involved regarding shotguns--in that very same ruling the Court went on to spell out the litmus test for what is allowed and why it was put there--that being a firearm that is of equal force to what is a standard issue military firearm of modern common use, and that the standard is in 'continuation'--the Supreme Court went on to explicitly explain WHY this was so in common, current, and historical context.
Quotes and Comments
Supreme Court Quotes
:
---
" The Constitution, as originally adopted, granted to the Congress power --
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."
"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.""
---
"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."
---
While one could argue the case for 'common use at the time' to mean one thing, there is no question whatsoever about the following sentence;
---
[I]"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. "
---
The ruling also goes on to guarantee the right's to ammunition, and that the doctrine behind the second amendment is founded in a fundamental distrust of all standing armies, both in the United States and outside of the United States.
---
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; "
---
"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."
---
"In all the colonies, as in England, the militia system was based on the principle of the assize of arms."
---
Assize of arms refers to a proclamation of King Henry II of England concerning the obligation of all freemen of England to possess and bear arms in the service of king. Our American 'Assize of Arms' is enshrined in the 2nd Amendment.
---
"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."
---
This case while ruling in favor of the NFA and was subsequently cited in the Heller Decision as the basis for 'the 2nd Amendment is not unlimited' comment, in a modern current context seems to clearly protect semi automatic firearms including ARs or other firearms.
---
"The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon."
---
That comment still needs to be squared with what was also quoted above in two separate quotes:
---
"The Constitution, as originally adopted, granted to the Congress power --
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."
---
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.""
---
""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."
Sawed off shotguns were not used in Revolutionary times and as far as I know they also were not commonly used by any standard military issue past or present.
That said the same argument cannot be made for high capacity magazines or AR or AK platformed rifles. While they were not used in Revolutionary times, they are, and have been for a long time, standard issue across all militaries globally. The AK-47 has been standard issue since 1949, and the AR platform has been standard since 1964, and previous to that since 1925 the M series rifles were standard issue.
What gets them according to this case is the stated purpose for a 'militia' and what I call 'the continuation and effectiveness clause' which I cited a few sentences above. That is the standard and precedent set by a modern Supreme Court ruling. That is the precedent we currently have (as far as I have been able to find) so why is that not a common reference to fight assault weapons bans?
The standard and precedent is already set by this case, and in my opinion it's even grounds to challenge other current laws or proposed gun legislation, especially an assault weapons ban.
Here is a link to the Supreme Court decision so you can see for yourself these things in context.
https://supreme.justia.com/cases/federal/us/307/174/case.html
---
Background
In 1939, shortly after the enactment of the National Firearms Act, arrests were made because individuals were in posession of a sawed off double barrel shotgun. The defendants argued that this was an infringement on their 2nd Amendment rights--while the Supreme Court ruled against those involved regarding shotguns--in that very same ruling the Court went on to spell out the litmus test for what is allowed and why it was put there--that being a firearm that is of equal force to what is a standard issue military firearm of modern common use, and that the standard is in 'continuation'--the Supreme Court went on to explicitly explain WHY this was so in common, current, and historical context.
Quotes and Comments
Supreme Court Quotes
:
---
" The Constitution, as originally adopted, granted to the Congress power --
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."
"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.""
---
"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."
---
While one could argue the case for 'common use at the time' to mean one thing, there is no question whatsoever about the following sentence;
---
[I]"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. "
---
The ruling also goes on to guarantee the right's to ammunition, and that the doctrine behind the second amendment is founded in a fundamental distrust of all standing armies, both in the United States and outside of the United States.
---
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; "
---
"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."
---
"In all the colonies, as in England, the militia system was based on the principle of the assize of arms."
---
Assize of arms refers to a proclamation of King Henry II of England concerning the obligation of all freemen of England to possess and bear arms in the service of king. Our American 'Assize of Arms' is enshrined in the 2nd Amendment.
---
"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."
---
This case while ruling in favor of the NFA and was subsequently cited in the Heller Decision as the basis for 'the 2nd Amendment is not unlimited' comment, in a modern current context seems to clearly protect semi automatic firearms including ARs or other firearms.
---
"The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon."
---
That comment still needs to be squared with what was also quoted above in two separate quotes:
---
"The Constitution, as originally adopted, granted to the Congress power --
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."
---
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.""
---
""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."
Sawed off shotguns were not used in Revolutionary times and as far as I know they also were not commonly used by any standard military issue past or present.
That said the same argument cannot be made for high capacity magazines or AR or AK platformed rifles. While they were not used in Revolutionary times, they are, and have been for a long time, standard issue across all militaries globally. The AK-47 has been standard issue since 1949, and the AR platform has been standard since 1964, and previous to that since 1925 the M series rifles were standard issue.
What gets them according to this case is the stated purpose for a 'militia' and what I call 'the continuation and effectiveness clause' which I cited a few sentences above. That is the standard and precedent set by a modern Supreme Court ruling. That is the precedent we currently have (as far as I have been able to find) so why is that not a common reference to fight assault weapons bans?
The standard and precedent is already set by this case, and in my opinion it's even grounds to challenge other current laws or proposed gun legislation, especially an assault weapons ban.
Here is a link to the Supreme Court decision so you can see for yourself these things in context.
https://supreme.justia.com/cases/federal/us/307/174/case.html