Select-fire

[zukiphile]

Arguing that something a hundred thousand people still have three decades after further supply was banned seems like a dead end. I don't know that there are a 100,000 purple italian silk ties in the country, but that would not make such a thing rare. The term "common" really begs the question, "Common for what?".

I think the OP makes an excellent point that I had not ever considered, namely that full auto weapons are uncommon because of restrictions.

Couldn't we say the same things about rockets launchers and hand grenades or mortars? If they weren't so expensive (because of limited supply) and restricted by the NFA wouldn't more people have them too? They cost very little to make and so could be sold cheaply and without restrictions anyone could buy them.

I think the problem with the argument is showing that they were ever in common use.

That can't be the problem with the argument, since that isn't the argument.

The OP's point is that the government shouldn't be able to prohibit an item as uncommon where it is the government's act that produces the uncommon quality of the item. That reasoning doesn't hinge on the item once having been common. The reasoning he critiques still rests on a fallacy of circular reasoning, since that reasoning begs the question of why it is currently less common than it might have been otherwise.

 

[maestro pistolero]

We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at
179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second . . .

Point taken. But again, at the founding, those commonly borne weapons would have been well-matched with those of any potential adversary. As soon as the weapons fail that test, the amendment will have been undermined.

You have said yourself that the state would likely supply weapons should it call forth a militia. You may be right, but why would that be? Could it be that that weapons that would be provided by the citizens would not be up to the task, that ammunition supply would be a chaotic prospect, and that it would be impossible to well-regulated (train, standardize, etc) a militia so armed? Oops, an unregulated militia? Wouldn't that run afoul of the amendment?

Clearly the Amendment intended for the people to have (keep) and have at-the-ready (bear) the sorts of arms that would be suitable for service. Not that they should wait for the government to hand them out. Today, that would be a long, long wait.

To abandon for a moment the select-fire argument, the standardization of training, arms and ammo could be accomplished with commonly held semi-auto AR15s, provided the chambering was 5.56 and not .223, except in California, and a few other recalcitrant, 2A-challenged states.

It might be well enough if we could count on the issue of the restriction of select-fire being the only departure from the military versions of these weapons that was ever to be required, but CA and others have shown that incremental, relentless bites out 2A rights will never end, and can only result in choking any remaining life out of an already eviscerated 2A.

So, TG, the line in the sand? The bright line, as you say. Where to put it, and how to keep it there?

 

[Tennessee Gentleman]

Great discussion.

First of all the way the states chose to arm their militia is not IMO what the 2A was about. What I mean is that the idea that militia would only be armed by citizen's bringing their own weapons to the fight is not enshrined in the 2A. The states chose that method in the 1700s because guns were expensive, and most everybody had them anyway and there was great commonality with what was used on the battlefield.

For warfare at that time it made sense but the 2A did not say that was the only way the state could do it. The states may equally choose not to use that method and supply a militia they called up with weapons the state provided. Even back then that was done to a limited degree in some states where those in larger towns didn't own a gun.

Today it would make much more sense logistically were a state to raise and form a militia to supply the arms and equipment. Commonality of ammo, spare parts etc.

Also, keep in mind how the militia functioned. My readings show they were organized, trained, had leaders and answered to the government. This is contrary to what some on TFL believe and they mistakenly feel a militia is merely a group of citizens who happen to own guns.

I wouldn't see a state just raising a militia pell mell with no organization, training or coherence and then trying to issue weapons. I would see something much more deliberate IMO. Of course many of the Founding Fathers turned away from the republican ideal of a citizens militia after they found out they didn't work too well.

So, TG, the line in the sand? The bright line, as you say. Where to put it, and how to keep it there?

I would draw the line at FA. IMO any reasoned reading of Scalia's comments on Miller in the Heller case show that the "in common use" standard refers to civilian use for civilian needs (personal self defense, hunting and sport). Others may disagree but I think they are reaching.

However, if a state so chose to raise a militia, they could do so thru legislation and equip their force with whatever small arms they wished OR they could authorize legitimate members to provide them privately and I don't think the BATFE would be able to successfully prosecute them for violating the NFA since at that point the weapons would be property of and related to the recognized state militia. Maybe that is a possbility. Montana I'm thinking?

A real irony here for me in these arguments is how the polar opposites politically argue the same issue.

The antigunners want the 2A to be coupled with service in the militia so they can ban privately owned guns because the militia is defunct.

Some progunners want to own military weaponry and so they try to link the militia service with the individual right as well! Kind of funny to me.

Heller decoupled the 2A properly in my opinion. States have a right to raise and arm their militias if they choose and the individual has the right to private ownership of firearms for self-defense. Further firearms not in common use by civilians can be restricted or banned by the state.

Caveat; I am making no defense of CA gun control laws much of which which I disagree with (and SCOTUS may too after incorporation) nor am I defending FOPA 1986 Hughes Amendment which some argue is a de facto ban on FA.

 

[zukiphile]

Everyone is entitled to his own opinion, but not to his own facts.

— Daniel Patrick Moynihan

I note the following because I know it has been brought to TG's attention, and to ignore those facts obscures the issue.

My readings show they were organized, trained, had leaders and answered to the government.

Those readings only pertain to the organised militia, not the militia.

The militia is a stautorily defined population. Its definition does not include organisation, training, leadership or fealty to government.

I wouldn't see a state just raising a militia pell mell with no organization, training or coherence and then trying to issue weapons.

Since the militia pre-exists, the state doesn't raise it in the sense a nation might raise (or create) an army.

IMO any reasoned reading of Scalia's comments on Miller in the Heller case show that the "in common use" standard refers to civilian use for civilian needs (personal self defense, hunting and sport). Others may disagree but I think they are reaching.

You are entitled to your opinion on both counts, however I note that if you need to imply terms into Scalia's opinion that he chose not to insert himself, you may have misconstrued his opinion.

Of course many of the Founding Fathers turned away from the republican ideal of a citizens militia after they found out they didn't work too well.

While the War of 1812 showed that the US militia system was no match for a numerically inferior brit force, and your preference for a modern, highly ordered national defense seems a sup[erior method of national defense, neither of those developments subsequent to adoption of the 2d Am. can reasonably restrict the prior right.

While one fellow may have ideas about national defense, another about freedom of speech and assembly, and another about the limits of reasonable search and seizure, the value and heft of civil rights are eroded if they are effectively subject to amendment or disregard simply becuase someone thought he had a better idea about government and peoples' rights.

 

[Tennessee Gentleman]

Alan Gura's Take

This thread is old but I came across this: http://www.youtube.com/watch?v=Df7CSnVAfKo&feature=related and thought he gave a good synopsis on where law is now. Watch from about 4:24 to 6:54.

 

[Yellowfin]

Gura has to take the position he has because currently he is presenting cases before the Supreme Court and will have several more in the future. He doesn't want to scare any judges who would be on the fence that he may need to rule our way.

 

[Tennessee Gentleman]

I don't know Gura but I think he is a man of his word and would not so falsely posture in this type of forum. I think he is telling it like he sees it to those who are interested. What he argues to the court is yet another thing.

 

[Dr. Strangelove]

Interesting read folks, but what it boils down to is this:

Not enough people are intersted in NFA items to change the laws. We seem to forget that we are the government, electing people to represent us. Get enough citizens interested in owning an NFA weapon, and we can make some changes. Until then, all the other arguments don't really matter.

 

[maestro pistolero]

Good find, TG. Thanks for that.

 

[Tennessee Gentleman]

I also like the way he dealt with the circular issue with what "in common use" means and how they would deal with that in legal argument.

Gura represents to me the real power of the gun rights movement today in that he (and many others) is a libertarian and not a traditional right winger. By making the tent bigger we get stronger.

 

[Yellowfin]

Remington's acquisition of Advanced Armament may be a big step towards us finally busting the NFA by getting more people aware of suppressor ownership and then by extension the rest of title 2 items. I'd say that since the $200 tax was such a significant economic barrier for so long and the complication and rarity of Class 3 dealers and purchasing procedure being obscure and complicated there was and is a sort of Iron Curtain that walled off the general gun owning public from them. Of course this is no accident as the laws regarding NFA items are purposefully made to be a deterrent. Even in 1986, to deal with the comparatively small number of MG's that made it onto the registry before the closing, $200 was more money than the average person would like to give up if they felt they didn't really have to and again if they knew they could and if they knew how to do it and who to buy from. I'd venture a very large part of why the public is so skeptical and fearful and therefore averse to MG's and suppressors (and likely don't know a thing about SBR's and AOW's other than perhaps it doesn't look like what they have) is that their information is severely limited by lack of experience and positive exposure due to the mechanism of the NFA leading them to believe they are totally illegal and should be because they have been removed from their world.

If Remington and AAC go about this the way the way they seem to indicate they will, the Iron Curtain will come down.

 

[gyvel]

The machine gun was invented by Hiram Maxim just before WWI, so at best machine guns of any form had 20 years before the NFA to exist

,

LMAO!!

Wow! Where did you get that gem of misinformation??? Hiram Maxim invented a successful toggle operated machine gun ca. 1885. His machine guns were being used to good advantage by the British by the mid 1890's.

John M. Browning successfully patented a gas operated machine gun in the 1890's which was adopted by the U.S. armed forces, and manufactured by Colt as the M1895. It's nickname was the "potato digger." Remember? It was used in the Spanish American War.

By the advent of WWI, there were many successful machine gun designs in use by the various world powers, including Various Maxim designs, Schwarzlose M .07, Benet Mercie (Hotchkiss M1909), Lewis Gun (1911), etc. The Germans introduced the concept of the submachine gun in the form of the Bergmann MP-18 during WWI.

Machine gun use was well-known and firmly established before the 20th century, and well before WWI.

Get your facts straight.

 

[gyvel]

In response to the OP, I read some years back that, when Congress was debating the GCA's of '34 and '35, many members were of the opinion that full automatic weapons were particularly suited for militia purposes.

Those acts were passed in a hysterical (and typical Democrat's) response to the vastly exaggerated 1920's-1930's Prohibition gangster violence that was sensationalized in the news media. In one sense, Roosevelt being the patrician that he was, it was enacted for much the same reasons that the NYC Sullivan Laws were enacted, i.e. to keep weapons out of the hands of the Italians.

 

[Yellowfin]

The NFA was rationalized by hysterical response to the gangsters of Prohibition. It is vastly more probable that FDR was anticipating a revolt against federal economic meddling that was prolonging the Depression.

 

[armsmaster270]

Quote:
The purpose of the Tennessee State Guard is to provide a professional complement of personnel to support the State mission of the Tennessee National Guard, by assisting the Tennessee Army National Guard as a force multiplier, and at the direction of the Adjutant General, to assist civil authorities with disaster relief, humanitarian causes, ceremonial service, religious and medical support for the well being and safety of the citizenry of Tennessee.


Even when the California National Guard was mobilized for the Rodney King Riots their M-16's were converted to semi Auto by the use of a metal block installed to keep the selector from going to full auto position.

 

[Crosshair]

The NFA was rationalized by hysterical response to the gangsters of Prohibition. It is vastly more probable that FDR was anticipating a revolt against federal economic meddling that was prolonging the Depression.

Look at how many new proposed guns laws are trying to be rationalized by pointing to the crime and violence problem we have with Prohibition 2.0. Of course that crime and violence happens for the same reason that Budweiser distributors don't get into shootouts over territory today, the politicians don't want to admit that.

 

[ADB]

The NFA was rationalized by hysterical response to the gangsters of Prohibition. It is vastly more probable that FDR was anticipating a revolt against federal economic meddling that was prolonging the Depression.

Dude, seriously: A history book would dispel that "economic meddling" idea right away. The idea that FDR somehow caused the Great Depression (despite it happening 3 years before he got elected) or prolonged it (when he pretty much kept the US alive and running) is a modern fabrication by people who don't like what FDR did with labor laws and generally disapprove of government in the whole.

 

[Frank Ettin]

...A history book would dispel that "economic meddling" idea right away. The idea that FDR somehow caused the Great Depression (despite it happening 3 years before he got elected) or prolonged it (when he pretty much kept the US alive and running) is a modern fabrication...

Well Milton Friedman has offered a different perspective, but that really has nothing to do with the NFA.

 

[tyme]

Some people like to take this part of the reasoning to the ridiculous extreme adding nuclear weapons. After all, they are arms too, right?

The broadest libertarian view of that argument would have to be, yes, the government does not have the authority to prohibit you from owning them. This agreement automatically creates horror amongst even the strongest 2nd Amendment supporters, after all, your talkin NUKES!

But it ought to be the way things are, if we were a truly free society. The govt doesn't need (and shouldn't have) a law that says you are prohibited from owning a nuke. If you could build one, using "special nuclear material" that you dug up in your back yard, you should have the legal right to own it.

The federal government is SUPPOSED to be constitutionally restricted in its powers. There is no explicit constitutional power to restrict manufacture or ownership of nuclear weapons. So although I don't think private nuke ownership is necessarily a good idea, I agree with strict libertarians that it's a weak argument to say that the national defense power grants the fed.gov the power to restrict nuke ownership. That's the kind of slippery-slope expansionist reading of the constitution that allows the fed.gov to insinuate itself into education through the general welfare clause. Again, not something that necessarily has to be categorically evil, but I think these are all things that should be debated on the merits, and if people really want increased gov power in those areas, a constitutional amendment is in order.

I think as soon as WWII ended, there should have been a constitutional amendment proposed to deal with this question -- the if and how of restricting ownership of NBC weapons.

I don't think it is obvious that the status quo would remain the same if nuclear weapons were legal to privately own. That is, we don't currently have any idiots blowing up their most-hated cities with personally-owned nukes. I think a few people would probably avail themselves of the opportunity to own nukes. It's tough to say whether they would be smart, or whether that change in policy would have real and tragic consequences.

I think it is rational to worry about the consequences of private nuke ownership, and unless we become a space-faring species, I think the negative consequences of nuke legalization MIGHT outweigh the benefits of reduced government interference in private business. Not every rich or powerful person who might want to acquire a nuke is perfectly sane. Look at Ahmadinejad.

 

[maestro pistolero]

A very good argument could be made that even a government doesn't have a right to have a weapon that could kill millions of people in a single stroke.