Tuesday, August 9, 2011

A couple of interesting quotes for you...

From Atlantic Monthly, September 2011

The Secret History of Guns

By Adam Winkler

OK, all you Second Amendment supporters, when was the last time you went to a Muster Day?

Yet we’ve also always had gun control. The Founding Fathers instituted gun laws so intrusive that, were they running for office today, the NRA would not endorse them. While they did not care to completely disarm the citizenry, the founding generation denied gun ownership to many people: not only slaves and free blacks, but law-abiding white men who refused to swear loyalty to the Revolution.

For those men who were allowed to own guns, the Founders had their own version of the “individual mandate” that has proved so controversial in President Obama’s health-care-reform law: they required the purchase of guns. A 1792 federal law mandated every eligible man to purchase a military-style gun and ammunition for his service in the citizen militia. Such men had to report for frequent musters—where their guns would be inspected and, yes, registered on public rolls.

This gets even better:
Today, the NRA is the unquestioned leader in the fight against gun control. Yet the organization didn’t always oppose gun regulation. Founded in 1871 by George Wingate and William Church—the latter a former reporter for a newspaper now known for hostility to gun rights, The New York Times—the group first set out to improve American soldiers’ marksmanship. Wingate and Church had fought for the North in the Civil War and been shocked by the poor shooting skills of city-bred Union soldiers.

In the 1920s and ’30s, the NRA was at the forefront of legislative efforts to enact gun control. The organization’s president at the time was Karl T. Frederick, a Princeton- and Harvard-educated lawyer known as “the best shot in America”—a title he earned by winning three gold medals in pistol-shooting at the 1920 Summer Olympic Games. As a special consultant to the National Conference of Commissioners on Uniform State Laws, Frederick helped draft the Uniform Firearms Act, a model of state-level gun-control legislation. (Since the turn of the century, lawyers and public officials had increasingly sought to standardize the patchwork of state laws. The new measure imposed more order—and, in most cases, far more restrictions.)

Frederick’s model law had three basic elements. The first required that no one carry a concealed handgun in public without a permit from the local police. A permit would be granted only to a “suitable” person with a “proper reason for carrying” a firearm. Second, the law required gun dealers to report to law enforcement every sale of a handgun, in essence creating a registry of small arms. Finally, the law imposed a two-day waiting period on handgun sales.

The NRA today condemns every one of these provisions as a burdensome and ineffective infringement on the right to bear arms. Frederick, however, said in 1934 that he did “not believe in the general promiscuous toting of guns. I think it should be sharply restricted and only under licenses.” The NRA’s executive vice president at the time, Milton A. Reckord, told a congressional committee that his organization was “absolutely favorable to reasonable legislation.” According to Frederick, the NRA “sponsored” the Uniform Firearms Act and promoted it nationwide. Highlighting the political strength of the NRA even back then, a 1932 Virginia Law Review article reported that laws requiring a license to carry a concealed weapon were already “in effect in practically every jurisdiction.”

When Congress was considering the first significant federal gun law of the 20th century—the National Firearms Act of 1934, which imposed a steep tax and registration requirements on “gangster guns” like machine guns and sawed-off shotguns—the NRA endorsed the law. Karl Frederick and the NRA did not blindly support gun control; indeed, they successfully pushed to have similar prohibitive taxes on handguns stripped from the final bill, arguing that people needed such weapons to protect their homes. Yet the organization stood firmly behind what Frederick called “reasonable, sensible, and fair legislation.”

One thing conspicuously missing from Frederick’s comments about gun control was the Second Amendment. When asked during his testimony on the National Firearms Act whether the proposed law violated “any constitutional provision,” he responded, “I have not given it any study from that point of view.” In other words, the president of the NRA hadn’t even considered whether the most far-reaching federal gun-control legislation in history conflicted with the Second Amendment. Preserving the ability of law-abiding people to have guns, Frederick would write elsewhere, “lies in an enlightened public sentiment and in intelligent legislative action. It is not to be found in the Constitution.”

How about that! All those "burdensome" concealed carry laws were written by the NRA! I remember reading that in a law review a while back, but did not have the ability to "bookmark" it. Winkler goes into depth on that one.

I wish I had the footnotes for that one.

You gun goofs need to realise you have been taken for chumps.



  1. 49 states with CC......

    four states with constitutional carry.......

    Yup big chumps.... you keep thinking that Doggie, keep your eye on the wrong prize and keep getting your ass handed to you......

    The view from the UK is mighty hazy with all the smoke from the riots...

    And remember that the burning and pillaging will stop right after the shooting starts......

  2. Yup chumps.

    Read it and weep, dude, cos you are spouting shit. Even Heller-McDonald shows you are WRONG! WRONG! WRONG!

    here is the Heller-McDonald language:

    Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Heller at 54-5

    Which has as a footnote (26):

    We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

    Better yet:

    But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Heller at 64

    From McDonald:

    It is important to keep in mind that Heller, while striking down a law that prohibited the possession of handguns in the home, recognized that the right to keep and bear arms is not “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U. S., at ___ (slip op., at 54). We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as “prohibitions on the possession of firearms by felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Id., at ___–___ (slip op., at 54–55). We repeat those assurances here. Despite municipal respondents’ doomsday proclamations, incorporation does not imperil every law regulating firearms. McDonald at 39-40

    If anybody is in a haze, it's you, pal!

    Maybe you need someone from across the water to splash you in the face with some cold water and wake you up from your dream.

  3. I'm confused by your rebuttle here Laci. Carry and ownership laws have been loosening in the states since the mid-90s. Yes Heller and McDonald allow some restrictions but that's hardly a surprise or a bad thing. Without them we can have convicted felon sociopaths with legal nukes. Hardly something that anyone wants (well, excpt for the crazies). What these cases did was reframe the debate on what what reasonable restrictions are legal as well as put a hard stop on total bans ("in common usage" covers an awful lot of guns). It'll take at least another 10-20 years to figure out where the balance point is.

    And the legality of 19th century restrictions on concealed weapons were dependent on legality of open carry. Personally I don't have a problem with that. I'd prefer to have both options available but as long as one is I don't see a constitutional case going anywhere.

    Standard IANAL disclaimer applies.

  4. Anon.

    Guess you got to keep it simple for the gunowners.

    It also helps if you read and understand the original post.

    The Carry and ownership laws that have been loosening in the states since the mid-90s were loosening up were loosening up laws that had been proposed by the NRA and Handgun Owners Association during the 1930s. They had no problem with them back then.

    But they do now.

    Heller-McDonald did zip in regard to making it likely that the firearms law would loosen up too much. In fact, the dissents keep the Civic right interpretation alive and kicking!

    Heller-McDonald specifically said:

    the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

    That is the Second Amendment does not give you a right to firearms for all reasons.

    In fact, strict construction of the text means that only those who are enrolled in the militia are entitled to arms.

    The issue was that Article I,Section 8, clause 16 states:

    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;

    As I pointed out in this post, The context of "that every man be armed" was who would provide for the arming of the militia, the states or the federal government not a personal right. It was made in response to Article I, Section 8, Clause 16.

    I'm sorry, but the more I read,the more solid I am in my conviction that the Second Amendment in no way relates to non-Militia arms ownership.

  5. Couple of flights on your clarification:

    1. No need to be insulting.
    2. Prior to the 1970s the NRA was strictly involved with marksmanship training. Political lobby work was not part of their operations. If a law didn't interfere with competitive shooting they didn't really care. The organization started changing after 1968 in response to a perceived overreach of the gun control side. And yea, they're hardly perfect being willing to throw out segments of the gun owning crowd for political capital.

    3. No one expects to have a court decree that all arms are legal for all people/purposes. Specifics will be hashed out in further legal challenges. Look at it from your side's perspective. Does anyone expect to see an absolute ban on ownership (or whatever the endgame position is) in a single step?

    4. Legally every male between 18 and 45 in the US is part of the militia. Code updated on 1997 iirc so it can't really be considered an anachronism. There is still a government program to surplus rifles at around 1/2 retail cost in order to promote marksmanship within this group.

    5. Arming the militia (at the individual rather than the state's expense) is certainly part of the requirement to own a rifle but the two clauses are separate and the 2nd is written as an individual right. That has been upheld by the court so your understanding is dead in the current legal environment.

  6. Anonymous-Insulting,I'm just stating it like it is--you're ignorant--live with it.

    Incorrect, legally only those who are members of the National Guard are members of the militia

    10 USC § 311. Militia: composition and classes

    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.

    Historically, one needs to be enrolled to be a member of the militia. That is you need to be actually placed on the muster roll of a militia unit.

    You failed to answer my question of when was the last time you attended a muster day?

    It's like applying to a school or university. You can't say you went there until you have been enrolled.

    Unorganised, sedentary, inactive, etcetera militia is a draft pool since it is impossible for there actually 100% of the population to serve in the military--think of how society would come to a screaching halt if that did happen.

    Heller-McDonald was ultra vires, and saying that "Specifics will be hashed out in further legal challenges" is total bullshit. The courts have been inundated with lawsuits challenging nearly every type of gun regulation; in the three years since the Supreme Court’s decision, lower courts have issued more than 200 rulings on the constitutionality of gun control. In a disappointment to the gun-rights community, nearly all laws have been upheld.

    Are you willing to pay the taxes to fund the court system to handle those challenges?

    What do you mean by "My side's perspective"? The gun control lobby has hailed Heller-McDonald!

    If you mean people who truly support the US Constitution and rule of law, it seems that we are few and far between.

    Your comment demonstrates that you are legally, historically, and institutionally ignorant regarding the Second Amendment.

    You admitted that the NRA had no qualms with gun laws it promulgated. The forces of greed know that they can get you to vote against your interest by manipulating your fears.

    They lied to you,and you swallow it hook, line, and sinker.

    As I said, I'm not being insulting--you need to wake up to the fact that you have been had.

  7. Furthermore,anonymous, if you find that Constitutional language can be disregarded due to its inconvenience--there is a rule of constitutional interpretation that I keep hammering upon on my other blog :

    None of the words in the Constitution are without force and effect, except those superseded by amendments, unless such amendments are repealed. Except for the statement of purpose in the preamble, every word was intended by the Framers to be legally normative, and not just advisory, declaratory, aspirational, or exhortatory. Verba intelligi ut aliquid operantur debent. Words should be interpreted to give them some effect.

    This principle of Constitutional Construction was mentioned in Marbury v. Madison, 5 U.S. 137 (1803), as "It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it."

    Woe upon you if you believe that any clause in the Constitution is without effect.

    The proposition that you could ignore the prefartory clause was put forth by Eugene Volokh, who as far as I know has never been admitted to the bar in any state and is ineligible to practice law.

    One of the reasons I named my blog after my dog it has been said that she has been in more courtrooms than Harriet Miers. She has probably been in more courtrooms than Volokh has.

    Besides,this is a man who was born in Kiev, the capital of Ukraine, and calls himself Russian! Soviet maybe, but Russian never. Maybe if his parents were, but...

    I wouldn't trust him for as far as I could throw him.

    That Scalia used that is a serious question regarding his "originalism"--original with Scalia, but not a proper Constitutional interpretation

  8. Maybe you need someone from across the water to splash you in the face with some cold water and wake you up from your dream.

    ....save it for the London fires.....

  9. Someone is selling somthingAugust 10, 2011 at 3:17 AM

    .....these sales seem to be up in the UK....


  10. 1. Better to be ignorant than stupid

    2. You missread the code. All males are included and all females in the guard included. That was the basis for requiring registration (enrolled) with selective service.

    3. My (or anyone elses) personal military service isn't relevent. I don't think that society would come to a halt if there was 100% service though, assuming that current Guard duty requirements meet your definition. Assuming that there was a use for that amount of manpower.

    4. Yes, I'm willing to pay.

    5. I read the responce of several gun control groups following both decisions. They all read as trying to find a point that wasn't a clear defeat rather than lauding a victory. Given that several filed briefs supporting DC/Chicago I'll keep my interpretation over yours.

    6. What an organization did prior to my birth, under different leadership and with a different mission statement doesn't really matter to me. I'll judge based on more recent history. The NRA has changed and will continue to change. If they drift to far or give up to much they'll lose my membership. As it stands they're still worth the rather paltry price to me.

    7. I don't see the disconnect between individually owned arms and the militia clause. State checks on Federal power depended on a viable military force. Drawn, as you pointed out, from self armed citizens. Just because the states have failed to maintain an independent military (or if they'd chosen to do so in a different fashion) does not invalidate the limits on government control of arms.

  11. Thanks Laci for a wonderful post which supports what I've been saying for a long time. And, which also proves you don't have to be a lawyer or historian, since I'm neither, to come the the conclusion that the 2A has nothing to do with modern day gun rights.

    I really enjoyed that history about the NRA too. I'm laughing at the gun-rights folks right now.

  12. Maybe the sockpuppet is right about this:

    "(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard."

    applying to women who are IN the National Guard. Okay.

    So, that means that all males over 45 and all females who are not in the National Guard, regardless of age are NOT members of the national militia? Cool, that oughta get a lot of guns out of the hands of people who aren't covered by the militia thingy.

    Oh, goodness, is that one of those inconvenient laws? Well, okay, just ignore it.

  13. Anonymous has no idea of what he is talking about which is why he says all males are members of the militia according to 10 USC 311. Otherwise, why would section (b) read?:

    (b) The classes of the militia are—
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.

    There are two classes since no all males are members of the militia. Never have been and never will.

    To quote Geroge Mason:

    I ask, Who are the militia? They consist now of the whole people, except a few public officers.

    Anon's ability to read things into the law that aren't there is why he can make connections where they do not exist in the rest of his post.

    I have often thought that a trained chimp could do my job, but then people like anonymous come around and demonstrate that it does require the ability to read and UNDERSTAND legal material.

  14. Oh, yeah, our Anonymous nitwit forgets this language from 10 USC 311:

    The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32

    Which refers to:

    § 312. Militia duty: exemptions

    (a) The following persons are exempt from militia duty:
    (1) The Vice President.
    (2) The judicial and executive officers of the United States, the several States, the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
    (3) Members of the armed forces, except members who are not on active duty.
    (4) Customhouse clerks.
    (5) Persons employed by the United States in the transmission of mail.
    (6) Workmen employed in armories, arsenals, and naval shipyards of the United States.
    (7) Pilots on navigable waters.
    (8) Mariners in the sea service of a citizen of, or a merchant in, the United States.
    (b) A person who claims exemption because of religious belief is exempt from militia duty in a combatant capacity, if the conscientious holding of that belief is established under such regulations as the President may prescribe. However, such a person is not exempt from militia duty that the President determines to be noncombatant.

    Militia duty is compulsory, which means loads of OBLIGATIONS and DUTIES.

    As Story pointed out in his commentaries (Joseph Story, Commentaries on the Constitution 3:§ 1890):

    And yet, though this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights.

  15. Anon sez:

    1. Better to be ignorant than stupid

    Too bad you're both.

  16. What's the point of Clasue (b)(2) if only those under orders (guard units) are the militia?

    Yes, militia duty is compulsory and has duties to the individual. In it's infinite wisdom the government has reduced those obligations to registering for selective service and keeping your address on file. Excepting those who's absence would cripple governement operations hardly seemed worth mentioning.

    Another point to consider: Why does the 2nd reserve the right to the people rather than the states if it strictly a matter of maintaining state controlled militias?

    It's pretty obvious that you can't see past your view that arms are a collective right only or maintain a civil tone so I'll bow out now. Enjoy your chance at the last word.

    @Demmocommie: It could be read that way but any attempt to enforce it would fail gender or age descrimiation challenges. Plus, the 2nd is an indiviual right (untill the SC reverses itself) and not dependent on the militia clause.

  17. Anonymous your question about

    What's the point of Clasue (b)(2) if only those under orders (guard units) are the militia?

    has been asked and answered quite a bit, but you seem a bit thick to me to keep asking the same question.

    Unless you are enrolled, you cannot say you are a member of the militia.

    Unorganised, Sedentary, reserve, or whatever you wish to call it is not the active militia, it is a reserve body. A fiction created so that there is a "Universal militia". See U.S. v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948 (1976):

    The fact that the defendant Warin, in common with all adult residents and citizens of Ohio, is subject to enrollment in the militia of the State confers upon him no right to possess the submachine gun in question. By statute the State of Ohio exempts "members of ... the organized militia of this or any other state, ..." (emphasis added) from the provision, "No person shall knowingly acquire, have, carry, or use any dangerous ordnance." Ohio Revised Code § 2923.17. "Dangerous ordnance" is defined to include any automatic firearm. O.R.C. § 2923.11. There is no such exemption for members of the "sedentary militia." Furthermore, there is absolutely no evidence that a submachine gun in the hands of an individual "sedentary militia" member would have any, much less a "reasonable relationship to the preservation or efficiency of a well regulated militia." Miller, supra, 307 U.S. at 178, 59 S.Ct. at 818. Thus we conclude that the defendant has no private right to keep and bear arms under the Second Amendment which would (p.107)bar his prosecution and conviction for violating 26 U.S.C. § 5861(d).

    See also United States v. Hale, 978 F.2d 1016, 1020 (8th
    Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1614, 123
    L.Ed.2d 174 (1993); United States v. Oakes, 564 F.2d 384, 387
    (10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55
    L.Ed.2d 521 (1978); U.S. v. Rybar,103 F.3d 273 (3d Cir. 1996).

    I am sorry anonymous if you can't take the fact that the individual right intepretation is historically and legally inaccurate and does not withstand scrutiny.

    Or to again quote Warin:

    In Stevens v. United States, 440 F.2d 144, 149 (6th Cir. 1971), this court held, in a case challenging the constitutionality of 18 U.S.C. App. § 1202(a)(1):

    Since the Second Amendment right "to keep and bear Arms" applies only to the right of the State to maintain a militia and not to the individual's right to bear arms, there can be no serious claim to any express constitutional right of an individual to possess a firearm.

    See also, United States v. Johnson, 497 F.2d 548, 550 (4th Cir. 1974); United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942), rev'd on other grounds, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943).

    It is also established that the collective right of the militia is limited to keeping and bearing arms, the possession or use of which "at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, ...." United States v. Miller, supra, 307 U.S. at 178, 59 S.Ct. at 818. See also, United States v. Johnson, supra; Cody v. United States, 460 F.2d 34, 37 (8th Cir.), cert. denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 303 (1972).

    You had better know your stuff if you are going to persuade me that the Second Amendment applies to anything other than that interpretation.

  18. The more we talk about "militia," the more citations and examples we see, the more I realize it is absolutely MEANINGLESS in today's society.