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Old September 13, 2009, 09:08 PM   #26
maestro pistolero
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Originally Posted by maestro pistolero
Then what would be the point of stating a militia purpose and then protecting keeping and bearing for that purpose?

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To keep Congress from disarming it which the anti-Federalists feared. The COTUS put unprecedented control over the state militias and the states feared the Fed could disarm them.

At that time the militia was primarily armed by its members because of economic reasons. However, today the state would arm the militia if they called it forth.
Perhaps. There's no substitute for the bird in the hand. And I am unaware of any mechanism whereby the state could arm citizens in an instant. I would hate to have to wait for FEMA to supply the only means to defend our community. We may be depending on thinly spread resources, the ability to mobilize, the condition of the roads in a natural or unnatural disaster, weather, and lots of other factors.

As soon as professional forces could be deployed it's all moot. The critical, immediate need for defense in an emergency is the only scenario I can imagine where a modern militia might be temporarily called upon. In that case, the wisdom of individual keeping and bearing becomes as relevant as it was in the late 1700s. It's like a bunch of privately owned fire extinguishers vs a fire truck and crew.

Great points, TG. And I see your point on the bright line being semi-auto ARs for civilians. I like the idea of paralleling standard issue firearms from our military, because that may be a moving target. Rather than move the line in the sand, we could establish now that those not prohibited from possessing firearms may have a standard issue firearm, whatever that means that year. The problem is that some states are banning even the semi-auto versions.

In CA there is a 10 round limit, and no detachable magazines allowed for ARs with standard features. It horrible for those residents (I used to be one, before the ban). CA just passed the ammo registration bill requiring, among other things, fingerprints for ammo. And they banned shows at the Cow Palace in the Bay area. Both measures are awaiting signature from Gov. Swarzenegger. It's unbelievable how far from center a few states have gone.

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Old September 13, 2009, 10:08 PM   #27
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Perhaps. There's no substitute for the bird in the hand. And I am unaware of any mechanism whereby the state could arm citizens in an instant. I would hate to have to wait for FEMA to supply the only means to defend our community. We may be depending on thinly spread resources, the ability to mobilize, the condition of the roads in a natural or unnatural disaster, weather, and lots of other factors.
Hahahahaha. How true. As one who has been through two major hurricanes in three years, I can readily attest to FEMA's incompetence and inability to rapidly accomplish even the most insignificant of missions.

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Old September 13, 2009, 10:09 PM   #28
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Here's the problem, TG, with the state government being in charge of loaning you the heavy firepower when you need it: What happens if the enemy you need to defend yourself from is them? As you stated earlier, self defense is anything from a burgler all the way up to the Soviet Army. The problem is what if your country's own army is acting like the Soviet Army? You and I both know that's happened almost everywhere else but here, and even here a few times. Got any Native American in your genes? If so, somewhere in your family's past there was genocide that very well could have involved them needing to defend themselves against it. Exactly what kept Japanese American internment from being a massive slaughter, if it could have been justified and/or covered up? Virtually nothing, as far as anything they could have done about it, unless they were to take armed resistance. (Did any do so?)

I don't think we should forget the Colfax massacre, either, or the numerous coal miners' revolts. Yes, folks, our own state, local, and federal governments can and have been at times very, very bad people.
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Old September 13, 2009, 11:35 PM   #29
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Originally Posted by maestro pistolero
Perhaps. There's no substitute for the bird in the hand. And I am unaware of any mechanism whereby the state could arm citizens in an instant. I would hate to have to wait for FEMA to supply the only means to defend our community. We may be depending on thinly spread resources, the ability to mobilize, the condition of the roads in a natural or unnatural disaster, weather, and lots of other factors.
All interesting scenarios but imagine trying to effectively mount a military operation with Joe Citizen showing up with every conceivable type of weapon and more importantly ammo. Since I really believe the militia to be a thing of the past I do think that local community defense in some extreme cases (natural diseaster) would be helpful. However, the threat today of a foreign invader while we possess nukes would be suicide. BTW I used to work a lot with FEMA and I sure would hate to rely on them for defense but then they would probably miss the party.

Quote:
Originally Posted by yellowfin
Here's the problem, TG, with the state government being in charge of loaning you the heavy firepower when you need it: What happens if the enemy you need to defend yourself from is them?
See I don't think the Founding Fathers feared the states, just the Fed. I think that was the reason for the 2A militia protection and the doctrine (now abandoned) that we would always have a small standing army and that the majority of our defense would be the militia. Realities of war changed that and the good 'ole american aversion to military life that a functional miltia (not unlike Switzerland) would require.

Anyway, as I have posted in other threads on TFL, I do not believe the simple ownership of firearms by citizens protect us from tryannical government. Our democratic institutions do and even with blatant abuses like NO after Katrina, those institutions stop and put right those abuses. But that is another thread.
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Old September 14, 2009, 02:13 PM   #30
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In Tennessee I would perhaps be more confident that democracy and its institutions form an effective buffer against tyranny. Having lived in California and now in New York has shown that to be of little assurance to me at all.
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Old September 14, 2009, 03:03 PM   #31
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Today it could be argued that we have as much, or more to fear from state governments than the feds. Any medium-sized state government today is multiples larger and more powerful than than the entire Federal Government at the time of founding. The states had relationships to the people more akin to a local governments today. That's why they weren't as suspicious of them, because local government was closely held, and you knew everybody.

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Old September 14, 2009, 03:53 PM   #32
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Confusing the organised militia with the militia, then invoking the state's power to call forth, rather than raise, the militia doesn't serve clarity in making sense of the 2d am. right.

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Today, a $200 tax, while still objectionable, is much more reasonable. So given the figures above, how many of those AR-15's might actually have been full-auto, assuming the NFA registry had never been closed?

I honestly have no idea. Neither does anyone else. In common use? You just can't argue one way or another.

The most that can be said is that the argument is foreclosed not by civilian action, but by government action.
I honestly have some idea.

I find the money some people pay for FA arms stunning. If people buy these things at a grotesque premium as well as a $200 tax, this indicates a large and unstatisfied demand.

While we can't give a precise number of FA owners in the absence of these impediments, we must conclude that FA would be far more common without them. The original point about the circularity of the putative government argument that FA arms are subject to restriction becuase they are uncommon, where it the government itself making it less common, yields to the state the power to invalidate any possession merely by the act of invalidating it.

That is no right at all.

Just after WWII, very few people had or could afford a car that topped 100mph. As technology advanced and we became wealthier, ownership of vehicles that could do this increased to the point that most ordinary passenger cars can do this, even though there are very few places that this ability can be legally demonstrated.

Anti-lock-brakes, cellular telephones, cable television and dozens of other consumer goods we consider ubiquitous are so merely because the government doesn't prohibit them and we like having them.

There is little reason to suppose that FA arms should be different.
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Old September 14, 2009, 03:55 PM   #33
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Search on Switzerland - they are reducing their armed forces and there are serious moves to restrict gun ownership and control those military guns.

It ain't the gun cliche anymore.
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Old September 14, 2009, 05:19 PM   #34
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I think the OP makes an excellent point that I had not ever considered, namely that full auto weapons are uncommon because of restrictions.

But how to get the federal ban on new autos lifted? A political impossibility for the near future. One hope might be to create a "loop hole" for full auto trigger groups that may not be transferred with a complete weapon.
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Old September 14, 2009, 06:04 PM   #35
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But how to get the federal ban on new autos lifted? A political impossibility for the near future. One hope might be to create a "loop hole" for full auto trigger groups that may not be transferred with a complete weapon.
It will take a lot more than that. The easiest way to get it started would be for some states to authorize FA for militia training. The feds can't touch it then. Getting the culture to accept it is as important as any legal maneuvering we could do.

As an example, most states didn't even have shall issue CCW licensing 10 years ago. Now they comprise the great majority of the states. Could you imagine the uproar if the states with shall-issue CCW suddenly repealed it? Let folks get a taste of freedom, and they want more and more of it. People get from government what they demand of it.
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Old September 14, 2009, 08:48 PM   #36
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Originally Posted by melchloboo
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.

We now have a more affluent society with more disposible income so that might account for the demand today coupled with a fixed supply that causes high prices.

There were only 118,000 FA weapons (according to Antipitas) in circulation in 1986 before the registry closed out of hundreds of millions of other type guns. Doesn't sound like to me they were in common use ever.
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Old September 14, 2009, 10:23 PM   #37
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I doubt you'll ever be able to prove they were in common use in the US. They were restricted with a substantial (for the time) tax when the technology for shoulder-fired automatics was still relatively new. We are talking about technologies newer than the GE mini-gun is to us.
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Old September 14, 2009, 11:21 PM   #38
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I think the problem with the argument is showing that they were ever in common use.
Common use by whom? When did the common use test become about civilians? The Miller case ruling stated that to be protected, a weapon had to be common in a military setting.
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Old September 15, 2009, 09:25 AM   #39
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Good point.
I was referring to the argument presented earlier, which I may have misunderstood. I thought it was being argued that select-fire weapons would not be currently "unusual" without the NFA restrictions, and it was being argued that they were non unusual at one point (before the NFA).
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Old September 15, 2009, 09:44 AM   #40
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Originally Posted by maestro pistolero
When did the common use test become about civilians?
Always was about civilians. Neither Miller nor Heller were about weapons in common use by the military. Both cases were about what arms a civilian could carry and whether the 2A protection extended to them. No one questions the right of the armed forces to carry FA or other types of weapons but rather what the private citizen carries. See page 52-3 of Heller.

Quote:
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
Quote:
We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.
Quote:
Originally Posted by raimius
I thought it was being argued that select-fire weapons would not be currently "unusual" without the NFA restrictions, and it was being argued that they were non unusual at one point (before the NFA).
That was being argued and I have asserted that FA was never in common use by civilians (other than criminals) even when it was legal to own them without restriction. Same same for sawed off shotguns.

I further assert that were they to become unrestricted today very few numbers of those that own firearms would buy them. I think that would be analogous to the % of those that CCW as measured against those who own firearms.
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Old September 15, 2009, 10:53 AM   #41
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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?".

Quote:
Quote:
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.
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Old September 15, 2009, 11:23 AM   #42
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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?
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Old September 15, 2009, 01:27 PM   #43
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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.

Quote:
Originally Posted by maestro pistolero
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.
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Old September 15, 2009, 02:26 PM   #44
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Quote:
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.

Quote:
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.

Quote:
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.

Quote:
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.

Quote:
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.

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Old October 7, 2009, 10:25 PM   #45
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Alan Gura's Take

This thread is old but I came across this: http://www.youtube.com/watch?v=Df7CS...eature=related and thought he gave a good synopsis on where law is now. Watch from about 4:24 to 6:54.
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Old October 7, 2009, 11:14 PM   #46
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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.
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Old October 7, 2009, 11:17 PM   #47
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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.
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Old October 8, 2009, 12:52 AM   #48
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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.
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Old October 8, 2009, 02:18 AM   #49
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Good find, TG. Thanks for that.
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Old October 8, 2009, 08:27 AM   #50
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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.
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