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Old October 15, 2009, 11:24 AM   #101
divemedic
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I think the courts have ruled otherwise and the definition for arms is firearms not all arms.
The only one I am aware of off the top of my head is the one out of NY, with Sotomayor as the judge.
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Old October 15, 2009, 11:38 AM   #102
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Originally Posted by divemedic
You would be wrong. From the link:
Interesting link. Seems to come from a site that sells NFA items. Who wrote it?

Here is a link to a court case: http://www.guncite.com/court/fed/530f2d103.html

and quote:
Quote:
As the legislative history of the Act under consideration clearly shows, (p.108)Congress was dealing with problems which threaten the maintenance of public order. There can be no question that an organized society which fails to regulate the importation, manufacture and transfer of the highly sophisticated lethal weapons in existence today does so at its peril. The requirement that no one may possess a submachine gun which is not registered to him in the National Firearms Registration and Transfer Record is a reasonable regulation for the maintenance of public order.
I don't have a copy of the debate but I suspect what Congress was trying to do was limit criminal use of FA and not necessarily ownership by the general public (which in 1934 was probably non-existent).

If Congress was trying to do that then they would have accordingly raised the tax as the years went by to further economically restrict lawful ownership. The key issue of the NFA was the registry and the tax was just a way they used to justify the registry.
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Old October 15, 2009, 11:41 AM   #103
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Originally Posted by divemedic
The only one I am aware of off the top of my head is the one out of NY, with Sotomayor as the judge.
Can you cite any controlling court case that says the second amendment protects the right of the people to bear any and all types of arms such as artillery or rocket launchers?
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Old October 15, 2009, 05:52 PM   #104
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Speculation and no evidence to show reliably that the NFA "caused" FA to not be in common use. I don't think a court would buy it. I don't either.
Speculation and no evidence to show the NFA hasn't "caused" FA to not be in common used. Merely your opinion.

Most folks have never even considered using a FA for SD in the belief that all FAs were illegal to start with. Thus it is inaccurate to claim that everyone not already a gun fanatic would disapprove of using a FA for SD.
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Old October 15, 2009, 06:50 PM   #105
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Originally Posted by Hkmp5sd
Speculation and no evidence to show the NFA hasn't "caused" FA to not be in common used. Merely your opinion.
Evidence has been provided however you choose not to believe it. Nevertheless the SCOTUS used the criteria of "in common use" to uphold the NFA and not deregulate machine guns and that fact stands clear. BTW, if you assert the NFA caused FA not to be in common use aren't YOU supposed to prove that? You haven't done so, just expressed your opinion.

Quote:
Originally Posted by Hkmp5sd
Most folks have never even considered using a FA for SD in the belief that all FAs were illegal to start with. Thus it is inaccurate to claim that everyone not already a gun fanatic would disapprove of using a FA for SD.
Most folks don't consider FA because it is not suitable for their needs. Did you not catch Gura's comments on public opinion of FA in the link I posted? You should take a look at it.

As to gun fanatics the only place you will hear the choir chortling for unrestricted military weapons is on gun forums like TFL. Sometimes when you spent too much time in a small culture you get tunnel vision. Joe Citizen ain't interested in FA although they might own a gun for SD. That is the elephant in the room the gunnies don't see. Oddly, I believe some of the recent interest and purchase of Ar-15s was caused in part by the '94 AWB. However, the NFA enactment did not spur great interest in FA.
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Old October 15, 2009, 06:54 PM   #106
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I believe some of the recent interest and purchase of Ar-15s was caused in part by the '94 AWB.
Wow. We finally agree on something.
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Old October 15, 2009, 07:38 PM   #107
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Can you cite any controlling court case that says the second amendment protects the right of the people to bear any and all types of arms such as artillery or rocket launchers?
Being that the Heller case was the first to truly address the issue head on, of course not. In the absence of case law, look at the way things were at the founding.

Answer me this:

How is Congress supposed to grant the letters of Marque if the people they were granting them to did not have access to the means of carrying it out?

The battle of Lexington and Concord was fought because the British were coming to destroy the weapons in the armory. Those weapons did not include just small arms, they included field pieces, powder, shot, and cannon balls. The 2A was written to prevent a Federalist government from taking arms from the people ever again. IMO, the experiment has failed.

This is not the country that the founders intended.
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Old October 15, 2009, 09:47 PM   #108
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Originally Posted by divemedic
In the absence of case law, look at the way things were at the founding.
Seems like you want it both ways. You want the freedoms or lack of any regulation of 1789 with the weapons of 2009. You can't say; "Make it like it was then but with what I want now."

Maybe the Founding Fathers would have enacted the NFA if the conditions were the same in 1789 as they were in 1934. That is the problem when you try to compare periods of history. They never match.

Quote:
Originally Posted by divemedic
How is Congress supposed to grant the letters of Marque if the people they were granting them to did not have access to the means of carrying it out?
Like the militia, Letters of Marque are a defunct dead letter. Congress won't grant them again.

Quote:
Originally Posted by divemedic
The 2A was written to prevent a Federalist government from taking arms from the people ever again. IMO, the experiment has failed.
The Second Amendment was written to allow the States to arm their militias (now the National Guard) if the need arose and to ensure we citizens could own firearms to protect ourselves personally.

The militia experiment did indeed fail and the militia is no more, but today we are better and more effectively armed personally than the Founding Fathers could have ever dreamed.

We are in very good shape there.

Quote:
Originally Posted by divemedic
This is not the country that the founders intended
Yeah that's right. But I never cared for slavery come to think of it. I'm glad our country today is different.

Anyway, it isn't their country anymore, it is ours.
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Old October 15, 2009, 09:48 PM   #109
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Originally Posted by Hkmp5sd
Wow. We finally agree on something.

And I bet you thought I was a Brady socialist
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Old October 16, 2009, 08:29 AM   #110
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Originally Posted by T.G.
Like the militia, Letters of Marque are a defunct dead letter.
....
The Second Amendment was written to allow the States to arm their militias
However antiquated you may find these clauses, they are still part of the Constitution. Until such a time as they are amended or repealed, they still have meaning, whether or not they are used.

Does the above sound familiar? It should. It's a paraphrase of what Scalia said in Heller.

Therefore, if an enacted piece of legislation should appear to defeat the purpose of either the militia clause (even though decoupled from self-defense) or the Letters of Marque or Reprise, then such a law is null and void.

Justice Scalia and the majority know this, hence the carefully worded caution in Heller. The Miller case can still be interpreted, when used in conjunction with the above Constitutional mandates, as bearing arms in common use (by the military).

It may very well be true that the militia will never be used again. It may also be true that the Congress may never again issue such Letters. But as long as the clauses remain within the COTUS, the Hughes Amendment is in jeopardy. The Court knows and acknowledged this.
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Old October 16, 2009, 09:22 AM   #111
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The militia, organized OR unorganized (there is a difference in US code) is hardly dead.

During World War II the United States Government procured, and provided, arms to citizens who provided internal security for war production plants and lesser, but no less critical, facilities.

The militia is still distinctly called out in the same US Code section that was updated to create the National Guard.

If the militia were truly dead, it is likely that it would have been stricken at that time, or during the later times that that section of US code was updated (in the 1950s, to account for creation of a separate Air Force).

The militia is also not dead for the simple fact that, by US Code, all members of the population between a certain upper and lower age are automatically members of the militia.
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Old October 16, 2009, 09:23 AM   #112
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Originally Posted by Antipitas
However antiquated you may find these clauses, they are still part of the Constitution. Until such a time as they are amended or repealed, they still have meaning, whether or not they are used.
I agree Al, however the OP was about FA and the NFA which does not violate the COTUS. The problem arises when folk forget and think that the militia and Letters of Marque are creatures of their own which exist outside of government regulation. I have never said that a state cannot raise, call forth or arm a militia but it is up to the state to do so not a group of citizens who think they have the authority to do so. If Tennessee decides to enroll me in the militia and issue me a M2 Machine Gun then fine (and Walter Dellinger agrees) but I cannot on my own do so and then use the militia clause or 2A to justify it.

Quote:
Originally Posted by Antipitas
The Miller case can still be interpreted, when used in conjunction with the above Constitutional mandates, as bearing arms in common use (by the military).
Quote:
Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.
This too is from Heller. and then:

Quote:
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.”
You say in common use by the military I read in common use "at the time" for defense of person and home. FA is not that.

Quote:
Originally Posted by Antipitas
But as long as the clauses remain within the COTUS, the Hughes Amendment is in jeopardy. The Court knows and acknowledged this.
Has the court spoken to the Hughes Amendment? Now, to your credit I think Hughes could be challenged in that in creates a de facto ban on a class of weapons that although heavily regulated are not banned federally. However, the NFA I sse is here to stay:


Quote:
That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939.
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Old October 16, 2009, 09:33 AM   #113
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Quote:
Originally Posted by Mike Irwin
The militia is hardly dead.
Dead and buried over a 100 years.

Quote:
Originally Posted by Mike Irwin
During World War II the United States Government procured, and provided, arms to citizens who provided internal security for war production plants and lesser, but no less critical, facilities.
We have those today. They are called contractor security guards. They are not militia.

Quote:
Originally Posted by Mike Irwin
If the militia were truly dead, it is likely that it would have been stricken at that time, or during the later times that that section of US code was updated (in the 1950s, to account for creation of a separate Air Force).
The Militia Act of 1903 gives you three options. 1) You are either in the Organized Militia (which is the National Guard) this term not being around in 1789.

2)You are not in the militia at all. You are the wrong sex or age.

3) You are in the Unorganized Militia, a mere statutory construct that neither protects nor grants it's members any duties, rights or responsibilities but is merely a pool of people that may be used in the Organized Militia.

No court has recognized any rights of an "unorganized militiaman".

I have a picture I can send you of what the unorganized militia looks like
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Old October 16, 2009, 09:56 AM   #114
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Just read this thread and don't really have a solid opinion one way or the other except to say that full-auto, NFA regulations, will probably stand SCOTUS review IMHO. However, the "common use by the military" is a good argument against my opinion.

That said, what do you guys think about the 1986 Act where only "old" automatic firearms can be legally purchased? Do you see any way that could fail judicial review?
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Old October 16, 2009, 09:56 AM   #115
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The militia, organized OR unorganized (there is a difference in US code) is hardly dead.
What does everybody think the National Guard is?

Organized state militias.
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Old October 16, 2009, 10:03 AM   #116
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"Dead and buried over a 100 years."

Your proof in as much as the laws were repealed is... what?

"We have those today. They are called contractor security guards. They are not militia."

So you're saying today is EXACTLY the same as 1941-1946, when 16 million men were under arms and the vast majority of them were overseas?

There were contract security guards in the 1940s, too. But it wasn't contract security guards who were guarding rail crossings in Lower Thumbsuck, it was MILITIA.

You're also saying that there will never again be a national emergency of that scope? Can I have your crystal ball?

The Government also didn't procure firearms for contract security guards, it procured firearms to arm those whose unpaid civilian front duties necessitated them being armed as members of the militia.

The Government also published numerous manuals on the suitability of arms in civilian hands -- handguns, hunting rifles, shotguns, etc. -- being used in unpaid civilian front duties as members of the militia.


It's very quaint and nice to claim that something is "dead and buried," but claiming that based solely on the fact that it's been 60 years since the last call doesn't make it so.
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Old October 16, 2009, 10:11 AM   #117
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"3) You are in the Unorganized Militia, a mere statutory construct that neither protects nor grants it's members any duties, rights or responsibilities but is merely a pool of people that may be used in the Organized Militia."

Wrong.

Let's look at the wording of the actual section of US Code:

"(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."

That wording very CLEARLY points out the difference between the organized militia and the unorganized militia, giving both organizations force of law and equal weight.

The ONLY differentiation is for women, who are not members of the unorganized militia; they are members of the militia only if they are members of the National Guard.

The National Guard Act was never intended to strip recognition of the unorganized militia, nor did it.

In 1941 the National Guard was nationalized and became part of the US military organization. That left the unorganized militia to provide services in the manner that I've described above, which members did, and very ably.


You may also want to educate yourself on the activities of the unorganized militia in Oregon and Alaska during World War II, especially in Alaska, where some unorganized militia troops, unpaid VOLUNTEERS, actually saw combat against the Japanese.

Sounds really obsolete to me...


Edit: Even better, here's an interesting article that you should read that describes the activities of the unorganized militia in greater detail. I read it when it first came out; very easy to find via google.

http://www.claytoncramer.com/popular...iaObsolete.htm
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Old October 16, 2009, 03:17 PM   #118
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Quote:
Originally Posted by Mike Irwin
Your proof in as much as the laws were repealed is... what?
No need to show that, just look at the laws that have been passed since the Militia Act of 1792 and you can see the death of that system.

Quote:
Originally Posted by Mike Irwin
You're also saying that there will never again be a national emergency of that scope?
Sure there will, but like then it will not be dealt with by the militia, but by our professional Army and LEOs.

Quote:
Originally Posted by Mike Irwin
That wording very CLEARLY points out the difference between the organized militia and the unorganized militia
Correct

Quote:
Originally Posted by Mike Irwin
giving both organizations force of law and equal weight
Incorrect. The unorganized militia has no duties, responsibilties or rights. See: U.S. v. Warin, 530 F.2d 103 (6th Cir.), cert. denied, 426 U.S. 948 (1976).
and U.S. v. Oakes, 564 F.2d 384 (10th Cir 1977). In fact the original purpose of the unorganized militia was to get folks OUT of serving in what was then a mandatory obligation of militia service.

Quote:
Originally Posted by Mike Irwin
You may also want to educate yourself on the activities of the unorganized militia in Oregon and Alaska during World War II, especially in Alaska, where some unorganized militia troops, unpaid VOLUNTEERS, actually saw combat against the Japanese.
Lots of activities that folks like Jon Roland for instance, THINK are militia activity are in fact not. Neighborhood crime watches, people banding together armed to fend off looters are examples as are those you just listed. Isolated, short duration and not militia.

Mike, rather than refute you point by point here is a reference for you to read as well: http://www.adl.org/mwd/faq1.asp

I think they do a good job of demonstrating in a more detailed and academic way the posts I made earlier.

ETA:
Quote:
Originally Posted by greensteelforge
In the absence of the "well regulated militia", you're a jackass with a rifle.
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Old October 16, 2009, 03:55 PM   #119
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To consider a liberty obsolete, as Tennessee Gentleman writes he does, cannot be considered a cogent argument against its enforcement. Why the right might be considered obsolete is still another matter. When asked for some coherent reasoning for limiting only 2d Am rights to those in common use by civilians, TG remains silent. It appears that you, TG, don't see reasoning for the distinction you advocate.

Quote:
Originally Posted by TG
Can you cite any controlling court case that says the second amendment protects the right of the people to bear any and all types of arms such as artillery or rocket launchers?
Since the issue is whether the existing doctrine and case law are well reasoned, this implicit argument by authority is well wide of the mark.

Of course, not all our laws or constitutional doctrine are strictly logical. They are influenced by the outcome with political support and what people want, well reasoned or not. However, there is an obvious danger in throwing a part of the COTUS under the bus with crumby reasoning as a political expedient. It erodes the integrity of constitutional thought and undermines the real authority of law, the authority derived from making sense and being able to withstand scrutiny.

"In common use by civilians to whom use has been effectively prohibited or curtailed" fails that test.

We aren't stuck with anything in the COTUS. We can change it. But just ignoring it isn't forthright. It isn't the way men governed by laws should do things.
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Old October 17, 2009, 01:09 PM   #120
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Liberty vs control

We have essentially two camps, and a middle ground. On one side are those who believe that we should be allowed to own NFA weapons, without restriction, until/unless we personally commit a crime (of violence), sufficient to legally deny us our right to all firearms.

On the other are those who believe that machinguns/assault weapons (et.al) should either be highly restricted or outright prohibited, for public safety. Many of these people feel thins way about all firearms, but many do not.

And the middle ground, people who believe that while the govt has a valid interest in regulating possession of these weapons, restrictions should reasonable and not be overly onerous.

We can spend hours discussing the history and supposed reasoning behind our rights, and behind the existing laws, but this does nothing to deal with the laws as they currently exist. We do this, again in two camps, those who believe rights do not exist until a court says they do, and those who believe that rights exist until a court rules they do not!

Which camp are you in?

Personally, while I find the NFA to be an infringement (IMHO), I am willing to obey the law. What I find to be outright wrong is the 1986 Hughes amendment, closing the registry, and effectively creating and ultimate ban on this class of firearm. I believe that is where we should focus our efforts to repeal this travesty. The track record of legal FA owners is virtually spotless, compared to virtually everything else in the world! One violent crime in 70plus years? And that one committed by a cop? Statistically insignificant. No one in the nation has a historically better record for obeying the laws than those people willing to go through all the regulatory process to obtain a legal FA firearm!

There are two things I would like to see the govt do. Reopen the NFA registry for machineguns (and since I live in a state that prohibits ownership, this has no personal stake for me), its just the right thing to do. And second, refund the process for allowing convicted felons to appeal and have their firearms rights restored.

There are so many things today that are felonies, and will get your firearms rights denied, but are not crimes physically injurious to others. People convicted of those kinds of crimes should have a method available to have their rights restored, after their sentence has been completed. There is no reason (except money, and a degree of public perception) why they are being denied. And there is no reason to believe restoration of the appeals process will result in blanket approval of felons getting guns (legally). The whole point of creating the process was to have a case by case review, and restoration of rights being approved or denied, based on the individual circumstances.

There is no valid reason someone who is guiltly of, say criminal trespass (felony level) at age 19 should still be denied their right to arms decades later, after having reformed and led a crime free life in the meantime. Yet, these kinds of cases exist, along with many others similar in nature. Many States allow restoration of rights, but the Feds do not, even though there is a process in place. By denying funding for the process, they deny the process. Sorry for the hijack.
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Old October 17, 2009, 01:35 PM   #121
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Well said 44 AMP, I like your post. A couple of thoughts;

Quote:
Originally Posted by 44 AMP
On the other are those who believe that machinguns/assault weapons (et.al) should either be highly restricted or outright prohibited, for public safety. Many of these people feel thins way about all firearms, but many do not.
And the middle ground, people who believe that while the govt has a valid interest in regulating possession of these weapons, restrictions should reasonable and not be overly onerous.
I don't see as much separation between the two camps mentioned above. I am in the camp that the 2A is not an absolute right that breaks down into anygun, anyone and anywhere but may be reasonably regulated. The key to the middle ground is the word onerous. Lots of latitude there and when you say the government has a valid interest in regulating FA well, that is because of public safety as the position above the middle ground states.

Quote:
Originally Posted by 44 AMP
We do this, again in two camps, those who believe rights do not exist until a court says they do, and those who believe that rights exist until a court rules they do not!

Which camp are you in?
I don't believe the courts establish rights but they do interpret laws to see if they conflict with a right and further interprets what the right entitles you to do.

Some on TFL believe THEY determine what the right is (like the 2A) by their personal reasoning of what they believe COTUS says and that you must show/convince them that it is not so or you are infringing on their rights. I think Glenn Meyer calls this the chortling choir. But that is what forums are for I guess.

I do not find the NFA to be an infringement. It may be said reasonably that the NFA is the reason why there has been virtually no crimes committed by legally owned FA since the law was enacted. In that regard the NFA has been successful. Which brings me to the Hughes amendment in which as I have said earlier you might have a point since it's enactment creates an arguable de facto ban.

Has anyone challenged Hughes in court? I do not know. A good strategy might be to use the amendment method that was used to allow CCW in National Parks. The problem there as Alan Gura has said before, outside the gun culture there is not a lot of support for FA.

As to the felony/reinstatement of rights I am a believer in "Don't do the crime if you can't do the time" but if a person could show they had changed their ways sufficiently AND PAID ALL LEGAL COSTS assoicated with the hearing then I would be OK with that as well. That way they have to pay the price to restore their rights that they willingly gave up when they transgressed.
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Old October 18, 2009, 05:00 AM   #122
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TG: Members at other gunsites have said there are rumors the Hughes Amendment will be challenged at a later date.

I have no idea if this is true. Just heresay.

Last edited by RDak; October 18, 2009 at 12:06 PM. Reason: I meant "hearsay". DUH!!
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Old October 18, 2009, 10:29 AM   #123
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Interesting RDak, I am surprised it has not been legally challenged before. I agree with most folk on TFL that it was stupid legislation and was aimed at derailing the FOPA. Does nothing but run up the price of FA. Man, I wish I had bought an M-16 back when I could have gotten one for a few hundred bucks and then sold it today for 30K!
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Old October 18, 2009, 12:45 PM   #124
TEDDY
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Join Date: December 10, 2006
Location: MANNING SC
Posts: 837
nfa

all of you were born after WW2.I was not.
you need to do some research before you post.the NG was organized in 1903/6.prier to that there was a small national army.most soldiers of the civil war were in volunteer units.it was still so in the spanish american war.roosevelts riders were a volunteer army armed by roosevelt,as were many civil war units.in CW the units bought their Spensers and Winchesters themselves.in WW1 the NG was disbanded and personal intergrated in the army.after WW1 they rejoined the guard.in 1934 the NG was intergrated in to the army reserve.so the NG is not militia.it is national army.there are several organized militias.texas has one and Mass and RI that I remember.
mariums were used in the 1880 period by the British in Africa.and there was
a repeating firearm in 1500?it was rotory and flintlock fired.and the gatling and about 8 other arms were used in the civil war.machine guns were made with more advanced machinery than needed for rifles or pistols.most all the MGs were brought back from WW1 but many from WW2.and there are tanks and artillery in private hands. I know where there are a number.
not to mention theres thousands of MG and sub guns not registered.
I know where there are migs 15/17/21.in private hands.plus cobras fully armed.and at least one B25 with the 75 mm in the nose.B17 and B25 P40s.
I could go on.before WW2 I could get any thing I wanted.
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Old October 18, 2009, 01:10 PM   #125
Tennessee Gentleman
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Join Date: March 31, 2005
Location: Tennessee
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Quote:
Originally Posted by TEDDY
prier to that there was a small national army.most soldiers of the civil war were in volunteer units.it was still so in the spanish american war.roosevelts riders were a volunteer army armed by roosevelt,as were many civil war units.
Yes that is true and it was a mess particularly in the Spanish American War. Many of these units were untrained and their states didn't want to pay to keep them up and felt the Fed should do it but the Fed thought otherwise. As a result the Militia Act of 1903 was passed replacing the state militias with the National Guard which the was called the Organized Militia and much later was federalized to a greater degree.

Quote:
Originally Posted by TEDDY
in CW the units bought their Spensers and Winchesters themselves.
Some did but not all and it caused logistical problems as that type of system would with firearms using multiple types of ammo in a military environment. Today it is against regulations to bring personal firearms along with you to combat and for good reason.

Quote:
Originally Posted by TEDDY
not to mention theres thousands of MG and sub guns not registered.
Got any evidence of that? Also, you know those who have them are breaking the law and are criminals.

Quote:
Originally Posted by TEDDY
I know where there are migs 15/17/21.in private hands.plus cobras fully armed.and at least one B25 with the 75 mm in the nose.B17 and B25 P40s.
The aircraft may be in private hands but I doubt your claim that they are armed with fully functioning armaments and ammo. If they are then it is very expensive or illegal. I doubt your claim.

Quote:
Originally Posted by TEDDY
I could go on.before WW2 I could get any thing I wanted.
Really? Did you? If not why not? Would it have been legal? The NFA was enacted in 1934. Would you say those weapons were "in common use"?
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