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PERRIN LOVETT

~ Fiction, Freedom, and The West

PERRIN LOVETT

Tag Archives: National Firearms Act

Ronald Reagan and FOPA: Myth vs. Reality

25 Saturday Jun 2016

Posted by perrinlovett in Legal/Political Columns

≈ 5 Comments

Tags

America, ATF, conservative, crime, Firearm Owner's Protection Act, firearms, freedom, government, gun control, Gun Control Act, machine guns, National Firearms Act, Natural Law, Ronald Reagan, Second Amendment, The People

Conservatives tend to lionize anyone associated with their ideology. Fewer politicians have been more ingrained in conservative mythology than Ronald Wilson Reagan. Rush Limbaugh explained:

He was optimistic and happy. He was infectious. He dared to embrace big ideas. He dared to do big things to overcome huge obstacles in the midst of all kinds of experts telling him it couldn’t be done, in the midst of all kinds of criticism, in the midst of all kinds of personal insults.

…

He rejected Washington elitism and connected directly with the American people who adored him. He didn’t need the press. He didn’t need the press to spin what he was or what he said. He had the ability to connect individually with each American who saw him. That is an incredible — I don’t even want to say “talent.” It’s a characteristic that so few Americans have, so few people have, but he was able to do it. He brought confidence; he brought vigor, and he brought humility to the presidency, which had been missing for years, and this profoundly upset his political and media adversaries to no end, and Reagan enjoyed that. Ronald Reagan rejected socialism; he rejected big government. He insisted on returning as much government back to the people as was possible.

  • Rush Limbaugh’s Tribute to Ronald Reagan, June 07, 2004.

Some of this is certainly true. On the surface Reagan seemed like a true American President in the most realistic and patriotic ways. Compared to his two immediate predecessors he seemed like one of the Founders returned to save the day. Compared to the last two occupiers of the Whitehouse it would almost seem that Reagan came down from Olympus. It is understandable why so many cite him their favorite president of all time or call him the greatest conservative. However, as sometimes happens, the facts get in the way.

Reagan cut tax rates but he also increased taxes – 11 times during his Presidency. On his watch the federal debt tripled. Bush (43) was only able to double the debt, Obama being on a similar trajectory. Amateurs. Reagan grew the government, both in terms of spending and in overall scope. Reagan, while opposing Soviet intervention throughout the world, engaged in extreme levels of foreign meddling, some (like the Taliban) with lasting consequences.

Reagan also gave amnesty to 3 million illegal aliens. His law was sold to the public as a crackdown on immigration but only deepened the problem for future generations. He also successfully sold gun control under the guise of firearms protection. Reagan was a gun grabber.

I was reminded of this when I saw a pro-Reagan/pro-gun, “conservative ” meme posted on Facebook:

Conservatives Today

On March 30, 1981 John Hinkley Jr. shot Reagan outside the Washington Hilton with a .22LR revolver. The President made a full recovery. Press Secretary James Brady was not as lucky, being paralyzed by a head shot. Brady and his wife Sarah founded the Brady Campaign against guns. As Reagan did not immediately react by joining with the Bradys many believe him a full proponent of gun rights – thus, the above meme.

Conservative forget that after leaving office Reagan supported the Brady Bill: “Still, four lives were changed forever, and all by a Saturday-night special — a cheaply made .22 caliber pistol — purchased in a Dallas pawnshop by a young man with a history of mental disturbance. This nightmare might never have happened if legislation that is before Congress now — the Brady bill — had been law back in 1981.” Ronald Reagan, Why I’m For the Brady Bill, New York Times, March 29, 1991.

The now-expired/obsolete Bill did little to nothing to stop violent crime. Had it been law in 1981 it might have saved Brady and Reagan and two others from being shot. It was law in 1999 and did nothing to prevent the Columbine tragedy.

Reagan never had a chance to support or sign the Bill while in office. He did, however, sign the Firearm Owner’s Protection Act (FOPA) into law in 1986. Like Reagan’s immigration “crackdown”, the Act’s name is a misnomer. FOPA, 100 Stat. 499, amended 18 U.S.C. § 921, et seq. (and related laws) in an overhaul of the Gun Control Act of 1968 (GCA), 82 Stat. 1213-2.

Had Reagan been a friend of the Second Amendment he would have attempted to repeal the GCA and the National Firearms Act (NFA). He did not; he added more controls. FOPA had two effects. One, it shuffled around ATF regulations and procedures in response to complaints of arbitrary and redundant policies. However, the “loosening” of some regulations came with a steep price. The second part of FOPA essentially banned the sale to and possession of machine guns by civilians.

(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.

(2) This subsection does not apply with respect to—

(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or

(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

  • 18 U.S.C. § 922(o)(entirety).

The machine gun “ban” was not actually a total bar. In reality did two things: it created onerous requirements for ownership, and; it limited the supply of available guns. Current estimates of the number of fully automatic weapons available to the public are somewhere around 180,000 units. This limitation caused the price of the guns (not including the taxes and procedural costs of ownership) to skyrocket.

The military or a police agency can purchase a new Heckler and Koch MP5 9mm sub-machine gun for somewhere south of $3,000 (well equipped). A citizen can buy the same thing for north of $30,000 before taxes. And, the citizen gets a reconditioned pre-1986 model. It’s like the government’s stupid “cash for clunkers” program that dried up the supply of used cars and forced more people into buying more expensive newer cars; except, here, the people are left with only a supply of outrageously overpriced used vehicles.

Now, many folks do not like the idea of any automatic weapons in the hands of the commoners. Liberals use “machine guns” as a rallying cry to describe just about any gun – from a Daisy BB rifle to a single-shot 12 gauge. Even people on the right are often opposed to the concept. I’ve been at several NRA functions and similar events where gun lovers would tell me, when prompted or on their own, that “no one needs a machine gun”.

Really? Then just how did the nation survive from the invention of the machine gun (call it Maxim in 1883) until 1986 without total calamity? It’s the same reason “assault rifles” pose no danger – criminals don’t use them. Criminals prefer handguns like Hinkley’s .22 plinker. Of the 8,124 murders committed in 2014 with firearms, only 248 were committed with any kind of rifle. In the same year 435 people were murdered by baseball bats and hammers while 660 were killed by punches and kicks. Automatic weapons appear nowhere in the statistics even though there are about 180,000 of them out there.

This is the way it’s always been. In years past and in a freer America anyone could purchase any type of weapon with no government interference at all. This included machine guns. Then, as now, there was no problem or epidemic associated with these dread devices. That’s because they are really only good for engaging large numbers of hostiles at once. Even combat soldiers rarely resort to fully automatic firing. In war machine guns are usually used in concentration against hardened positions, armor, or against massed enemy troops. Before 1898 and the Spanish-American War the American military had almost no machine guns at all. The Rough Riders had to rely on civilian-donated guns to attack San Juan Hill. That means for about 15 years machine guns were only in private hands – with no reported problems.

Well, we had it…. izquotes.com

Now, you might be thinking, “if machine guns are only useful in extreme circumstances in war, why bother having them?” The truth is most people would not own them even if they were completely unregulated. It’s the freedom, the option to have them that matters. Given that we have a government which raises taxes, increases the debt and burden on the people, stirs up terrorists, and imports aliens (including terrorists) – often while lying about it all – perhaps this is an option the people need.

Like them or not, these weapons are “arms” protected by the Second Amendment and by the Natural Law theory of self-preservation. These are part of the citizen gun rights in need of protection. Ronald Reagan didn’t do it regardless of what the Facebook conservatives think.

Gun Control: The Great Divide (Over Nothing)

17 Friday Jun 2016

Posted by perrinlovett in Legal/Political Columns

≈ Comments Off on Gun Control: The Great Divide (Over Nothing)

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America, anarchy, CIA, Congress, Constitution, crime, evil, freedom, government, gun control, Gun Control Act, guns, H.L. Mencken, Hitler, ISIS, law, National Firearms Act, Natural Law, Obama, politics, Second Amendment, statism, terrorism, The People, War, Washington

Mass shootings, terror attacks, and assassinations always prompt a heated national “discussion” on the matter of firearms and firearms control (the private ones, mind you). As with any important issue there are many competing ideas and angles though there are two predominant groups that get attention – pro-gun control and anti-gun control. While I am solidly in favor of the private ownership and use of firearms, my anarchist disposition gives me a unique, almost outside view.

As I see the current debate one side, the gun controllers, really want a complete ban on all private firearms though they present their ideology in terms of “responsible”, incremental measures designed only to ensure safety. The other side, the NRA side, nominally defends the Second Amendment while agreeing to many of the same incremental controls sought by the other side. I see both groups ultimately seeking to use the power of government to advance their own agendas and the agenda and existence of the government itself. They are both allied with the state. I have no use for any of them.

Some of the gun grabbers are blatant about their ultimate aim – Rolling Stone called for the repeal of the Second Amendment. Other grabbers pretend to agree that individuals have the right to keep and bear arms while insisting that those arms never be used for defensive purposes.

The main problem with the notion of self-defense is it imposes on justice, for everyone has the right for a fair trial. Therefore, using a firearm to defend oneself is not legal because if the attacker is killed, he or she is devoid of his or her rights. In addition, one’s mental capacity is a major factor in deciding whether a man or woman has the right to have a firearm.

The author of this insane Huffington Post statement wants to alter, rather than abolish, the 2A in order to nullify it. The author takes into account only those relatively few crimes committed and lives lost to the illegal use of guns. Considered in totality, privately owned guns save far more lives every day and every year than they take. Then again, by this man’s standards, each such lawful defensive usage constitutes a deprivation of the original aggressor’s right.

The only thing I can think of to attempt to justify this kind of logic is that this fellow obviously worships the government as a god and regards laws as a religion. Like a Natural Law theorist, he seeks to conform all positive law to the designs of and the adoration of his god. He would happily place the primacy of the state over the lives of human beings. He is a statist’s statist. Some on the other side do a good job of refuting this nonsense:

We have a government here that is heedless of its obligation to protect our freedoms. We have a government that, in its lust to have us reliant upon it, has created areas in the U.S. where innocent folks living their lives in freedom are made defenseless prey to monsters—as vulnerable as fish in a barrel. And we have mass killings of defenseless innocents—over and over and over again.

How dumb are these politicians who want to remove the right to self-defense? There are thousands of crazies in the U.S. who are filled with hate—whether motivated by politics, self-loathing, religion, or fear. If they want to kill, they will find a way to do so. The only way to stop them is by superior firepower. Disarming their law-abiding victims not only violates the natural law and the Constitution but also is contrary to all reason.

All these mass killings have the same ending: The killer stops only when he is killed. But that requires someone else with a gun to be there. Shouldn’t that be sooner rather than later?

The NRA is the poster child of the pro-Second Amendment movement. They are vilified by the New York Times:

What makes the legislative inaction all the more maddening is that there is general public agreement in favor of attempts like these to reduce the bloodshed. An overwhelming majority of Americans — including gun owners and even N.R.A. members — support universal background checks, while strong majorities want to block sales to suspected terrorists and ban high-capacity magazines.

And yet the N.R.A. rejects these steps, even though it says that terrorists shouldn’t be able to get guns. Instead, it clings to the absurd fantasy that a heavily-armed populace is the best way to keep Americans safe. That failed in Orlando, where an armed security guard was on the scene but could not stop the slaughter.

There is no truth to any of this dribble from the fallen Gray Lady. The worst of the lies is that the NRA is complicit with terrorism and that it blocks those “common sense” gun control measures. It does not. The NRA seems more than happy with the bulk of the existing gun control measure – all of them unconstitutional. While the NRA backs lawsuits to overturn various local measures, they roundly accept the Gun Control Act and the National Firearms Act. Both of these laws treat all Americans like criminals and bar the easy or economical possession of the type of weapons actually protected by the Second Amendment.

The NRA also agrees with the opposition regarding the expansion of watch lists – to exclude terrorists from the gun pool of course, and no more… Their own words on the matter:

Fairfax, Va.— The executive director of the National Rifle Association’s Institute for Legislative Action, Chris W. Cox, released the following statement regarding terror watchlists:

We are happy to meet with Donald Trump. The NRA’s position on this issue has not changed. The NRA believes that terrorists should not be allowed to purchase or possess firearms, period. Anyone on a terror watchlist who tries to buy a gun should be thoroughly investigated by the FBI and the sale delayed while the investigation is ongoing. If an investigation uncovers evidence of terrorist activity or involvement, the government should be allowed to immediately go to court, block the sale, and arrest the terrorist. At the same time, due process protections should be put in place that allow law-abiding Americans who are wrongly put on a watchlist to be removed. That has been the position of Sen. John Cornyn (R.-Tex.) and a majority of the U.S. Senate. Sadly, President Obama and his allies would prefer to play politics with this issue.

This statement places the NRA (and Donald Trump by association) in the same position regarding gun control as Senate Democrats and the Obama administration – though the Executive seems a little at odds with itself as to how the proposed list measures would be (will be) implemented. Proposals to expand the “no-fly” list to cover firearms purchases has even drawn the ire of the ACLU as the list procedures (as they exists and as proposed) violate fundamental due process.

The NRA, Donald Trump, Hussein Obama, and their friends are all wrong. There is no due process at all concerning these controls. The new Senate proposal, S.551, mentions due process protection and then negates it in the same paragraph.

The government really has no dog in this fight as it is the primary creator and enabler of terrorism today. If not for the unceasing meddling and misadventure of the state there wouldn’t be any terrorists in our nation to worry about and no need for any lists nor for gun control.

A former CIA agent admits the government and the elites are the problem:

A former CIA counterterrorism agent has said it is time to talk about why terrorism really happens, and to address the “misguided narratives” that lead to oversimplification of the situation and continued war.

Amaryllis Fox worked on counterterrorism and intelligence in the CIA’s clandestine service for ten years. She told AJ+ that the beliefs surrounding terrorism are “stories manufactured by a really small number of people on both sides, who amass a great deal of power and wealth by convincing the rest of use to keep killing each other.”

Fox says the current conversation about Islamic State (IS, formerly ISIS/ISIL) in the US “is more oversimplified than ever.”

“Ask most Americans whether ISIS poses an existential threat to this country and they’ll say yes. That’s where the conversation stops,” she said.

Her observation echo what H.L. Mencken said about the government’s imaginary hobgoblins a century ago. Hitler concurred that terrorism (real or manufactured) is the best way to keep people panicked and, therefore, controlled. Gun control is about people control. Terrorism, war, and government in general are about creating and maintaining power for a few. It’s that simple. That’s what they’re working towards.

And, they are working hard. After Washington stirs up an already volatile region in begins to import the angered locals into America. Some really are hapless refugees. Others are terrorists – as the CIA admits. Oddly … or not, many of the recent notable terror suspects in America have had some ties to the CIA. This should raise serious questions and red flags about the state’s motives and how those motives negatively affect the rest of us – but it doesn’t. The bulk of the discussion put forward by either side of the political divide or by the government itself is: what else can the government do?

What they are doing is just more of the same. The people keep seeing their freedoms chipped away. The elites keep amassing power. The useless laws grow. The attacks, foreign and domestic, continue. They unvetted “refugees” keep pouring in – over 400 from Syria alone – since the Battle of Orlando this past weekend.

The horror and the comedy of the divide is how pointless it all is. Until the ridiculous, blasphemous, and hellish cult of government is dealt with, none of it matters.

Google.

The Second Amendment

04 Monday Mar 2013

Posted by perrinlovett in Legal/Political Columns

≈ 17 Comments

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10th Amendment, 14th Amendment, 19th Century, 1st Amendment, Alexander Hamilton, America, Anti-Federalists, arms, Articles of Confederation, attorneys, Bill of Rights, blasphemy, British Empire, Brutus, CLE, collecting, collective rights theory, Congress, Constitution, Constitutional Convention, Constitutional Law, D.C., D.C. Court of Appeals, D.C. v. Heller, D.C. v. Parker, Declaration of Independence, District of Corruption, Dred Scott v. Sandford, duty, English common law, federal, Federalist Papers, forty-fifth Congress, Founders, free state, freedom, God, government, governor, gun control, Gun Control Act, Harvard, history, hunting, incorporation, King George, Laurence Silberman, Laurence Tribe, law, law school, legal profession, libertarians, Liberty, Lord Bacon, MacDonald v. Chicago, Mariens, militia, Miller, National Firearms Act, National Guardindividuals, Natural Law, organized, Pennsylvania Minority, politicians, Posse Comitatus, powers, professional military, rebellion, rifles, rights, Robert Yates, Roman Republic, Second Amendment, self-defense, shotgun, slavery, sports, States, Supreme Court, Tacitus, The People, Thomas Jefferson, ticks, trojan horse, Tudors, tyranny, unorganized, Vietnam, Virginia Convention, Washington, William Kimmel, worship

This is a follow-up to some of my recent columns, Posse Comitatus, A Short History of Gun Control in America, and others.  The Second Amendment and its subject matter have been in the news recently as part of the never-ending “debate” over gun control.  The Amendment has also received special attention from the U.S. Supreme Court twice in the past five years. 

My purpose here is to explain what the Amendment means and what most commentators (even pro-firearms authors) miss in their reading and application.  Even if you do not own guns or have an interest in them, this issue affects you and your Liberty.  Somewhere in the writing process I realized I should have divided this into several segments.  My apologies for the heft of the article.  Sadly, I didn’t even get to add in half of what I should – maybe a book is in order?  certainly a follow-up’s follow-up.

“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”  Second Amendment to the U.S. Constitution (1791)(entirety). 

minutemen-revolutionary-war-11

(Minutemen staring down British Regulars.  Google Images.)

The Second Amendment has absolutely NOTHING to do with hunting, sport shooting, and weapon collecting.  Those activities are important and are rights which derive from Natural Law.  However, they are ancillary to the purpose of the 2nd Amendment.  Ancillary also are the issues of self-defense and defense of others and of property from attacks by common criminals.  They to are the absolute rights of the People (absolute, under appropriate circumstances).  However, none of these things, which are commonly attributed to the true nature of the 2nd Amendment and gun ownership, fall under the actual purpose of the Amendment.

There are two primary reasons why the 2nd Amendment was included in the Bill of Rights.  First, the Founders wanted a heavily armed population so that the nation and the constituent States might be well defended from foreign or outside aggression and invasion.  Second, and most important, the Founders wanted the People heavily armed in order to overthrow or repel the State governments or the federal, national government in the event said government ever became tyrannical in nature and operation.  The true purpose of an armed people is to resist tyranny.  This is not only the right of the People, it is also their solemn duty.

Politicians do not like being reminded of this fact these days.  Perhaps their guilty consciences get the better of them given the nature of modern government – as close to tyrannical as just about any in history.  For reasons given herein and, those which I plan to elaborate on in a future column about arms, the ticks have little to fear.  As I have written elsewhere, most humans like to be controlled.  In the absence of fair masters, they will take any master that comes along.  I hope you, by your nature or by reading this article, are a member of the few who prefer freedom to slavery.  Your existence makes the tyrants sweat.

For the longest time the Second Amendment was largely written off by the legal “profession.”  When I was in law school I was told the Amendment (and a few others) didn’t really exist.  I found this strange.  The Amendment was there in the text of the Constitution and its plain language made perfect sense (the 10th Amendment was the same way).  Try as I could, I could never locate the provision which allowed for the murder of babies.  The law school community regards this right, in blasphemy, as if it had been written by God himself. 

Then again, law school has little to do with the law.  The one thing that was not required reading in my Constitutional law classes was the Constitution.  No mention was made of the natural underpinnings of the Constitution.  It’s no wonder most attorneys emerge from this environment without the slightest knowledge of whence our laws are derived.  I was different, I always am.  I read the old documents and inquired as to why certain things were included and excluded textually.  I read a lot.  At the time, the only legal textbook in print which even mentioned the 2nd Amendment was the one compiled by Laurence H. Tribe of Harvard law fame.  His mention was very brief, but at least he had the curtsey to include it at all. 

Most Consitutional law education focuses on two things: 1) the supreme power of the government and; 2) a few pet rights with plenty of case law material for professors to quote (the 1st Amendment, for instance).  I also have columns underway to explain both the Constitution (briefly) and the convoluted subject of Constitutional law.  You’ll have to wait for those.

As I said, the 2nd Amendment received little official attention for many years.  Early in our history and it that of our English forebears, the concept of a well armed population was well enshrined.  It was taken as a given that men would be armed.  The Founders went the brave extra step and set the armed people as defenders of their own Liberty against the heinous forces of organized government. 

Thomas Jefferson was rightly fearful of the problems posed by a standing government army.  The Declaration of Independence was full of accounts of the crimes committed by King George through his armies.  The mandate for a militia rather than a professional army found its way into the Articles of Confederation, Article 4.  While armies are allowed under the Constitution, they are supposed to be limited to a two-year duration, they were meant as an emergency measure.  U.S. Constitution, Article I, Section 8.

In the debates leading to the Constitutional Convention, both the Federalists (in favor of the Constitution) and the Anti-Federalists (fearful of a strong central government) denounced the practice of standing armies as grave threats to liberty. 

Writing for the Federalists Alexander Hamilton, himself not the greatest proponent of decentralized liberty, reiterated the common saying of the time that standing armies “ought not be kept up, in time of peace.”  Federalist, No. 26.  In No. 28 Hamilton asked mockingly, against the fact of armed State militias, when could the federal government ever amass a sufficiently threatening army?  As Monday morning’s historical quarterback, I suppose the answer was “in about 200 years.”  Hamilton also thought the two-year budgetary limitation placed on the army would render it ineffective for tyrannical purposes.  Federalist, No. 24.  Out of the pocket again, we now have a standing army fighting numerous “wars” despite the absence of a federal budget for four years.

The Anti-Federalists were equally fearful of a central army.  In his Tenth Letter, January 24, 1788, “Brutus” (most likely New York judge Robert Yates) warned of two dangers presented by a standing army.  First, it could be used by leaders against the people in order to usurp power.  Second, the armies themselves could “subvert the forms of government, under whose authority they were raised…”  As examples he cited the once free and constitutional Roman Republic and British Empire. 

Interestingly, the Second Amendment could have contained anti-army language.  The Virginia Convention proposed a Bill of Rights (June 27, 1788), which would have had the second amendment as seventeenth.  It would have read: “That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in times of peace, are dangerous to liberty, and therefore ought to be avoided, as far as circumstances and protection of the community will admit, and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.”  I rather like that.  The Pennsylvania Minority had put forth a similar proposal on December 18, 1787. 

During the forty-fifth Congress, Rep. William Kimmel of Maryland, author of the Posse Comitatus Act, echoed the sentiments of the Founders as he quoted Tacitus, “Is there any escape from a standing army but a well-disciplined militia?”  7 Cong. Rec. 3579.  He also quoted Lord Bacon, who remarked of the Tudor years of English history, a “mercenary army is fittest to invade a country but a militia to defend it.”  Id.  Many were the quotes from members of the House and Senate on similar points.

The issue faded as the 19th Century progressed because it was still taken for granted that free people should be armed.  As I noted in Gun Control, the States and the federal government from this period to the present, began to enact various illegal, and progressively worse restrictions on gun ownership.  The 2nd Amendment did make appearances in law and court cases though during this period of general dormancy.  I will discuss two such cases here.

In Dred Scott v. Sandford, 60 U.S. 393 (1857), the Supreme Court ignobly affirmed black slaves were property as opposed to people.  However, the Court’s reasoning touched on the 2nd Amendment.  If slaves were considered human beings, then they would be entitled to human rights – such as the right to bear arms.  This case gave silent acknowledgment to the 2nd Amendment, which law professors somehow overlooked or wrote off.  It also slaps their Supreme Court worship in the face.  The fallibility of their god also seems lost on them. 

In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court held the 2nd Amendment only protected firearms with militia “value.”  Mr. Miller was arrested for illegal possession of a short-barreled shotgun, one of the weapons regulated under the UnConstitutional 1934 National Firearms Act.  I always thought this case made some sense.  If the only guns protected are those of use to the militia or the military, then it would seem the people have a right to own those types of weapons.  And, if they are entitled to own those, why not allow them all lesser guns (like short-barreled shotguns).  Subsequently, shotguns of reduced length came in useful to the army GIs and Marines in Vietnam and other tight, uncomfortable places. 

The delusional legal community took Miller  to mean something else, something only a law professor could belive – that the 2nd Amendment protects a government’s “right” to keep arms.  The deliberate misinterpretation of Miller during the last half of the 20th Century gave rise to the idiotic “collective rights” theory, an impossibility in and of itself.  The theory lead to the belief of leftists and statists alike that the 2nd Amendment gave the government the “right” to organize a body such as the National Guard.  This was ludicrous.  Only individual persons have rights.  Individuals with rights can join together in the exercise of those rights, but the rights themselves never acquire group status.  The status certainly never transcends from the people, individually speaking, to the government.  Governments have powers, not rights. 

The point was finally clarified (as if such a plainly worded sentence needs clarification…) by the U.S. Supreme Court in two cases early in our current Century.  In District of Columbia v. Heller, 554 U.S. 570 (2008) the high Court overturned D.C.’s illegal law restricting handgun ownership.  The Court also held the Second Amendment did in fact confer upon the people a fundamental right to keep and bear arms.  The collectivists were crushed.  The Court actually noted the Natural Law right of self-defense.  The law professors were confused.  The opinion limited its reach to federal laws and enclaves (like D.C.) and appended certain language regarding “traditional” uses of firearms.  The Court also made notable mention of the proper relationship between the people and the militia, but they did not reach my ultimate conclusion from Miller. 

In my humble but professional opinion (I are a Constitutional and firearms law litigator person, after all), the legal opinion rendered by the D.C. Circuit Court of Appeals in its earlier hearing and decision of Heller, D.C. v. Parker, 478 F.3d 370 (2007)(Parker was then a co-plaintiff with Heller and several others), was a far better recitation of the 2nd Amendment, its meaning and origins.  Judge Laurence Silberman went to great lengths to explain the original meaning of the “militia” and its prerequisite condition of an armed people.  I will comment on this subject a little later, in my own words.

I met Judge Silberman at a legal education luncheon (CLE) in 2008, while Heller was pending the Supreme Court.  I thanked him for his contribution.  However, as is so often my way, I was disgruntled that afternoon and made my usual sarcastic comments to kick off the meeting.  CLE’s do that to me.  Imagine paying a good sum of money for a decent lunch which you can’t enjoy because some dude or dudette is babbling on about the law.  Anyway, I recall referring to D.C. as “the District of Corruption.”  I did this before a small gathering of government attorneys and government-dependent attorneys.  Judge Silberman gave me a nervous chuckle, the rest of the crowd was aghast at my … honesty.

Anyway, the 2008 opinion was good enough of a start.  Two years later the Court added to the new body of 2nd Amendment law.

In MacDonald v. Chicago, 561 U.S. 3025 (2010) the Court, in striking down an illegal Chicago law, “incorporated” the effect of the Second Amendment to the States, via the 14th Amendment.  Many libertarian scholars are dubious of the theory of incorporation but I will not touch on that here other than to say the 2nd Amendment must be respected by the States.  This makes sense, as far as it goes, as no entity may legitimately violate fundamental human rights.  The Court also included some dangerous language in the decision, particularly regarding the possibility laws may place “reasonable restrictions” on firearms ownership.  The reference may prove a trojan horse for gun owners, especially in light of those restrictions already in place (NFA and GCA) which are now taken for granted.  I do not take them so and I have no faith in government to keep any additional restrictions “reasonable.”

Other, newer cases are working their way through the courts, generally with good success.  I think the Amendment is finally getting some of the respect it deserves.  I also don’t think Congress will act to rashly regarding new restrictions, yet, even in the face of the ridiculous hysteria raised of late. 

I began by stating the Second Amendment is about the people resisting government tyranny.  I do not advocate herein the violent overthrow of the government.  Such action, even if warranted, would likely end in disaster.  Besides, given the suicidal tendencies of the federal and most state governments, such action would seem pointless.  I said “even if warranted” because once any government exceeds its scope and purpose to the point it becomes a threat to, rather than a defender of, the Liberties of the People (the only real reason for the existence of government), then again, it is the right and duty of the people to shrug off such tyranny.  When such action is taken legitimately, it is not an act of rebellion.  In fact, at such point, it is the government which is in rebellion and deserving of correction.  This may be subject matter for another future column.

The Founders, being highly suspicious of standing armies in the service of a central government, determined to set up a militia as a proper alternative.  A “militia” is merely the organization to some degree of all the armed men in a jurisdiction.  Every State in the Union still maintains a militia, completely separate from the National Guard.  The militia of a given state is generally divided into two classes – the “organized” militia and the unorganized.  The organized consists of members of the State defense force, whatever it may be termed.  These are voluntary citizen forces under control of the Governor.  They are generally neutered these days but retain the ability to become a combat ready force.  The unorganized force consists of all able-bodied males (and certain females) between certain ages (adults, generally).  I am a proud member of the unorganized Georgia militia!

These militias are primarily at the disposal of the States and can only be utilized by the federal government in certain cases.  The main point of this system is that the weapons are supposed to be in the hands of the people, not the government.  This is specifically true regarding infantry weapons.  A militia member should, today, be able to report for duty with any weapons available to a modern infantryman.  This would include fully automatic rifles (including SAWs) and shoulder launcher systems (Stingers, etc.).

We currently are restricted from such weapons, illegally, by the NFA and the GCA and amendments.  Also, as a counter to my central premise of militia dominance, the federal government has done a terrible job regulating the militias.  The States have all but abdicated their independence and authority to Washington.  Washington has also taken advantage of this situation by raising and maintaining huge standing, professional military forces in perpetuity.  This is all contrary to the intent and the language of the Constitution.  The American people have also undergone a dramatic transformation.  Regarding these instant issues, the populace tends to regard militias as dangerous bands of domestic terrorists while literally worshipping the federal Imperial military.  How many yellow ribbon decals have you seen promoting the militia?

This leads me to my final point, the concept that so many people miss regarding the Second Amendment.  Most historical analysis has focused on the “militia” preface and the “right of the people” action clause, or both together (see Judge Silberman).  What everyone seems to miss is the “security of a free state.”  A state, according to the Founders and their wisdom could only be preserved by an armed people serving as the militia.  The key word here is – “FREE.”  Given the decline of liberty, seemingly demanded by the people, can we be said to live in a free state anymore?  If we do not, is anything else important?  I would, of course, answer affirmatively.  I’m not so sure about my fellow countrymen.  This may provide material for a future column.  Your thoughts?

A Short History of Gun Control In America

02 Saturday Mar 2013

Posted by perrinlovett in Legal/Political Columns

≈ 3 Comments

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14th Amendment, 16th Amendment, 17th Amendment, 1913, 1986, 19th Century, 20th Century, Adolph Hitler, America, ATF, bigots, blacks, British, Browning, citizens, Civil Rights Act, Class III, colonial, Constitution, crime, Europeans, Federal Reserve, firearms, Founders, government, gun control, guns, history, indians, jews, King George, KKK, LBJ, Liberty, machine guns, military, militia, murder, National Firearms Act, National Gun Control Act, Natural Law, Nazi Gun Law, New York City, news, plantation, police, poor, Posse Comitatus, racists, Revolutionary War, Ronald Reagan, Second Amendment, self-defense, slaves, standing army, Tammany Hall, tax slaves, taxes, theives, Thomas Jefferson, tyrants

Guns have been in the news again and again lately.  The guns I am writing about are the privately owned guns of our citizens.  Sadly, these patriotic men and women have not glorified for the millions of lives they save every year, usually without firing a shot.  Rather, the entire institution of gun-ownership has been demonized by the media and the lowlifes of the political class based on a tiny number of sensationalized murder cases.  This phenomenon happens from time to time and is always accompanied by a call for more gun control.

Before I get to control and its history, I want to address the most dangerous guns in America and elsewhere – publically owned or government guns.  These weapons pose a true threat to the health and security of our citizens and potentially pose a dire threat to our civil liberties and freedom.  Governments throughout history have proven themselves to be the least trustworthy possessors of weaponry.  In the 20th century alone governments murdered more than 200 million innocent victims with their military weapons.  I cannot speak for the rest of the world, but in America we need to seriously confront this lethal problem.

The Founder’s were naturally distrustful of an armed government, particularly a standing government army.  That is why they placed stringent restrictions on the army and, at the same time, embedded the right of the people to possess arms as a check against government tyranny.  I am  working on a series of columns along these lines which will compliment my previous article Posse Comitatus, https://perrinlovett.wordpress.com/2013/02/20/posse-comitatus/. 

Ultimately, I will reach the conclusions that we need to abolish all control laws which are directed against private citizens, we need to return to the militia model of defense, we should abolish our standing armies (this is a rather unpopular idea, for all the wrong reasons), and we need to disband or disarm the most of the police forces in America.  Those remaining law enforcement officers which might survive should return to their Natural Law function – protecting the rights of the people, as opposed to carrying out the edicts of the state.  For now, I will concern myself with giving you a brief education about gun control in the United States.

Where did the idea of gun control come from?  I’m not sure when and where it first originated, though I have an idea the concept has been around longer than firearms themselves.  A few gun control advocates are earnestly interested in stopping crime and helping people.  Most are not. Essentially, the majority of gun controllers are the same breed of would-be tyrants who have plagued mankind for eons.  First I imagine they demanded rock control, then sword control and now, gun control.  It is really all a scheme to deprive people of their natural rights of self-defense and self-preservation.  Tyrants do not like armed people.  Armed people are dangerous to tyrants.  Personally, I like the idea of endangered tyrants.  Perhaps we could, in the near future, save a couple and place them on display at zoos.  To hell with the rest.  “When governments fear the people, there is liberty. When the people fear the government, there is tyranny.”  – Thomas Jefferson.

Gun control was present during the colonial period of American history.  White Europeans attempted to limit the availability of firearms to groups like slaves and native American indians.  Just before and during the Revolutionary War, the British attempted to disarm the entire rebellious population.  Their theory was that unarmed people would have a much harder time ousting the red-coat armies. 

Independent American gun control first began after the nation was freed of King George.  In early America gun control was first initiated in against blacks, both slaves and free men.  Racist tyrannical whites did not want the downtrodden slaves or free blacks to defend themselves.  Armed slaves might just free themselves, after all.  This process derived from various State laws which outright forbid blacks from owning guns.  The KKK was an early gun-control advocacy organization (a fomer-day Brady campaign, if you will).  The injustice was nominally cured by the Federal Civil Rights Act of 1866 and the 14th Amendment to the U.S. Constitution (1868).  I say nominally, because the States found clever ways to circumvent the new Acts.  The favored trick was to tax gun sales so as to price the poor (which usually included blacks) out of the gun market.  As I will demonstrate shortly, rather than stamp out this hideous policy, the feds later adopted it.

So far in our history gun control has only affected “undesirable” populations – slaves, blacks, and the poor.  In the late 19th Century New York City enacted a ban on the concealed carry of firearms by just about everyone.  This new law was designed to protect pick-pockets and thieves, key constituents of Tammany Hall and the Democrats of the city (birds of a feather…).  It seems Boss Tweed’s cronies got too many complaints from their thieving electorate about people with concealed weapons thwarting robberies.  As far as I know, this was the first color-blind ban on concealed weapons.  New York has ever been a nest of nobility.

In the early 20th Century most Americans (except blacks and the poor here and there) were free to own whatever type of weapons they both desired and could afford to purchase.  I have read the true statement that any child who wanted one and had the money to pay for it, could mail-order a Browning .50-caliber machine gun and have it delivered to their home.  Yet, mysteriously, there was little crime in this far away “wild west” America.  Crime seemed to come along later with heavy federal regulation of firearms.  Numerous studies have definitively linked the two. 

As I noted earlier, the federal government enacted legislation which imposed a tax and registration on the ownership of certain types of firearms.  This first occurred with the National Firearms Act (NFA) of 1934, 26 U.S.C. 53.  This law was part of the overall scheme to deprive Americans of fundamental civil liberties.  I have previously noted the dread year of 1913, with the creation of the Federal Reserve and the ratification of the 16th and 17th Amendments.  Like plantation slaves, tax slaves with weapons pose a risk to their masters.  Americans may have seen a rise in violent crime through the 20th Century because their “leaders” emulated the gun laws of well-known criminals. 

“The most foolish mistake we could possibly make would be to allow the subject races to possess arms.”  – Adolph Hitler.

adolf-hitler

(Adolph Hitler, gun control proponent.  Google Images.)

On November 11, 1938 Hitler and his government enacted sweeping gun-control legislation, the Weapons Act of 1938.  This Act was aimed at a particular subject “race” – jews.  “Jews … are prohibited from acquiring, possessing, and carrying firearms and ammunition, as well as truncheons or stabbing weapons. Those now possessing weapons and ammunition are at once to turn them over to the local police authority.”  1938 Nazi Act, Section One.  The rest of the Act made possession of weapons by jews criminal, with proscribed punishments. 

On October 22, 1968 President Lyndon “Bane of Freedom” Johnson signed into law the National Gun Control Act (GCA) of 1968, 18 U.S.C. 44.  This Act imposed additional infringements on the ownership of guns.  It was allegedly imposed as a crime-fighting measure however, it was obviously intended to further limit the availability of weapons to the law-abiding members of society.  Crime exploded in tis aftermath.  Many scholars have properly analogized the GCA to the Nazi Act of 1938, with “Jews” being removed.  The GCA was also pushed into law by racists who wanted to further discriminate against blacks.  By this time, the bigots knew better than to simply switch the word “black” in place of “jew.”  The result was the same – more disarmed Americans.

Both the NFA and the GCA are policed by the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (the AFT).  Both are blatant violations of the Second Amendment.  Every year, when not supplying military weapons to the Mexican drug cartels, the ATF wasted millions or billions of taxpayer dollars setting up sting operations in order to oppress otherwise innocent Americans through enforcement of these illegal laws.  I have represented several of these poor persons in court.

Of course, gun control has grown by leaps and bounds in and out of the federal government in the ensuing decades.  There has been a great deal of push-back against these laws, but the main pillars of disarmament still stand.  Things keep getting worse.  In 1986, arch-“conservative” Ronald Reagan signed into law a tax reform bill which, among other things, capped the supply of “class III” firearms.  Class III weapons are those such as fully automatic guns and destructive devises (military-grade weapons).  This, again, has had the effect of pricing these weapons beyond the means of most people.  It also deprives us access to modern weaponry.  It is virtually impossible to obtain a post-1986 weapon without spending hundreds of thousands or millions of dollars (one must become a dealer or a manufacturer to do so). 

Thus, Americans are denied access to the very weapons we need the most, those which can be effectively used to thwart government aggression, including mis-use of the standing army.  The Founders were on to something.

m4

(The Second Amendment is not about duck hunting.  Google Images.)

I could run on for another 1500 words or more with this subject.  Instead I will stop here and provide more information in my upcoming columns on the Second Amendment and related articles. In the meantime, do not heed the siren’s call for more gun controll, we need a good deal less.  Guns Up!

Perrin Lovett

perrinlovett@gmail.com

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