Guns, damn guns and things I didn’t know: Part the gajillionth

During the American Revolution, local militias –  who played the role of today’s  National Guard – had no collective arms and depended entirely upon the arms and ammunition of private citizens. (Okay, I knew that part.)

american-colonial-militia-rifleman-randy-steeleTo facilitate response time (the British are coming! the British are coming!), they often stockpiled their arms in one place for easy access. Basically, an armory.

Before the Revolution and in its very early days, the British – the ‘central government’ of that day – took to seizing those arms, something the good folks  took personally – those guns were private property after all. (Might that be the origin of our love affair with personal weapons – well, public weapons as well, since we are the largest arms exporter in the world.)

There are several references to militias in The Constitution (which I did not know; I thought it was only addressed in the Second Amendment). Article I assigns Congress the power to:

. . . provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; [and]

To provide for organizing, arming and disciplining, the Militia, and for governing of such Part of them as may be employed in the Service of the United States.

(I’m getting this from Jeffrey Toobin’s terrific 2012 book about Obama and the Roberts Court by the way.)

Toobin goes on:

Article II says the president is C in C of the army, navy and “Militia of the Several States when called into the actual Service of the United States”. It wasn’t until the Militia Act of 1903 that their functions were formally subsumed into other agencies, like the National Guard . . .

And this: in the first 200 years of our existence, the Supreme Court discussed the Second Amendment exactly once, in 1938. It – U.S. v. Miller – was a challenge to the National Firearms Act passed in 1934 in response to the gang violence of the day and in particular to the St. Valentine’s Day massacre, which horrified the country not least because ‘machine guns’ were used. The Court ruled – unanimously – that the Act complied fully with the Second Amendment. Justice McReynolds spoke for the Court, saying they’d concluded that the Second Amendment existed to preserve the rights of militias – not individuals – to keep and bear arms.

And the issue disappeared once again, resurfacing only after the Kennedy assassinations.

massacreThe Gun Control Act of 1968 had widespread public support including the strong support of the NRA (when they still represented actual gun owners). 

IRONY ALERT: That didn’t change until Ronald Reagan’s 1976 campaign for the presidency. Writing an article for Guns and Ammo in 1975, he set off an entirely different conversation about guns, working opposition into a libertarian message, even insisting that the Second Amendment prohibited gun control – so much so that the 1976 Republican platform proclaimed a new-found opposition to gun control, reversing its previous 1972 platform supporting gun control. And in 1977, hard-liners staged a coup d’etat at the NRA to align with the new position). Everything changed.

But back to 1939. Toobin calls the U.S. v. Miller decision:

entirely originalist in its reasoning. The opinion quoted the provisions of Article I  dealing with the powers and then stated “With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.”

Toobin continues:

Indeed, if the Second Amendment were intended by its framers to give individuals a right to keep and bear arms, the initial militia clause [“A well-regulated Militia  being necessary”, etc.] would be both unnecessary and meaningless.”

I find the reasoning of both that 1939 Court and of Jeffrey Toobin to be impeccable. (And as proof that I care, know that I had to type all this . . . no cut and paste from da books!)

25 responses to “Guns, damn guns and things I didn’t know: Part the gajillionth

  1. Interesting. Unfortunately, all the logic in the world means nothing when fear and greed (for campaign contributions) are at stake. And the greatest fears right now are eating at Congress.

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    • Hey Donald . . . I know a guy who worked in DC for Time for decades. He met everyone and he said that Wayne LaPierre of the NRA was the most toxic person he ever met. In spite of today, I think that man’s influence is about to weaken. Today’s no vote is just today’s vote. It comes up again very soon.

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  2. One problem – at the time of the founding, and for many decades before, the militia was every able-bodied man…and most people were armed as a normal course of life as well.

    Also, the basis of the Miller decision was not that Miller was not part of a militia but that the weapon in question was not fit for military service. In point of fact, they said that 2nd Amendment ONLY applied to actual military-grade weaponry,

    Hehehe…Just be thankful Americans didn’t pick up that ball and run with it. 😆

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    • There’s an interesting bit in the Toobin book about Scalia’s opinion iin Heller, where he makes that very point about the founders meaning ‘military weapons’ . Scalia wanted to make it crystal clear that Heller meant handguns – only – were protected.

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  3. Wow Mo! The NRA supported the 1968 act? I had no idea. Clearly another sign how much further to the right the right has moved in 40 years or so.

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    • Bruce, after Columbine LaPierre and the NRA publicly supported universal background checks. Video abounds . . . go figure.

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      • Simply put, politics got involved. It was decided – by whom I don’t know – that the expanded background check bill was a bellwether for further curtailment of Americans’ 2nd Amendment rights and, as such, many who supported it or, like myself, felt it wasn’t THAT bad, reversed their positions.

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        • “by whom I don’t know” – it would be worth knowing I guess who was behind the ‘coup’ in the late 70’s that upended the NRA and turned it from being a hunter/shooter/safety organization to a gun lobby.

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          • That could be, but it also could be Dem politicians, the MSM, or any of the professional political analysts.

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            • That’s not what happened. Itwas the NRA that changed the NRA. Most probbaly the push inside came from gun manufacturers who were worried after the ’68 law (which was pretty much a stand alone thing). It took them a decade but afterward the NRA was a totally different outfit. Gun legislation didn’t hit page one again until Reagan was shot a few years later.

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              • Once again we’ve failed to communicate. I was talking, not of the NRA, but of the change in the importance and meaning of the expanded background check bill.

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                • The thing is, the Fed govt already mandates background checks. I can’t think of a single reason for the gun show/private exemptions that were in place. During the debate this time, I don’t see anyone, not evven the NRA, challenging the constitutionality of the checks in place right now.

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                • If the requirement wouldn’t unduly hamper the very existence of the gun shows, I actually don’t have a particular problem with them being treated as any other place of business that sells firearms, Moe.

                  Private transfer is another story. If I want to give or sell one of weapons to a friend, that’s my choice and the government shouldn’t try to criminalize such private activity. That was, however, removed from the bill prior to the final vote.

                  The were, however, two huge problems with the now-dead bill. It said that the the Feds could have access to each states records, which would allow them to create a federal “meta-database,” which the majority of people – American and Liberal – have always been against, AND it said that the feds were exempt from- and above the privacy stipulated by HIPAA.

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                • jonolan, Fed access could be a two way street I suppose. It could be critical to investigating interstate crime and terrorism, even if private sales were exempted. The other side – fear of the government? A database wouldn’t be a threat unless the Feds started ‘coming for the guns’ at which point many people would start taking them up anyway. Game over – insurgency becomes a much bigger problem and it would split the country, probablly into many parts.

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  4. Most gun owners objected to the “enhanced” checks as a slippery slope. I say “enhanced” because most people forget that their are already over 10,000 laws in effect that are targeting the same things and the current federal backgrounds systems need it’s know errors fixed before it’s expanded. Folks want to say we’re “going all conspiracy” but look at my state, Maryland. Already nearly the strictest gun laws in the country with registry (that did zero to reduce gun violence by the way) and now they demand, and approved, even more restrictions on the legal gun owners. Look at the new “registry” details and see if you want this for any purchase you would personally make in America without finding it overreaching and intrusive by the govt:
    5-143
    (B) AN APPLICATION FOR REGISTRATION UNDER THIS SECTION SHALL
    12 CONTAIN:
    13 (1) THE MAKE, MODEL, MANUFACTURER’S SERIAL NUMBER,
    14 CALIBER, TYPE, BARREL LENGTH, FINISH, AND COUNTRY OF ORIGIN OF THE
    15 REGULATED FIREARM; AND
    16 (2) THE FIREARM APPLICANT’S NAME, ADDRESS, SOCIAL
    17 SECURITY NUMBER, PLACE AND DATE OF BIRTH, HEIGHT, WEIGHT, RACE, EYE
    18 AND HAIR COLOR, SIGNATURE, DRIVER’S OR PHOTOGRAPHIC IDENTIFICATION
    19 SOUNDEX NUMBER, AND OCCUPATION.
    20 (C) EACH APPLICATION FOR REGISTRATION FILED WITH THE
    21 SECRETARY OF STATE POLICE SHALL BE ACCOMPANIED BY A NONREFUNDABLE
    22 REGISTRATION FEE OF $15.
    23 (D) REGISTRATION DATA PROVIDED UNDER THIS SECTION IS NOT OPEN
    24 TO PUBLIC INSPECTION.

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    • Pissed Off, as I noted above to jonolan, how is a purchase at a gun show different than a purchase at a gun store constitutionally? I don’t hear cries to stop the background checks at stores? Those requirements you list seem perfectly normal. Name, ID, serial number etc. JC Penny knows more than that about me.

      And as for state laws, they have no teeth when guns can be easily purchased across the state line.

      And let’s remember that all guns start out as legal guns. They begin their lives as new guns that are purchased by someone.

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      • And they need to know my place of birth etc why? It’s pure overreach because they think they can. It’s intrusion we’re now accepting at face value. It’s entirely unnecessary for the intended purpose. Back to the slippery slope. Where does it stop? When they ask you for the names, SSNs, addresses and place of birth of all your children to get a JC Penny card. Is that going to far Moe? The has to be a point where people reject the intrusion into their lives.

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        • Pissed Off: I don’tdisagree . . . but I also think it’s too late. Marketers started ‘narrow casting’ 40+ years ago when credit cards moved into wide use. The info they were able to extract was primative by today’s standards, but every year they got more. Now, with online shopping and every frackin’ othwer thing from social media to cell towers and cameras on the streetcorners . . . honestly, I don’t see that stopping.

          Remember how in the 7o’s, the Supreme Court found a ‘right to privacy’ . . . fuhgettaboutit!

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  5. At the heart of the argument over gun regulation, seems to me, is the issue of trust. Do we trust the government? Do we trust the government to defend our shores against foreign invaders? To enforce our laws? To apprehend and bring criminals to justice? To provide a structure of safety for the processing and serving of food? To provide a social safety net for the elderly? To regulate the drug and medical equipment industries? To make our highways safe and efficient for transportation? If not, and admittedly government isn’t always perfect, what’s the alternative? There isn’t any. So what makes guns the exception, that they shouldn’t be regulated as much as cars? Does it make sense that even if the Army and Marine Corps could be employed to disarm the populace, that individuals could successfully out-war the armed forces? That’s just nuts. The answer to this kerfuffle is not a loaded AR-15 in every closet, it is in ensuring that the representative democracy works properly. IMHO.

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    • Jim, again you hit it exactly right. You bring the issue to its core. It’s not about guns – it’s about government. And as I said to jonolan, if citizens take up arms, that’s game over anyway. We’re not the U.S. anymore, so I’m damned if I know what they’d be protecting.

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  6. Jim, you’re right in concept but wrong in example. The question is about trust. Do we trust the government not to trample all of our rights and be utterly tyrannical? The proper American answer is, with the basis for the Second Amendment as the primary exemplar, a resounding and profound no.

    As for dealing with the military, even assuming that the military was 100% in favor of a tyrannical government – we’ve 80+ million Americans under arms and the combined military in its entirety is only approx. 2.4 million. Do the math, Jim, and remember that the Taliban topped out at less than 25K fighters and, after 10 years, we’re still fighting them.

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    • I can always trust you to provide a good example, John. Thanks. Q.E.D.

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    • jonolan – 80+ million Americans vs a much smaller military? True enough, an uprising could be bloody. But there is no guarantee that those 80+ million would be compatriots or even on the same side. In AFghanistan,, the north and south have been fighting for generations.. The governing elite is Kabul is terrified of being wiped out by insurgents. The Taliban, in Afghanistan’s history, are a passing chapter.

      Also, Syria.

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