Oblique Challenge to Federal Gun Laws


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jselvy
June 7, 2007, 12:50 PM
Ladies and Gentlemen of the Forum,

Have the various gun regulations ever been challenged on the grounds that hey interfere with the legal execution of the duties of a militiaman?
Forgive me for not having the references to hand as I am outwith the U.S. and separated from my library.
The Second Amendment clearly states that "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." This indicates both the existence of the militia of the various states and the individual right to arm oneself.
The Militia Act of 1792 indicates that the militia is made up of citizens aged from 14 (I think) to 45, who are residents of the various states.
Several of the founding fathers in the federalist papers and other writings used for legal interpretive purposes indicate the need for a militiaman to keep a certain amount of supplies on hand (one pound of powder and four pounds of lead). Inferring that a duty is extant without the state needing to call up said militia.
The NFA unlawfully interferes with this duty to procure effective tools for militia use.
The GCA prevent whole bodies of militiamen from carrying out their duties as aforementioned. It also introduces a "sporting test" which has no real bearing on the duties of the militia as set forth in the preceding documents.
The BATFE is a federal hindrance to the duties of the militiaman by interfering with the acquisition of supplies that are the default duties of the militiaman in absence of immediate orders from the state.
Lautenberg also prevents whole bodies of militiamen from performing heir duties as outlined in the federal documents as mentioned earlier.
Therefore, it appears to me that these laws are Prima Facia invalid as they directly contradict previous Federal Law and Illegally regulate the militia of the Various States.

Any comments?

Jefferson

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Smurfslayer
June 7, 2007, 02:47 PM
there's a poster here by the name Well Regulated who would be in a knowledgeable position to answer this...

Well Regulated
June 7, 2007, 06:13 PM
I am currently not aware of any case law challenging the constitutionality of a law based on the fact that it would disarm the militia. Although one recent Virginia case proffered and asserted that right. See Virginia1774 http://www.virginia1774.org/LawsuitDCR.html The last major US Case was Perpich v. Department of Defense , 496 U.S. 334 (1990). This case like the United States v. Miller, 307 U.S. 174 (1939) continues to re-enforce widespread misconceptions about the militia and the history of this country. The discussion about this topic could take many pages and I would refer you to the article From Colony to Commonwealth, the History of Article I, Section 13 of the Virginia Constitution. http://www.virginia1774.org/ColonytoCommonwealth.pdf

There is a difference between the militia and a well regulated militia. A Militia is composed of the arms bearing population of a community. “I ask who are the militia? They consist now of the whole people, except a few public officers…. Under the present government all ranks of people are subject to militia duty." George Mason, June 16, 1788. “the militia embraces the whole arms bearing population” Burroughs v. Peyton, 57 Va. (16 GRATT), 470, p179, (1864). A well regulated militia is a legal distinction from militia. The Second Amendment of the U.S. Constitution is a self-executing constitutional provision. Self-executing constitutional provisions do not need ancillary legislation for their enforcement. Anything done in violation of them is void. Although legislation is not required for its enforcement, legislation upon the subject may be instituted only if it furthers the intent of that Constitutional provision. This concept is not new and is why the Virginia colonial militia laws (and later the US Uniform Militia Act of 1792) were passed in furtherance of this right. They required that all free white males generally between 16-60 to be enlisted in the militia (Compulsory service). They required the same to furnish their own weapons. They required the same to muster at least once a year. They protected the same from seizure or arrest. And they required the same to at all times be ready to repel invasions and insurrections and to enforce the laws of the colony or Commonwealth. The militia was not only a military force it served as the police force as well. To disarm the populace in any way would not only have violated the people’s individual right to keep and bear arms, but would have served to weaken the defense of the community, a suicidal and treasonous act. "Allegiance and Protection are reciprocal duties" This is why Thomas Jefferson in 1824 writes to Major John Cartwright about Constitutional rights stating, “that it is their right and duty to be at all times armed”.

Can a law be passed that would disarm the people or the militia? Firstly, it would be a violation of the self-executing nature of the Constitutional provision and void. As Patrick Henry stated in the Ratification debates, “Let me here call your attention to that part which gives the Congress power "to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States reserving to the states, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless” Patrick Henry June 15, 1788. As a corollary, if the states were to deny the keeping and bearing of arms by statute, the states will then have disarmed the federal militia. “An instance within the memory of some of this house, -will shew us how our militia may be destroyed. Forty years ago, when the resolution of enslaving America was formed in Great-Britain, the British parliament was advised by an artful man, [Sir William Keith] who was governor of Pennsylvania, to disarm the people. That it was the best and most effectual way to enslave them. But that they should not do it openly; but to weaken them and let them sink gradually, by totally difusing and neglecting the militia. [Here MR. MASON quoted sundry passages to this effect.] This was a most iniquitous project. Why should we not provide against the danger of having our militia, our real and natural strength, destroyed? The general government ought at the same time to have some such power. But we need not give them power to abolish our militia. If they neglect to arm them, and prescribe proper discipline, they will be of no use.” George Mason, June 14, 1788. Any law that disarms the law-abiding citizen or the people of a community is an attack not only on the individual, but an attack on the safety and security of the community as a weakening of the militia. Therefore any law that disarms individuals or puts up barriers such as taxing the people or their arms (NFA, Pittman-Robertson act,) disarms or burdens the militia and violates the Second Amendment to the U.S. Constitution.

jlbraun
June 7, 2007, 07:16 PM
One tack after Parker vs. DC is upheld by the Supreme Court is to re-file the Parker case verbatim with "machinegun" instead of "handgun" substituted throughout. 922(o) falls.

Another tack is for men 17-45 to file Form 4s en masse for M4 assault rifles. When they are denied, file suit in so many different courts that the SCOTUS has to take it.

44Brent
June 7, 2007, 07:44 PM
One tack after Parker vs. DC is upheld by the Supreme Court is to re-file the Parker case verbatim with "machinegun" instead of "handgun" substituted throughout. 922(o) falls

Bad, bad, idea..

Pro-second amendment lawyers have suggested that this is the worst possible approach. They advise that the correct approach is to start with laws that 1) affect the greatest number of people, 2) appear to be unreasonable in the eyes of the public. The strategy is to use a toe-hold to get a foot-hold, and a foot-hold to get a hand-hold.

The machine gun laws are the ones that should be last to be attacked, because they affect the least number of people, and there seems to be quite a bit of support for machine gun bans, even among gun owners. An example of such a law/regulation that might be a good first choice would be either the National Parks carry ban, or the Lautenberg Amendment.

Please do not construe my comments as being support for machine gun bans. I oppose them. The question is, do you want to start climbing the ladder from the bottom? Or, do you want to try to jump to the highest rung in a single bound?

jselvy
June 7, 2007, 08:40 PM
If these laws, which admitted burden the militiaman, are void and of no force how then can they prosecuted?

Maybe I'm just being stupid.

Jefferson
Historian NOT Lawyer

TEDDY
June 7, 2007, 08:45 PM
The 1934 law on machine guns was pushed thru on the commerce clause as taxing mg.all other laws have been booted up on the commerce clause.I agree that that may be the last law to go after as like sara brady does pick one at a time.I also suspect there are a lot of mg owners out there than you think.I believe the gov knows it too.how many do you think are licensed to own mgs or other NFA weapons.there were 10,000 in Mass.last I knew.:banghead::uhoh:

Aguila Blanca
June 8, 2007, 02:04 AM
The Militia Act of 1792 has been superseded by U.S. Code Title 10, Subtitle A, Part I, Chapter 13, Section 311 ... to wit:

§ 311. Militia: composition and classes
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
That's all there is. The parts from 1792 about each militiaman possessing a musket, powder and ball are no longer there. Those of us between 17 and 45 who are not in the National Guard are indeed the unorganized milita, but the law no longer spells out how we are to be armed. In fact, the law no longer specifies that we shall be armed.

Plus, I'm well over the age of 45. Therefore, I am not a member of the militia, and I view with trepidation any argument that hinges the 2nd Amendment rights on the duties and responsibilties of the militia. Be careful. Although the introductory clause of the 2nd Amendment mentions the militia, the 2nd Amendment does not limit the right to keep and bear arms to members of the militia, and we need to be careful that we not allow any argument suggesting otherwise.

Gifted
June 8, 2007, 03:54 AM
In the event of a challenge, I'd imagine that there'd be some issues with certain kinds of guns, such as saying that a Lakeside scale .22 MG wouldn't be protected. I'd argue that Congress has the power to define a standard gun, and mandate ownership, and no authority to forbid the ownership of a weapon. They can say that everyone must have an M16, but can't forbid anyone from having a 10/22.

I'd want to simultaneously argue that any weapon could serve a reasonable militia purpose(pointing out, for example, that the scale MG above could be used for training, since it functions similar and has similar controls to the real thing, and .22 is much cheaper to practice with), and it's up to each individual to decide what would be most effective in his or her situation. Since anything can be used for anything, and that neither Congress nor a bureau has the authority to say otherwise, all regulation is moot.

jselvy
June 8, 2007, 06:30 AM
"I'm well over the age of 45. Therefore, I am not a member of the militia,"

Discrimination based on age (if over 40) is already illegal, so that would not stand as such.
I was looking for a new type of argument that hadn't been tried before.
I also cannot see how negligence on the part of the State as regards training of the unorganized militia affects my fulfillment of those duties that I can reasonably perform without oversight such as maintenance of equipment, marksmanship training, and land navigation training (map reading).

Jefferson

Sam Adams
June 8, 2007, 02:20 PM
I don't see that using a (still hypothetical) Parker victory to help overturn 922(o) would be a problem. It is exactly the kind of ban, on the Federal level, as the DC ban is within that city - both laws prevent even the registration of new firearms after a date certain, whether to continuous residents, those who are subsequently born and are later old enough to qualify (but for the ban, of course), or those who move into the jurisdiction. IF the USSC upholds Parker-esp. the language about the 2nd protecting a fundamental, pre-existing individual right-then 922(o) should fall by the wayside. A HUGE help would be a mountain of data and testimony to prove that full autos (or, at the very least, M14s, M16s and M4s, all of which are in current service) have some reasonable relationship to the preservation or efficiency of a well regulated militia... That would eliminate the weasel-like decision of the Miller Court that "In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." [Emphasis added]

BTW, here's a good website with the whole history of theMiller case: http://www.rkba.org/research/miller/Miller.html

Regarding the NFA, I don't know that a positive Parker ruling is needed (though it would help immeasurably by ruling that the 2nd protected a fundamental, pre-existing individual right). The feds have ALWAYS argued that the NFA is a tax-raising measure, not a ban on guns of any kind. Well, since the FOPA was signed into law in 1986, this argument holds NO water insofar as full autos are concerned. The law forbids the government from collecting the $200 tax on registering a full auto for civilian ownership on any gun not already registered by May 19, 1986 (or even accepting the voluntary payment of the tax by individuals) - so how can the '34 NFA be a tax-raising measure? Further juicy tidbits for any challenge to the NFA can undoubtedly be found in the Congressional debates, particularly testimony by government witnesses, where this argument (its a tax, not a ban) was specifically made. Implicitly, of course, making that argument says quite clearly "The government doesn't have the power to ban firearms - even machine guns - but we can tax them." Well, the "its a tax, not a ban" argument is legally impossible to make now - the NFA is now a ban - repeal it!!

Aguila Blanca
June 8, 2007, 11:54 PM
Discrimination based on age (if over 40) is already illegal, so that would not stand as such.
I was looking for a new type of argument that hadn't been tried before.
I also cannot see how negligence on the part of the State as regards training of the unorganized militia affects my fulfillment of those duties that I can reasonably perform without oversight such as maintenance of equipment, marksmanship training, and land navigation training (map reading).
You were the one who mentioned the Militia Act of 1792. All I did was point out that (a) it hasn't been in effect as originally written for many years, and (b) it doesn't accomplish what you hope to accomplish.

Like it or not, not everyone can be a member of the militia. Discrimination on the sole basis of age may be illegal for us, but government (sadly) gets to ignore the same rules it applies to everyone else. More importantly, however, "discrimination" based on quantifiable performance-related factors is not illegal. The 2nd Amendment says that ALL people have a right to keep and bear arms. Not all people are fit to be in the militia. What about a quadraplegic? What about a 95-year old women with post-polio symptoms? What about people over the age of 45 who have any number of medically disqualifying ailments or conditions?

Trying to argue for the 2nd Amendment by linking it to militia service does not recognize the universality of the 2nd Amendment. I don't care if the approach has been tried before. I hope it hasn't been tried and I hope it won't be tried, because it's just plan wrong. The 2nd Amendment does NOT limit the RKBA to being in the militia, irrespective of how some people try to interpret the introductory clause.

freakazoid
June 9, 2007, 12:35 AM
Whether or not these anti-RKBA laws should be challenged through the it violates the militia idea, they do need to be challenged. Something needs to be done, anybody have any ideas?

jselvy
June 9, 2007, 07:07 AM
Again I was just looking for a new type of argument. Age restrictions are easier to assault than blanket prohibitions, States could have different rules for their respective militias.
I was using a knowledge of history to attack a blatant interference in a state's private reserve.
I didn't mean to imply anything else. The object of the original post was to provoke thought in the legal types that we have on this board.

Thanks
Jefferson

Kharn
June 9, 2007, 08:20 AM
jselvy:
Discrimination based on age (if over 40) is already illegal, so that would not stand as such.The military's allowed to discriminate based on age, so I think the courts would rule the militia could as well. Now, someone could argue that back in the 1700s, people were not as firm after 45 while today people could easily serve until their early 60s.

Kharn

Sam Adams
June 14, 2007, 08:09 PM
The military's allowed to discriminate based on age, so I think the courts would rule the militia could as well. Now, someone could argue that back in the 1700s, people were not as firm after 45 while today people could easily serve until their early 60s.

I think that all one would need to do is find the oldest person that the military has on active duty and you have a case. Better yet, find the oldest allowed in any state's NG.

However, I don't think that the age of militia members will mean a thing in the immediate future. I actually long for the day when the arguement is over how old one can be to still be in the militia, instead of the situation now where the libs (and most courts) say the militia is the National Guard and that there is no individual RKBA (and, yes, I know that the Supreme Court already ruled in the Perpich case that the NG and the militia aren't the same - but the libs don't let things like facts get in their way). First things first, I say - first win in Parker on the RKBA issue, then fight militia age discrimination.

Hardware
June 14, 2007, 08:24 PM
I think that all one would need to do is find the oldest person that the military has on active duty and you have a case. Better yet, find the oldest allowed in any state's NG.

A civillian veteran of the War of 1812 showed up with his flintlock and kit at the Battle of Gettysburg. He stood in the line of battle and fought the Confederacy. IIRC he would have been in his 70's.

Found this information after a brief search.
John Burns was in the War of 1812 and near seventy years of age. He took an old State musket he had in his house, and started making bullets. When his wife wanted to know what he was going to do. 'Ah' said Burns, 'I thought some of the boys might want the old gun, and I am getting it ready for them. He found a Wisconsin regiment, and asked them if they would take him in. They told him they would, and gave him three rousing cheers.The old musket was soon thrown aside, and a first-rate rifle given him, and cartridges. He killed three rebels to his certain knowledge. When found by rebel forces they asked what he was doing there and he said he was going for help for his sick wife and was wounded and having pity on him they returned him home.

There's your precedence.

Sam Adams
June 15, 2007, 07:25 PM
I'll see your 70's Civil War vet, and raise you one 80 year old (tough old bastard) Revolutionary War Militiaman: http://www.freerepublic.com/forum/a3805dbac31da.htm

BTW, I was thinking of the oldest person in the Armed Forces NOW. But this stuff helps.

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