The Hughes Amendment

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Nate1778

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Being a relative newb compared to some of you that were active in and around 1986, has this ever been constitutionally challenged. It would seam to me the layman, reading the 2nd

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.

that this puts a kink in the ability for the populace to keep the security of a free state in the fact we do not have access to adequate firepower to compete with any that would oppose our rights. Don't get me wrong I have no problem with the "Well regulated" part of the "National Firearms Act" but the all out ban of a weapon due to its date of manufacture seams a bit unconstitutional.

What would it take to constitutionally challenge the legalities of the Hughes Amendment. I am sure there are organizations and lobbyist that have pushed on this on either side. Does it take a petition, an act of congress or supreme court ruling.

A little history please, as we are a fighting group and am sure have not laid down on this over the years.
 
Well regulated did not mean then what most politicians want you to think it means now. It meant (paraphrasing) to keep regular. In particular across state lines.

The ban is I think TOTALLY unconstitutional. I'm guessing that the 1934 date was just a way to 'grandfather' in the old stuff so they didn't have to get into confiscation issues that would have brought it before the courts to be challenged.

Having said all of that, I don't particularly want to be the test case, especially during this administration.
 
A little history please, as we are a fighting group and am sure have not laid down on this over the years.

Unfortunately for the most part that's exactly what has happened. When the NRA threw machineguns under the bus for FOPA they never looked back. It's my biggest complaint about the organization.

And now that Hughes in place no other group will really bring it up. In Heller we saw most of the briefs ignore them completely, though that's no surprise given the question before the Court. When they ARE mentioned it is vague, Scalia says they are subject to 'reasonable regulation' which has no definition at this point.

Here is an article on a very recent case on this, and the results.

http://www.csmonitor.com/USA/Justice/2009/1230/No-right-to-bear-unlicensed-machine-guns-federal-court-says

This is a particularly interesting case because the guy was truly in the state sponsored "militia". He argued that as a member of the Tennessee State Guard he should be allowed to have automatic weapons.

Here is an older ruling where the Ninth Circuit does something interesting, but it didn't really go anywhere.

http://www.keepandbeararms.com/newsarchives/XcNewsPlus.asp?cmd=view&articleid=2854

The real movement lately has been from a few states that have passed laws specifically saying that machine guns not involved in "interstate commerce" are legal in that state.
The current administration has not taken kindly to that which is interesting because they have taken the exact opposite stance on medical marijuana. They say that pot grown in a state and sold there for medical purposes is OK but machine guns made in a state and sold there are not OK. So in a way they at least admit that the Commerce Clause has some holes in it.

Here's a little to read on that subject, Montana in this one.

http://www.learnaboutguns.com/2009/05/30/the-made-in-montana-gun-law/

NRA members could pressure the group to do more to keep their promise regarding Hughes but most members don't care enough to do anything.

So, Hughes remains and no pro gun lobby wants to touch it. That's pretty much where it stands today and not a lot of hope of that changing unless some of these states push it to the Supremes.
 
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Texas thanks for posting that, and it is what I thought. We need to wake up, what would be the next step if one was to challenge this? What keeps them from saying in the next "act" no firearm, post 2010, can be sold to a civilian. May not seem like a big deal till 10 years down the road and a Glock 19 sets you back $10,000.

What got me thinking about this is what runs through every other class 3 potential purchaser when they start hunting for a firearm. Cost me $23,000 for a out of date M16 and the government can buy them new by the case at cost. That to me would seam to be a right we ought to have, even if it does come with a heavy background check and tax stamp.

Seams like its time to drop the NRA unless they can start stepping up to the plate.
 
[1] Machine guns weren't at issue in Heller.

[2] A positive ruling in Heller, such as we got, indeed paves the way for a challenge to the Hughes Amendment. But it's very expensive to pursue this sort of litigation, so it becomes a question of setting priorities. The various groups involved are tackling other things first, like incorporation to apply the 2nd Amendment to the states, then draconian anti-gun laws such as in NYS, NYC, Illinois, etc. Arguably those matters affect more people.

[3] Given the general public attitude toward fully automatic weapons and the current political climate., dumping the Hughes Amendment politically is probably a non-starter. It will take a court decision.

[4] As mentioned, that money currently available for 2nd Amendment litigation seems to being spent on other, broader, RKBA issues.

[5] But the courts are open to anyone, so if you have an extra few million dollars and want to take this up, feel free.
 
The problem with that Nate is that the NRA is all we have. Like everything else run by humans, it is imperfect, has waste, makes mistakes, and everything else that humans do. You can't hold it to a standard that none of us can hold to ourselves. People view the NRA as this behemoth that moves as one unit, but it isn't so. There are the top decision makers (who are of course fallible and make mistakes sometimes), but much of the real work is done at the state and local level. I used to think like you back in 90s, but after since being involved with GA and doing the NRA shows I've seen that the NRA is just a bunch of regular guys who choose to work at a job to defend our gun rights. If you subscribe to their emails, you'll see how many rabid politicians try to use our gun rights as a stepping stone to election and re-election. All kinds of local stuff happens, and who shows up, the NRA, with lawyers, advertising, grass roots campaigns, and most importantly, something that nobody else ever does...

100% complete follow through.

If the anti-gunners win one, it is because they pried it from the NRA's cold dead hand.

There are going to be political concessions that the NRA has to make, because traditionally our voting base is made up of more moderate "hunters" and other one gun owners than enthusiasts. I believe this is changing with the CCW movement and that we may have a more passionate voting block in the future. We blew it during the W years when we had a republican congress. We could have passed a gun rights clarification amendment that boldy stated that gun ownership was an individual right that shall not be infringed, but we didn't. I tried to get traction, but all I heard was no we can't, because the hunters won't vote for it in the state votes.

I am personally an NRA life member, and rather than give them lots of cash (besides the 20k that the NRA show costs us) I use GA's traffic and customer base to get people to join. We did a sell your gun for free campaign last year that was very successful and we got thousands of people to register. I hope to do the same thing for this year's NRA show.

I strongly urge everyone to visit http://www.insureyourgunrights.com
and invest a little in the NRA. It is important to our long term freedom to do it now, and get involved. Then make someone else a shooter, a passionate shooter who loves America, Freedom, and Guns.
 
Seams like its time to drop the NRA unless they can start stepping up to the plate.

And then what? The problem is that the pro gun movement has seen BIG progress in the last few years. It's a slow movement, very slow.

But, we've seen concealed carry move forward all over the place. We've seen Castle Doctrine things that contain lots of provisions for gun ownership in many states. We've seen Heller, and soon MacDonald and these are HUGE wins.

NRA has been right there in the middle of them.

Machine guns have always been, and will always be, on the fringe of gun ownership. Even before '86 there wasn't much going on in that world and it was kind of ignored by the gun community. Even then most people believed MG's illegal at all.

So, if there is progress to be made on Hughes it will come AFTER all these other fights are won.

Can't abandon the NRA and other groups over this now, what we need to do is remind them that in exchange for our support now they MUST address this after the big wins ahead of us.

IMO the NRA has become another AARP and can only see the "Profit Line" of the their business plan.

And I'll ask the question I always ask.... "What other group should we give our support to? What other group has made any progress at all?" Show me one and I'll be glad to jump on board.

GOA? Nope, they haven't been part of any significant legal moves, and politicians have said they hold limited sway over their votes. That's just reality, not GOA bashing.
SAF? Well, since they work with NRA pretty much constantly they are worthy of support, but they are for the most part on the legal side only, not the lobby side.
AHSA? LOL Yeah right.....

Like it or not NRA is the big dog. Members need to be heard, that's what is missing. Most gun owners are perfectly happy to sit there and send their $35 a year or whatever to NRA as long as their hunting shotgun is safe. Unless the majority of gun owners somehow miraculously get a clue, it's going to stay difficult.
 
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Some things to consider --

[1] The NRA is the most effective RKBA organization. They have the largest membership of any of them, and they do the best that they can with that membership base. Politics is strictly a numbers game. If the NRA had more members, it could be that much more effective. And those folks who complain about the NRA's so called failures need to tell us who did, or could have, actually accomplished more.

[2] Facts of political life -- politicians don't listen to individual voters and they don't listen to or care much about reason. They care about numbers. One hundred phone calls or letters in support of or against something are better than 10. Ten thousand would be a lot better yet. It doesn't matter what the caller or writer says is the reason to support or oppose the thing. All that matters is the number on each side of the question.

[3] An NRA with 4 million members gets attention. An NRA with 5 million will get more, and an NRA with 10 million members could get some real serious attention. As annoying as the NRA can be, it's in our interests to see it grow and prosper.

[4] Politicians aren't swayed by fine arguments, logical demonstrations or even facts. They are swayed by how many voters (and potential voters and contributors) line up on each side of the question. They are influenced by political and economic power.

[5] Given all that, the NRA does what it reasonably can do in the political climate in which it operates. It can not perform magic. Under the right circumstances, it can, and has, effectively moved affirmative pro-RKBA legislation (like the law protecting gun makers from frivolous law suits and the National Park carry legislation). And sometimes it can block legislation we don't like. But sometimes the political deck is so stacked against our interests, the best we can reasonably expect the NRA to be able to do is help make the best of a bad situation.

[6] It's fine to talk about "no compromise." But remember that he who insists on all or nothing gets nothing. If the votes aren't there they aren't there.

[7] The NRA is at the forefront of shooter education and safety training. Their program for certifying instructors in a variety of disciplines helps make competent training more readily available to the public. And their "Refuse to be a Victim" program is excellent.
 
And I'll ask the question I always ask.... "What other group should we give our support to? What other group has made any progress at all?" Show me one and I'll be glad to jump on board.

Cato Institute

They started the Heller case, which was initially opposed by the NRA. The NRA did not think it could be won. It was not until later and success was more evident that the NRA began to support the case.

Cato is much broader than the NRA, but I believe they have a great influence on many things related to personal safety and firearms. I am a Cato member.
 
Cato is much broader than the NRA, but I believe they have a great influence on many things related to personal safety and firearms. I am a Cato member.

Cato is a great organization but they can't lobby at either the Federal or State level so that limits them a great deal as far as gun legislation goes. I'm a member too, great organization.
 
As a matter of interest, for all its clout and membership, the NRA still did not make the Top 100 Lobby Groups here:

And did you read how they arrive at those numbers? Based on Federal lobbying ONLY. They do not take into account any lobbying done at the state level.

So be careful how you interpret their information.
 
[5] But the courts are open to anyone, so if you have an extra few million dollars and want to take this up, feel free.

Or start a legal fund for it. If 100k people (I think that's about how many transferrable MGs are on the books) contribute $50 you've got a $5 million legal fund to get started. I'd definitely contribute that much or more, and I'm totally broke by typical NFA-owner standards :)

The Hughes amendment was passed on such shady terms (middle of night, waited until pro rkba guys went home, unrecorded voice vote, some felt the nays had it), I'd just be curious to see how it would really do with the lights on and both sides present to argue their case.
 
And did you read how they arrive at those numbers? Based on Federal lobbying ONLY. They do not take into account any lobbying done at the state level. So be careful how you interpret their information.

I wasn't criticizing, to the contrary. Just pointing out how there are many other organizations out there with the ability to spend bigger bucks on lobbying.
 
I wasn't criticizing, to the contrary. Just pointing out how there are many other organizations out there with the ability to spend bigger bucks on lobbying.

Oh sure, just wanted to make sure people reading it understood what it was saying.

Yeah we're a drop in the bucket money wise, the gun people
 
fiddletown said:
[3] Given the general public attitude toward fully automatic weapons and the current political climate., dumping the Hughes Amendment politically is probably a non-starter. It will take a court decision.

No doubt about it.

fiddletown said:
[4] Politicians aren't swayed by fine arguments, logical demonstrations or even facts. They are swayed by how many voters (and potential voters and contributors) line up on each side of the question. They are influenced by political and economic power.

No doubt about this, either. It's a sad commentary but true none the less.

fiddletown said:
[5] Given all that, the NRA does what it reasonably can do in the political climate in which it operates. It can not perform magic. Under the right circumstances, it can, and has, effectively moved affirmative pro-RKBA legislation (like the law protecting gun makers from frivolous law suits and the National Park carry legislation). And sometimes it can block legislation we don't like. But sometimes the political deck is so stacked against our interests, the best we can reasonably expect the NRA to be able to do is help make the best of a bad situation.

[6] It's fine to talk about "no compromise." But remember that he who insists on all or nothing gets nothing. If the votes aren't there they aren't there.

That said, there still needs to be enough of us on a no compromise stand lest we end up years from now still in limbo, having to jump through hoops to keep and bear arms; still vulnerable to despotic dictatorial tyrants; and still subject to the same scrutiny as every violent criminal who has been prematurely released from prison who attempts to buy a new gun.

Woody

There is a current wave of freedom being expressed in this great country of ours. We can join that wave in the political arena now or be forced to join it on the battlefield later. B.E. Wood
 
Well regulated did not mean then what most politicians want you to think it means now. It meant (paraphrasing) to keep regular. In particular across state lines.

The ban is I think TOTALLY unconstitutional. I'm guessing that the 1934 date was just a way to 'grandfather' in the old stuff so they didn't have to get into confiscation issues that would have brought it before the courts to be challenged.

Having said all of that, I don't particularly want to be the test case, especially during this administration.

actually the words "well regulated" means well trained. if you look at basically all federal records and even work wrote by the founding fathers of that time they use it in that way. I wrote long paragraph about this probably last year but instead of redoing it I will copy another web site that says the same.

they have had 200 years to spin the meaning of the words so it is time people look what they originally meant. if it becomes common knowledge of what the words mean, even if just for gun enthusiasts it makes the anti's job much harder.

http://www.guncite.com/gc2ndmea.html

Well Regulated

The Random House College Dictionary (1980) gives four definitions for the word "regulate," which were all in use during the Colonial period and one more definition dating from 1690 (Oxford English Dictionary, 2nd Edition, 1989). They are:

1) To control or direct by a rule, principle, method, etc.

2) To adjust to some standard or requirement as for amount, degree, etc.

3) To adjust so as to ensure accuracy of operation.

4) To put in good order.

[obsolete sense]

b. Of troops: Properly disciplined. Obs. rare-1.

1690 Lond. Gaz. No. 2568/3 We hear likewise that the French are in a great Allarm in Dauphine and Bresse, not having at present 1500 Men of regulated Troops on that side.

We can begin to deduce what well-regulated meant from Alexander Hamilton's words in Federalist Paper No. 29:

The project of disciplining all the militia of the United States is as futile as it would be injurious if it were capable of being carried into execution. A tolerable expertness in military movements is a business that requires time and practice. It is not a day, nor a week nor even a month, that will suffice for the attainment of it. To oblige the great body of the yeomanry and of the other classes of the citizens to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well regulated militia, would be a real grievance to the people and a serious public inconvenience and loss.
--- The Federalist Papers, No. 29.

Hamilton indicates a well-regulated militia is a state of preparedness obtained after rigorous and persistent training. Note the use of 'disciplining' which indicates discipline could be synonymous with well-trained.

This quote from the Journals of the Continental Congress, 1774-1789 also conveys the meaning of well regulated:

Resolved , That this appointment be conferred on experienced and vigilant general officers, who are acquainted with whatever relates to the general economy, manoeuvres and discipline of a well regulated army.
--- Saturday, December 13, 1777.

In the passage that follows, do you think the U.S. government was concerned because the Creek Indians' tribal regulations were superior to those of the Wabash or was it because they represented a better trained and disciplined fighting force?

That the strength of the Wabash Indians who were principally the object of the resolve of the 21st of July 1787, and the strength of the Creek Indians is very different. That the said Creeks are not only greatly superior in numbers but are more united, better regulated, and headed by a man whose talents appear to have fixed him in their confidence. That from the view of the object your Secretary has been able to take he conceives that the only effectual mode of acting against the said Creeks in case they should persist in their hostilities would be by making an invasion of their country with a powerful body of well regulated troops always ready to combat and able to defeat any combination of force the said Creeks could oppose and to destroy their towns and provisions.
--- Saturday, December 13, 1777.

I am unacquainted with the extent of your works, and consequently ignorant of the number or men necessary to man them. If your present numbers should be insufficient for that purpose, I would then by all means advise your making up the deficiency out of the best regulated militia that can be got.
--- George Washington (The Writings of George Washington, pp. 503-4, (G.P. Putnam & Sons, pub.)(1889))

The above quote is clearly not a request for a militia with the best set of regulations. (For brevity the entire passage is not shown and this quote should not be construed to imply Washington favored militias, in fact he thought little of them, as the full passage indicates.)

But Dr Sir I am Afraid it would blunt the keen edge they have at present which might be keept sharp for the Shawnese &c: I am convinced it would be Attended by considerable desertions. And perhaps raise a Spirit of Discontent not easily Queld amongst the best regulated troops, but much more so amongst men unused to the Yoak of Military Discipline.
--- Letter from Colonel William Fleming to Col. Adam Stephen, Oct 8, 1774, pp. 237-8. (Documentary History of Dunmore's War, 1774, Wisconsin historical society, pub. (1905))

And finally, a late-17th century comparison between the behavior of a large collection of seahorses and well-regulated soldiers:

One of the Seamen that had formerly made a Greenland Voyage for Whale-Fishing, told us that in that country he had seen very great Troops of those Sea-Horses ranging upon Land, sometimes three or four hundred in a Troop: Their great desire, he says, is to roost themselves on Land in the Warm Sun; and Whilst they sleep, they apppoint one to stand Centinel, and watch a certain time; and when that time's expir'd, another takes his place of Watching, and the first Centinel goes to sleep, &c. observing the strict Discipline, as a Body of Well-regulated Troops
--- (Letters written from New-England, A. D. 1686. P. 47, John Dutton (1867))

The quoted passages support the idea that a well-regulated militia was synonymous with one that was thoroughly trained and disciplined, and as a result, well-functioning. That description fits most closely with the "to put in good order" definition supplied by the Random House dictionary. The Oxford dictionary's definition also appears to fit if one considers discipline in a military context to include or imply well-trained.

What about the Amendment's text itself? Considering the adjective "well" and the context of the militia clause, which is more likely to ensure the security of a free state, a militia governed by numerous laws (or the proper amount of regulation [depending on the meaning of "well"] ) or a well-disciplined and trained militia? This brief textual analysis also suggests "to put in good order" is the correct interpretation of well regulated, signifying a well disciplined, trained, and functioning militia.

And finally, when regulated is used as an adjective, its meaning varies depending on the noun its modifying and of course the context. For example: well regulated liberty (properly controlled), regulated rifle (adjusted for accuracy), and regulated commerce (governed by regulations) all express a different meaning for regulated. This is by no means unusual, just as the word, bear, conveys a different meaning depending on the word it modifies: bearing arms, bearing fruit, or bearing gifts.
 
Like it's been discussed before, the best chance to repeal/modify the Hughes amendment would be for something to be added deep down into an upcoming piece of legislation.
 
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