Looking for some 2A info on prohibited firearms/ordinance

[Joeh]

Mostly just for my own amusement/personal knowledge.

Up front, I know that we have some limitations on ownership of certain firearms (NFA and US v Miller, etc).


My question is, why? I'm looking through everything I can find to locate where a decision was made, referencing where or how these weapons/ordinance falls outside the protection of the 2A.

• I have found references in US v Miller about how there was no evidence presented that proved a reasonable relationship between a sawed off shotgun and preservation of a militia.
• I have found in DC v Heller where they reference Miller: "It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for . . . military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [shortbarreled shotgun] 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.” 307 U. S., at 178 (emphasis added). “Certainly,”the Court continued, “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.”

All I can seem to locate is where people have violated the NFA, and then court decisions upholding the rulings, but never an explanation of why.


So, then my question is, where, why and how are we prevented from privately owning automatic arms or ordinance, other than by the NFA? Heller makes clear mention in the passage I noted that it wasn't the fact that the firearm was being used for non-military purposes, but it was the type of firearm at use.



I can't seem to wrap my head around why private ownership of ordinance or automatic firearms would be any different from private ownership of semi-automatic firearms.

A list of cases I am in the process of familiarizing myself with:

• The National Firearms Act of 1934
• The Federal Firearms Act of 1938
• The Gun Control Act of 1968
• The "Law Enforcement Officers Protection Act" of 1986
• The controversial Hughes Amendment of the Firearm Owner's Protection Act of 1986
• The Crime Control Act of 1990
• The Brady Bill of 1994
• The Violent Crime Control and Law Enforcement Act of 1994

Unfortunately, wikipedia doesn't usually provide too much information on the reasoning behind the bills. For example, the NFA wiki states that the purpose was to 'regulate what were considered 'gangster weapons' such as machine guns and short barreled shotguns', but no other real decision information other than what is covered. Or, as another example in the excerpt from DC v Heller where they discuss the firearm not being a type of firearm that is covered by the 2A. WHY is that weapon not covered? Where was the decision made that the only firearms citizens are allowed to privately own are those that are in conjunction with normal military equipment, or that it can contribute to the efficiency of a military/militia, and if that is truly what they ruled, then why are we still prohibited from ownership of actual ordinary military equipment?


Maybe what I'm really looking for is a court ruling or decision regarding the 2A as, in fact, subject to these types of restrictions, and why they interpreted it that way.

Does anything like this exist, or am I pipe-dreaming hoping to find it? If this would better be suited for a private message with someone who is correctly versed in 2A legalese, I'd be happy to talk with someone there as well.

Thanks all!

 

[Werewolf]

In short the NFA of 1934 was clearly unconstitutional and was ruled so by lower courts before getting to SCOTUS.

Unfortunately by the time in 38 or 39 when the Miller case got to SCOTUS he was no where to be found and the attorney of record didn't feel obligated to go to DC and plead his case.

Thus the US attorney representing the United States could pretty much say what ever he wanted to the justices without rebuttal from the defense - AND - he did.

Miller lost at the SCOTUS level and that was the event that lead to where we are today vis 'e vie all the gun control laws we are currently subject to.

What a system. One case whose ruling was based on facts that weren't because no one was there to rebutt the prosecution and almost 75 years of liberty stolen as a result.

 

[n8thegr8]

ALL gun control laws are unconstitutional, but the fact that these laws persist and grow are pretty good evidence that you'll never get rid of them on a constitutional basis, and certainly won't get enough public support repealing them. I went to google "repeal NFA" the other day, and after I typed "repeal", the top two auto-complete results were for "repeal 2nd amendment" and "repeal second amendment"...pretty scary right there...

 

[Joeh]

In short the NFA of 1934 was clearly unconstitutional and was ruled so by lower courts before getting to SCOTUS.

Unfortunately by the time in 38 or 39 when the Miller case got to SCOTUS he was no where to be found and the attorney of record didn't feel obligated to go to DC and plead his case.

Thus the US attorney representing the United States could pretty much say what ever he wanted to the justices without rebuttal from the defense - AND - he did.

Miller lost at the SCOTUS level and that was the event that lead to where we are today vis 'e vie all the gun control laws we are currently subject to.

What a system. One case whose ruling was based on facts that weren't because no one was there to rebutt the prosecution and almost 75 years of liberty stolen as a result.

This is getting close to what I'm looking for! Thanks! Please see my follow ups below.

ALL gun control laws are unconstitutional, but the fact that these laws persist and grow are pretty good evidence that you'll never get rid of them on a constitutional basis, and certainly won't get enough public support repealing them. I went to google "repeal NFA" the other day, and after I typed "repeal", the top two auto-complete results were for "repeal 2nd amendment" and "repeal second amendment"...pretty scary right there...

Although my personal opinions are very similar, I'm doing my best to remain impartial to the argument. Rather than looking at it as a 'I need to find out a way to repeal all these unconstitutional laws', I am looking at it as a sort of research project. Why were these laws put into place to begin with. If they were clearly unconstitutional at the time, why were they still passed? What reasoning did they have for doing it, and why did no one challenge it? If it has been challenged, and is still clearly unconstitutional, why is it not repealed?
_________________________________________________________________

I've been doing more reading and have a few more things that I've drummed up:

Precursor: I realize that wikipedia is not the place for defining legal opinions, but I'm not sure where else I can look?

I just seem to be coming across a lot of conflicting court opinions when it comes to firearm case law. For example, in the Miller case, there is an excerpt that seems to be the gist of the decision:

"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."

But, it seems like Heller v DC and the SCOTUS ruling on that conflicts this information:

(1) The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2–53.

(f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U. S. 542 , nor Presser v. Illinois, 116 U. S. 252 , refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174 , does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47–54.

The NFA wiki page has a section talking about:

No evidence that such a firearm was "ordinary military equipment" had been presented at the trial court [...]

and yet somehow they ended up at

the Supreme Court reversed the District Court and held that the NFA provision (criminalizing possession of certain firearms) was not violative of the Second Amendment's restriction and therefore was not unconstitutional.


I just don't get it I guess?

First they want a relationship to the preservation or efficiency of a well regulated milita, despite that not being (and conceded as such, later in the Heller case) the sole reason for the 2A.

Then, they say that the limits that are enforced are those firearms that are in common use for lawful purposes. So, wouldn't we be covered under everything that is used for current military purposes (i.e. full automatic firearms, tanks, ordinance ) since they are used on a daily basis? Especially considering the NFA itself references "ordinary military equipment " as being the starting point for something that should be banned.

Hell, I was even reading one decision that specifically stated they were defining the word arms, which as far as I've found states:

arms plural of arms (Noun)
Noun

*Weapons and ammunition; armaments: "they were subjugated by force of arms".
*Distinctive emblems or devices, forming the heraldic insignia of families, corporations, or countries.

When reading 'armaments' you get:
armaments plural of ar·ma·ment (Noun)
Noun

*Military weapons and equipment: "chemical weapons and other unconventional armaments".
*The process of equipping military forces for war.


Even then they aren't making any sense, as it's clearly a part of the definition of arms, military weapons and equipment are included.

Forgive my ignorance on the subject. I'm not a trained lawyer, and I don't think I'll be learning a hundred years worth of 2A case law in just a few days, but this type of contradiction, or grey area, seems to be the norm everywhere I look. I've always been very interested in law, but it's only been recently that I've really wanted to find out how all of these decisions were made.

Apologies for the long post.

 

[tweetr]

Werewolf's answer is excellent. N8thegr8 is correct. I would add:

The Supreme Court (and all lower courts, and all legislatures) itself does not correctly or consistently apply its own reasoning when it refers to Miller. The written reason the Court upheld the 1934 NFA is that Miller's short-barreled shotgun was not a military weapon (false though that claim is.) By that reasoning the Court would have to strike down all restrictions against keeping and bearing fully automatic firearms, as those demonstrably are military weapons, as it also would have to strike down other provisions of the NFA that do restrict military weapons (such as the Thompson submachine gun that started the whole thing with the St. Valentine's Day massacre!)

The objective mind has to conclude therefore that the courts and legislatures merely and lawlessly apply whatever specious reasoning they think necessary to arrive at the desired conclusion. For supporting evidence cross reference e.g. John Roberts' specious opinion upholding the manifestly unconstitutional Affordable Care Act.

 

[Joeh]

Werewolf's answer is excellent. N8thegr8 is correct. I would add:

The Supreme Court (and all lower courts, and all legislatures) itself does not correctly or consistently apply its own reasoning when it refers to Miller. The written reason the Court upheld the 1934 NFA is that Miller's short-barreled shotgun was not a military weapon (false though that claim is.) By that reasoning the Court would have to strike down all restrictions against keeping and bearing fully automatic firearms, as those demonstrably are military weapons, as it also would have to strike down other provisions of the NFA that do restrict military weapons (such as the Thompson submachine gun that started the whole thing with the St. Valentine's Day massacre!)

The objective mind has to conclude therefore that the courts and legislatures merely and lawlessly apply whatever specious reasoning they think necessary to arrive at the desired conclusion. For supporting evidence cross reference e.g. John Roberts' specious opinion upholding the manifestly unconstitutional Affordable Care Act.

This sums up basically everything I've found, especially some of the things I pointed to in my previous post. It appears that they just give the run around until people are either confused enough, or they say "don't worry about it, it's just how it's going to be". They give reasons, that when applied, still prohibit private ownership of firearms that are, in fact, in common lawful use today.

I guess I will resign to knowing that the future of the 2A is in the hands of some people who can't keep track of their own rulings.

 

[skycitadel]

This guy in the following link is an excellent constitutional scholar. I believe he even wrote some briefs that helped with the recent Supreme Court rulings in gun rights favors. You might be able to find the info you need on his site.

http://onsecondopinion.blogspot.com/

 

[tweetr]

It looks like we posted almost simultaneously! For further study, consider the internal inconsistency of the Miller reasoning as you quoted above:

"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."

There are so many glaring problems with this reasoning that it is hard to decide where to begin! Even if you grant the "nominative absolute" argument with respect to the first clause of the Second Amendment (and I see no reason to dispute it), it still does not permit reasoning the Second Amendment in reverse. That would be: "If the arms in question question are not military arms, then the right of the people to keep and bear them may be infringed." Or, more generally: "If the people are not members of a well regulated militia, then their right to keep and bear arms may be infringed." This basically sums up the argument that the Second Amendment is not an individual right; and it is internally, gramatically, logically false.

But to this internal argument we further add the clear language of the Ninth Amendment to find that the Second Amendment, like all of the bill of rights, must be construed in every case as broadly as possible to protect the unnamed rights of the citizens, for the Ninth Amendment makes clear that the bill of rights does not cover them all! Therefore, if the justices "cannot say that the Second Amendment guarantees", then they still must overrule any legislation that encroaches into an unclear area! This, then, is further bolstered by the clear language of the Tenth Amendment which specifies that the power of the federal government must be construed as narrowly as possible, while that of the States and the People must be construed as broadly as possible. There simply is no Constitutional argument to support a narrow interpretation of the Second Amendment.

 

[Joeh]

It looks like we posted almost simultaneously! For further study, consider the internal inconsistency of the Miller reasoning as you quoted above:



There are so many glaring problems with this reasoning that it is hard to decide where to begin! Even if you grant the "nominative absolute" argument with respect to the first clause of the Second Amendment (and I see no reason to dispute it), it still does not permit reasoning the Second Amendment in reverse. That would be: "If the arms in question question are not military arms, then the right of the people to keep and bear them may be infringed." Or, more generally: "If the people are not members of a well regulated militia, then their right to keep and bear arms may be infringed." This basically sums up the argument that the Second Amendment is not an individual right; and it is internally, gramatically, logically false.

But to this internal argument we further add the clear language of the Ninth Amendment to find that the Second Amendment, like all of the bill of rights, must be construed in every case as broadly as possible to protect the unnamed rights of the citizens, for the Ninth Amendment makes clear that the bill of rights does not cover them all! Therefore, if the justices "cannot say that the Second Amendment guarantees", then they still must overrule any legislation that encroaches into an unclear area! This, then, is further bolstered by the clear language of the Tenth Amendment which specifies that the power of the federal government must be construed as narrowly as possible, while that of the States and the People must be construed as broadly as possible. There simply is no Constitutional argument to support a narrow interpretation of the Second Amendment.

You pretty much posted what's been in my head all along. There does not seem to be a constitutional argument to support an interpretation of the Second Amendment in any way other than that it shall not be legislated against.

Which, brings me to the part that bothers me the most. If an average Joe like me can reach this position through reason, why does it appear that the individuals tasked with protecting these rights cannot also accomplish this task? Is it to the point that I am simply to believe that those elected officials are 'smarter' than I am, and thus can deduce a logical path that supports the end result? Following that, why has the SCOTUS not revisited this issue, reviewing the previous decisions, and revised their position to one that makes legal sense, especially in light of recent events and the potential for incredulous unconstitutional state legislation against the 2A? Why would they simply wait for more ridiculous, over-reaching, legislation to be passed through congress and made to law, knowing that it would be considered unconstitutional? Is this not the purpose of the checks and balances that our government claims to have?

 

[Werewolf]

Which, brings me to the part that bothers me the most. If an average Joe like me can reach this position through reason, why does it appear that the individuals tasked with protecting these rights cannot also accomplish this task? Is it to the point that I am simply to believe that those elected officials are 'smarter' than I am, and thus can deduce a logical path that supports the end result? Following that, why has the SCOTUS not revisited this issue, reviewing the previous decisions, and revised their position to one that makes legal sense, especially in light of recent events and the potential for incredulous unconstitutional state legislation against the 2A? Why would they simply wait for more ridiculous, over-reaching, legislation to be passed through congress and made to law, knowing that it would be considered unconstitutional? Is this not the purpose of the checks and balances that our government claims to have?

Please don't take this the wrong way nor am I being facetious...

BUT:

Your error is that you are laboring under the assumption that the current batch of elected representatives, senators and those appointed to the SCOTUS actually give a rat's behind about our rights, the law and the constitution and think and speak to reason and logic. Those folks could care less about any of the aforementioned concerns. What they care about is getting re-elected. They do that by pandering to the masses and the majority of the masses respond more to emotional rhetoric and almost not at all to logic and reason. That has not always been the case but it has been for at least the last 50 years in an ever increasing downward spiral and will continue so until - well - just until.