Don't be a firearms elitists. "I am trained therefore only I can have one" I recall the immortal words of a DEA officer "I'm the only one in this room professional enough to have this gun" who then proceeds to bust a cap in his own leg
YouTube - DEA Agent Shoots Himself. Of course people should have training before they use a weapon, that is why I will administer it before giving one to someone, this is my responsibility not the government. You are advocating that I be punished because there are people you don't trust with a firearm. I've heard it all before "I support the background check because my cousins brothers uncles wife is crazy and I wouldn't want her to have a gun"
translation: "I know a crazy person so I will require you to prove your innocence before you can exercise your right"
Any hoops that one must jump through, any time someone must pass something or register something or do anything that can be used to prevent them from owning or purchasing a firearm is malum prohibitum and operates under the presumption of guilt, which is upside down to our legal philosophy and thus transforming a right directly into a privilege. Not to mention unconstitutional.
example: NFA '34
The government decided to restrict machine guns from the public as a direct result of the Bonus Army March in 1933, they blamed it on gansters and knowing a ban was unconstitutional, they opened a registry. "You can still have machine guns" they said "you just have to register them and pay a tax, that's all", and even thought the tax was the equivalent to the average 6 months salary the people went along with it. "It's not illegal to own or purchase a machine gun" they said "you simply have to register it and pay your due so your right to keep and bear arms is not being infringed". What they had done was put in place a mechanism for arbritrary denial and thus transform the right into a priveledge. No big deal though right? Everyone can still get one provided they have enough money and complete the registration process. That is until 1986 when they decided that they really didn't like people having machine guns after all and thus closed the registry, no more machine guns, ever. Machine guns just went extinct. What ever is in circulation now is all there will ever be. Checkmate.
example: ex-felon 2nd amendment rights restoration
Once a felon has done his time and is released he should have all right restored. Since the government does not grant your rights it cannot take them away, however it does have the authority to imprison you once convicted in a court of law thus separating you from exercising some of them through confinement. In a twist of the philosophy of liberty, we have assumed that the government actually removes your rights once convicted requiring you to have them reinstated upon release. You actually have to ask the government to give you your rights back and convince them that they should. There is a mechanism for doing this and many choose to reinstate their voting rights, however if you try and reinstated your 2nd amendment rights and buy a gun for self-defense, you are told "I'm sorry we just don't have the resources to facilitate that procedure". You are denied your right for rest of your life because we have let them turn it into a privilege.
Very perceptive. This is how the system really works. I had not made the connection with the Bonus March, although I was aware of movies like
Scarface, which called in the closing scene for outright lobbying of the Congress for laws against machine guns.
The standard answer for the petition for restoration of firearms rights after serving sentence is "we're sorry. Congress hasn't appropriated any money to process your application. Try again next year". You'll be told this the first time you meet your Probation Officer after release from incarceration. I know from experience.
The NFA and the Omnibus Crime bill of 1986 exist side by side. The NFA prohibits possession of an unregistered, ie., untaxed, machine gun, and the '86 law refuses receipt of the tax payment required to make such an unregistered machine gun registered and legal, and thus makes possession of an mg made after 1986 absolutely illegal for anyone not falling in the categories exempted in the law (primarily cops, though not necessarily).
Therefore one goes to jail for failure to pay a tax which the government refuses to accept. Marvelous system. The US Attorney's answer for such an inherent conflict in the statutes is "Don't have machine guns". You can still register short barreled rifles and shotguns and most other NFA weapons.
All of this begs the question of whence do they derive the authority to tax NFA weapons. "On the pattern of the Harrison Act" Attorney General Cummings said in 1934 before the House Ways and Means Committee, referring to the enabling legislation which initiated the War on Drugs in (I believe) 1916, using the novel approach of the Commerce Clause as authority. Remember, previously, alcohol prohibition was thought to require a Constitutional Amendment. But, one might say, arms are protected by the Second Amendment, and drugs are not. Further, if you read the preamble to the Bill of Rights, which was adopted
after the Commerce Clause, the Bill of Rights "in order to prevent misconstruction or abuse of its powers, [the State Conventions desired] that further declaratory and restrictive clauses should be added". The Second Amendment says the RTKBA "shall not be infringed". Period. If a poll tax is an infringement on the right to vote, how can a firearms tax not be an infringement on the RTKBA?
The SCOTUS, prior to the awful
Heller decision, would only go so far to say in
Miller (1939) that Miller's conviction under the NFA could not be definitively thrown out because no evidence had been introduced into the trial record that a short barrel shotgun, the weapon in question, was useful as a Militia weapon, in spite of the purchase of some 59,000 of them by the US Government for service in the (First) World War. The Germans even filed a complaint about their use by the US in trench warfare with the international authorities at the Hague (the Netherlands were neutral in WW1). When you get right down to it
Miller is mere
dicta when it comes to anything other than a short barreled shotgun. The
Miller case was remanded to the original jurisdiction for further evidentiary action, which never occurred, because Miller was dead and his codefendant pled guilty and received only a minor sentence. Nevertheless, the case has been used to justify all subsequent firearms law. The Congress knew they were on thin Constitutional ice when they passed the NFA, because they inserted a provision that if one or more sections of the law were declared unconstitutional, the remainder would be unaffected.
Perhaps Justice Scalia in
Heller is startled that the Second Amendment would protect machine guns because he has never read
Miller. The then Solicitor General of the US, Mr. Clement, apparently has, for in the oral arguments for
Heller he made this statement:
***GENERAL CLEMENT: Well, Justice Scalia, I think our principal concern based on the parts of the court of appeals' opinion that seemed to adopt a very categorical rule were with respect to machine guns, because I do think that it is difficult -- I don't want to foreclose the possibility of the government, Federal Government making the argument some day -- but
I think it is more than a little difficult to say that the one arm that's not protected by the Second Amendment is that which is the standard issue armament for the National Guard, and that's what the machine gun is. CHIEF JUSTICE ROBERTS: But this law didn't involve a restriction on machine guns.*** [emphasis added]
A Second Amendment case addressing these very arguments is currently before the Sixth Circuit on a habeas corpus appeal. It is
Hamblen vs. the United States. You can read the current filings
here. The case was denied cert by the SCOTUS in favor of
Heller.
Hamblen and
Heller were presented to the Court at the same time in 2007. General Clement's remark above is proof that the DOJ and the Court knew exactly the conclusion this case would lead to. We are up on a habeas appeal granted by the trial judge who said:
"The Court concludes that Petitioner [Hamblen] has made a substantial showing of the denial of a constitutional right as to his Second Amendment claim, and reasonable jurists could find the Court's assessment of the constitutional claim debatable."
This case is going forward. It is not just about Guns. It is about whether the Constitution is the Supreme Law of the Land, and the lengths to which the government will go to avoid answering fundamental Constitutional questions which challenge their agenda. Readers of this post need to help spread the word and make others aware of this case.
