“Why carry a gun? Because a policeman is too big.” - -Jas, Elkhart, Indiana [timesonline.co.uk]-________________________________________________________
OUR RIGHT TO BEAR ARMS
Including famous shooters; hunters; victims of gun violence; understanding what has shaped our current gun laws; whether gun laws are insufficient or have gone too far; gun politics; and interpretations of our second amendment rights by the Supreme Court.
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Annie Oakley
From Wikipedia, the free encyclopedia
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Annie Oakley
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 A late 19th century photo of Annie Oakley
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November 3, 1926 (aged 66)
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Annie Oakley (born Phoebe Ann Mosey August 13, 1860 – November 3, 1926) was an American sharpshooter and exhibition shooter. Oakley’s amazing talent and timely rise to fame led to a starring role in Buffalo Bill’s Wild West show, which propelled her to become the first American female superstar. She died of Pernicious Anaemia aged 66, despite suffering with disease for many years.
Using a .22 caliber rifle at 90 feet (27 m), Oakley reputedly could split a playing card edge-on and put five or six more holes in it before it touched the ground.
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The meaning of the Second Amendment depends upon who you talk to. The National Rifle Association, which has the Second Amendment (minus the militia clause) engraved on its headquarters building in Washington, insists that the Amendment guarantees the right of individuals to possess and carry a wide variety of firearms. Advocates of gun control contend that the Amendment was only meant to guarantee to States the right to operate militias. The Supreme Court could easily resolve this debate, but ever since the cryptic decision of U. S. vs. Miller in 1939, the Court has ducked the issue.
Miller is subject to two possible interpretations. One, that the Second Amendment is an individual right, but that the right only extends to weapons commonly used in militias (the defendants in Miller were transporting sawed-off shotguns). The second–broader–view of Miller is that the Amendment guarantees no rights to individuals at all.
There is also a second open question concerning the Second Amendment: If it does create a right of individuals to own firearms, is the right enforceable against state regulation as well as against federal regulation? In 1876, the Supreme Court said the right–if it existed–was enforceable only against the federal government, but there’s been a wholesale incorporation of Bill of Rights provisions into the 14th Amendment since then, and it’s not clear that the Court would come to the same conclusion today. In Quilici vs Morton Grove, a case involving a challenge to a Chicago suburb’s ban on the possession of handguns, the Seventh Circuit concluded that the right was not enforceable against the states.
In 2007, the D. C. Court of Appeals, in Parker v District of Columbia, struck down a Washington, D.C. ban on individuals having handguns in their homes. With its 2 to 1 ruling, the D. C. Circuit became the nation’s second court of appeals (following the Fifth Circuit) to find that the Second Amendment creates an individual right to own firearms. Most other circuits courts had concluded the Second Amendment protects only the rights of states to maintain militias. The split in the circuits suggested that the time was finally be ripe for another Supreme Court decision on the issue. The Supreme Court granted cert in the fall of 2007 (the case has been re-named District of Columbia v Heller) and a decision is expected in June 2008.
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Gun politics in the United States
From Wikipedia, the free encyclopedia
Gun politics in the United States, incorporating the political aspects of gun politics, and firearms rights, has long been among the most controversial and intractable issues in American politics. For the last several decades, this debate has been characterized by stalemate between debate on an individual’s right to firearms under the Constitution and the duty of government to legislate gun laws to prevent crime and maintain order. In District of Columbia v. Heller, No. 07-290, the Supreme Court of the United States held that an individual right to bear arms is protected under the Second Amendment. Repeated polling has found that a majority of Americans believe that they have a right to own a gun while at the same time a majority also believes that there is a need for stricter firearm law enforcement. Relative to enacting new gun laws, however, the support drops to a minority; only 43 percent believe new laws would be more effective in reducing gun violence in the United States than the better enforcement of existing laws.
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Gun culture
In a seminal article, America as a Gun Culture, the noted historian Richard Hofstadter popularized the phrase gun culture to describe America’s long affection for the gun, embracing and celebrating the association of guns and America’s heritage. Thus, the right to own a gun and defend oneself is considered by some, especially those in the West and South, as central to the American identity. This stems in part from the nation’s frontier history, where guns were integral to America’s westward expansion, enabling settlers to guard themselves from Native Americans, animals and foreign armies, and citizens assumed much responsibility for self-protection. The importance of guns also derives from the role of hunting in American culture, which remains popular as a sport in the country today.
This viewpoint has the least support in urban and industrialized regions. A cultural tradition conflating violence and gun ownership with the “redneck” stereotype has negatively affected opinions in such regions.
In 1995, the Bureau of Alcohol, Tobacco, and Firearms estimated that the number of firearms available in the US was 223 million. About 25% of the adults in the United States personally own a gun, the vast majority of them men. About half of the adult U.S. population lived in households with guns. Less than half of gun owners say that the primary reason they own a gun is for self-protection against crime, reflecting a popularity of hunting and sport-shooting among gun owners. As hunting and sport-shooting tends to favor rural areas, naturally the bulk of gun owners generally live in rural areas and small towns. This attribute associates with low involvement in criminal violence, and therefore most guns are in the hands of people who are unlikely to misuse them and who tend to not have criminal records.
Guns are prominent in contemporary U.S. popular culture as well, appearing frequently in movies, television, music, books, and magazines.
Origins of gun culture
The origins of American gun culture trace back to the American Revolutionary War, hunting/sporting ethos and the militia/frontier ethos that draw from the country’s early history.
Calamity Jane, notable pioneer frontierswoman and scout, at age 43. Photo by H.R. Locke.
The hunting/sporting ethos has come from a time when the United States was an agrarian, subsistence nation where hunting was an auxiliary source of food for some settlers, and also a deterrence to animal predators. A connection between shooting skills and survival among rural American males was a ‘rite of passage’ for entering manhood. Today, hunting survives as a central sentimental component of the gun culture as a way to control animal populations across the country, regardless of the modern trend away from subsistence hunting and rural living.
The militia/frontier ethos derives from an early American dependence on wits and skill to protect themselves from hostile Native Americans and, rarely, from foreign armies. Survival depended upon everyone being capable of carrying a weapon. In the Eighteenth Century, there was neither budget nor manpower nor government desire to maintain a full time army, believing they were a threat to the rights of the civilian populace. Therefore the armed citizen soldier carried the responsibility. Service in militia, including providing one’s own ammunition and weapons, was mandatory for all adult males. Yet, as early as the 1790s, the mandatory universal militia duty gave way to voluntary militia units and a reliance on a regular army, with a decline of the importance of militia trend continuing throughout the Nineteenth Century.
Closely related to the militia tradition was the frontier tradition, with the westward movement closely associated with weaponry. In the Nineteenth Century firearms were closely associated with the westward expansion. Some historians believe that this perception that guns won the West springs from a mythology, and ignores the role of homesteaders, ranchers, miners, tradespeople and businessmen. In fact the so-called taming of the West was attributable to ranchers and farmers, not gun-slinging cowboys, though it must be noted that ranchers and farmers needed and used guns regularly for hunting and self defense. Regardless, today, there remains a powerful central elevation of the gun associated with the Hunting/Sporting and Militia/Frontier ethos among the American Gun Culture. Though it has not been a necessary part of daily survival for a long time, generations of Americans have continued to embrace and glorify it as a living inheritance—a permanent ingredient of the nation’s style and culture.
Guns in popular culture
The gun has long been a symbol of power and masculinity. In popular literature, frontier adventure was most famously told by James Fenimore Cooper, who is credited with creating archetype of the 18th-century frontiersman through such novels as “The Last of the Mohicans” (1826) and “The Deerslayer” (1840).
In the late 1800s, cowboy and Wild West imagery entered the collective imagination. The first American female superstar, Annie Oakley, was a sharpshooter who toured the country starting in 1885, performing in Buffalo Bill’s Wild West show. The cowboy archetype of individualist hero was established largely by Owen Wister in stories and novels, most notably “The Virginian” (1902), following close on the heels of Theodore Roosevelt’s “The Winning of the West” (1889-1895), a history of the early frontier. Cowboys were also popularized in turn of the century cinema, notably through such early classics as “The Great Train Robbery” (1903) and “A California Hold Up” (1906)–the most commercially successful film of the pre-nickelodeon era.
Gangsters films began appearing as early as 1912, but became popular only with the advent of sound in film in the 1930s. The genre was boosted by the events of the prohibition era, such as bootlegging and the St. Valentine’s Day Massacre of 1929, the existence of real-life gangsters (e.g., Al Capone) and the rise of contemporary organized crime and escalation of urban violence. These movies flaunted the archetypal exploits of “swaggering, cruel, wily, tough, and law-defying bootleggers and urban gangsters”.
With the arrival of World War II, Hollywood produced many morale boosting movies, patriotic rallying cries that affirmed a sense of national purpose. The lone image of the cowboy was replaced in these combat films by stories that emphasized group efforts and the value of individual sacrifices for a larger cause, often featuring a group of men from diverse ethnic backgrounds who were thrown together, tested on the battlefield, and molded into a dedicated fighting unit.
Guns frequently accompanied famous heroes and villains in late 20th century American films, from the outlaws of Bonnie and Clyde (1967) and The Godfather (1972), to the fictitious law and order avengers like Dirty Harry (1971) and Robocop (1987). In the 1970s, films portrayed fictitious and exaggerated madmen ostensibly produced by the Vietnam war in films like Taxi Driver (1976) and Apocalypse Now (1979), while other films told stories of fictitious veterans who were supposedly victims of the war and in need of rehabilitation (Coming Home and The Deer Hunter, both 1978). Many action films continue to celebrate the gun toting hero in fantastical settings. At the same time, the negative role of the gun in fictionalized modern urban violence has been explored in films like Boyz N the Hood (1991) and Menace 2 Society (1993).
History of gun politics
Revolutionary War
Gun politics as a political issue dates to the earliest days of the United States. (Lexington Minuteman representing militia minuteman John Parker. Statue is by Henry Hudson Kitson and it stands at the town green of Lexington, Massachusetts.)
Minutemen were members of teams of select men from the American colonial militia during the American Revolutionary War who vowed to be ready for battle against the British within one minute of receiving notice. On the night of April 18/April 19 1775, minuteman Paul Revere spread the news that “the regulars are coming”, but was captured before completing his mission when the British marched towards the arsenal in Lexington and Concord to collect the patriots’ weapons. The right to firearms was thus an issue in America from the very beginning.
Jacksonian Era
Painting of President Andrew Jackson based on 1824 study portrait by Thomas Sully.
The Jacksonian Era lasted roughly from President Andrew Jackson’s 1828 election until the slavery issue became dominant after 1850. French aristocrat Alexis de Tocqueville traveled in America early during this era, and
“according to Tocqueville, a distinguishing characteristic of American society in the 1830s, the era of Jacksonian democracy, was a pervasive spirit of individualism. The French commentator confessed that individualism was a novel term coined to capture a new idea.”
During this same period, some of the first gun control laws were passed in the United States, and, as a result, the Individual Right interpretation of the Second Amendment began and grew in direct response to these early gun control laws, in keeping with this new “pervasive spirit of individualism”. As noted by Cornell, “Ironically, the first gun control movement helped give birth to the first self-conscious gun rights ideology built around a constitutional right of individual self-defense.”
The Individual Right interpretation of the Second Amendment first arose in Bliss v. Commonwealth (1822, KY), which evaluated the right to bear arms in defence of themselves and the state pursuant to Section 28 of the Second Constitution of Kentucky (1799). The right to bear arms in defense of themselves and the state was interpreted as an individual right, for the case of a concealed sword cane. This case has been described as about “a statute prohibiting the carrying of concealed weapons [that] was violative of the Second Amendment”. As noted in the Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in the 1980’s, vol. 10, no. 1, 1982, p. 155, “The first state court decision resulting from the “right to bear arms” issue was Bliss v. Commonwealth. The court held that “the right of citizens to bear arms in defense of themselves and the State must be preserved entire, …”" “This holding was unique because it stated that the right to bear arms is absolute and unqualified.”
Also during the Jacksonian Era, the first Collective Right interpretation of the Second Amendment arose. In State v. Buzzard (1842, Ark), the Arkansas high court adopted a militia-based, political right, reading of the right to bear arms under state law, and upheld the 21st section of the second article of the Arkansas Constitution that declared, “that the free white men of this State shall have a right to keep and bear arms for their common defense”, while rejecting a challenge to a statute prohibiting the carrying of concealed weapons. The Arkansas high court declared “That the words “a well regulated militia being necessary for the security of a free State”, and the words “common defense” clearly show the true intent and meaning of these Constitutions [i.e., Ark. and U.S.] and prove that it is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then the people, neither individually nor collectively, have the right to keep and bear arms.” Joel Prentiss Bishop’s influential Commentaries on the Law of Statutory Crimes (1873) took Buzzard’s militia-based interpretation, a view that Bishop characterized as the “Arkansas doctrine”, as the orthodox view of the right to bear arms in American law.
The two early state court cases, Bliss and Buzzard, largely set the fundamental dichotomy of interpretations of Individual Right versus Collective Right that remain to this day at the heart of gun politics in the United States.
Antebellum era
Portrait of Dred Scott
One of the early political battles over the right to firearms involved the rights of slaves to carry firearms in the United States; the battle over the rights of slaves resulted in political battles, and ultimately civil war, in the aftermath of the 1856 Supreme Court decision Dred Scott v. Sandford that denied Negroes the full rights of citizenship. In Dred Scott v. Sandford, (the “Dred Scott Decision”), the Supreme Court indicated that: “It would give to persons of the negro race, who were recognized as citizens in any one State of the Union … the full liberty … to keep and carry arms wherever they went.”
The Dred Scott Decision contains additional significant wording:
More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.(emphasis added)
Reconstruction era
With the Civil War ending, the question of the rights of freed slaves to carry arms and to belong to militia came to the attention of the Federal courts. In response to the problems freed slaves faced in the Southern states, the Fourteenth Amendment was drafted.
Representative John A. Bingham of Ohio, principal framer of the Fourteenth Amendment
When the Fourteenth Amendment was drafted, Representative John A. Bingham of Ohio used the Court’s own phrase “privileges and immunities of citizens” to include the first Eight Amendments of the Bill of Rights under its protection and guard these rights against state legislation.
The debate in the Congress on the Fourteenth Amendment after the Civil War also concentrated on what the Southern States were doing to harm the newly freed slaves. One particular concern was the disarming of former slaves.
The Second Amendment attracted serious judicial attention with the Reconstruction era case of Cruikshank which ruled that the Fourteenth Amendment did not cause the Bill of Rights, including the Second Amendment, to limit the powers of the State governments; stating that the Second Amendment “has no other effect than to restrict the powers of the national government.”
Akhil Reed Amar notes in the Yale Law Journal, the basis of Common Law for the first ten amendments of the U.S. Constitution, which would include the Second Amendment, “following John Randolph Tucker’s famous oral argument in the 1887 Chicago anarchist Haymarket Riot case, Spies v. Illinois“:
Though originally the first ten Amendments were adopted as limitations on Federal power, yet in so far as they secure and recognize fundamental rights—common law rights—of the man, they make them privileges and immunities of the man as citizen of the United States…
20th century
A famous and widely publicized case where fully automatic weapons were used in crime in the United States was during the Saint Valentine’s Day massacre during the winter of 1929; this Prohibition-era gangster sub-machine gun mass murder led directly to the National Firearms Act of 1934, which was passed after Prohibition had ended. Since 1934, fully automatic weapons have been heavily regulated by the Bureau of Alcohol, Tobacco and Firearms (ATF), but are available to citizens who are not otherwise prohibited, in those states that do not prohibit them, upon paying a $200 transfer tax, submission of a full set of fingerprints on FBI Form FD-258, certification provided by the local chief of police, sheriff of the county, head of the State police, or State or local district attorney or prosecutor, and approval by the BATF. Other crimes involving fully automatic weapons in the United States have not been as widely publicized since. However, the lesser known 1997 North Hollywood shootout involved two men carrying illegally modified automatic AKMs.
In the latter half of the 20th Century, groups such as the National Rifle Association (NRA) and the Gun Owners of America (GOA) organized voters and campaign volunteers to focus citizen communication and interest when gun control legislation was under consideration, both at federal and at state levels.
The United States had the least restrictive gun control laws in the developed world, except for Switzerland, in part due to the strength of the gun lobby, particularly the NRA. The NRA historically supported gun laws intended to prevent criminals from obtaining firearms, while opposing new restrictions that affected law-abiding citizens.
The GOA grew out of dissatisfaction with the NRA, and historically rejected any gun laws that infringed the rights of law-abiding citizens, putting it at odds with the NRA on many legislative issues.
Besides the GOA, other national gun rights groups often took a stronger stance than the NRA. These groups criticize the NRA’s history of support for some gun control legislation, such as the Gun Control Act of 1968, the ban on armor-piercing projectiles, point-of-purchase background checks (NICS). Some of these groups are The Second Amendment Sisters, Second Amendment Foundation, and Jews for the Preservation of Firearms Ownership. These groups, like the GOA, believe any compromise leads to incrementally greater restrictions.
Chaos outside the Washington Hilton Hotel after the 1981 assassination attempt on President Reagan. James Brady and police officer Thomas Delahanty lie wounded on the ground.
Handgun Control Inc. (HCI), was founded in 1974 by businessman Pete Shields, formed a partnership with the National Coalition to Ban Handguns (NCBH), also founded in 1974. Soon parting ways, the NCBH was renamed the Coalition to Stop Gun Violence in 1990, and while smaller than HCI, generally took a tougher stand on gun regulation than HCI.
HCI saw an increase of interest and fund raising in the wake of the 1980 murder of John Lennon. By 1981 membership exceeded 100,000. Measured in dollars contributed to congressional campaigns, HCI contributed $75,000. Following the 1981 assassination attempt on President Reagan, and the resultant injury of James Brady, Sarah Brady joined the board of HCI in 1985. HCI was renamed in 2001 to Brady Campaign to Prevent Gun Violence.
In the 1990s, gun politics took a turn to the right in response to two high profile ATF incidents, Waco and Ruby Ridge, that led to mobilization of modern militia groups. These incidents combined with the passage of the Brady Act in 1993 and the Assault Weapons Ban a year later increased the fears of those who felt the Federal Government would confiscate their firearms. The Militia Movement expanded throughout the 1990s.
21st century
Memorial on Virginia Tech’s drillfield after the April 16, 2007 Virginia Tech massacre
The NRA opposed bans on handguns in Washington D.C. and San Francisco, while also supporting the 2007 NICS Improvement Amendments Act (H.R. 2640), which strengthened requirements for background checks for firearm purchases.
The GOA especially took issue with the NRA over a portion of the 2007 “The School Safety And Law Enforcement Improvement Act” known as The NICS Improvement Amendments Act, which they termed the “Veteran’s Disarmament Act”.
Besides the GOA, other national gun rights groups continue to take a stronger stance than the NRA. Groups such as The Second Amendment Sisters, Second Amendment Foundation, Jews for the Preservation of Firearms Ownership, and the Pink Pistols continue much as they did in the late 20th Century, but new groups have also arisen, such as the Students for Concealed Carry on Campus, which grew largely out of perceived safety-issues with so-called ‘Gun-free’ zones that are legislatively mandated at many schools, amidst a response to widely publicized school shootings.
Hattie Johnson of Idaho won a bronze medal in shooting at the 2004 Summer Olympics.
In District of Columbia v. Heller, No. 07-290, the United States Supreme Court held that Americans have an individual right under the Second Amendment to possess firearms “for traditionally lawful purposes, such as self-defense within the home”. It is an appeal from Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), a decision in which the United States Court of Appeals for the District of Columbia Circuit became the first federal appeals court in the United States to rule that a firearm ban unconstitutionally infringes the Second Amendment to the United States Constitution, and the second to expressly interpret the Second Amendment as protecting an individual right to possess firearms for private use. The first federal case that interpreted the Second Amendment as protecting an individual right was United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).
According to The Center for Public Integrity, 145 groups are registered as making gun-related filings to lobby Congress. The largest being the National Rifle Association, spending about $1.5 million per year, predominantly through two lobbying firms, the WPP Group and The Federalist Group. Ranked by total filings, gun-rights lobbying exceeded gun-control lobbying by the ratio of approximately 3:1.
Measured in dollars, in 2007, gun rights political spending on lobbying totaled $1,959,407 versus gun control spending of $60,800. The NRA is the largest gun rights lobbying organization in the united states
Regional and partisan divides
Regional differences tend to be greater than partisan ones for gun politics in the United States. Jurisdictions that favor gun control are concentrated along the Eastern Seaboard such as New York, New Jersey, the District of Columbia, and Maryland, but also include States with major metropolitan areas, notably California and Illinois. The Northwest, such as Montana, Idaho and Washington; the Deep South, including Alabama, Georgia and Florida; and Southwest States such as Texas, New Mexico and Utah tend to support gun rights. Other areas, including the Midwest and Plains States, are mixed. Alaska and Vermont do not require any license in order to carry concealed weapons in public places, but there are laws in these states prohibiting concealed weapons in certain places (e.g., in Alaska it is not permitted to carry a weapon, concealed or otherwise, into a bar or tavern). The spread of concealed carry laws since 1986 in those states that tend to be in support of gun rights has led to the widespread, legally permitted, carrying of concealed handguns by civilians in many parts of the United States.
Opinions on gun control can vary within a jurisdiction. Texas for example, though it is stereotypically known as “gun-friendly”, encompasses many demographics from small farming/ranching communities to several large cities (including three of the nation’s largest), therefore attitudes toward gun possession and carry tend to be mixed. Similar situations can be found in other states, and in general, large urban jurisdictions tend to favor gun control to reduce crime, while rural populations and small towns oppose it for much the same reasons.
While gun control is not strictly a partisan issue, there is more support for increased gun control in the Democratic Party, while the Republican Party favors gun rights. The Libertarian Party, whose campaign platforms favor classical liberal government and individual rights, is outspokenly pro-gun, and this stance is largely similar to that of the Republican Party.
Types of firearms
Political Scientist Earl Kruschke has described how, in the gun control debate, firearms have been viewed in only three general classes by gun control advocates: 1) long guns 2) hand guns and 3) automatic and semi-automatic weapons. The first category has generally been associated with sporting and hunting uses; the second category, handguns, describe weapons which can be held with one hand such as pistols and revolvers; and the third general category has been most commonly associated in public political perception with military uses. Notably the AR-15 and AK-47 style firearms have contributed to this perception.
If sometimes confused in public debate, the two firearm types in the third general category are functionally and legally distinct. Fully automatic firearms of any kind (including military assault rifles) have been subject to registration and licensing requirements since the passage of the National Firearms Act in 1934. Further import restrictions were part of the Gun Control Act of 1968, and the transfer of newly manufactured machine-guns to private citizens was banned with passage of the Firearm Owners Protection Act in 1986. New machine-guns in the US are still legal for purchase by the military and by governmental agencies, including civilian law enforcement; pre-1986 registered machine-guns are available to federally licensed private citizens (where permitted by state law), and have reached high market prices, eagerly sought by collectors because of their relative scarcity. An expansion has occurred in the number of states where such automatic weapons may legally be owned; for example, automatic-weapons were recently legalized in Kansas.
Many semi-automatic versions of military assault rifles—and the larger 20- or 30-round magazines they typically use—are again available for purchase by private citizens in the US (except where prohibited by state or municipal bans) since the “sunsetting” of the 1994 Federal Assault Weapons Ban on September 14, 2004. Some continue to be banned due to a 1989 amending of the Gun Control Act, which made some foreign-made firearms illegal for importation. However, firearms similar to those affected by the importation ban can now be manufactured domestically.
In general terms, gun control advocates have paid little concern to the long guns used for sporting purpose as long guns are generally not viewed as associated with violent crime or suicide. For example, in 2005, 75% of the 10,100 homicides committed using firearms in the United States were committed using handguns, compared to 4% with rifles, 5% with shotguns, and the rest with a type of firearm not specified. Non-criminal homicides (i.e., acts of self-defense) and criminal homicides were counted together simply as homicides in these data.
Kruschke describes incidents where public political perceptions have been shaped by a few high profile violent crimes associated with automatic and semi-automatic weapons, resulting in a relatively small percentage of the crime in absolute numbers, none-the-less have brought public focus on that type of weapon.
Kruschke states, however, regarding the fully automatic firearms owned by private citizens in the United States, that “approximately 175,000 automatic firearms have been licensed by the Bureau of Alcohol, Tobacco, and Firearms (the federal agency responsible for administration of the law) and evidence suggests that none of these weapons has ever been used to commit a violent crime.”
Likewise, Kruschke states that automatic weapons are different than common semi-automatic hunting weapons, as the “most common examples [of automatic weapons] are machine guns, submachine guns, and certain types of military and police rifles”. This recognizes that there are semi-automatic household guns that are in widespread use like the .22 caliber Marlin Model 60 hunting rifle. Similarly, although Kruschke claims long guns are not being used in suicide, there are in fact instances of long guns that are used for suicides. Although Krushke describes that semi-automatic and automatic weapons are associated with military uses, he acknowledges that the US Government distinguishe semi-automatic guns in a different category from fully automatic guns.
Pro-gun groups claim that confusing voters about different types of guns continues to be a strategy of gun-control groups, who in turn claim that certain types of firearms are either particularly unsafe, particularly likely to be used in crime, or particularly unsuited for “sporting purposes,” and therefore should be banned. The types of guns so designated has included: any small, inexpensive handgun (“junk gun” or “Saturday night special“), any handgun weighing more than 50 ounces, any handgun not incorporating either new “smart-gun” or “micro-stamping” abilities, all handguns, semi-automatic “assault weapons” (using either the 1994 definition or a more expansive definition), and .50 caliber rifles.
The current bid to ban .50 caliber rifles nationally shows the typical issues that arise in campaigns to ban certain firearm types. Pro-ban groups have preferred the phrase “Sniper Rifle Ban” to promote the law, even though the .50 caliber rifles are typically considered “counter-sniper” and “anti-matériel” weapons. In fact, the term “sniper rifle” implies a much broader range of rifles: the US M24 and M40 military sniper rifles are bolt-action, .30 caliber weapons with telescopic sights (both models being variants of the civilian Remington Model 700); the “D.C. Snipers” used a .223 semi-automatic rifle; and Charles Whitman, the 1966 “Texas Tower Sniper,” used a common scoped hunting rifle (as did many of the private citizens who returned fire that day). Pro-gun groups see the attempts to ban .50-cal rifles as the first step toward banning an ever-expanding “sniper gun” or “high-powered rifle” category. In promoting a California .50 caliber ban, the LAPD received criticism for deceiving the public when a police-owned Barrett M82 was produced for a press conference supporting the ban, while never mentioning that the rifle was already banned by existing state law.
Political arguments
Political arguments of gun politics in the United States center around disagreements that range from the practical – does gun ownership cause or prevent crime? – to the constitutional – how should the Second Amendment be interpreted? – to the ethical – what should the balance be between an individual’s right of self-defense through gun ownership and the People’s interest in maintaining public safety? Political arguments about gun rights fall into two basic categories, first, does the government have the authority to regulate guns, and second, if it does, is it effective public policy to regulate guns.
The first category, collectively known as rights-based arguments, consist of Second Amendment arguments, state constitution arguments, right of self-defense arguments, and security against tyranny and invasion arguments. Public policy arguments, the second category of arguments, revolve around the importance of a militia, the reduction of gun violence and firearm deaths, and also can include arguments regarding security against foreign invasions.
The courts and the law
Supreme Court decisions
Since the late nineteenth century, with three key cases from the pre-incorporation era, the Supreme Court consistently ruled that the Second Amendment (and the Bill of Rights) restricts only the federal Congress, and not the States, in the regulation of guns. Scholars predicted that the Court’s incorporation of other rights suggests that they may incorporate the Second, should a suitable case come before them.
“Americans also have a right to defend their homes, and we need not challenge that. Nor does anyone seriously question that the Constitution protects the right of hunters to own and keep sporting guns for hunting game any more than anyone would challenge the right to own and keep fishing rods and other equipment for fishing – or to own automobiles. To “keep and bear arms” for hunting today is essentially a recreational activity and not an imperative of survival, as it was 200 years ago. “Saturday night specials” and machine guns are not recreational weapons and surely are as much in need of regulation as motor vehicles.” — Ex-Chief Justice Warren Burger, 1990.
Until recently, there had been only one modern Supreme Court case that dealt directly with the Second Amendment, United States v. Miller. In that case, the Supreme Court did not address the incorporation issue, but the case instead hinged on whether a sawed-off shotgun “has some reasonable relationship to the preservation or efficiency of a well regulated militia.” In quashing the indictment against Miller, the U.S. District Court for the Western District of Arkansas stated that the National Firearms Act of 1934, “offend[ed] the inhibition of the Second Amendment to the Constitution.” The federal government then appealed directly to the US Supreme Court. On appeal the federal government did not object to Miller’s release since he had died by then, seeking only to have the trial judge’s ruling on the unconstitutionality of the federal law overturned. Under these circumstances, neither Miller nor his attorney appeared before the US Supreme Court to argue the case. The Court only heard argument from the federal prosecutor. In its ruling, the Supreme Court overturned the trial court and upheld the law. For a more complete reading of this case, see Reynolds, Glenn Harlan and Denning, Brannon P., “Telling Miller’s Tale” . 65 Law & Contemp. Probs. 113 (Spring 2002).
District of Columbia v. Heller
On June 26, 2008, in District of Columbia v. Heller, the United States Supreme Court affirmed, by a 5-4 vote, the decision of the D.C. Circuit Court of Appeals. This decision struck down the D.C. gun law. It also clarifies the scope of the Second Amendment to the United States Constitution, stating that it stipulates an individual right irrespective of membership in a militia. However, the court made it clear that like other rights, the right to bear arms is not without limitations, leaving open the prospect of reasonable governmental regulation. The decision declined to rule on the incorporation of the Second Amendment, leaving its applicability to the states unsettled (“While the status of the Second Amendment within the twentieth-century incorporation debate is a matter of importance for the many challenges to state gun control laws, it is an issue that we need not decide.”). After the decision in Heller was released, the D.C. government passed emergency legislation that would ban semiautomatic handguns, but allow unloaded revolvers, prompting petitioner Heller to launch another legal action. However, in September 2008, the D.C. Council relented and allowed the possession of most semi-automatic handguns, without a trigger lock or unloading requirement. Simultaneously, H.R. 6691 is a bipartisan bill currently in the U.S. House of Representatives, that would require the D.C. government to comply with the decision in Heller, and eliminate most gun restrictions in the district, including allowing residents to purchase firearms in neighboring Maryland and Virginia. As of September 16, 2008, the legislation has enough bipartisan support to pass through the House, but has not yet been addressed by the U.S. Senate.
Gun laws
Gun control laws and regulations exist at all levels of government, with the vast majority being local codes which vary between jurisdictions. The NRA reports 20,000 gun laws nationwide. A study published in the American Journal of Preventive Medicine notes 300 federal and state laws regarding the manufacture, design, sale, purchase, or possession of guns.
At the federal level, fully automatic weapons and short barrel shotguns have been taxed and mandated to be registered since 1934 with the National Firearms Act. The Gun Control Act of 1968 adds prohibition of mail-order sales, prohibits transfers to minors, and outlaws civilian ownership of machine guns manufactured after May 19, 1986. The 1968 Act requires that guns carry serial numbers and implemented a tracking system to determine the purchaser of a gun whose make, model, and serial number are known. It also prohibited gun ownership by convicted felons and certain other individuals. The Act was updated in the 1990s with the Brady Handgun Violence Prevention Act, mainly to add a mechanism for the criminal history of gun purchasers to be checked at the point of sale, and in 1996 with the Domestic Violence Offender Gun Ban to prohibit ownership and use of guns by individuals convicted of misdemeanor domestic violence.
The 1994 Violent Crime Control and Law Enforcement Act enacted the Federal Assault Weapons Ban, which banned the purchase, sale, or transfer of any weapon specifically named in the act, other weapons with a certain number of “defining features”, and detachable magazines capable of holding more than 10 rounds of ammunition, that had been manufactured after the beginning date of the ban. The Assault Weapons Ban expired in 2004, but H.R. 6257 introduced June 12, 2008 seeks to re-instate the ban indefinitely as well as to expand the list of banned weapons. Three co-sponsors (as of June 18, 2008) support it. New York, California, Massachusetts, Hawaii, Connecticut, and New Jersey and several local jurisdictions have codified some provisions of the now expired 2004 Federal ban into State and local law. The expiration of the Assault Weapons Ban has been shown to have had little effect on crime rates throughout the United States, at least in those areas that do not have their own laws restricting the ownership of the firearms affected by the Assault Weapons Ban.
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Saint Valentine’s Day massacre
From Wikipedia, the free encyclopedia
The Saint Valentine’s Day massacre is the name given to the death of seven people as part of a Prohibition Era conflict between two powerful criminal gangs in Chicago, Illinois, in the winter of 1929: the South Side Italian gang led by Al Capone and the North Side Irish gang led by Bugs Moran. Former members of the Egan’s Rats gang were also suspected to have played a large role in the St. Valentine’s Day massacre, assisting Capone…
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National Firearms Act
From Wikipedia, the free encyclopedia
The National Firearms Act (“NFA“, 73rd Congress, Sess. 2, ch. 757, 48 Stat. 1236, enacted 1934-06-26, currently codified as amended as 26 U.S.C. ch.53)
is an Act of Congress passed in 1934 that, in general, imposes a statutory excise tax on the manufacture and transfer of all Title II weapons and mandates the registration of those weapons.
The Act was passed after the repeal of Prohibition, and it mandates that transfers of the covered firearms across state lines be reported to the Department of the Treasury (this function has since been transferred to the Department of Justice). The transfer tax of $200 placed on the transfer of firearms controlled by the Act was roughly equivalent to five months’ salary in 1934.[1]
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Categories of Weapons Regulated
The Act defines a number of categories of regulated weapons. These weapons are collectively known as “Title II” weapons and include the following:
- Machine guns – this includes any firearm which can fire more than 1 cartridge per trigger pull. Both continuous fully-automatic fire and “burst fire” (ie, weapons with a 3-round burst feature) are considered machine gun features.
- Short barreled rifles (SBRs) – this category includes any weapon with a buttstock and either a rifled barrel under 16″ long or an overall length under 26″. The overall length is measured with any folding or collapsing stocks in the extended position. The category also includes weapons which came from the factory with a buttstock that was later removed by a third party.
- Short barreled shotguns (SBSs) – this category is defined similarly to SBRs, but the length limit for the barrel is 18″ instead of 16″, and the barrel must be a smoothbore. The minimum overall length limit remains 26″.
- Suppressors – this includes any portable device designed to muffle or disguise the report of a portable firearm. This category does not include non-portable devices, such as sound traps used by gunsmiths in their shops which are large and usually bolted to the floor.
- Destructive Devices (DDs) – there are two broad classes of destructive devices. The first class contains devices such as grenades, bombs, poison gas weapons, etc. The second class contains any non-sporting firearm with a bore over 0.50″ (many firearms with bores over 0.50″, such as 12-gauge shotguns, which are exempted from the law because they have been determined to have a legitimate sporting use).
- Any Other Weapons (AOWs) – this is a broad “catch-all” category used to regulate any number of weapons which the ATF deems deserving of registration and taxation. Examples include smooth-bore pistols, pen guns and cane guns, short-barreled weapons with both rifled and smooth bores, etc.
“Any Other Weapons” (AOWs) also include disguised firearms and firearms that can be fired from within a wallet holster or a briefcase. A short-barreled shotgun which came from the factory with a pistol grip is categorized as an AOW rather than a SBS, because the Gun Control Act describes a shotgun as “…designed or redesigned to be fired from the shoulder…” The AOW classification also includes handguns with a forward vertical grip. It is therefore illegal to place an aftermarket foregrip on any pistol without first registering it as an AOW and paying the “making tax” imposed by the Act.
In general, even some components that make up an NFA item are considered regulated. For example, each baffle inside a silencer, if removed from the tube, is considered a silencer. Thus, individuals cannot legally own any part of a silencer without registering it with the BATFE and paying NFA taxes. Silencers and machine guns are the most heavily regulated. For example, in Ruling 81-4, BATFE declared that any AR-15 drop-in Auto-Sears made after November 1, 1981 is itself a machine gun, and is therefore subject to regulation.
While this might seem to mean that pre-1981 sears are legal to possess without registration, BATFE closes this loophole in other publications, stating, “Regardless of the date of manufacture of a drop in auto sear, possession of such a sear and certain M-16 fire control parts is possession of a machinegun as defined by the NFA. Specifically, these parts are a combination of parts designed and intended for use in converting a weapon into a machinegun and are a machinegun as defined in the NFA.“
Owning the parts needed to assemble other NFA weapons is generally prohibited. A person cannot own machine gun trigger components unless he owns a registered machine gun. The M2-Carbine trigger pack is such an example of a “combination of parts” that is a machinegun in and of its own. Most of these have been registered as they were pulled from surplus rifles in the early 1960’s.
Most current fully-automatic trigger groups will not fit their semi-automatic firearm look-alike counterparts – the semi-automatic version is specifically constructed to reject the fully-automatic trigger group by adding metal in critical places. This addition is required by the ATF to prevent easy conversion of Title I weapons into machine guns. Additionally, the fully-automatic trigger group is also permanently modified in such a way that it cannot be made to function as a fully-automatic fire control device. The ATF has listed required manufacturing procedures for modifying these fully-automatic trigger groups to make them into legal semi-automatic trigger-groups for civilian sales.
Owning both a short barrel and a legal-length rifle could be construed as intent to build an illegal, unregistered SBR. This is referred to as ‘Constructive Possession’.[citation needed] This possibility was contested in the U.S. Supreme Court case of United States v. Thompson-Center Arms Company. BATFE lost the case, and was unable to prove that possession of a short barrel for the specific pistol configuration of a Thompson Contender is not illegal. However, some experts have warned that the ruling applies only to the specific brand of firearm mentioned in the court case, and BATFE still warns against possession of a short barrel for a rifle not registered as a SBR.
Muzzle-loading weapons are exempt from the Act. Thus, though common muzzle-loading hunting rifles are available in calibers over 0.50″, they are not regulated as destructive devices. Muzzle-loading cannons are similarly exempt since the law draws no distinction between the size of the muzzle-loading weapons; thus it is legal for a civilian to build muzzle-loading cannons and mortars with no paperwork. Individuals or companies seeking to market large-bore weapons may apply to the ATF for a “Sporting Clause Exception.” If granted, the ATF acknowledges that the weapon has a legitimate sporting use and is therefore not a destructive device. Many large safari rifle calibers, such as .585 Nyati and .577 Tyrannosaur, have such exceptions.
Registration, purchases, taxes and transfers
It is a common misconception that an individual must have a “Class 3 License” in order to own NFA weapons. This is not the case. One must only have a Class 3 license (more properly known as an 03 SOT) to buy and sell NFA weapons as a business. Individual owners do not need any license under the NFA to buy Title II weapons. The purchase and sale of NFA weapons is, however, heavily taxed and regulated, as follows.
All NFA items must be registered with the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF). Private owners wishing to purchase an NFA item must obtain permission from the ATF, obtain a signature from the county sheriff or city or town chief of police (not necessarily permission), pass an extensive background check to include submitting a photograph and finger prints, fully register the firearm, receive ATF written permission before moving the firearm across state lines, and pay a tax. The request to transfer ownership of an NFA item is made on an ATF Form 4.[2]
NFA items may also be transferred to corporations (or other legal entities such as a trust). When the paperwork to request transfer of an NFA item is initiated by an officer of a corporation, a signature from local law enforcement is not required, and fingerprint cards and photographs do not need to be submitted with the transfer request. Therefore, an individual who lives in a location where the chief law enforcement officer will not sign a transfer form can still own an NFA item if he or she owns a corporation. This method has downsides, though, since it is the corporation (and not the principal) that owns the weapon. Thus, if the corporation ever dissolves, it must transfer its NFA weapons to the owners. This event would be considered a new transfer and would be subject to a new transfer tax.
The tax for privately manufacturing any NFA firearm (other than machineguns, which are generally illegal to manufacture) is $200. Transferring requires a $200 tax for all NFA firearms except AOW’s, for which the transfer tax is $5 (although the manufacturing tax remains $200).
Dealers who pay a special yearly occupational tax are exempt from these taxes for transfers to or from other special occupational taxpayers (SOT’s). Only a Class-II manufacturer can “make and register” a machine gun –– and that gun becomes a Post May-19th, 1986 Gun –– saleable only to police, State, local, Federal-Government, and the military. Low volume Class-II manufacturers (those with sales under $500,000.00) pay the $500.00 per year SOT tax, while high sales volume Class-II’s pay the full $1,000.00 SOT “ticket” price.
Transferable machine guns made or registered before May-19th 1986 are worth far more than their original, pre-1986 value. And items like registered “auto-sears,” “lightning-links,” trigger-packs, trunnions, and other “combination of parts” registered as machineguns before the aforementioned date are often worth nearly as much as a full registered machine gun.
For instance, as of September 2008, a transferrable M16 rifle costs approximately $15,000 to $18,000, while a transferrable “lightning-link” for the AR-15 can sell for $8,000 to $10,000. New manufacture M-16s sell to law enforcement and the military for around $600 to $1000.
The registration or transfer process (to an individual or corporation) takes approximately 1-3 months to complete. Additionally, the firearm can never be handled or transported by any other private individual unless the firearm’s registered owner is present. Corporations which own NFA weapons can loan them to any employee of the corporation with a letter of permission on the corporate letterhead. NFA items owned by trusts may be legally possessed by any trustee (ie, if a husband and wife are both trustees, either of them may use and transport the weapon without the other present).
Upon the demand of any ATF agent, the registered owner must produce the original ATF Form with tax stamp affixed to prove the weapon is legally owned. Technically speaking, owners are not required to produce the form for any non-ATF personnel (i.e., local police officers do not have the legal right to demand to see the form).[citation needed] However, in practice, most NFA weapon owners keep a photocopy of their paperwork with the weapon at all times, and will show it to any authority that requests it, simply to avoid harassment, detainment, or the seizure of the weapon. Many owners keep the original form in a safe place, such as a safe deposit box, to avoid damaging it, as the ATF will not replace a damaged $200 tax stamp.
In a number of situations, an NFA item may be transferred without a transfer tax. These include sales to government agencies, temporary transfers of an NFA weapon to a gunsmith for repairs, and transfer of an NFA weapon to a lawful heir after the death of its owner. A permanent transfer, even if tax-free, must be approved by the ATF. The proper form should be submitted to ATF before the transfer occurs. For example, lawful heirs must submit a Form 5 and wait for approval before taking possession of any NFA item willed to them. Temporary transfers, such as those to a gunsmith or to the original manufacturer for repair, are not subject to ATF approval since they are not legally considered transfers. The ATF does, however, recommend filing tax-free transfer paperwork on all such temporary transfers, to confer an extra layer of legal protection on both the owner and the gunsmith.
Criminal conduct
The Act makes certain conduct a criminal offense, including but not limited to: engaging in business as a manufacturer, importer, or dealer with respect to firearms without having registered or paid a special occupational tax; receiving or possessing a firearm transferred to oneself in violation of the NFA; receiving or possessing a firearm made in violation of the NFA; receiving or possessing a firearm not registered to oneself in the National Firearms Registration and Transfer Record; transferring or making a firearm in violation of the NFA; or obliterating, removing, changing, or altering the serial number of the firearm.[3]
Criminal penalties
Violations of the Act are punishable by up to 10 years in federal prison and forfeiture of all devices or firearms in violation, and the individual’s right to own or possess firearms in the future. The Act provides for a penalty of $10,000 for certain violations.[4] A willful attempt to evade or defeat a tax imposed by the Act is a felony punishable by up to five years in prison and a $100,000 fine ($500,000 in the case of a corporation), under the general tax evasion statute.[5] For an individual, the felony fine of $100,000 for tax evasion could be increased to $250,000.[6]
The market for NFA items
Importation of NFA weapons was banned by the 1968 Gun Control Act which implemented a “sporting” clause. Only firearms judged by ATF to have feasible sporting applications can be imported for civilian use. Licensed manufacturers of NFA weapons may still, with the proper paperwork, import foreign NFA weapons for research and development purposes, or for government use.
The manufacture of new machine guns that civilians could purchase was effectively banned by language in the Firearm Owners Protection Act of 1986. The language is found in the so-called Hughes Amendment, which was passed under legally questionable circumstances.[7] All machine guns legally registered prior to the date of enactment (ie, May 1986) are still legal for possession by and transfer among civilians where permitted by state law. The static and relatively small number of transferable automatic firearms has caused their price to be often over $10,000, although transferable M10 and M11 submachine guns (more commonly known as “Mac 10’s”) can still be purchased for around $3,500. Machine guns manufactured after the FOPA’s enactment can be sold only to law enforcement and government agencies, exported, or in some cases held as inventory by licensed manufacturers and dealers. Non-transferrable guns made after 1986 are usually priced only a few hundred dollars more than their semi-automatic counterparts, whereas a machine gun that can be legally transferred commands a huge premium.
All other NFA weapons, which are not addressed in the Hughes Amendment, are still legal for manufacture by, and transfer to, civilians (though some states have their own laws governing which NFA weapons are legal to own there). Suppressors and SBRs are generally the most popular NFA weapons among civilians, followed by SBSs, DDs, and AOWs. While most NFA weapons are bought from manufacturers and transferred to civilians through a Class 3 dealer, many are made by the civilians themselves after filing a Form 1 and paying the $200 manufacturing tax. In some cases the manufacture is simple (ie, using a pipe cutter to shorten a shotgun barrel), and sometimes quite complex (making an effective, modern silencer generally requires several thousand dollars’ worth of machine tools).
Miller case
In the 1930s, the United States District Court for the Western District of Arkansas ruled the statute unconstitutional in United States v. Miller. The defendant Miller had been arrested for possession of an unregistered short barreled shotgun. The government’s argument was that the short barreled shotgun was not a military weapon and thus not a “militia” weapon protected by the Second Amendment. The District Court agreed with Miller’s argument that the shotgun was legal under the Second Amendment.
The District Court ruling was overturned on a direct appeal to the United States Supreme Court (see United States v. Miller). No brief was filed on behalf of the defendants, and the defendants themselves did not appear before the Supreme Court. No evidence that such a firearm was “ordinary military equipment” had been presented at the trial court (apparently because the case had been thrown out — at the defendants’ request — before evidence could be presented), and the Supreme Court indicated it could not take judicial notice of such a contention.
The Supreme Court ruled that the NFA provision (criminalizing possession of certain firearms) was not unconstitutional under the Second Amendment.
Subsequent rulings have been allowed to stand, indicating that short-barreled shotguns are generally recognized as ordinary military equipment if briefs are filed (e.g., see: Cases v. United States[8]), describing use of short-barreled shotguns in specialized military units.
Criticisms and uncertainty after Miller
The scope of the application of the Act to privately constructed firearms or devices is uncertain. Such items would normally be regulated under the Act’s provisions, but are intended for private ownership only and not for sale. As the Act’s application is derived from the federal legislature’s Constitutionally enumerated power of regulation over interstate commerce, it is unclear how privately-constructed firearms or devices built solely for personal possession (i.e. not intended to be delivered into the stream of interstate commerce) are affected by the Act. It would seem they are regulated under the Supreme Court’s interpretation of Wickard v. Filburn[9] which establishes that even activities that occur solely intrastate could have such a substantial effect upon interstate commerce that failure to regulate such commerce would defeat congress’ right to regulate interstate commerce.
Crime
While NFA weapons as a whole are perceived by the American public as dangerous, their use in crime is exceedingly rare. Legally-owned (ie, NFA-registered) machine guns have been used in only two murders since 1934, one of which was committed by a police officer.[10] A previous director of the ATF testified before Congress that fewer than ten registered machine guns (out of over 240,000 in the nation) have ever been used in any type of crime (including nonviolent offenses such as failing to notify ATF of address changes, etc.). The criminal use of other legally-owned NFA weapons is similarly rare. The Title II weapons used in prominent crimes, such the AK-47s used in the North Hollywood shootout of 1997, have universally been illegally-owned or illegally-converted weapons.
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The City of Sandusky is trading this old-time Tommy Gun, a machine gun made popular by 1920s gangsters and Hollywood movies, along with other confiscated firearms to get new weapons and equipment for the police department. (Register photo/JASON
Sandusky to trade
1921 Tommy Gun
for new guns
Wednesday, 31 Dec 2008
By JASON SINGER, Sandusky Register
SANDUSKY Ohio) - Say “hello” to the city’s little friend. The city is in possession of a 1921 Tommy Gun worth $22,500, a machine gun made popular by Prohibition-era gangsters and Hollywood classics like “The Untouchables” and “Scarface.”
Along with other confiscated firearms, the city is trading the Tommy Gun for weapons and equipment for the police…
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United States v. Miller
From Wikipedia, the free encyclopedia
[For the 1958 United States Supreme Court case, dealing with the subject of unlawful entry, see Miller v. United States.
For the 1973 United States Supreme Court case, dealing with the subject of obscenity and referred to as ‘Miller v. United States’, see Miller v. California.]
| United States v. Miller | ||||||
| Argued March 30, 1939 Decided May 15, 1939 |
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| Full case name |
United States v. Jack Miller, et al.
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| Citations | 307 U.S. 174 (more) 59 S. Ct. 816; 83 L. Ed. 1206; 39-1 U.S. Tax Cas. (CCH) P9513; 22 A.F.T.R. (P-H) 331; 1939-1 C.B. 373; 1939 P.H. P5421 |
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| Prior history | Appeal from the District Court of the United States for the Western District of Arkansas | |||||
| Holding | ||||||
| The National Firearms Act — as applied to transporting in interstate commerce a 12-gauge shotgun with a barrel less than 18 inches long, without having registered it and without having in his possession a stamp-affixed written order for it — was not unconstitutional as an invasion of the reserved powers of the States and did not violate the Second Amendment of the United States Constitution. | ||||||
| Court membership | ||||||
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| Case opinions | ||||||
| Majority | McReynolds, joined by Hughes, Butler, Stone, Roberts, Black, Reed, Frankfurter | |||||
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Douglas took no part in the consideration or decision of the case.
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| Laws applied | ||||||
| U.S. Const. amend. II | ||||||
United States v. Miller, 307 U.S. 174 (1939), was the first Supreme Court of the United States decision to directly address the Second Amendment to the United States Constitution. Miller is a controversial decision in the ongoing American gun politics debate, as both sides claim that it supports their position.
Background
United States v. Miller involved a criminal prosecution under the National Firearms Act of 1934 (NFA). Passed in response to public outcry over the St. Valentine’s Day Massacre, the NFA requires certain types of firearms (including but not limited to fully automatic firearms and short-barreled rifles and shotguns) to be registered with the Miscellaneous
Tax Unit (later to be folded into what eventually became the Bureau of Alcohol, Tobacco, Firearms, and Explosives, or ATF) of the Bureau of Internal Revenue (ancestor of today’s Internal Revenue Service), with a $200 tax paid at the time of registration and again if the firearm is ever sold.
The trial court
Jack Miller and Frank Layton were suspected bank robbers and moonshiners being watched by agents of the Department of the Treasury. On April 18, 1938 Miller and Layton were arrested for transporting an unlicensed sawed-off shotgun (defined as “having a barrel less than eighteen inches in length”) across state lines while engaged in interstate commerce, in violation of the NFA. This was after the fact that the Treasury had “staked out” Mr. Miller and Mr. Layton’s property in suspicion of moonshining. The Treasury, after a day-long stake, found that the distillery was not functional and had in fact been shut down for some time and had the boiler removed. The Treasury then found the sub-eighteen inch shot gun in Mr. Miller’s truck on the seat.
This was a federal case and was therefore heard by the United States District Court for the Western District of Arkansas. On January 3, 1939, U.S. District Court Judge Heartsill Ragon agreed with the defense’s claim that the NFA was intended to restrict the individual ownership and possession of arms, in conflict with the Second Amendment to the United States Constitution.
The defendant’s argument at the trial court was reported (in the text of the Supreme Court opinion) to be as follows:
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- The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution, U.S.C.A.-’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.’
The trial court agreed, ruling that Section 11 of the National Firearms Act violated the Second Amendment. The trial court threw out the indictment. The United States Attorney, Clinton R. Barry, appealed to the Supreme court.
At the U.S. Supreme Court
On March 30, 1939 the Supreme Court heard the case. Attorneys for the United States argued four points:
- The NFA is intended as a revenue-collecting measure and therefore within the authority of the Department of the Treasury.
- The defendants transported the shotgun from Oklahoma to Arkansas, and therefore used it in interstate commerce.
- The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.
- The “double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230″ was never used in any militia organization.
Neither the defendants nor their legal counsel appeared at the U.S. Supreme Court.
On May 15, 1939 the Supreme Court, in a unanimous opinion by Justice McReynolds, reversed and remanded the District Court decision. The Supreme Court declared that no conflict between the NFA and the Second Amendment had been established, writing:
- 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.
Describing the constitutional authority under which Congress could call forth state militia, the Court 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.
The Court also looked to historical sources to explain the meaning of “militia” as set down by the authors of the Constitution:
- The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
Interpretations
Gun control advocates point out that for over six decades all the United States Circuit Courts, with very few exceptions, point to the precedence of the Miller case while rejecting legal challenges to federal firearm regulations.
Gun rights advocates claim this case as a victory because they interpret it to state that ownership of weapons for efficiency or preservation of a well regulated militia unit of the present day is specifically protected. Furthermore they frequently point out that short-barreled shotguns have been commonly used in warfare, and the statement that the judges were not made aware of this should be taken to mean exactly that.
Because the defense did not appear, there was arguably no way for the judges to know otherwise. Two of the justices involved in the decision had prior military experience, Justice Black as a Captain in the field artillery during WWI and Justice Frankfurter as a Major in the Army legal service; however, there is no way to know if they were personally aware of the use of shotguns by American troops. During WWI, between 30,000 and 40,000 short-barreled pump action shotguns were purchased by the US Ordnance Department and saw service in the trenches and for guarding German prisoners.
Some argue that fundamental issues related to the case were never truly decided because the Supreme Court remanded the case to the federal district court “for further proceedings”, which never took place — by the time of the Supreme Court decision, Miller had been killed, and Layton made a plea bargain after the decision was handed down, so there were no claimants left to continue legal proceedings.
The U.S. Supreme Court has mentioned Miller in only six subsequent cases: Heller (2008); Prinz (1997); Lewis (1980); Adams (1972); Atlanta Motel (1961); and Konigsberg (1961).
Below is a complete list of the Supreme Court’s interpretations of the 1939 Miller opinion:
“Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.”
- Printz v. United States (1997) (opinion by Scalia) (Thomas, concurring)
Our most recent treatment of the Second Amendment occurred in United States v. Miller, 307 U.S. 174 (1939), in which we reversed the District Court’s invalidation of the National Firearms Act, enacted in 1934. In Miller, we determined that the Second Amendment did not guarantee a citizen’s right to possess a sawed off shotgun because that weapon had not been shown to be “ordinary military equipment” that could “contribute to the common defense.” Id., at 178. The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.
- Lewis v. United States (1980); Footnote 8
(the Second Amendment guarantees no right to keep and bear a firearm that does not have “some reasonable relationship to the preservation or efficiency of a well regulated militia”); United States v. Three Winchester 30-30 Caliber Lever Action Carbines, 504 F.2d 1288, 1290, n. 5 (CA7 1974); United States v. Johnson, 497 F.2d 548 (CA4 1974); Cody v. United States, 460 F.2d 34 (CA8), cert. denied, 409 U.S. 1010 (1972) (the latter three cases holding, respectively, that 1202 (a) (1), 922 (g), and 922 (a) (6) do not violate the Second Amendment).
- Adams v. Williams (1972); (opinion by Rehnquist)
The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment,
it was held, “must be interpreted and applied” with the view of maintaining a “militia.”
“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia – civilians primarily, soldiers on occasion.” Id., at 178-179. Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia.
- Atlanta Motel v. Unites States (1961); Footnote 11
… cases in which the commerce power has been used to advance other ends not entirely commercial: e. g., … United States v. Miller, 307 U.S. 174 (National Firearms Act);
- Konigsberg v. State Bar (1961); Footnote 10
That view, which of course cannot be reconciled with the law relating to libel, slander, misrepresentation, obscenity, perjury, false advertising, solicitation of crime, complicity by encouragement, conspiracy, and the like, is said to be compelled by the fact that the commands of the First Amendment are stated in unqualified terms: “Congress shall make no law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble . . . .” But as Mr. Justice Holmes once said: “[T]he provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.” Gompers v. United States, 233 U.S. 604, 610. In this connection also compare the equally unqualified command of the Second Amendment: “the right of the people to keep and bear arms shall not be infringed.” And see United States v. Miller, 307 U.S. 174.
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Wikipedia
On the night of 8 December 1980, Mark David Chapman shot Lennon in the back four times (the fifth shot missed) in the entrance of the Dakota. Earlier that evening, Lennon had autographed a copy of Double Fantasy for Chapman who had been stalking Lennon since October… [John Lennon was 40 years old at his death.]
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 The National Rifle Association |
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The National Rifle Association is the most vocal and most recognized component of the “Gun Lobby.” Today, it is best known outside of the shooting community as the most powerful advocate of a broad (and almost limitless) individual “right” to firearms ownership. But the NRA is 123 years old and has gone thru three major eras in its history — it wasn’t always the obstructionist force it is today.
History of the NRA
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