Friday, March 21, 2008
The Right to Bear Arms
"The case has been structured so that they have to confront the threshold question," said Robert A. Levy, the wealthy libertarian lawyer who has spent five years and his own money to bring District of Columbia v. Heller to the Supreme Court. "I think they have to come to grips with that."Arguments were made this week, and Jim Rawles is not happy with what he heard. He's posted his reactions to arguments over at Survivalblog. One particular complaint regarding what he considers flawed analysis on the lineage of machine guns:
The stakes are obviously high for the District, which passed the nation's strictest gun-control law in 1976, just after residents were granted the authority to govern themselves. It virtually bans the private possession of handguns, and requires that rifles and shotguns in the home be kept unloaded and disassembled or outfitted with a trigger lock.
In my opinion, Gura (attourney for the plaintiffs challenging the DC ban) also stumbled badly when he stated: "At the time that -- even at the time Miller was decided, the civilian arms were pretty much the sort that were used in the military. However, it's hard to imagine how a machine gun could be a "lineal descendent," to use the D.C. Circuit's wording, of anything that existed back in 1791, if we want to look to the framing era."Is it too late for a friend of the court brief?
I beg to differ! The US Springfield Armory designed and produced nearly all of the shoulder-fired arms for the US infantry from 1777 to the 1950s. You can follow the "lineal descent" of those rifles directly from flintlock muskets, to caplock rifles, to the Trapdoor Springfield, to the M1898 Krag, to the M1903 Springfield, to the M1 Garand, (semi-auto) and finally to the M14. Each of these iterations display some quite distinctive design features that are carried on from its immediate predecessor. Some design features are almost continuously-used (such as bayonet lugs and butt traps for cleaning equipment), but others (like stacking swivels) were eventually dropped, as military doctrine changed. It is notable that the pinnacle of this unbroken lineal descent was the M14 and it is fully automatic! The only distinct "lineal break" came when Defense Secretary Robert McNamara forced adoption of the Colt M16. But, again, the selective-fire (semi-auto and full auto) M14 pre-dated that lineal break. And, coincidentally, M14 rifles (now equipped with plastic stocks) are still in service with the US Army in limited numbers in the present day, as designated marksman's rifles.
8 Comments:
By 
, at
Fri Mar 21, 01:00:00 PM:
After doing a fair amount of reading on the topic a few years ago, it became pretty clear to this left-of-center, non-gun-owner (except for grandpa's old shotgun) that the 2A does in fact create an individual right to possess military-style firearms. Which does not, I would add, preclude the gov't from imposing reasonable regulations such as a prohibition for minors or felons, background checks prior to purchase, registration requirements, regulations on proper storage and etc.
As far as fully automatic weapons, I think the 2A implicitly protects the individual right to possess an assaut rifle, military model with selective fire and whatever size magazine, and ammunition for it. I think, and here confidence in my opinion fades, that the 2A guarantee ends at heavier, crew-served weapons such as tripod-mounted MGs. My understanding is that in the time of the Framers things like cannon were in peacetime kept in custody of government, and would not be included as "arms" that might be "borne."
- mattt
By , at
Fri Mar 21, 02:50:00 PM:
At its most basic level of intent, the 2nd amendment is meant to ensure the ability of the populace to overthrow the government should it become a tyranny, enshrining the feasibility of another revolution. All the crap about hunting and home defense is 20th century window dressing. Those possibilities were assumed in the 1790s, when Indian raids and frontier living were the norm.
That implies the protection of the right to possess "military" weapons (though I agree that the unregulated availability of the incredible means of destruction that exist these days would be irresponsible). Throughout the 19th century, private individuals and organizations accessed everything from dueling pistols to sabers, muskets, and cannons. Before and during the Civil War wealthy individuals raised what were essentially private armies that they then put at the disposal of their states in return for officer commissions. (Hampton's Legion, for example) During the Texas Revolution, Sam Houston's army used two 6lb. cannons donated by the *citizens* of Ohio, not to mention the numerous volunteer units that were privately formed and armed.
It wasn't until the Militia Act of 1903 that the organized state militias went from being basically separate, private entities to a recognized portion of the US Armed Forces, and it wasn't until 1916 that this was really formalized.
If that can't convince someone that 'militia' in 1791 meant private citizens, (as opposed to the National Guard, [which, as of 2007, can now be federalized without their governors 'consent, and therefore can no longer be relied upon as a check against the regular Army of a tyrant]) then direct them to Title 10 of the US Code:
"(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard."
If the 2nd amendment only applies to militia, most people are still included.
By all rights, liberals should be ANTI gun control, because the right to arms is the people's guarantee against tyranny. After all, if the populace is disarmed how will they ever rise up in revolt against an evil, militant, Bushitler regime? But for some reason, modern "liberals" would rather strip that right and then become the tyranny themselves. (by that I mean increasingly centralized government)
By 
Georg Felis, at
Fri Mar 21, 03:31:00 PM:
Yep, about everybody believes that some sort of gun restrictions should be in place, we just disagree on where.
Q: Normal US Citizens should not be permitted to own:
1. Atomic bombs
2. Free-fall bombs
3. Howitzers
4. Mortars
5. Machine Guns
6. Fully automatic weapons
7. Military rifles
8. Hunting rifles/shotguns
9. Handguns
10. Paintball guns
11. An official Red Ryder carbine action two-hundred shot range model air rifle with a compass in the stock and this thing that tells time
The NRA comes in at about 5, with a Federal Firearms License.
The Brady bill people come in about an 11 (You’ll shoot your eye out!).
I’m about a 7.5
New Tigerhawk survey perhaps?
By , at
Fri Mar 21, 03:44:00 PM:
I think you should flip 8 and 9 in your sequence.
- mattt
By joated, at
Fri Mar 21, 08:56:00 PM:
"5. Machine Guns
6. Fully automatic weapons"
What the heck is the difference?
You don't mean "semi-automatic weapons" by anychance, do you? There are groups who would ban those.
If Gura had supported the "right to a machine gun" he would have lost the entire Supreme Court. As it stands he will (hopefully) win this case according to most informed observers.
If the time ever comes when it is necessary to overthrow the government, which side do you really think our military will line up behind? A great deal went from wearing blue to gray the last time.
By , at
Sat Mar 22, 02:58:00 PM:
"5. Machine Guns
6. Fully automatic weapons
What the heck is the difference?"
The Uzi is an automatic weapon, and it is not a machine gun. For example.
"If the time ever comes when it is necessary to overthrow the government, which side do you really think our military will line up behind? A great deal went from wearing blue to gray the last time."
The regular army in 1861 consisted of only 16,367 men. Almost all of the professional soldiers who went South were officers, because only officers were allowed to resign their commissions; enlisted soldiers who left before the end of their term of enlistment would have been deserters and faced execution.
The great armies that were raised by the Confederacy consisted only of raw recruits and... the militias, the armies of the states, which in the modern period have been co-opted into the Army's structure and are no longer under the sole control of their state. (as I mentioned)
By Georg Felis, at
Sun Mar 23, 01:58:00 AM:
(Edited)
5. Machine Gun (as in M240 or M2)
6. Fully Automatic Weapon (as a M16 or AK with the full selector)
Yes, it should be 8. Handguns and 9. Shotguns and Hunting Rifles. There are still a lot of people who think the Second Amendment only applies to the people's right to hunt quail or Bambi.
By , at
Fri Aug 29, 06:26:00 AM:
