What to Watch For in D.C. v. Heller

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76 Responses

  1. Ralph McLaney says:

    Unconstitutional:

    Special Excise Taxes on Firearms and Ammunition

    This year will mark the 71st anniversary of the passage of the 1937 vintage excise tax on guns and ammunition better known as the Pittman-Robertson Act. This “Section 4181″ tax on the wholesale price of firearms and ammunition, (10% on handguns & 11% on other firearms), is used to fund wildlife restoration, hunter education, and public shooting range. Is it permissable? Can a special tax be placed on the very things needed to exercise a civil right?

    In the next few days SCOTUS will most likely render an individual rights interpretation of the 2nd Amendment. If this ruling accords the full measure of protections granted other rights, then any special excise taxes imposed only on firearms and ammunition would be subject to constitutional challenge.

    SCOTUS ruled in 1983 (Minneapolis Star v Minnesota), that raw newsprint paper cannot be subject to special taxes without violating the protection of the 1st Amendment. By this standard an individual right to keep and bear arms would prevent the imposition of special taxes on guns and ammunition with out violating the protections of the 2nd Amendment.

    In Minneapolis Star the Supreme Court concluded

    “…that differential taxation that selectively burdens the exercise of a fundamental right is impermissable.”

    See: John Snyder’s Arms, Law and Society

    No. 1, Spring 1995

    http://www.firearmsandliberty.com/

  2. Bruce V says:

    “…that differential taxation that selectively burdens the exercise of a fundamental right is impermissable.”

    How do I apply for a “tax rebate” on my NFA items?

  3. Citizen says:

    Gr8 comments!

    A couple of points please.

    Unless you have access to unlimited resupply, a semi-auto assault or battle rifle is the best choice for Militia.

    Also, how many of you have the motivation, fitness, uniform, legal gear, training & whatever else it takes to fall in & function as Militia?

    So many talk the 2nd talk without walking the Militia walk.

    I am the Militia!

  4. Joe Cool says:

    I am looking forward to the SCOTUS deciding it’s an individual right once and for all, with only very limited restrictions even permissible let alone the horrific restrictions NJ has imposed. And when that happens the push for repeal of NJ laws will begin. God help us all if the SCOTUS finds for DC in this case.

  5. Doc says:

    I was rather excited when I heard about the Supreme Courts decision to finally address the outrageous treatment of the 2nd amenment. It is simply unbeliveable that our rights can be taken away by simply saying that what is written doesn’t mean what it says.[ reminds me of our former wanting to know the definitation of "is"]. However, as I read more about the case it appears that even with a positive decision the questions surrounding the “real” meaning of 2nd amenment will probably not be settled ion my lifetime!

  6. Doc says:

    I was rather excited when I heard about the Supreme Courts decision to finally address the outrageous treatment of the 2nd amenment. It is simply unbeliveable that our rights can be taken away by simply saying that what is written doesn’t mean what it says.[ reminds me of our former wanting to know the definitation of "is"]. However, as I read more about the case it appears that even with a positive decision the questions surrounding the “real” meaning of 2nd amenment will probably not be settled ion my lifetime!

  7. Nelson Thomas says:

    The court may embrace miller while still recognizing a strong individual right. Miller provided a two pronged test as was discussed in oral arguments. Per miller an arm must have a reasonable militia application. Basically any firearm in use by civilians is used to some extent by the militia. (of interest is that no evidence was presented in miller that short barreld shotguns have a valid militia use. The court said they “took no judicial notice” that such arms had a miltita purpose since only the government side was present to argue or presented briefs in miller.) The second important prong of the miller test is that citizens were expected to appear when summoned bearing arms of a type in common use at the time. Since machine guns are not in common use, even where legal (with payment of appropriate federal transfere tax), they can still be banned under the existing laws. Probably the majority of laws on the books will continue to stand with only the fringe laws that absolutely ban or discriminate among citizens being succesfully challenged.

  8. Bruce V says:

    Nelson Thomas wrote “….Since machine guns are not in common use, even where legal (with payment of appropriate federal transfere tax), they can still be banned under the existing laws.”

    Machineguns are not in common use by the general public due to INFGRINGEMENTS put in place by the government since the passage of NFA 1934. Aside from the actual INFRINGEMENTS of NFA 1934 a lot of mis-information has managed to become (although incorrect) “common knowledge” by the general public as is witnessed by several prior post; ie machineguns are banned, or the ATF can come in the middle of the night to check on your machinegun, or the “$200.00 tax” has to be paid anually”, I could go on and on. The Huges Amendment Section 922 of the FOPA of 1986 is a defacto ban on all new machinegun technology. If machinegun ownrership had not been INFRINGED on since 1934 there would be much wider ownership by the general public.

  9. Richard Holmes says:

    I am not a scholar by any means.

    Has anyone thought that both interpretations are wrong.

    With the British militia at our door it seems likely, that the frame of mind of the founding fathers would have led to this interpretation:

    It seems to me more likely that a “well regulated militia” would have meant, to the founding fathers, a militia that is kept in check by the by the people, thus the right to own and bear arms should not be infringed.

    I dont’ think they were addressing two issues, one about the state militas rights, and one about citizens rights. I believe they wanted an armed populace to “regulate” the militia.

    Any opinions on this train of thought… it may not be original but I have not heard it from anyone else.

  10. Richard Holmes says:

    I am not a scholar by any means.

    Has anyone thought that both interpretations are wrong.

    With the British militia at our door it seems likely, that the frame of mind of the founding fathers would have led to this interpretation:

    It seems to me more likely that a “well regulated militia” would have meant, to the founding fathers, a militia that is kept in check by the by the people, thus the right to own and bear arms should not be infringed.

    I dont’ think they were addressing two issues, one about the state militas rights, and one about citizens rights. I believe they wanted an armed populace to “regulate” the militia.

    Any opinions on this train of thought… it may not be original but I have not heard it from anyone else.

  11. Mberg says:

    Spider,

    Not to get pedantic, but a “semi-automatic” weapon uses some mechanism – gas, recoil, blowback – to cycle the action; unlock the bolt, extract the spent round, cock the hammer/pin, load the fresh round, lock the bolt.

    Pump, bolt and lever-action weapons, as well as revolvers, are NOT semi-automatic; the shooter provides all the power to cycle the action.

    I say this in order to agree with whomever up above said you are most likely a ringer.

  12. J says:

    “Let’s see how they make that “shall not be infringed” business go away.

    They’ll have to if they are going to allow, say, the NFA 1934 to stand. Or the GCA 1968. Or BATF’s obsession with “sporting use.”

    Posted by: tom swift at June 14, 2008 02:21 PM”

    This whole thing is insane.The 2nd amendment is quite clear and understandable to me,and I’ve never been to any law school.Perhaps this is because I can also understand the other amendments,like freedom of speech and so forth,to mean what they say without the need to actually go thru all these hoops just to see if the government will grant us the ‘privilege’ of our rights.

    Its pretty clear to me that in fearing tyrannical government and in respecting the ability of the common man to sense when natural law and his rights as a human are being infringed upon,the Framers wrote this to mean that we ALL have a uninfringable right to personally owned arms,and that we,as citizens-not the government-are responsible for the security of the free state via the formation of militias which are equipped with these personal arms.Its obvious that this right observes and guarantees PERSONAL OWNERSHIP AND USE of arms.

    It does not provide for certain arms,especially arms in current use by the military,to be banned (NFA 1934) -nor does it allow for certain ‘classes'(GCA 1968) of people to be denied this right.

    Human nature itself can be very violent,and to blame this on certain people the government says is evil or certain inanimate objects is ludicrous.

    No person living ‘free’ in this country should EVER be denied the right to self defense.

    Further,denial of certain weapons or to certain people is NOT going to stop human nature,no mala prohibita law can-JUST LOOK AT WASHINGTON DC UNDER THIS BAN-PEOPLE ARE STILL KILLING EACH OTHER AND AT RECORD NUMBERS.If someone is going to kill someone,they will find a means,but lets all hope the intended victim has the means to defend themselves!

    Remember,the first thing that enabled Hitler to disarm the people he massacred was a law that forbade certain ‘classes’ the HUMAN RIGHT of self defense……….

    WHAT PART OF ‘SHALL NOT BE INFRINGED’ MEANS ‘SHALL BE INFRINGED’?

  13. MY CAPS LOCK IS BROKEN! says:

    IM YELLING VERY LOUDLY SO YOU UNDERSTAND WHAT I SAY IS IMPORTANT.

    Sorry, had to get that off my chest.

  14. Nick says:

    “I am not a scholar by any means.

    Has anyone thought that both interpretations are wrong.”

    Not the way you mean, or I think the “being necessary to the security of a free state” part would not have been applied to the dependent clause, but rather to the RKBA itself.

    I have no references on this, but once was told the RKBA had been part of an early draft of our constitution, but removed for fear it would discourage some of the original states from ratifying the Constitution, anticipating they might view it as an infringement on state’s rights. If that is accurate, it would mean gun politics were a factor even then. That the Second Amendment got into the Bill of Rights means that fear was misplaced, but also that the dependent clause about the militia was an explanatory nod to that state’s rights concern, added to give states a reason to see a RKBA was in their interest.

    If anyone knows any more about this or has references to support or contradict it, I would be interested to hear of them?

  15. Greg Nunn says:

    Another effect bans have, with my point the 1986 machine gun ban, is to literally place the national security of our country at risk.

    Where does the military come by new weapon designs? From the private/civilian sector. The private design and build of a machine gun in the US is a quagmire of unimaginable hoops and holes to get through since 1986, even if your idea is for a military-only weapon. Our military is either using very old designs or foreign weapons today, in large part a result of this 1986 ban.

    Emotions and ignorance compound this problem. And this is a very real and serious problem.

    Let’s hope “bans” are tossed all together, so we can get back to being Americans.

  16. Jay says:

    It’s probably much more important to focus on the consequences of selective incorporation than the premise that an unequivocal right exists. No one in their right mind should be expecting a decision to be handed down that removes any and all restrictions on ownership across the board. To expect such is folly and wishful thinking at its most extreme.

    What should concern you, and what concerned the NRA in their initial desire to keep this case from ever being pressed, is the consequences of 2nd Amendment being placed under the same selective incorporation umbrella that the rest of the Bill of Rights now sits under. In that instance, state gun laws would be overruled by federal regulations which addressed the same topic were those federal regulations to be more restrictive. The strategy of the NRA has been to keep this a battle being fought on 50 different fronts in 50 different state legislatures. Let the 2nd be incorporated, and that entire strategy comes grinding to a halt.

  17. syzito says:

    Hopefully they will end the anti-gun fight for good by declaring that US citizens have the right to own and bear arms for personal protection.

  18. Bill says:

    I was convicted for violating 922(g)(9)in 2003 and served 3 years in a federal prison. I was unware of the statue as it was not in effect when I plead no contest to simple battery in 1996, the government said that since my ex-wife was the victim I qualified as a “prohibited person”. I hope I can get some relief under the Heller case in the future. My federal probation officer told me that he was unaware of the statue and he had worked for the feds for years!

  19. John Cooper says:

    To ,

    Your argument of 6/16 (reiterated below for clarity & convenience) is excellent, & needs some further broadcasting. The application of Letters of Marque & Reprisal to the first clause of the amendment has never occurred to me & I’ve never seen it used by the NRA or any other pro gun platform.

    ************************************************

    More arguments should delve into Congress’ utilization of Letters of Marquis and Reprisal. It was not an uncommon practice for Congress to commission private citizen/businessmen (through Letters of Marquis and Reprisal) to direct their privately-owned merchant vessels armed to the teeth with “every terrible implement of the soldier” to engage pirates and/or other enemies of the state. Congress did not grant special exceptions to own state-of-the-art military armaments to the armed-vessel-owning merchants they commissioned with Letters of Marquis and Reprisal. Their ships were already armed to the teeth. As was the case for all citizens, these merchants were free to possess whatever armaments they decided were necessary to conduct their business (i.e. an unalienable right guaranteed by the 2nd Amendment). Those commissioned were ordinary citizens – special only in the sense that they could afford fully-armed merchant vessels. The fact that we now have a navy to do what was previously directed to merchants, through Letters of Marquis and Reprisal, does not negate the acknowledgement by Congress (and the U.S. Constitution, I might add) that the 2nd Amendment’s guarantee of private ownership of state of the art military hardware is essential to the security of this nation.

    Posted by: lysander at June 16, 2008 09:56 AM

    ***********************************************

    Congrats, you old non-royal Spartan general you.

    John

  20. Allisio Rex says:

    Sorry to disappoint all of you so-called Constitutional self-appointed interpreters of the Second Amendment.

    The Second Amendment of the Constitution doesn’t give either Congress or the State the right to regulate it ” by appropriate legislation” because the writers of the Amendment wanted a People’s Militia with no Governmental Oversight.

    The Supreme Court ruling only covers what we already know but what they failed to see in the Amendment is that it’s not within their jurisdiction to decide who can or cannot possess firearms for their own protection and the protection of the States because there are no qualifications or limitations in the same Amendment.

    Justice Scalia should study the Amendment and go back to law school before making any other comments.

    http://www.usapoliticaltyranny.info

    http://www.stanley2002.org

  21. Sam says:

    I really found this site amusing! I enjoy reading opinions of others and seeing what is going on outside the little bubble I live in. Thanks for the entertainment!

  22. Jason says:

    I know what you mean Sam. It is pretty entertaining to see how things are going outside of my little bubble, I think that it is nice to hear about things like this though.

    Jason.
    http://www.socialsecurityesq.com/

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