Elkhorn Creek Lodge

More Second Amendment Penumbras

Posted in second amendment, uncategorized by Eugene Podrazik on October 29, 2011

While the ‘Firearms Interstate Commerce Reform Act’ of the 1968 Gun Control Act is a much-appreciated reform, it falls into the category of half measures.  Gun control is yet another example of the detritus of a century of ‘progressive’ legislative initiatives that has now brought our nation to its knees with unsustainable debt and regulation.

The entire gamut of gun control regulations is going to have to come under a through scrutiny.  While Justice Scalia, in his Heller opinion made room for the role of regulation, the notion is largely boilerplate since none of the rights secured by the Bill of Rights is absolute in all circumstances.  But, the focus is going to have to change and the scope of these regulations narrowed since the burden of justification for these regulations will fall on the government to specifically show their necessity.  The reason is that Heller and McDonald profoundly shift the locus of control over the rights enumerated from the government in the militia interpretation of the Second Amendment into the hands of the individual.

First, we need to look at the issue of the militia and this quote from the Miller case of 1939; the decision that best embodies the militia interpretation of the Second Amendment:

The significance 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.

The above quote implies the individual possession of arms.  But, it places that possession into scope of these arms to be used at the behest of a governmental need.  It would also imply that the government would have some role into what arms would be appropriate for militia use; in part dictated by the mission envisioned for the militia.

Just on this basis alone, one could argue that what is already in use by infantry soldiers and law enforcement would, by default, be a weapon in ‘common use’ for militia use as well.  The first general mission would be a battlefield situation of holding or taking ground.  This would involve holding and securing roads, crossroads, bridges and other strategic facilities (power plants, industrial infrastructure or refineries).  This would, therefore, require, at the very least, semiautomatic rifles and pistols with large capacity magazines.  The rifles would have to be modeled off military assault rifles since, unlike hunting rifles, these weapons would need the durability to allow for high volumes of fire.

Safety for these militia members would be the same as our uniformed soldiers and law enforcement personnel.  Flash suppressors and, increasingly, sound suppressors to protect a militia member from danger of giving away his position.

The second arena of conflict would be close quarters combat.  This might be in situations where combatants close to distances of 50 yards or less.  Or, combat situations that require the control building requiring those structures to be cleared of enemy personnel.  This may be more in the domain of law enforcement.  But, this is also very much an issue faced by our soldiers in suppressing the al Queada insurgency in Iraq.

In close quarter combat, long range precision become second to the accurate delivery of a high volume of fire.  That means automatic weapons.  Not necessarily a ‘machine gun,’ but, at the very least, a three round burst capability standard in the military’s M16 rifle and M4 carbine.

Additionally, gunfire in an confined, indoor space can create noise and flash is can be particularly disorienting.  And, potentially lethal if you are blinded by muzzle flash or disoriented by the noise of a gunshot magnified by echoing in an enclosed space.  You ability to follow up, to stay oriented and aware may be the difference between life and death.   Again, reason to have flash and sound suppressors on your firearm.

Combat in confined spaces will now bring up the need for more compact firearms.  Rifle barrels shorter than the National Firearm Act’s (NFA) sixteen inches.  And, short barreled shotguns.  The M4 Carbine has a barrel length of 14.5 inches.

So, even from the standpoint of the militia model of the Second Amendment, one can call into question the Constitutional legitimacy of regulations imbedded in the NFA.

Now let’s move on to Heller and McDonald and the newly enshrined protection of the individual right to keep and bear arms for defense of life, liberty and property.  So, in addition to militia duties, we now add a whole new universe for the keeping and, in the gravest extreme, using lethal force.  At this point, the state’s interest in an armed militia become an expectation that the expected armament will meet some minimum criteria of weapons in ‘common use.’  But, beyond that minimum criteria, we now come to the individual’s choice as to how he will equip himself to protect life, liberty and property.  And, beyond militia duties, where and how he will engage when a perceived threat arises.

The most likely area of threat will be defense of home and family or possibly his business.  This will almost invariably require the defense of an enclosed space; a residence or place of business.  All of the tactical considerations of close quarters combat and clearing a building come into play.  Therefore, all of the above considerations of more compact weapons, weapons more easily wielded in confined spaces, sound suppressors, flash suppressors and a high rate of fire become more than a matter of militia preparedness. Further, since we are talking of an individual right, the interests of the state now only come into play if there is a clearly defined public safety issue.

Then we move on to the subject of the Gun Control Act of 1968 (GCA).  The requirement of filling the ATF 4473 form can now be called into question since we now have issue of prior restraint and privacy in the exercise of a right secured by the Bill of Rights.  A case might be made if it were a method to insure that citizens fulfilled their militia obligations by purchasing and maintaining weapons suitable for militia duty.  But, in the era of an individual right and a National Criminal Instant Background Check System (NICS) to confirm that the potential gun buyer is indeed eligible, why is it any longer necessary to permanently record a purchasers name, address and so forth?  If the purpose is to prevent the sale of a firearm to a violent felon, a much more unobtrusive manner of check is now the more Constitutionally appropriate order of the day; such as the NICS.

Finally, there is the issue of felony convictions for mere possession of a firearm or certain firearm accessories.  The whole concept of guilt by possession come from the paternalistic attitidue that you’re not allowed to have that ‘bad’ thing anyway.

So, as a result, we now have the issue of somehow creating a whole new area for appeals for existing gun control laws as they are modified to accommodate the new world of the Second Amendment of the individual right.  This goes back to one of the biggest casualties of gun control–res mens, the guilty mind. Or, in my way of thinking, the concept of the reasonable layman; the layman who can’t hope to know every nook and cranny of Federal, State and Local law and regulation.  That is, there was a purposeful intent to commit harm. Therefore, rather than slapping another ten years on to a sentence for merely possessing a firearm, there will have to be more careful prosecutions to show that that possession was integral to the intent to facilitate the crime.   And, appeals for prior convictions, will now need to be reviewed in the light of criminal use of firearms.  This will be a mess, but this is the price of sloppy jurisprudence of ‘piling on’  charges in the first place.  Welcome to the new world of deferring to Constitutionally secured individual right and the need for greater precision in determining the precise nature of what evil was actually committed.  It’s a concept that is going to have to percolate itself back into our legal community.

I take the concept of militia duty seriously.  In fact, as a former Naval officer, militia laws expect me to show up for militia duty in time of emergency until the age of 62.  But, as a member of the militia and an individual, who in the gravest extreme, will use lethal force to defend myself, my family and my community and country, I very much expect that my government will indeed furnish, or allow myself to furnish, those weapons, reflecting the cutting edge of self-defense technology, that will optimize my chances of success and survival.

I wish to credit Gun Fight by Adam Winkler and Second Amendment Penumbras: Some Preliminary Observations by Glenn Harlan Reynolds for the ideas that I expanded on in this posting.   It’s been 30 years since I graduated from college so I’ve basically forgotten all the rules of footnoting.  And, I majored in engineering anyway.

6 Responses

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  1. [...] And here’s a guy with some related thoughts on gun control and mens rea. [...]

  2. TeeJaw said, on December 21, 2011 at 4:36 am

    Great piece you’ve written. I enjoyed reading it and will save it to my list of things to re-read from time to time.

  3. Plutarch said, on December 21, 2011 at 7:56 am

    To own and have in one’s possession an unloaded and disabled firearm securely proctored in a locked overcase is not so much “having a gun” as having guilty knowledge of where a gun may be found and perhaps made operable if given enough time to make it so. In the subject case, an apparent ‘thought crime’ was committed by sharing knowledge of where a securely proctored unloaded and disabled firearm could be found and implicitly made operable with adequate time and knowledge.

    In the instant matter, there was no operable gun in the commons. There is the matter of the subject knowledge sharing being compelled by the law, and the the fact that knowledge sharing took the form of a formal disclosure to a person of relevant and appropriate authority. To have a disabled and securely encased firearm and to disclose same to the subject authority appears to be an entirely lawful act in the federally regulated commons of commercial air travel.

    But to posess such an item of disabled polymer and steel arises from an enumerated right. And perhaps, more than one enumerated constitutional right.

    What of primacy, preemption and due process? The subject device entered the state jurisdiction traveling lawfully under federal jurisdiction. In the instant matter was the subject owner denied due process?

    The subject owner is a citizen of the United States but he is not a resident of that state. He cannot participate nor can he cast a vote in the politics of that state. The state law he is accused of violating was passed without any consideration for his rights, without any opportunity for him to participate as a voting resident of that state.

    This is not a matter of driving vehicle across state lines where there is reciprocity between the states and effective consent by the licensed non-resident of that state to abide by its laws.

    In the instant matter we have an enumerated constitutional right to bear arms flowing to a conditional surrender of the subject arms per an engineered standard, which renders the weapon disabled for immediate use within a securely locked embodiment.

    Here we have a law abiding citizen transiting from his state of residence into federal jurisdiction per federal rules with a device that he has surrendered into federal jurisdiction for the travel between the states.

    I would think items traveling lawfully under federal jurisdiction enjoy a certain degree of preemption over conflicting state statutes, particularly when the private ownership of such devices arises from an enumerated constitutional right. As one has entered federal jurisdiction for the purpose of round trip air travel between states, there may be another issue regarding that which transits within the domain and context of “the trip” where federal jurisdiction enjoys a certain degree of primacy over the non-resident states receiving this federally proctored commerce.

    The subject was leaving and returning to the state of their residency via federal jurisdiction. They were not changing residency. They did not abandoned their existing residency. In the instant matter they enjoy due process in their state of residency, and due process in the adoption of federal laws, jurisdictions, rules and procedures.

    Their behavior is rightfully subject to the laws of the locale in which they are present where it arises from the jurisdiction of the respective locales. This, however, strikes me as different from conditions which arise from the federal jurisdiction by which the subject individual is transiting from their resident state.

    Where a lawful artifact or device coursing from federal jurisdiction encounters interference or attempted criminalization by fiat of local law, should not the federal jurisdiction preempt? I think mostly it should, particularly in cases where the traveler has been excluded by fiat of non-residency from participation or due process in the enacting of the local law.

    And what of the primacy afforded the enumerated right to own and carry such a device? Residents of New York have voted to deny ownership of firearms to the residents of their state. But I am not a resident of that state. Neither is the subject of this questionable arrest.

    It seems to this layman that I should be able to travel the federal jurisdiction from my state of residence to New York, provided I leave my state with lawful items in lawful condition, and lawfully surrender same into federal jurisdiction for the purposes of my travel to return in due course as part thereof.

    Should I liberate, enable and discharge my device as a firearm in the State of New York, then I will have acted outside the scope of my travel via the federal continuum. It is then and only then it seems reasonable for me to be subject to the laws of that state for my actions. Even then, the constitutionally enumerated rights of every citizen should enjoy primacy over the laws of that locale.

    Perhaps I’m just another non-lawyer out of my depth, but these matters of primacy and preemption and the apparent abusive overreach of adventurous precautionism and predatory legalism are of profound strategic and practical importance to our mutual interests as individual citizens.

  4. teapartydoc said, on December 21, 2011 at 12:10 pm

    One also needs to look at the meaning of the term ‘militia’ in the context of the times. There was an ongoing debate in the Federalist Era of whether the United States should rely totally on militia, or allow standing armies. Standing armies were, at the time, considered to be anathema to republics and a sign of tyranny, especially to the Anti-Federalists who were being placated by the amendments first passed after ratification. The word ‘militia’ to them meant the general population or anything not under the direct control of a central government.

  5. Henry Bowman said, on December 21, 2011 at 6:12 pm

    One also has to red the 1939 Miller case carefully. The Supreme Court NEVER SAID that Miller’s ownership of a sawed off shotgun was either unreasonable or illegal. They simply directed the lower court (which had twice thrown the case out without hearing it, on the presumption that it was a clear violation of the Second Amendment) to hear the case so that evidence related to whether or not these weapons WERE suitable for a militia could be decided. Since Miller was found dead almost at the same time the decision was published, that determination NEVER OCCURRED. Second Amendment supporters have been unnecessarily ceding this ruling to their enemies for 70+ years now.

    • Eugene Podrazik said, on December 21, 2011 at 10:33 pm

      No question. The Supremes waffled big time on Miller. Not having ‘notice’ that the US Army, in WW I, used a short-barreled shotgun for trench warfare, the Supreme Court did indeed remand the case to a lower court to make that determination and thereby establish that the NFA’s regulations on such weapons was indeed unconstitutional. And, that a short-barreled shot gun was a legitimate militia weapon. Unfortunately, that very waffling did indeed lend support to the militia interpretation of the Second Amendment. Don’t even get me started on as to why they could get off their collective asses and research that little tid-bit of information.

      So weighing this waffling against my quote in the above post created a real mish-mash in the Miller case.

      But, for the last two centuries, the Supreme Court have been dancing around the concept of RBKA as a individual right. Most likely because to come out and rule as a collective right would have created an endless headache as to whether ‘the people’ really meant an individual right. Even for the ‘living’ constitutionalists.

      The point, probably, is that only with modern research that established the standard (individual right) model for the Second Amendment did we finally have the intellectual firepower to finally come through with a clear ruling of the Second Amendment as an individual right. I suspect, with the exception of Marshall, Scalia is going to eclipse just about every other Supreme Court justice.


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