In our recent discussion on State Soveriegnty and its erosion by the 17th Amendment, darm suggested that I am ignorant of how our adversarial court system works.

While I am not a lawyer, I can read and reason. The case in question was [i]US v. Miller[/i] (1939), and my comment was that the Supreme Court should have had sense enough to know that the NFA of 1934 was a punitive tax issue, as well as one that infringed upon  the Inalienable Rights of Individuals.

The response was that since no defence had been presented, then the Judges would have to go along with the governments argument, as our system is an "adversarial" one, and there was no "adversary".

It is true that no defence was given in [i]Miller[/i], due to the fact that the defendant had disappeared and the lawyer who represented him did not want to go to the expense of handling the case or submitting a brief without renumeration (sounds typical [:)] ). However, when the Supremes hear a case, there is obviously no jury. That puts the judges in the place of both [b]inquisitor[/b] and [b]decision maker[/b]. They alone have to ask the questions, weigh the answers, and reach a verdict.

Simply saying that there was no defence is not sufficient. The judges are supposed to research both [b]the law[/b] and the [b]facts of the case[/b]. In doing so, if the prosecution makes a statement that is obviously false (as was the case several times in [i]Miller[/i]), the judges are supposed to question that, and reach a verdict accordingly.  If they dont (while I agree that they arent the defence) they obviously havent done much homework.

What I fail to understand is how any body of judges would accept that a punitive $200 tax on a $5 sawed-off shotgun was Constitutional, as well as the idea that while accepting the 2nd Amendment as an [i]Individual Right[/i], an Individual should be forced to pay a $200 tax in order to exercise some portion of that Right. Either a Right is a Right or it isnt. The Supremes attempted to straddle both sides of the fence in the argument, and in doing so they set the stage for the rampant abuse of firearms owners that gained momentum in the early 70s under the guiding hand of Richard Nixon and his newly created Bureau of Alcohol, Tobacco, and Firearms.

That is also, I believe, why the Supremes refused to hear the case brought by J.D. Farmer back in the late 80s over the 1986 FOPA and its highly questionable (and illegal) ban on new "transferable"  machineguns. They have heard some others that have been helpful, but we are still in the legal box of having to pay the government to exercise a Right.

Thoughts? (darm I am especially interested in your thoghts on this)

G2

(edited...damn typo gremlins)

In the Miller case, the SCOTUS sat as an appellate court, to hear the appeal. It was not a trial. They were to determine whether there the lower court erred. The was no verdict, rather they wrote an opinion and either affirmed the lower court, or reversed its decision (I can't remember which, been a long while since I read the case).
As you stated, we have an advesarial system. In such a system the judges DO NOT have to do the other parties research (though many times they do), or check to see if every statement made was true or false.
Well, I cant speak for the court, but I suspect its similar to having to get a permit to protest, etc. But then again, maybe the court didnt say it was an individual right.

>>Simply saying that there was no defence is not sufficient. The judges are supposed to research both the law and the facts of the case. In doing so, if the prosecution makes a statement that is obviously false (as was the case several times in Miller), the judges are supposed to question that, and reach a verdict accordingly.<<
No.  That is a justice system, not an adversarial system.  In a justice system all parties (including the judge)are to try to find the truth and determine justice.  In an adversarial system the judge basically makes sure that the rules are followed  In an adversarial system, the judges do not recognize evidence that is not presented to the court.  That is why we have "friends of the court" briefs, so that parties not directly involved in the case can get evidence and facts presented in a way that the court can use.  To suggest that it should be done otherwise is to challenge the very basic precepts of our English common law tradition of jurisprudence.
>>However, when the Supremes hear a case, there is obviously no jury.<<
That is because the Supreme Court ordinarily does not determine guilt or innocence.  Their job is to determine if the rules were followed according to statute and the Constitution.
>>What I fail to understand is how any body of judges would accept that a punitive $200 tax on a $5 sawed-off shotgun was Constitutional, as well as the idea that while accepting the 2nd Amendment as an Individual Right, an Individual should be forced to pay a $200 tax in order to exercise some portion of that Right. Either a Right is a Right or it isnt.<<
Because all rights are subject to some restriction, and no right is considered absolute.  Rights can be taken away and can be restricted.  We have often (and regularly) taxed the ability to exercise rights.

Here is a good article about US v. Miller

[url]http://www.nationalreview.com/kopel/kopel053001.shtml[/url]

Interesting, I think if you put it in the context of the 1st Amendment, you may think about Rights as absolutes.

Can you yell fire in a crowded theater without breaking a law?

Can you incite a riot verbally and then say you have freedom of speech?

If I want to have a demonstration and broadcast my opinion about an issue, would it be illegal for the government to require me to apply for a permit?, make sure I have security and sanitary needs taken care of where I will be excercising my free speech? Is no the cost of permits, security, and other issuues, a tax?

Back on topic, I'm not sure who but someone brought up a SCOTUS case where they found that the 2nd Amendment refers to military weapons (...well regulated militia..) and that since no army ever used sawed-off shotguns in combat, sawed-off shotguns being non-military weapons can be prohibited.

The Constitution is a very complex document, and the Founding Fathers were very deliberate in crafting it.

Hmmmm. [b]Trial[/b] [i]A formal examination and determination of evidence and legal issues.[/i] - Blacks Law Dictionary

Sounds like one to me [:)]



A verdict and an opinion in a non-jury trial are  for our intent the same. The court reached a decision, and that decision is what is later cited and held up as "case law". The Supremes made thier decision after a lower court dismissed the indictment of Miller and Lawton. That lower court bothered to do their homeowork, and could see that a [b]punitive[/b] tax upon a Right is UnConstutional.



Perhaps thats a failing of a "justice" system, where it is not paramount that actual [b]justice[/b] be found. I do not accept that the judges who sit on the Supreme Court of the United States are absolved from attempting to decide what is legal or not.

[b]If that is the case, then there is no "justice" in our system. That system then cannot be depended on to right that which has been wronged.[/b] Gee, since we have little political hope, and apparently no judicial hope...whats left? Any bets on how [i]Emerson[/i] will come out??




Perhaps a system that allows two representatives of the Federal government to decide that the Federal government is not at fault needs a challenge [:)]



Ok, so they have to determine if the rules were followed according to the statute and the Constitution, but they dont have to determine any facts if there is no defence, even if it involves the Constitution. Interesting system.



In so far as an Individual hurts or damages another , you are correct (or another Soveriegn). The only purpose of Law (any law that is just, anyway) is to preserve the Liberty of Individuals (or Sovereigns) and their property.



Only under the terms outlined above. Otherwise, they arent Rights, they are [i]priviledges[/i], granted by government and revoked upon their whim.



And those "Rights" which are under a [b]punitive tax[/b] would be.....????

G2

I might, but since I understand that I have no Right to initiate harm or damage to another (or their property), I have never made any claim that Rights are absolutes. I do maintain that there are [i]inalienable[/i] Rights, the Right to self-defence being chief among them.



Im sure that there were many Marines in 1777 who would say you are incorrect. Cavalry troops from the 1860s would disagree with you. Troops issued the M1897 shotgun in WWI might take issue with that as well. The fact that shotguns have been used since the Revolutionary War by the US armed forces was apparently lost on the Supremes.

That still doesnt change the fact that the NFA of 1934 applies to [b]machineguns and suppresors[/b] as well as shotguns of a certain length.

Machineguns  have been in use with the US military since the end of the 19th Century. Suppressors were issued in WWI to US Army snipers. Both are quite clearly "militia" weapons. One might argue that a crew served Maxim gun would not qualify (I would not agree, it is a small arm), however the act does not differentiate between that and a Thompson submachinegun or Browning Auto Rifle, most clearly individual arms.

The simple fact is that the Supremes went along with an act that restricted and punitively taxed those Individual Citizens who desired to own effective "militia" weapons.

[b]It was about the money and control, not justice and the Constitution.[/b]

G2  

I know this discussion is about Miller, but let me throw in a couple of quotations and see what you guys have to say about them.  First off these are not SCOTUS cases.
"To prohibit a citizen from wearing or carrying a war arm...is an unwarranted restriction upon the constitutional right to keep and bear arms.  If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of constitutional privilege."  [Wilson v. State, 33 Ark. 557, at 560, 34 Am. Rep. 52, at 54 (1878)]
And then this one.
"The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute.  He does not derive it from the State government.  It is one of the "high powers" delegated directly to the citizen, and 'is excepted out of the general powers of government.'  A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmakeing power."  [Cockrum v. State, 24 Tex. 394, at 401-402 (1859)]

Grenadier2: Since you have Black's handy, look up "Appellate jurisdiction," "Appellate Review," "opinion," and "verdict."
Courts exercising appellate jurisdiction usually do not make determinations of evidence (except whether or not it was properly admitted).
Though a verdict may be contained in an opinion (usually true with federal trial courts), most state trial courts do not issue opinions with verdicts. Appellate courts do not issue verdicts, they rule on whether lower courts erred, and issue their judgement in the form of opinions. The opinion is "case law." Verdicts of trial courts aren't even published (except for some federal district courts).
Indeed. Of course, any attempt by trial courts to do their own fact finding or research, without allowing the opposing party to respond to such, would violate due process.
The SCOTUS made a bad decision? Surely you jest! this is a first....

A grand total of 49 marines were killed, and 70 wounded during the Revolution. I can't ever recall reading about shotguns being used during that time period as weapons of war. Ships had small anti-personel cannons but those were affixed to the ship. I think the Marine long gun of the time would have been a musket. Marines would have been, mostly,  up in the ships rigging, 80' or so from the deck sniping at the enemy's crew when the ships got close to one another. Shotguns would probably have been ineffective at those ranges. And I think the weapon you are thinking of is a "blunderbus", not a short-barreled weapon, more like a shoulder cannon.

Calvary troops from the 1860's, during the criminal uprising by certain rogue states, again I don't believe there were widespread issuances of shotguns. Many calvary troops were issued cut down carbine versions of full size infantry rifles, large and heavy by todays standards. Calvary were also issued large handguns, larger then would be comfortable to wear on a belt. Those revolvers were so that a trooper could remain mobile and have several shots to take before he would have to stop and reload. Shotguns would be slower to load, and less likely to stay loaded during calvary movements.

You got me on the WWI thing, we were the only country issuing them, and not that many were issued. Just becuase a few guys in the military used a certain weapon, that doesn't make it a "military weapon".

I would disagree on the crew served weapons, if it requires 2 or more people to effectively operate the weapon it is not an individual weapon, subject to an individuals rights. You have a point on the BAR and Thompson, however.

The 2nd Amendment says....keep and bear arms shall not be infringed..... Does that mean concealed carry?? Some people claim it does. Does it mean I should be able to buy a 25mm chaingun from a Bradley?? Would a derringer be a "war arm"??  [red]And I'll point out it says "ARMS", not small arms or individual arms, where did we come up with the small arms restriction? [/red]

CIB, those look like state cases, though the language is colorful, I'm not sure the rulings affect anyone not in Arkansas or Texas. The years of the rulings might also render them of less help. Interesting tho'

Seems as though I read an article that over 100,000 shotguns were issued in WWII. The Germans said anyone who used them were commiting a war crime and that those captured with shotguns would tried for such.
I think the restriction to small arms comes from the notion you can't "bear" a howitzer, etc. Further arguments, IIRC, look to see exactly what the FF were talking about, and research reveals small arms.

[b]Opinion[/b] 1. A court's written statement explaining it's decision in a given case, [i]including statements of fact, points of law, rationale, and dicta.[/i]

[b]Appellate Review[/b] Examination of a lower court's decision by a higher court, [i]which can affirm, reverse, or modify the decision.[/i]

[b]appellate jurisdiction[/b] The power of a court to [i]review and revise a lower courts decision[/i];...

[b]verdict[/b] 2. Loosely, in a nonjury trial, [i]a judges resolution of the issues of a case.[/i]

Thanks for making my point. The Supremes ruled/opined/read tea leaves in favor of the Federal Government, and against We The People by reversing the lower courts dismissal of [i]Miller[/i]. You can play all the semantics games you want, but it changes nothing. The Treasury Department lawyer lied, and the Supremes either didnt bother to check, or were in collusion.

Whether you call it a "verdict", "opinion", "ruling", or "decision" the end result is the same.



[b]Appellate Review[/b] Examination of a lower court's decision by a higher court, [i]which can affirm, reverse, or modify the decision.[/i] Hmmmm. [:)]



See first response.



[b]Opinion[/b] 1. A court's written statement explaining it's decision in a given case, [i]including statements of fact, points of law, rationale, and dicta.[/i]

Seems like the current day Supremes grill both sides pretty heavily....and they dont think the questions up "on the fly". Those questions arent group debates, they are asked of one side (not both simultaneously). So which is it? Are the Supremes violating due process (any more than usual, anyway)??

G2

Actually I was thinking of "boarding parties" in general, so technically it wasnt necessarily Marines, you are correct. However, you muct write policy briefs for the VPC. "Shoulder Cannon"?? You must be reading up on Japanese Matchlocks or weapons carried by the Hussites. Give me a break. A short barreled man portable weapon with a distinct fowling piece or musket stock that fires a pattern of shot is the equivilant of todays sawed-off shotgun. A blunderbuss is merely a fowling piece with a flared muzzle bell. Im talking about 17th/18th century weapons, not 14th century bombards on a stick [:p]



Well, since many of those troops from your so-called "rogue states" were formed into units that started as [b]militia[/b], I guess that doesnt count??  Ooops, since some mossback Yankee Ordnance officer didnt think it was such a great idea, it doesnt count. Ok [:)]



Over 10,000 of them is a "few guys"?? LOL. Seems to me that a weapon distributed by the US Army, marked with a US Ordnance "flaming bomb" stamp, recorded in its official inventory, and was later issued in WWII...[b]and is still issued TODAY[/b] to selected units of the US Army, US Air Force, US Navy, and US Marine Corps...that type of weapon isnt a "military weapon"??? LMAO !!!! [:p]



Dont know, and its not the point of this discussion. How many liberals can dance on the head of a pin? Exactly how does your question relate to punitive taxation in order to exercise a Right???



Abe Lincoln probably thought so.



The Founding Fathers. [i]The Federalist Papers[/i], [i]The Anti-Federalist Papers[/i], the Militia Act of 1792, etc. Many, many quotes from dozens of those pesky Founders, as well.

G2

           

No $hit sherlock, what the hell do you think a decision by a court does? Since you don't understand that reversing the decision has the effect of making law (you seem to think only a verdict can do that, which any first year law student can tell you trial court verdicts make little law), you seem to think that I am saying the Miller decision is meaningless. My post was not directed at any assertion you made regarding how the SCOTUS ruled on the 2nd amendement, but rather at your improper use of legal terms. Yes, the decision of the SCOTUS affect the interpretatition of the 2nd. That is so patently obvious I can't imagine why the in hell in you would think someone would waste time even arguing it with you about it.

>>
--------------------------------------------------------------------------------
In the Miller case, the SCOTUS sat as an appellate court, to hear the appeal. It was not a trial.
--------------------------------------------------------------------------------
Hmmmm. Trial A formal examination and determination of evidence and legal issues. - Blacks Law Dictionary
Sounds like one to me<<
Might sound like it, but it is not.  There is a distinct difference between appellate review and a trial.  This is one of those things where it seems to make no sense unless you have a good understanding of what an adversarial system is and how it operates.
>>A verdict and an opinion in a non-jury trial are for our intent the same.<<
No, they are not.
>>Perhaps thats a failing of a "justice" system, where it is not paramount that actual justice be found.<<
You can have your choice.  You can have a justice system, where the finding of truth and determination of justice is paramount, or you can have an adversarial system, where the rights of the individual are paramount.  You can't have both.  The Founding Fathers that you like to refer to preferred an adversarial system as being best for a nation of law, and I tend to agree with them.
>>I do not accept that the judges who sit on the Supreme Court of the United States are absolved from attempting to decide what is legal or not.<<
As we have seen, it doesn't matter what you or I accept.  What matters is what the law says.
>>That system then cannot be depended on to right that which has been wronged.<<
Most will disagree with you, many will not.  Half the country thinks the Court was wrong in its Florida decision in the election, half thinks it was right.  But the Constitution lets one group have the final say, and it is the Court.  
>>Only under the terms outlined above. Otherwise, they arent Rights, they are priviledges, granted by government and revoked upon their whim.<<
Not revoked upon whim, but revoked and/or restricted according to law.
>>And those "Rights" which are under a punitive tax would be.....????<<
That would depend upon how one defines a punitive tax.  Personally, I don't find the $200 transfer tax to be particularly punitive.  Somebody else might think a $1 tax to be punitive.

NO-AR....good examples of restrictions and taxes placed on the 1st Amendment.  All commonly understood and accepted.  Sometimes in our zeal we forget the 2nd Amendment is not that different from the others, and examining how we handle other rights can sometimes bring things into perspective.

>>The simple fact is that the Supremes went along with an act that restricted and punitively taxed those Individual Citizens who desired to own effective "militia" weapons.<<
No, and that is why you seem to be failing to understand what happened.  NO firearms were restricted.  NO individuals were taxed.  Anybody that already owned a NFA weapon did not pay anything.  The tax is a transfer tax, that is a tax on the sale of the gun.  No different than a tax on your automobile or your groceries.

>>Seems like the current day Supremes grill both sides pretty heavily....and they dont think the questions up "on the fly".<<
I believe you will find that few, if any, of those questions have to do with the actual evidence.  The questions instead tend to focus on legal issues surrounding the evidence.  For example you don't see an appellate court asking about what a confession said, you see it asking questions about how the confession was obtained.

10,000 shotguns issued to MILLIONS of troops is pretty tiny.

FYI I was issued military shotguns several times when I was in the US ARMY, NOT A SHORT BARRELLED WEAPON. It was a Mossberg.

No a short barreled shotgun is not a military weapon, unless they passed a rule that all future wars will take place small to medium  rooms.

Shotguns in the Revolutionar War?? I sitll don't think so. Boarding parties would have multiple pistols, and swords. Boarding parties were not able to reload due to the nature of the combat. I don't even wanna know how difficult it would be to reload a shotgun of that time period.

Avtomat: I think you mean WWI, not WWII. Grenadier metions 10,000 shotguns, I think that is probably closer to the right number than 100,000. But what was the barrel lenght?? The reason I brought up the SCOTUS ruling on shotguns, it related to short barrelled shotguns not being a military weapon. They didn't say shotguns weren't, they dealt with sawed off shotguns.

Touche sir, you are correct!

Well they are now!  Ever see a Masterkey M4?  That is definently a short barreled shotgun.  

Being nit-picky also brings up another point- the issue of machine guns and short-barrled rifles was never brought up.

Not just that awesome shotgun attatchment for the M4, but the Rangers and other Spec Ops units use a 12ga shotgun that has an overall length somewhere around 14 inches.  It is used mainly to blow the hinges off of doors during MOUT, but it is issued by their arms room, and is listed in their inventory.
As with any case, time changes how it would be interperted.
Also, since Miller's conviction was upheld because the SCOTUS is saying a sawed off shotgun is not issued to the standing army of the day, why the hell can I not go buy a real M4?!?!?!?   [pissed]

[url]www.jpfo.org/miller.htm[/url]

Plenty of info on military shotguns less than the 18" length cited in Miller and the NFA.



n 1861, the Federal government purchased 10,000 Austrian-made carbines (KammerKarabiner, Model 1842). This
      muzzle-loading .71 caliber firearm resembled a shotgun: it had a 14.5" rifled barrel and no bayonet. It was issued to The
      Second Regiment of the Wisconsin Volunteer Cavalry (also known as the Washburn Cavalry), and likely was issued to
      other units.33 The government issued three types of ammunition for this carbine: buckshot and ball combined, ordinary
      buckshot, and round balls (see illustration). Two of these three were specially suited for use in shotguns. Most of the
      ammunition actually purchased was of the buckshot, or buckshot-and-ball type.34


      Shotguns became standard issue U.S. Army weapons during the Moro rebellion in the Philippine Islands, during the first
      decade of the 1900s.35 In World War I, shotguns definitely were widely used by U.S. troops:

             "When American troops were in the heat of the fighting in the summer of 1918, the German government sent a protest
             through a neutral agency to our Government asserting that our men were using shotguns against German troops in the
             trenches. The allegation was true; but our State Department replied that the use of such weapons was not forbidden by the
             Geneva Convention as the Germans had asserted. Manufactured primarily for the purpose of arming guards placed over
             German prisoners, these shotguns were undoubtedly in some instances carried into the actual fighting. The Ordnance
             Department procured some 30,000 to 40,000 shotguns of the short-barrel or sawed-off type, ordering these from the regular
             commercial manufacturers. The shell provided for these guns each contained a charge of nine heavy buckshot, a
             combination likely to have murderous effect in close fighting."36

I think you are going to have to admit that the M1897 and M12 Trench Guns are regular issue weapons of the US Military.  After all, the Ordnance dept. went to the trouble of specifying heat shields, bayonet mounts and sling swivels be installed on these 18" barreled weapons.  

Why so few were issued during WWI?  That is as many as could be obtained in the amount of time we were in the war before it ended.  Remember, there was no mass production of firearms back then.  I believe the M1 Garand was the first weapon specifically designed to have readily interchangeable parts (although I could easily be wrong on that).

So, at the time of the Miller case,  short barreled shotguns were most definitely general issue weapons in the US Military.  They were "Property of the US" marked, had Ordnance Dept. acceptance stamps on them,  and were in the inventory of the Armories.

I never said the US didn't use shotguns, I know of the WWI "trench boomers". But I said the SCOTUS ruling dealt with [red] SHORT [/red]barreled shotguns. Those would be shotguns with barrels less than 18" in lenght. Someone may call 18" shotguns sawed-off if the are acustomed to sporting weapons with 26" barrels. But legaly an 18" shotgun barrel is not a SBR.

Show me where the military from 1900-2001 issued a shotgun with a 6" barrel. That is a sawed off shotgun.

Nightstalker: resembled a shotgun (1861)? Resembled, doesn't make it a shotgun, and having a rifled barrel makes it more likely a short barreled rifle. As for 1861 that has little to do with today. The Constitution is a "living document". If you try to put a "date" on it a lot of anti's will put 1776 on it and say we all have the right to as many black powder weapons as we like, but no revolvers, pump shotguns, AR-15's... etc.

G2: I think Abe Lincoln would not consider a derringer a war arm and would be opposed to concealed carry.

I have said that the Constition is a very intricate document and that the Founding Fathers were very shrewd in crafting it.

I am simply trying to debate the topic you brought up.

M1JEFF: you got me, wait you proved my point, those ARE NOT SHORT BARRELED WEAPONS if they have 18" barrels. Wasn't the '03 Springfield a mass produced weapon?

Armlbrl, AlphaJaguar: You got me there, on both M-4's and the under barrel shotguns. Remember though the SCOTUS seems reluctant to here cases about the 2nd Amendment. Anti's don't wanna press the issue becuase they are afraid SCOTUS will say there is a RKBA. The RKBA's groups won't press it because their afraid that SCOTUS will say that RKBA only applies to "militia", not individual citizens. There has been some discusion that the militia would be defined as uniformed people who keep order. In other words LEO's, ARNG, and other "state" entities.  

In skimming the Miller decsion the SCOTUS seems to say that no weapon that is not commmon issue is protected under RKBA. Wow!, I wonder how all those bolt action rifle, shotgun hunters would feel if the knew the SCOTUS indicated M-16/AR-15 were protected under US 2nd but the hunting weapons weren't?

"Unintended Consequences" page 46, the government prosecutor in Miller says " The weapon that Mssrs. Miller and Layton transported in interstate commerce, a double barrell Stevens 12 ga. shotgun, having a barrel less than 18" in length and bearing [b]serial number 76320[/b] is not issued to any military entity anywhere in our country.  To say that this weapon is part of any well-regulated militia is utter nonsense."

What made this true was the serial # (as the Stevens 12 ga. was the exact weapon issued to infantrymen.)  In the Blue Book of Gun Values on page 1262 under Trench/Riot Shotguns the Stevens single and double barrel shotguns are listed and it states clearly they were procured by the military and had an ordnance bomb stamp on the receiver.  The exact serial number was a ruse to hide the truth as Miller's gun was not a "military issued" weapon but was exactly the same without the stamp.  The justices did not catch the small lie.  The lawyer was Gordon Dean.

Nothing of the sort. I clearly stated that [i]Miller[/i] isnt "meaningless", just that it is not in keeping with the 2nd Amendment. Not the same at all.



Ok, next time you want to make a point, make it. Dont say "look this up" and then bitch when I do [:)] If you cant tell me what it is you where thinking, I cant read your mind. Post what you mean and I will be happy to read it.



You just get here?? Im not arguing its [b]effects[/b], Im arguing about its legality/Constitutionality. There are several opinions being presented here and I enjoy learning from others. If you feel you are "wasting time" you are more than welcome to stop reading this thread [:p]

G2

LOL. Ok, so a tax of $200 on a $200 item (that being the aproximate cost of a Thompson SMG in 1934 IIRC), or better yet, a $200 tax upon a $5 shotgun isnt punitive??? LMAO.

You still havent presented any examples of [b]taxation[/b] upon a [b]Right[/b]. And the spurious examples posted by NO-AR are laughable, but not applicable. A Right is that which, in its proper exercise, does not force anyone to act against their own self-interest (ie: you cannot initiate harm against another in any way).

And, in case anyone noticed, the cost of printing, air time, etc are not taxes...they are the cost of doing commerce with others in willful association, since we do not have state-run/owned media as our only outlet.



Ok, LOL. We are going in circles on this one. I choose never to cede my Soveriegn Right to question and challenge those laws which are unjust. Others mileage may vary.



LOL. Miller [b]was not[/b] arrested for [b]transferring[/b] his shotgun, he was arrested for [b]possession[/b] of it. He already owned it, and the government most certainly wanted that tax.

[b]The tax on NFA weapons is most certainly a tax on [i]possession[/i].[/b] Ask anyone who had an NFA weapon during the 1968 "Amnesty" period. Prior to that, many NFA weapons were registered and taxed after having been owned for many years, and noone was "transferring" anything...they just got noticed by a law enforcement agency as having no tax stamp.

G2

And your point is?? If we accept the lie that some firearms are "acceptable" and some may be restricted because of a few inches of steel or wood, we might as well pack it up. The Founders had no such ideas...at least if they did, I welcome someone to document it. Firearms are firearms, period.



LOL. Still writing VPC briefs? [:)] And in reality, when the shot load is discharged, can the target tell the difference between a smoothbore and a rifled barrel?? [:p] Give me a break.



Only in the minds of those who hate Liberty. The Constitution is a contract, with set rules and a very distinct set of Rights that are considered inalienable. Anything beyond that is no Constitution, as it leaves nothing that is absolute, no guarantees to our [i]enumerated[/i] Liberties and Rights. Thanks but no thanks. Wanna play Poker with "living rules"?? [:)]



Hmmm...then we could restrict them to movable type printing presses. Might make for an interesting discussion on their part.



My answer was a bit tongue in cheek, but I said that to illustrate a point....the end result for him was the same, whether Booth used a cavalry revolver or a deringer. We are cutting our own throats as gun owners when we give in to the "sporting use/military use" smokescreen that the antis use. Firearms are firearms.



You nailed it. I brought up something similar at a gun club meeting last night, concerning the VPC now setting their sights (pun intended) on "sniper rifles". What it boils down to in their  latest 56 page report  is that some rifles are "too accurate" for the public good. Most deer hunter types wont be forced into caring until the law is passed, I think...they seem to be in constant denial. I brought the printed report, none of the deer hunter types could be bothered to look at it. Aaarrggh.



Yes, and even though I question many of your arguments (as mine are by others), I do welcome your comments. Reasoned discourse is the quickest way for us to learn from others (at least for me).

G2


Edited to add : Excellent point, nightstalker!

Resembled a shotgun, well it resembled a long barreled pistol also.

The 2nd Amendment goes on about keep and bear arms, militia etc. So one arguement is that the arms to be beared must be of a type that are usable in a milirary situation. As a guide they have used what "regular" forces are issued.

I read the brief on MIller. He was arrested for a sawed off shotgun. In the brief it goes on to say that sawed off shotguns were issued in WWI. Then it describes them as having 20" barrels. The example they use doesn't work. The SCOTUS interpretted the 2nd Amendment, and said that sawed-off shotguns are not protected under the US Constitution. The Supremes also talked about whether or not a shotgun was protected, indicating thaey thought it wasn't. But the case was about sawed off shotguns.

Firearms are Firearms... Well like I posted before the 1st Amendment has limits why do you think the 2nd doesn't as well? You are right the gun owners do a poor job off thinking about gun policy as a group/community. But it is often an emotional not intellectual response on both sides.

FYI-Look at one of the links it talks about just prior to the Revolutionary War British sailors in boarding parties being issued blunderbusses.

No the Constition is a living document if you love Liberty. If it wasn't would freedom of speech be applied to the internet?? What about Miranda? Or the "Right to Privacy" that the SCOTUS ruled is implyied but not listed in the Bill Of Rights?

This is complicated stuff, and I bring up some of my points to be the "devils advocate".

Limits upon Free Speech are all limits on harming or damaging others. How does possession of a shotgun with a barrel under 18" (or overall length of 26") harm anyone? For that matter, how would my possession of a fully automatic weapon, short barrel rifle, suppressor, etc harm anyone?



The protection is on the [b]ideas[/b] expressed...the Founders made no distinction as to the ideas being expressed in any given form.



[b]Bill of Rights, Article IX[/b] [i]The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.[/i]

How does the courts "discovery" of Rights already addressed in the Constitution make said Constitution a "living" document??

G2

           

>>You still havent presented any examples of taxation upon a Right.<<
Nor have you.  The taxation you keep bringing up is a taxation on a transfer of property, not on the keeping and bearing of an arm.
>>And the spurious examples posted by NO-AR are laughable, but not applicable.<<
Again, here we see why we follow written law and not individual interpretation of intent.  I feel that the examples given by No-AR are quite good, you find them not applicalble.
>>A Right is that which, in its proper exercise, does not force anyone to act against their own self-interest (ie: you cannot initiate harm against another in any way).<<
As we keep seeing, your definitions of various terms are not necessarily the definitions accepted by most other people.
>>. Miller was not arrested for transfering his shotgun, he was arrested for possession of it. He already owned it, and the government most certainly wanted that tax. <<
Wrong.  He was arrested for not having the required tax stamp.  If he had registered it, the stamp would have been given to him, as was done with all the other folks who owned machine guns, SBR, sawed off shotguns, etc.  The fee only comes into effect when the weapon is transfered to another.
>>The tax on NFA weapons is most certainly a tax on possession.<<
Sorry, but your version of the facts does not coincide with the historical record.  All NFA weapons which were properly registered did not require any payment.  It was (and is) only when the weapon is transferred that the transfer tax must be paid.

>>Limits upon Free Speech are all limits on harming or damaging others.<<
Really?  Care to explain how my using the F-word on radio harms someone?  Or how putting a picture of a woman having sex with a dog in the local newspaper harms others?

>>How does the courts "discovery" of Rights already addressed in the Constitution make said Constitution a "living" document??<<
It is a living document because not only are new rights introduced but previously recognized rights are modified, expanded, revised, and so on.  Just look at the growth of the 6th Amendment right to counsel.  And of course the entire concept of the 14th Amendment was that the Constitution needed to change to meet new situations.

Speech is susceptable to content neutral time/place/manner restrictions (without regard to its "harmfulness"), it can be subject to permit fees, obscenity can be regulated, etc

What the SC needed to realize is that EVERY firearm ever created has or had some Military value.  I mean, our own gov't made Millions of single shot pistols for WWII.

LOL. Transfer or no, it still must be paid in order to possess that property. Any NFA weapon in someones possession that is unregistered is subject to confiscation due to non-payment of tax. One cannot "legally" keep and bear such an arm without paying the tax, which was several times the value of many of those said weapons in 1934.

A Thompson cost around $200, I believe, in the early 1930s. Quite a sum at that time. The tax was also $200. Hmmm

A Maxim silencer was [b]$3[/b]. A $200 tax wasnt punitive?

Millers shotgun was probably worth $5-10. A $200 tax wasnt punitive? LMAO.



Uhh, yes. He possessed it. That was the point. He didnt buy it and not pay the tax, he already owned it.




Goy any documentation?? Ive never heard that anywhere before, from either side. Even if that were true, it is still a punitive tax.



LOL. Youd have to take that up with the FCC. Maybe you can get enough people to agree with you..yadda yadda. I wont broach the subject, because it involves morality and what many people consider obscenity as opposed to speech. Im not taking the bait. Thanks anyway. If you can demonstrate that those things are "speech", then start another thread on that topic. Id be very interested in reading that.



Well, Ok, you are welcome to your opinion. I do not agree. Im sure you will have something smart to say about that, too.



Obscenity is regulated because it is held to not be "speech". Permit Fees are [b]NOT[/b] Federal Taxes, and thus are outside this discussion, sorry. Im only talking about Federal level law.

>>Transfer or no, it still must be paid in order to possess that property.<<
No.  You must have a stamp to possess the property, but you only need to pay the tax whne the property is transferred.  That is why there is a new $200 each time it is sold.  If the -property was being taxed, you would not have to pay the fee each time the property is transferred.
>>A Maxim silencer was $3. A $200 tax wasnt punitive?
Millers shotgun was probably worth $5-10. A $200 tax wasnt punitive?<<
Apparently not, judging by the huge number of tax stamps bought.

>>All NFA weapons which were properly registered did not require any payment. It was (and is) only when the weapon is transferred that the transfer tax must be paid.
--------------------------------------------------------------------------------
Goy any documentation?? Ive never heard that anywhere before, from either side. Even if that were true, it is still a punitive tax.<<
For documentation, read the law.  Tax is assessed upon transfer of the weapon.  All weapons that were registerred under the act were grandfathered in and no fee was assessed.  As to the tax being punitive, again that is a matter of personal interpretation.  I don't find it punitive, and apparently thousands of full-auto owners don't either.
>>Youd have to take that up with the FCC. Maybe you can get enough people to agree with you..<<
Sorry, you are the one that made the claim.  I merely presented a couple of examples that show your claim to be incorrect.
>>Well, Ok, you are welcome to your opinion. I do not agree. Im sure you will have something smart to say about that, too.<<
And yo are welcome to your opinion.  That is the point.  We all have opinions.  But it is the law that we follow, not our own individual opinions.  The law generally is a reflection of the opinions of most of the people, although there are notable exceptions.  When enough people think your opinion is right, then it stands a good chance of becoming law and the whole country will then be obligated to follow it.  Until then, we follow the law as it is presently written by the legislature and interpreted by the courts.  That is the system established by the Founding Fathers through the Consitution.

I tried to find the law in its original form, but the reference given in 1939 doesnt match the laws location today. (Yes, I know its still in 26USC) Since laws are changed from time to time, and things added/omitted, I cannot verify it. You may very well be correct, but I cant find any contemporary reference to the enforcement of  the law in 1934 (or until 1968).




The number of tax stamps sold in the first few decades of the Act were quite low, due to the highly punitive nature of the tax. You are assuming that because the tax stayed at the same price, while the price for NFA weapons rose, that the tax wasnt punitive at its inception. Thats somewhat interesting. Most of the stuff "in the system" is post 1968. Back in the 30s, many people didnt know what the law was, and if they did, many chose to ignore it. Same in the 40s, after WWII when there was another large (relatively) group of NFA weapons that came home with GIs. Framing the argument from the viewpoint of today (in regards to the amount of  tax) is somewhat misleading.

           


LOL. Ok. Whatever. Either start a new topic or dont. Your claims move into an area that many people have argued over for decades, nay a century or more. Obscene materials were banned from the mails in 1879, I believe. The argument goes back farther than that. Make any claim you wish about it, its a totally different topic. The only [b]lawful[/b] restrictions upon [b]Rights[/b] are those which prevent harm to others (or that make you responsible for any harm you cause).



Unless, of course, we believe the law to be wrong. Thats the example set forth by the Founders, in their struggle to put our system together. King George did what he did under the law, but the Founders quite clearly chose not to follow it, as the law was clearly wrong.

They made it clear that when the law is turned against its original purpose, and is used to oppress the people, it is the duty of the people to resist.

As far as the courts go, I defer to Thomas Jefferson's advice (and warnings) on the subject :

[b]"The new Constitution has secured these (he was speaking of Individual Rights) in the Executive and Legislative departments; but not in the Judiciary. It should have established trials by the people themselves, that is to say, by jury."[/b] (1789)

[b]"The Judiciary of the United States is the subtle corps of sappers and miners constantly working to undermine the foundations of our confederated fabric."[/b] (1820)

[b]"...the Federal Judiciary; an irresponsible body (for impeachment is scarcely a scarecrow), working like gravity by night and by day, gaining a little to-day and a little to-morrow, and advancing its noiseless step, over the field of jurisdiction, until all shall be usurped from the States, and government shall be consolidated into one."[/b]

G2

           

Just a thought... the NFA wasn't presented as limiting the RKBA.  At the time, the country was full of the images of gangsters running around with tommy guns and shooting up the streets (sound familiar?).  It was passed as a tax so the Feds had a basis on which to arrest and prosecute mobsters for tax evasion when they were found with unregistered, untaxed weapons.  It was the old "crime control" routine.

The NRA has a very good analysis of the 2nd amendment in the courts, and the SAF (under the Emerson section) has the a-c briefs filed by both sides... very interesting reading, along with Cummin's original decision.

As far as the Constitution being a "living" document, Justice Scalia would vehemently disagree with you.  It doesn't change by being interpreted, only by being amended.  And the unenumerated rights are in there, just like the enumerated ones.  The really tricky part for the SCOTUS is balancing the rights of the individual against the need for public safety... and that is generally the only reason infingements on individual rights are allowed.  Once a right is recognized as an individual right, the burden is on the government to prove that there is an overwhelming need to infinge on it.

As far as the 2nd amendment goes, the 9th Circuit Court of Appeals has consistentently held to the "collective right" interpretation.  If the 5th CCA upholds Cummins, there is automatically grounds to get it in front of the SCOTUS for a definitive ruling, because of the conflicting opinions.  At that point, pray that the Justices pay attention to their duty to "uphold and defend the Constitution of the United States" as it was originally intended by the Founding Fathers.

JMO

>>You may very well be correct, but I cant find any contemporary reference to the enforcement of the law in 1934 (or until 1968).<<
Then I'll just have to say "trust me" on this one.  Yes, you did have to have a stamp, which was only given upon registration.  But current owners were grandfathered in, and did not have to pay the $200 on weapons they already owned.
>>The number of tax stamps sold in the first few decades of the Act were quite low, due to the highly punitive nature of the tax.<<
That is an assumption that is quite questionable.  At that time the sale of NFA firearms themselves was quite low, as was true of ALL firearms.  Remember, this is during the Depression.  Not a lot of follks spending a lot of money on fun things.  To blame low transfer on the tax is pretty questionable.
>>Framing the argument from the viewpoint of today (in regards to the amount of tax) is somewhat misleading.<<
Not really.  When you look at full-auto arms, or most other NFA weapons, the tax is only a small part of the overall cost at any time, not just recently.  
>>Make any claim you wish about it, its a totally different topic. The only lawful restrictions upon Rights are those which prevent harm to others (or that make you responsible for any harm you cause).<<
Sorry again, but it is not a different topic.  If one is going to talk about restrictions of Rights being based only on harm, one has to address the 1st Amendment restrictions for obscene and pornographic material.  To claim that it is a different topic is to ignore the best evidence available.
>>Unless, of course, we believe the law to be wrong. Thats the example set forth by the Founders, in their struggle to put our system together. King George did what he did under the law, but the Founders quite clearly chose not to follow it, as the law was clearly wrong.<<
Nope.  Law is not wrong or right.  If we would have lost the Revolution, the Founding Fathers would have been tried and probably convicted for violating the law, and suitably punished.  The fact that they won and wrote new laws does not change that at all.  Remember that if we go by your "opinion" doctrine, the Founding Fatghers were traitors and terrorists to most people at the time.
>>They made it clear that when the law is turned against its original purpose, and is used to oppress the people, it is the duty of the people to resist.<<
That is why Washington put down Shay's Rebellion, and Adams(?) suppported the Anti-Sedition Act, and so on??  When the Fathers got into power, they fought pretty hard against anybody who attempted to resist their efforts to oppress the people.
>>As far as the courts go, I defer to Thomas Jefferson's advice (and warnings) on the subject:<<
That's fine, you can defer to his advice and warnigns if you wish.  However, his advice and warnings are not legally binding or even particularly relevant.  I'll stick with the law instead of individual biases and opinions.

Nonetheless, the number of registered/transferred/taxed weapons was a small fraction of the total number in civilian hands. Question it all you want.
             


LOL. A tax that is at least the total cost of the weapon, if not 20x or more isnt punitive. Sure. Even when I was dealing, a $200 tax on a $500 item seemed a bit steep. Compared to a $3500 piece its not much...but they werent $3500 back in 1934.



In a discussion devoted to that, I would. Im not here to debate the porn issue...you are also making a wild assumption about what my thoughts are on that issue. You have no idea whether I agree with you or not. The only legitimate restrictions upon Rights are those that harm others. Take that any way you like, as thats as far as Im going on that issue in this thread.



In your opinion. I dont happen to agree. My statement about the only legitimate restrictions upon Rights still stand. I havent taken a position at odds with you on the First Amendment, have I?? Im not taking the bait, as its off the subject Im talking about. Im not interested in possibly agreeing or debating anything of the sort. This thread is long enough already. Take that any way you like, I have made my opinion clear. If you want to pursue it further, start a new thread.



Bullshit. Thats the sort of moral relativism (or outright lack of a moral code) that takes a shortcut to oppression and tyranny. Law does not exist in a moral vaccuum, though there are legions of people who wish to make it that way. Bastiat was right.

Thats why they pledged their lives, fortunes, and sacred honor. They took a huge chance to do what they believed was [b]right[/b], as they believed the law to be [b]wrong[/b]. But what the hell did they know? They were fools, I guess.



Yes, it was somewhat interesting of them. Ive never quite figured out what their reasoning was, especially in the case of Shays Rebellion. Further study is warranted.
           


Neither is law that is UnConstitutional...which brings us back to where this all started. [:)] The comments of everyone in this thread could be described the same way, so whats the point?



Hmmm. The [b]Nuremburg Defence[/b]. That was tried and found somewhat lacking, but you are welcome to walk whatever path you choose. Since laws allegedly dont involve wrong or right, enjoy your trip. Law that is devoid of moral character is fun for everyone, isnt it??

Well, we have come full circle. I have enjoyed our little chat. Now that my "home" board is back up, feel free to come visit. I wont be over here for a while (I have some catching up to do...maybe I wont be gone from here for nearly a year like I was before....)

Maybe you can start the thread about the First Amendment and resterictions on speech over there...should be interesting on that board (ak47.net), given what often gets posted there. [;)]

G2

>>Nonetheless, the number of registered/transferred/taxed weapons was a small fraction of the total number in civilian hands. Question it all you want.<<
I don't question the info, I question the spin you are putting on the information.
>>LOL. A tax that is at least the total cost of the weapon, if not 20x or more isnt punitive. Sure. Even when I was dealing, a $200 tax on a $500 item seemed a bit steep.<<
Might seem steep to you, obviously it didn't seem to steep to all those folks that paid it.  I find it hard to consider a tax to be punitive when so many people pay it.
>>The only legitimate restrictions upon Rights are those that harm others. Take that any way you like, as thats as far as Im going on that issue in this thread.<<
Again, most people will disagree with that definition, as evidenced by the various restriction on the 1st Amendment.
>>My statement about the only legitimate restrictions upon Rights still stand. I havent taken a position at odds with you on the First Amendment, have I??<<
I don't know, as you haven't answered the question.  The examples given clearly show that Rights can be restricted for reasons that go beyond harm to another.  But you seem to say that the examples are a different topic.  They are not, thus your statement about legitimate restrictions is incorrect.
>>Bullshit. Thats the sort of moral relativism (or outright lack of a moral code) that takes a shortcut to oppression and tyranny.<<
Bullshit right back to you.  Law is law.  It has nothing to do with morality or right and wrong.  The old Soviet Union had a system of law, and they followed it.  We would disagree with it morally, politically and socially, but it was the law.

>>They took a huge chance to do what they believed was right, as they believed the law to be wrong.<<
That is exactly my point.  There is a difference between the law, and the concepts of right and wrong.
>>Neither is law that is UnConstitutional...which brings us back to where this all started.  The comments of everyone in this thread could be described the same way, so whats the point?<<
The point is that we are a nation of laws, not of individual opinions.
>>Hmmm. The Nuremburg Defence.<<
Nope, and if you think that statement has anything to do with it you obviously don't understand the Nuremberg issue as it relates to the law.
>>Law that is devoid of moral character is fun for everyone, isnt it??<<
No.  Law that is devoid of moral character usually gets people all upset.  But our Founding Fathers realized that law based on moral character was not law at all, and so they rejected the concept and gave us the cold hard law that has made us a great country.

">>Law that is devoid of moral character is fun for everyone, isnt it??<<
No. Law that is devoid of moral character usually gets people all upset. But our Founding Fathers realized that law based on moral character was not law at all, and so they rejected the concept and gave us the cold hard law that has made us a great country."

Name your sources for this conclusion.  I thought the spirit of the law was more important then the letter of the law.  And the spirit of the law is almost always based on morality or ethics.  


">>They took a huge chance to do what they believed was right, as they believed the law to be wrong.<<
That is exactly my point. There is a difference between the law, and the concepts of right and wrong."

Why do believe there is a difference?  Isn't the root and basis of law to tell "we the people" what infringes on others rights.  Seems to me that laws these days are presented and agreed upon to validate the careers of those that practice and produce it.

">>Bullshit. Thats the sort of moral relativism (or outright lack of a moral code) that takes a shortcut to oppression and tyranny.<<
Bullshit right back to you. Law is law. It has nothing to do with morality or right and wrong. The old Soviet Union had a system of law, and they followed it. We would disagree with it morally, politically and socially, but it was the law."

Since when has the law become so absolute in this country that it cannot be challeged ethically and morally.  We are not the Soviet Union.... and niether is the Soviet Union, remember?  In part because of the oppression and "laws" that the people could not tolerate.  While it is true that morality and ethics are a highly individualized thing, in this Republic we are supposed to create laws that do not take away from the rights and freedoms of others. Not create laws that infringe upon many because of the few that abuse the average of societies "ethical and moral" behavioral views.

">>My statement about the only legitimate restrictions upon Rights still stand. I havent taken a position at odds with you on the First Amendment, have I??<<
I don't know, as you haven't answered the question. The examples given clearly show that Rights can be restricted for reasons that go beyond harm to another. But you seem to say that the examples are a different topic. They are not, thus your statement about legitimate restrictions is incorrect."

I don't believe rights should be restricted beyond the point where they harm or infringe upon the rights of others.  A personal statement yes.  But I believe it is on the same lines as our founding fathers beliefs in creating this Republic.

">>The only legitimate restrictions upon Rights are those that harm others. Take that any way you like, as thats as far as Im going on that issue in this thread.<<
Again, most people will disagree with that definition, as evidenced by the various restriction on the 1st Amendment."

If you mean "harm others" in the context of "harm others or infringe upon their rights" then I agree.  The statement "harming others" is too general.  Refine it please.  If you do mean "harm others or infringe upon their rights", then I will agree with you.  

Darm441, Don't validate one act/decision that someone thinks is improper or immoral by stateing another that the same person would consider as improper or immoral.

">>LOL. A tax that is at least the total cost of the weapon, if not 20x or more isnt punitive. Sure. Even when I was dealing, a $200 tax on a $500 item seemed a bit steep.<<
Might seem steep to you, obviously it didn't seem to steep to all those folks that paid it. I find it hard to consider a tax to be punitive when so many people pay it."

Actually, I'm pretty sure it did seem steep to those that paid.  When desire and ability to pay outweigh the price, people will pay.  Simple supply and demand.  If the tax was lower I'm sure more would have paid.  Just because you buy something doesn't mean you don't feel like you've paid too much.  

Law abiding people paying the tax doesn't mean the tax was moral or ethical in the first place.  It only means it was the law and law abiding citizens who could pay it, did.  Remember it's those who choose to do unethical and immoral things that are the enemy to society.  Not those that become "outlaws" because someone votes in a new law.

">>Nonetheless, the number of registered/transferred/taxed weapons was a small fraction of the total number in civilian hands. Question it all you want.<<
I don't question the info, I question the spin you are putting on the information."

We all spin things in our own way.

I like the arguement, although I'm ill-equipted to debate it fully.  

To summarize:  I believe in this Republic, laws should be, and should have been, made with only two considerations... (1) This law will not harm others and (2) This law will not infringe upon the rights given to us and others by the Constition.

Like all things there are exceptions.  I understand this as well.  But it is not right when the exceptions become the rule due to those who have a need to create rules and laws that infringe on others rights so they may validate themselves and their careers.

It IS about morality, ethics and right and wrong.  If it is about the letter of the law then we can only be slaves to it.

Stealth