Discussion in 'Legal and Activism' started by bkt, May 28, 2011.

  1. bkt

    bkt New Member

    For any who regard the Supreme Court as the arbiter of all things Constitutional, wise, good, God-like, dreamy, low-fat, sexy and otherwise harmless, I present an example of a major screw-up near and dear to those who embrace 2A:

    On January 3rd, 1939, the case UNITED STATES v. MILLER et al was heard in the Western District of Arkansas District Court. Judge Heartsill Ragon presided. The case was about a Mr. Miller and Mr. Layton who were arrested by federal agents for possession of a shotgun with a barrel shorter than 18 inches. The feds argued that ran afoul of the National Firearms Act of 1934. Because Miller/Layton had not registered the gun or paid the $200 tax stamp on it (the gun cost less than $10 at the time, by the way), the prosecution argued they violated federal law, specifically Section 11, 48 statute 1239. Miller and Layton were looking at a $5000 fine and 5 years in prison each.

    Judge Ragon had done his homework and had actually read the NFA of 1934. And, he understood the unorganized militia was, by definition, all able-bodied males between the ages of 16 and 45 and that Miller and Layton fell into that category. The lawyer for Miller and Layton, Mr. Gutensohn, correctly argued the case pointing out that the unorganized militia may use any and every weapon at his disposal to defend himself, his country and his freedom.

    The U.S. district attorney, Mr. C.R. Barry, argued that the type of shotgun confiscated was not issued to members of the military and thus is not a military weapon and thus is not eligible for consideration as being part of the gear used by the militia and thus is not exempt from the NFA. Mr. Barry screwed himself completely with this argument for two reasons.

    Judge Ragon asked the DA if Miller and Layton had instead been arrested for having a 1918 BAR in their vehicle instead of the shotgun and if Miller and Layton had not paid the $200 tax stamp for it, would he be prosecuting them under the NFA. Barry answered "Yes" and in so doing torpedoed his own argument that only military weapons were exempt from the NFA. The other way he screwed himself was to fail to distinguish between the unorganized civilian militia and the organized military. Official military are issued similar weapons. The unorganized militia arms itself with whatever it has.

    Judge Ragon ruled for the defendants and all was well. What he also did, and this is profoundly significant, is rule that the National Firearms Act of 1934 was unconstitutional. That terrible law was struck down on that day.

    The U.S. District Attorney appealed to the Supreme Court and on March 30, 1939 the case was heard in Washington, D.C.

    But Mr. Gutensohn and his clients didn't show up. Exactly why is not known entirely, except that locating Mr. Miller and Mr. Layton was difficult or impossible at the time and Mr. Gutensohn didn't care to spend the money to have his argument printed and shipped to D.C. and to pay for the 1000+ mile train ride for himself and his clients out of his own pocket. His clients were dirt poor and had no particular interest in appearing in court again.

    On March 30, 1939, Gordon Dean, arguing on behalf of the federal agents, told the Court that the NFA bans shotguns with barrels less than 18" in length and that the serial number of that shotgun, 76230, was not issued to any military entity anywhere in the U.S. Therefore, to say the gun was part of any well-regulated militia was incorrect and it was ineligible for protection from the NFA. The truth is that short-barreled shotguns had been and continue to be used by military personnel even though they are not official issue. And, he wisely did not bring up the issue of the unorganized militia which was the crux of the matter.

    None of the Supreme Court justices ever asked about automatic military weapons, like the 1918 BAR, also being covered by the NFA. Nor did they ask about weapons used by the military that were not official issue. Nor did they themselves consider the nature of the unorganized militia being comprised of everyday citizens who may arm themselves with any weapons.

    And just like that, the National Firearms Act was upheld by the Supreme Court of the United States as being constitutional. From the NFA, we got the Gun Control Act of 1968 and countless other gun-control laws, federal and state.

    The failure of Gutensohn to show up or even pay for printing his argument and mailing it to Washington and the failure of the justices to do any research into the issue has led to the most draconian anti-gun sentiment this country has ever known.


  2. pandamonium

    pandamonium New Member

    Has this never been challenged since? I know with the Justices now on the bench it would probably not be found unconstitutional.

    The SCOTUS, if I am not mistaken, is supposed to, when there is question as to the Constitutionality of a law, side with the Rights of the people and NOT with the power of the government. This has allower the gov to grow in power to the monster that we have today. :mad:
  3. diggsbakes

    diggsbakes New Member

    I've come to accept that we will have to fight the rest of our lives to uphold the remainder of our constitutional rights.

    Who knows how far that fight will have to come . . ?
  4. armoredman

    armoredman Member

    What was supposed to be, and what is, are often far apart.
  5. pandamonium

    pandamonium New Member

    You are correct sir.

    I think lifetime appointments for SCOTUS Justices is a bad idea, I also think that if a Judge makes judgements that are unconstitutional or violate their Oath by following party-line ideals they should be removed and charged.
  6. CHLChris

    CHLChris New Member

    If ever our state of affairs vis a vis gun control becomes more hotly contested (I mean shots fired in defense of our 2A rights), this metaphorical battle could become a hot war in a few days flat with today's social media.

    This is why we must be armed and ready as if two days from now everything about our country could change. If such a change were to occur, there would be no time to prepare for such a defense.:(

    I have a feeling right now that we are on the right trajectory. :) I feel that the path we are on right now, though we are traveling through difficult lands, is leading us to stronger 2A protections in Congress, the Presidency, and the courts.

    I know it doesn't feel that way right now.
  7. wmille01

    wmille01 New Member

    funny story I might be related to miller, I just called my mom, who called my gramps. His older brother was arrested in for possession of short barreled shotgun. According to my gramps his older brother was very into the military, he lived in Elkins Arkansas. I'm gonna be looking a lot more into this. Thanks for the post.
  8. M14sRock

    M14sRock New Member

    BKT, I had heard long ago that the defendants were given the wrong date to appear in court, and that is why they did not show. Any idea how true that is?
  9. Trez

    Trez Well-Known Member

    So what I got out of this is, if your part of a militia you can legally own military automatic weapons with out a tax stamp, and here in AZ Brewer made civilian militias legal....... Hmmm...
  10. bkt

    bkt New Member

    United States Code TITLE 10 > Subtitle A > PART I > CHAPTER 13 > § 311
    § 311. Militia: composition and classes
    (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
    (b) The classes of the militia are—
    (1) the organized militia, which consists of the National Guard and the Naval Militia; and
    (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
  11. hawkman3111

    hawkman3111 New Member

    I spent some time reading the constitution last night. I read the bill of rights(again). I will this:

    The 2nd amendmant is NOT vague it says excatly what it seems to say. It is the shortest constitutional amenndment there is, it may be possible to tweet 2a.

    The 2A is broad. Its meant to be.

    Clearly the highest law in the land expressly gives the people the right to own a weapon without asking anybodys permission in order to protect himself, his family and his home from anyone up to and including the government themselves.

    But the feds have guns and the power to lie and interpret. If they want to take your rights or your weapon or come into your house they will. Too many Americans dont care about being free, they are happy as sheep as long as they have cable TV and probably a govt union job with a pension that they can never get fired from.

    3 million federal employees is a fat percentage of the population, Obama wants to hire more(so theyll vote for him)
  12. dog2000tj

    dog2000tj New Member

    I've read your posts on this issue before but really enjoyed this in depth review. Thanks :)
  13. General_lee

    General_lee New Member

    Gun control makes me sick:mad:
  14. user4

    user4 New Member

    The problem with the constitution is that it has been declared a living document, meaning it can be changed and reinterpreted to suit the times. Once we declare the document as something sealed in stone, our rights canot come under contestation by a government that has more financial resources than any private citizen, and can easily bankrupt a person on lawyer fee alone.

    Freedom of speech has to mean freedom of speech. The right to bear arms has to be a right, not a regulated privilege. Period.