How many years later - not many as I recall - did SCOTUS rule that it's a Civil-Rights violation to charge or tax an individual to exercise an enumerated Right?
I looked it up. Harper v. VA Board of Elections ruled that poll taxes were unconstitutional under the Equal Protection Clause of the 14th Amendment. It would be an interesting approach to say that any state-imposed costs associated with exercising the right to keep and bear arms was prejudicial based on economic situation. "a state violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution whenever it makes the affluence of the voter [gun owner] or payment of any fee an electoral [gun ownership] standard. Voter [gun owner] qualifications have no relation to wealth."
That's an easy argument in NYC where a license to carry costs $340 every 3 years. It also requires an 18hr class that takes 2 days and typically runs around $600 to initially get that license. It actively precludes the poor. Unfortunately, such people don't have the means to hire an attorney to represent them.
Why should the NFA stand?? Silencers, SBSs and SBRs are commonly used by the military. Miller states SBSs were not in common use in 1939, but they are now. The NFA should have these items removed or be abolished altogether.
Yet the merry go round of Second Amendment Rights Cases that make it to the Supreme Court Justices to only be sent back down to ultimately be sent back through the appellate courts then back to the supreme court over and over again. It takes the government two seconds to violate the U.S. Constitution and then it takes the citizens decades upon decades to have those constitutional Rights violations addressed. So much for the Redress of Grievances under the First Amendment.
The problem with Heller and Bruen, is that they also ruled against overturning the NFA. They all but said in those rulings that machine guns were "dangerous and unusual", so could be banned..
@@jacobew2000neither Heller nor Bruen ruled against overturning the NFA. The NFA wasn’t in question in either case. A comment referencing the NFA in a decision in no way constitutes ruling on it. At most, it may be helpful to a party in a future case addressing the NFA.
@@davidrobertson797 When I said that "they ruled against overturning the NRA", I mean by the BRUEN AND HELLER tests, that define what is "dangerous and unusual". They think that Machine guns are both. So they will not overturn the NFA. There may be 3 that might want to hear such a case, but you need 4 to get it heard, and 5 to win. SCOTUS is not going to hear any challenge against the NFA. Simply not going to happen unless Trump can find 2 good 2nd Amendment SCOTUS replacements. Especially while ROBERTS is Chief Justice.
SBR and SBS are now used by DoD. Standard service is 14.5" select fire and new M7 is even shorter at 13". M26 MASS and 870 MCS are short barrel shotguns used by the US Army today
At the time of Miller, semi automatic pistols (M1911), select fire rifles with detachable magazines of >10 round capacity (M1917 BAR, using 20 round magazines) short barrel rifles (M1928 Thompson SMGs with 50 round drum magazines) and belt fed machine guns (30-06 M1919 and 50BMG M2) were regular issue arms in National Guard units, and generally sold commercially, prior to the 1934 NFA.
@@chlebowg Shotguns were used extensively in WW I trench warfare. They were quite effective. The Germans protested that they were a violation of the law of war/Geneva Convention, but that claim was. Not sustained. The reason that they were not SBSs is that the Army bought off-the-shelf police “riot guns” which happened to have 18” barrels. By buying shotguns that were already in production delivery to the front for the troops. If one looks to history, musketoons would be SBSs. In close quarters battle a weapon that is too long is a liability. The M-4 makes getting in/out of vehicles easier, even when fitted with a suppressor. The same is true in urban warfare, especially fighting room to room. The Miller logic is circular at best. If vie in the context of Heller and Bruen, as it should be IMO, it fails. That’s were the difference between Scalia and Thomas would be apparent. Bad law should be overturned. That, I believe, is the duty of the court.
The NFA registry has hundreds of thousands of weapons in common use, they are not against the law, if you ask permission from the King and pay his tax.
The only such weapon in regular service with the United States Army in 1939 was the M1928 Thompson submachine gun. However, the M1928 was indeed in service, and therefore the Court was incorrect.
@@josephahner3031 You never heard of a Trench Gun? That was a short barrel shotgun. There are probably others we haven't heard about. Different conditions on the ground lead to the development and use of different weapon configurations. The court requiring that weapons be those in use is quite short sighted.
@@josephahner3031 The Winchester Model 1897 was a common firearm used in WW1. It was so effective that the Germans filed a diplomatic protest suggesting that it's use caused unnecessary suffering. General Pershing pushed for the adoption of the Model 1897 for use in WW1 after witnessing its effectiveness in the Philippines. There were other short barreled shotguns used by the military prior to and after WW1 that would have been easy to prove in 1939. The "absence of evidence" was not actually factual, but rather sloppy legal conclusions based on the personal (and incorrect) assumptions of the SCOTUS justices. If Miller actually had (any) competent representation and the true facts of the military's use of short barreled shotguns were allowed into evidence, the conclusions would have been much different. I'm not saying they would have found a different verdict, just that they would not be able to use the argument they did.
@@vernonkuhns3561 Fact! The truth is, SBRs and Short-barreled Shotguns have been widely used by the military in every conflict since the beginning of the 20th century.
Yep, in fact, one of the main writes of the NFA even said "that's the beauty of it, its a tax" (or some something of the sort) when asked about it being a violation of the 2nd.
@@ericbunker6242 Yes. The original text in 1934 specified 18 inches. When the government wanted to dispose of the WWII era M1 Carbines (barrel length 17.5"), Congress needed to adjust the law.
It should be noted there was no defendant in the Miller case when the Supreme Court heard it... Miller was defending himself in the case, and unbeknownst to the Supreme Court he was murdered weeks before the case was heard, but the court was not aware of this, so they could ONLY consider the governments case, and could not interject any other evidence... They themselves expressed that a proper defense would have been able to show it was unConstitutional.
Not having heard any rebuttal to the government's case in Miller, SCOTUS should have refused to rule on it. You cannot judge any case if you have only heard from one side to a dispute. By the simple act of challenging the constitutionality of the NFA Miller was claiming that Congress had no legitimate authority to enact that law. SCOTUS could not determine whether Miller was correct in his assessment without hearing Miller's side of the case.
That's simply pretty clear to me that says that we're allowed to use anything at the military uses on a regular basis including including to artillery and fully automatic machine guns and civilians so I don't understand where the question lies it's that clear
We are "allowed" to own warships. Article 1 Section 8 empowers Congress to issue Letters of Marque and Reprisal, i.e. to charter privateers. Privateers are privately owned ships licensed to wage war against the merchant vessels of an enemy. This would necessarily include combatting any escort naval vessels protecting that merchant shipping. This means that private ownership of any and all military-grade arms necessary to wage war on an enemy's fleet. This means combat aircraft, missile, submarines, battleships, aircraft carriers, etc. Any legislation which would make it impossible for Congress to exercise a power Constitutionally granted to it is necessarily void. I'd further point out that in the 1950s-70s the US government - in concert with certain business interests - were actively engaged in developing civilian applications for nuclear explosives, i.e. Project Plowshare. They tried using them to fracture oil shale (fracking), facilitate large-scale excavations (reservoirs and the like) among others. They only abandoned the program due to anti-nuclear political protests, not because the program was unsuccessful nor because civilians "couldn't own nukes". Absent the brain-dead "all nukes are bad nukes" political activism of the 1970s there might well have been a civilian nuclear market by now.
I'd be VERY interested in your analysis (with examples) of the congressional hearings, testimonies, and debates surrounding the NFA of 1934. I'd also like to learn more about the politics involved in it: who pushed for it? What did Roosevelt have to say about it? etc. And then...I'd like to hear similar for the GCA 1968. I was only 15 then. I was aware of it, but I was FAR less politically aware as a teenager. LOL, I was a bit concerned LATER, when the ads for mail-order guns disappeared from the gun mags at the time.
I'll say this. FDR used the violence during prohibition to push the NFA even though the violence during prohibition is because government banned something else, and when the NFA was pushed through it was YEARS after the end of the purported reason. It should've been rejected for that reason if for no other, and is if someone trafficking illegal substances is going to get that NFA tax stamp.
Expanding the application of Affray statutes’s principle in Heller of place (public) and manner (carry) restrictions on instruments that could cause public alarm to the mere possession and transport of such an instrument (as in Miller) does not comport to the how and why standard Bruen sets for determining the relevance of historical analogs… it would be proper to understand it as, i can own an sbr, take it to the tange, bring it to militia muster, i just can’t carry it conspicuously in public…
No offense to present company, but all this reminds me of an old joke. What do you call 1000 lawyers at the bottom of the ocean? A good start. OK, I know that's horrible, but doggone, the more lawyers that get involved with something, no matter how simple it is to start with, the more unwieldy and complicated and misunderstood whatever they're working on becomes. But now to you, Tom, an attorney who richly deserves our respect, support, and attention...thanks so much for another great video! Thanks for trying to make something written by lawyers simple for someone as dim-witted as I am! Thank you, and God bless you and yours!
"... the more unwieldy and complicated and misunderstood whatever they're working on becomes." Of course. That way you'll need to hire lawyers to figure out how to navigate the complexities lawyers have created. It's almost like lawyers have been actively conspiring for centuries to make themselves the masters of the world.
youre selling the right short, ANYTHING that can be brought to bear in offense, worn in defense, or cast, remember this is the era where melee still existed, a stapler can be an arm
@TomGrieve The NRA and SAF have taken the position that states are free to ban Open Carry if concealed carry permits are shall issue. The NRA's argument in Peruta v. San Diego was that when Heller said that Open Carry is the Second Amendment right and the 19th-century prohibitions on concealed carry did not violate the 2A, what they really meant was the opposite. The SAF, in the combined case of Richards v. Prieto, dismissed that part from Heller as dicta. In NYSRPA v. Bruen, the NRA attorney, Paul Clement, said that Open Carry can be banned because people today are on a "different wavelength" from the American people who enacted the Second Amendment. I would like to see a video from you on the subject.
Miller always baffled me how any State could make the argument that semi-auto rifles were weapons of war and, therefore, should be banned. It doesn't square with Miller.
15:32 Scalia understood you don't eat the elephant in one bite. Relitigating Miller wasn't a winning strategy. Heller was a miracle given the makeup of the court at the time.
And that’s how dangerous and unusual get’s contorted in it’s extraction as a principle from affray laws, misapplied concepts to short stroke the legal logic just to satisfy the statist jurists… just like in Rahimi
When standing or lack of mootness would be advantageous in order to set precedent in favor of the government, things seem to look a little more "prudential" (i.e., at the sole discretion of the court). That still seems to exist today, just not as glaringly.
The US government thought that smoothbore single shot pistols were "useful" weapons when the Liberator pistols were distributed to France in WWII. Such a single shot pistol is also an NFA item due to the smoothbore feature.
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Every time that I have read the Miller case, I've been reminded of the lengths to which the gun prohibitionist will go to win. I've always felt it the sentence after the one you quoted is the crucial legal reason supporting the decision. "Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense." That is, because there had been no trial in therefore no evidence admitted at trial, the Supreme Court could not take judicial notice of the use of short barrel shotguns in the military. Thus, the holding in Miller is not that shotguns are NOT protected, but that the court couldn't make a determination they were protected, without evidence. It seems to me that the rest of the so-called analysis is simply obiter dicta. But we all know that Miller was a setup designed to reach the end result that it did.
Great work and analysis. As a matter of courtroom procedure, why didn't the absence of counsel for Miller not make a difference? The Govt made some real wild jumps (lies) in their summation.
I would like to see a video on the case history of "standing" and why you have to be held in violation of a potentially unconstitutional law before it can be challenged.
Miller was an individual. Therefore, SCOTUS was ruling the 2A was an individual Right as, were it a collective Right, an individual would have no standing. This is ALSO true for the 91 other 2A cases that had been heard by SCOTUS.
If anyone reads statements made by the Framers of the Constitution their will be no question they intended the people have a right to keep and bear arms. The national guard is not the malitia. The malitia is the whole people.
The power of the sword, say the minority..., is in the hands of Congress. My friends and countrymen, it is not so, for the powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans.-Tench Coxe
Great program Tom, I’ve been waiting for the second part of Miller, very interesting. I’ve been trying to research how many machine guns were owned by the people prior to the 1934 NFA, however I am unable to find that information, population in 1934 was 126,373,773 and in 1920 it was 106,460, 000, was trying to figure how many there were prior to. Do you have any suggestions?? Roughly I figured there were 814,419 machine guns private owned in 1920 these figures were based on ATF Stats released in 2021, using numbers they put out of a High of 14.99 per 1000 (New Hampshire) and 0.31 per 1000 (Hawaii) figured an average 7.65. Using the 7.65 per 1000, times the 106,460,000 population of the United States in 1920 I came up with a possibility of 814,419 machine guns and based on the U.S. population in 1934 using 7.65 X 126,373.4 there were 966,759.4 machine guns in the United States. Several factors could raise or lower this number. Just trying to look at commonly owned and how to fight the NFA lol 😂.
One thing unequivocally settles the individual vs. collective right issue. If the founders had not intended for the right to keep and bear arms to be an individual right, why would they mandate, in the Militia Acts of 1792, militiamen were required to provide their own firearms and ammunition? Case law need not even be considered.
The Militia Acts were, of course, adopted immediately after the adoption of the Second Amendment. So one might think that when the very men who wrote the Second then spelled out exactly how and by whom the militia was to be armed then maybe we should pay attention.
@@flatebo1 Which has nothing to do with answering the question, if the founders did not intend for the right to keep and bear arms to be an individual right, why would they mandate those militiamen were required to provide their own arms and ammunition? How could they if the right was not an individual right?
Poll taxes were entirely constitutional until they were banned via constitutional amendment. Poll taxes were legal because the franchise is a privilege of citizenship, not an inherent right of deriving from the fact of existence. It is a right dependent upon your citizenship status. The right to keep and bear arms is not a citizen right. It is a universal, human right, a right of the people - all people everywhere at all times regardless of citizenship status. The right to vote is secondary to government. It is a right that only exists after government exists and only because government exists. It is a right contingent upon the individual meeting the relevant criteria to qualify for it. The right to keep and bear arms exists prior to and independent of the existence of any government. The right does not come from government. Rather, government comes from it. Thus government can have no power over it.
I am pretty sure Associate Justice James McReynolds was not thinking of the M1918 Browning Automatic Rifle or the M1921 and M1928 Thompson submachine guns when he wrote the court's opinion. On the other hand, he was familiar with the Militia Act of 1792, which required those obligated to perform militia service to report for muster with personally owned firearms fitting in a specified range, as well as a bayonet, powder, and a quantity of ball ammunition. The idea of a constitutionally protected right applying only to performing an obligatory service is a absurd. The popular view that "militia" applies only to the National Guard is equally ridiculous: The National Guard as it existed at the time of the Miller case had only existed since 1903. And even then, the National Guard was only a small subset of the Militia of the United States, which consisted of all able-bodied men at least 17 years of age and less than 45. In 2022, that age group had 63.5 million members, less those physically or legally unable to serve, as well as those in specified occupations. Remember that Article 1, §8, Clauses 15 and 16 apply only to militias called up by the federal government, which is responsible for arming, equipping, and provisioning such militia members.
So in 1870+ Wells Fargo, government contractor for delivery, they carried short barrel shotguns, agents of the government, the finding of SBR, modern historic test, modern M4 has 14.5 in barrel? Military and Police shotguns use 18.1-.5 barrels, those are short in comparison to hunting barrel lengths. The arguments that anti 2- A groups throw out nullifies the arguments of the NFA. The application of tax on Rights would be nullified by 1983-4 Minneapolis Star case, you can't tax a right!
While I don't believe I will see the end of the NFA or the GCA in my lifetime, I'm very interested to see if the reasoning for including SBRs, SBSs, and suppressors ever gets argued in court. It is my understanding that SBRs and SBSs were only included because originally, handguns were also included. As such, they would have been a workaround of a handgun ban had they not been included. However, the handgun ban was thrown out altogether, but somehow the so-called loophole weapons were left in....for no apparent reason.
Some states with severe knife prohibitions are discovering that knives are arms too. A federal district court in Hawaii found the prohibition on butterfly/gravity/switchblade knives was unconstitutional. I think the 9th Circuit either stalled on hearing the case or reversed it. I remember a few years ago, I lived in Maryland where handguns were prohibited in publicf without a permit, but switchblades are legal if carried openly, but in Virginia it was the reverse, handguns are legal but switchblades are not. Since then, VBirgibia has repealed the prohibition on swiotchblades.
Some citizens appeared for militia duty "bearing" cannons on ships at the time. Under the original meaning of the 2A, to "bear" is not limited to carrying on a human body. A person can bring a tank's turret to "bear" on targets of hostilities.
How would the SC uphold the regulation, and post 86 prohibition of machine guns in a post Cargill, post Bruen decision world? The Cargill decision highlighted the fact that machine guns are not defined by the speed they are able to empty a magazine. So if ROF was not allowed to be considered in the Cargill case, how else could true machine guns be considered "dangerous and unusual"?
Strange, I'm fairly sure that short barreled shotguns were used in trench warfare to clear out trenches of German tropps. In fact, didn't they complain that the use of of the trench gun violated treaties?
I remember listening to Scalia giving the majority decision on Heller live and thinking "YOU COWARD! MACHINE GUNS ARE 100% PROTECTED! BY 2A" I was a rambunctious kid at the time. Coincidentally, I was also right.
I remember in the mid 1900's, my Dad had to pay $2 to pay a poll tax to vote in Arkansas. Sometimes he would rather buy a couple bags of groceries than vote.
1911s are semi-auto and were used by military. Mk18s are sbr's, and, full auto, also used by the military. Both semi auto and full auto are protected by the constirution and 2ndA. Questions: How does the militia i.e the people, execute the Laws of the Union, suppress Insurrections and repel Invasions? And, How does the militia i.e the people SECURE a free state? Answer: With military arms...
Yes, there are no Arms for which the mere possession can be prohibited. Only regulated them for safety (from imminent mass destruction) or regulating the CARRYING of certain weapons in order to terrorize people.
Being a non-lawyer, I really appreciate this explanation and find it very interesting. The question I have is how specific is the wording of the NFA with regard to types of weapons included? …or how much is up to the judgment of the ATF? Also how does the recent court limitations on Chevron Deference affect the ATF and our 2nd amendment rights?
It seems to me that SBRs and shotguns are no longer valid issues. with the various bullpup firearms and pistols of rifle calibers, can be shorter that a sawed off full length weapon.
Whereas I read "shall not be infringed" are prohibiting to government any power or authority whatsoever to limit the right to keep and bear such arms. In short, that the Second Amendment is a flat rejection of the entire legal history/tradition of arms control legislation as fundamentally and irredeemably unjust. There can be no governmental power to restrict the possession of arms because it is not possible to grant government any such power.
In the case of Caetano v Massachusetts, SCOTUS held that stun guns could not be banned because they were in common use for lawful purposes. At the time, there were about 200,000 stun guns in private hands. The ATF has said that there are about 638,000 fully automatic rifles in private hands. Therefore, based on Caetano, fully automatic rifles are in common use and cannot be banned.
Part of the military just went with a 14 and 1/2 inch barrel rifle. Last I knew that was last length than the 16-in mention in the NFA. I believe it was found that a 64 grain bullet with that 14 1/2 inch barrel what's the new 'military standard'.
Can't support anyone that pushes USCCA knowing that USCCA has put their subscribers out to dry when they needed someone at their most vulnerable time of their life. How USCCA people sleep at night and can look at themselves in the mirror every morning is staggering!
In WW2 the US Army sometimes had some of the Soldiers carrying,and using "Trench Guns" . My Dad carried one while fighting in the trenches of the French countryside....in 1942...
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TAXATION ON PRIVATE FIREARMS SHOULD BE OUTLAWED FOR LEGAL CITIZENS !...
How many years later - not many as I recall - did SCOTUS rule that it's a Civil-Rights violation to charge or tax an individual to exercise an enumerated Right?
I looked it up. Harper v. VA Board of Elections ruled that poll taxes were unconstitutional under the Equal Protection Clause of the 14th Amendment. It would be an interesting approach to say that any state-imposed costs associated with exercising the right to keep and bear arms was prejudicial based on economic situation. "a state violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution whenever it makes the affluence of the voter [gun owner] or payment of any fee an electoral [gun ownership] standard. Voter [gun owner] qualifications have no relation to wealth."
@calvinthomas1642 Thanks. I tried to search that but couldn't get a straight answer.
That's an easy argument in NYC where a license to carry costs $340 every 3 years. It also requires an 18hr class that takes 2 days and typically runs around $600 to initially get that license. It actively precludes the poor. Unfortunately, such people don't have the means to hire an attorney to represent them.
@@cristianespinal9917sounds like an opportunity for GOA and some others to step up. That and all of us to support them.
It's not a tax, it's a "stamp" don't ask me how that BS holds up but that's the argument.
The NFA might have been upheld then, but cases like Heller and Bruen are proof that the tide is turning toward a stronger defense of our 2A rights.
Why should the NFA stand?? Silencers, SBSs and SBRs are commonly used by the military. Miller states SBSs were not in common use in 1939, but they are now. The NFA should have these items removed or be abolished altogether.
Yet the merry go round of Second Amendment Rights Cases that make it to the Supreme Court Justices to only be sent back down to ultimately be sent back through the appellate courts then back to the supreme court over and over again. It takes the government two seconds to violate the U.S. Constitution and then it takes the citizens decades upon decades to have those constitutional Rights violations addressed. So much for the Redress of Grievances under the First Amendment.
The problem with Heller and Bruen, is that they also ruled against overturning the NFA. They all but said in those rulings that machine guns were "dangerous and unusual", so could be banned..
@@jacobew2000neither Heller nor Bruen ruled against overturning the NFA. The NFA wasn’t in question in either case. A comment referencing the NFA in a decision in no way constitutes ruling on it. At most, it may be helpful to a party in a future case addressing the NFA.
@@davidrobertson797 When I said that "they ruled against overturning the NRA", I mean by the BRUEN AND HELLER tests, that define what is "dangerous and unusual". They think that Machine guns are both. So they will not overturn the NFA. There may be 3 that might want to hear such a case, but you need 4 to get it heard, and 5 to win. SCOTUS is not going to hear any challenge against the NFA. Simply not going to happen unless Trump can find 2 good 2nd Amendment SCOTUS replacements. Especially while ROBERTS is Chief Justice.
SBR and SBS are now used by DoD. Standard service is 14.5" select fire and new M7 is even shorter at 13". M26 MASS and 870 MCS are short barrel shotguns used by the US Army today
At the time of Miller, semi automatic pistols (M1911), select fire rifles with detachable magazines of >10 round capacity (M1917 BAR, using 20 round magazines) short barrel rifles (M1928 Thompson SMGs with 50 round drum magazines) and belt fed machine guns (30-06 M1919 and 50BMG M2) were regular issue arms in National Guard units, and generally sold commercially, prior to the 1934 NFA.
@@chlebowg Shotguns were used extensively in WW I trench warfare. They were quite effective. The Germans protested that they were a violation of the law of war/Geneva Convention, but that claim was. Not sustained.
The reason that they were not SBSs is that the Army bought off-the-shelf police “riot guns” which happened to have 18” barrels. By buying shotguns that were already in production delivery to the front for the troops.
If one looks to history, musketoons would be SBSs. In close quarters battle a weapon that is too long is a liability. The M-4 makes getting in/out of vehicles easier, even when fitted with a suppressor. The same is true in urban warfare, especially fighting room to room. The Miller logic is circular at best. If vie in the context of Heller and Bruen, as it should be IMO, it fails. That’s were the difference between Scalia and Thomas would be apparent. Bad law should be overturned. That, I believe, is the duty of the court.
@@ryanthorne5432 “Artillery Lugers” had readily attachable shoulder stocks as did a number of Colt black powder revolvers.
The NFA registry has hundreds of thousands of weapons in common use, they are not against the law, if you ask permission from the King and pay his tax.
@@MrSpook-ri8kv
The MFA act is a Jim Crow law. You cannot have it if you cannot afford it.
Absence of evidence presented to the court does NOT equal absence of short barreled weapons used by the military.
The only such weapon in regular service with the United States Army in 1939 was the M1928 Thompson submachine gun. However, the M1928 was indeed in service, and therefore the Court was incorrect.
@@josephahner3031 You never heard of a Trench Gun? That was a short barrel shotgun. There are probably others we haven't heard about. Different conditions on the ground lead to the development and use of different weapon configurations. The court requiring that weapons be those in use is quite short sighted.
@@josephahner3031 The Winchester Model 1897 was a common firearm used in WW1. It was so effective that the Germans filed a diplomatic protest suggesting that it's use caused unnecessary suffering. General Pershing pushed for the adoption of the Model 1897 for use in WW1 after witnessing its effectiveness in the Philippines. There were other short barreled shotguns used by the military prior to and after WW1 that would have been easy to prove in 1939.
The "absence of evidence" was not actually factual, but rather sloppy legal conclusions based on the personal (and incorrect) assumptions of the SCOTUS justices. If Miller actually had (any) competent representation and the true facts of the military's use of short barreled shotguns were allowed into evidence, the conclusions would have been much different. I'm not saying they would have found a different verdict, just that they would not be able to use the argument they did.
@@vernonkuhns3561 Fact! The truth is, SBRs and Short-barreled Shotguns have been widely used by the military in every conflict since the beginning of the 20th century.
@@vernonkuhns3561 They were also called trench guns in WWII. In Vietnam they were called jungle guns.
More videos like this, Tom. Please and thank you.
Amen! More
At it's inception the NFA was a way around the 2nd Amendment and Congress at the time understood that .
Yep, in fact, one of the main writes of the NFA even said "that's the beauty of it, its a tax" (or some something of the sort) when asked about it being a violation of the 2nd.
They wanted to ban handguns but realized it would never pass. Then, because mot .22 rifles had barrel length under 18.5" the changed SBRs to 16".
@@ericbunker6242 Actually the barrel length change to 16" came about when the military needed to dispose of its supply of M1 Carbines.
@l4c390 my research differs. And weren't M1 carbines WWII rifles? NFA was 1934.
@@ericbunker6242 Yes. The original text in 1934 specified 18 inches. When the government wanted to dispose of the WWII era M1 Carbines (barrel length 17.5"), Congress needed to adjust the law.
I take it, the phrase "Shall not be infringed" has never been argued in court?
IT has The courts agree and have ruled those rights cannot be infringed... but they can be regulated! Welcome to the legal system.
It should be noted there was no defendant in the Miller case when the Supreme Court heard it... Miller was defending himself in the case, and unbeknownst to the Supreme Court he was murdered weeks before the case was heard, but the court was not aware of this, so they could ONLY consider the governments case, and could not interject any other evidence... They themselves expressed that a proper defense would have been able to show it was unConstitutional.
Not having heard any rebuttal to the government's case in Miller, SCOTUS should have refused to rule on it. You cannot judge any case if you have only heard from one side to a dispute.
By the simple act of challenging the constitutionality of the NFA Miller was claiming that Congress had no legitimate authority to enact that law. SCOTUS could not determine whether Miller was correct in his assessment without hearing Miller's side of the case.
New info to me ....
That's simply pretty clear to me that says that we're allowed to use anything at the military uses on a regular basis including including to artillery and fully automatic machine guns and civilians so I don't understand where the question lies it's that clear
We are "allowed" to own warships.
Article 1 Section 8 empowers Congress to issue Letters of Marque and Reprisal, i.e. to charter privateers. Privateers are privately owned ships licensed to wage war against the merchant vessels of an enemy. This would necessarily include combatting any escort naval vessels protecting that merchant shipping.
This means that private ownership of any and all military-grade arms necessary to wage war on an enemy's fleet. This means combat aircraft, missile, submarines, battleships, aircraft carriers, etc. Any legislation which would make it impossible for Congress to exercise a power Constitutionally granted to it is necessarily void.
I'd further point out that in the 1950s-70s the US government - in concert with certain business interests - were actively engaged in developing civilian applications for nuclear explosives, i.e. Project Plowshare. They tried using them to fracture oil shale (fracking), facilitate large-scale excavations (reservoirs and the like) among others. They only abandoned the program due to anti-nuclear political protests, not because the program was unsuccessful nor because civilians "couldn't own nukes". Absent the brain-dead "all nukes are bad nukes" political activism of the 1970s there might well have been a civilian nuclear market by now.
@@flatebo1 You legally can, fighter jets too, tanks are ok too. Explosive or armor piercing ammo they might shoot, not so much.
Becoming well informed is a great gift from you to us, thank you.
I'd be VERY interested in your analysis (with examples) of the congressional hearings, testimonies, and debates surrounding the NFA of 1934. I'd also like to learn more about the politics involved in it: who pushed for it? What did Roosevelt have to say about it? etc. And then...I'd like to hear similar for the GCA 1968. I was only 15 then. I was aware of it, but I was FAR less politically aware as a teenager. LOL, I was a bit concerned LATER, when the ads for mail-order guns disappeared from the gun mags at the time.
I'll say this. FDR used the violence during prohibition to push the NFA even though the violence during prohibition is because government banned something else, and when the NFA was pushed through it was YEARS after the end of the purported reason. It should've been rejected for that reason if for no other, and is if someone trafficking illegal substances is going to get that NFA tax stamp.
Forgotten weapons has an episode on some of that regarding how sbr/sbs’s were meant to close loopholes as pistols were initially included in the bill
That Congress was also very, very close to putting pistols in the NFA with Machine guns and SBRs.
Scalia, unlike Thomas, was not generally prepared to overturn long standing precedent, even where wrong.
Yes, he would likely have been shocked to see that Roe v. Wade is gone.
But those that murdered him are still the evildoers, not him.
Expanding the application of Affray statutes’s principle in Heller of place (public) and manner (carry) restrictions on instruments that could cause public alarm to the mere possession and transport of such an instrument (as in Miller) does not comport to the how and why standard Bruen sets for determining the relevance of historical analogs… it would be proper to understand it as, i can own an sbr, take it to the tange, bring it to militia muster, i just can’t carry it conspicuously in public…
…Without having paid a tax
Of course No. 1 is the BIGGEST problem. NFA Tax is ABSOLUTELY UNCONSTITUTIONAL
It's actually a licensing scheme.
Your analysis makes sense. And all these justices, even Scalia, have put personal agenda before the letter of the law.
Any restrictive legislation on the 2nd is infringement by definition.
Thanks for the share Tom.
I'm definitely on board for you doing videos on those decisions! Thanks!
Wow, some good points put together in this video. Well done! Thank you Tom.
Thank you.
No offense to present company, but all this reminds me of an old joke. What do you call 1000 lawyers at the bottom of the ocean? A good start. OK, I know that's horrible, but doggone, the more lawyers that get involved with something, no matter how simple it is to start with, the more unwieldy and complicated and misunderstood whatever they're working on becomes. But now to you, Tom, an attorney who richly deserves our respect, support, and attention...thanks so much for another great video! Thanks for trying to make something written by lawyers simple for someone as dim-witted as I am! Thank you, and God bless you and yours!
"... the more unwieldy and complicated and misunderstood whatever they're working on becomes."
Of course. That way you'll need to hire lawyers to figure out how to navigate the complexities lawyers have created. It's almost like lawyers have been actively conspiring for centuries to make themselves the masters of the world.
@@flatebo1 Thanks for the laugh! Well put! Thanks, and God bless you!
There is NO bearable arm that ISN't protected by the 2nd.
@vorpal-wit----- define the word ARMS- as in the second amendment!!!!!
@@davidholloway5346 all military arms, nukes included
youre selling the right short, ANYTHING that can be brought to bear in offense, worn in defense, or cast, remember this is the era where melee still existed, a stapler can be an arm
@@sinistersilverado965 nukes more artillery are bearable, so I would argue they are not bearable arms.
@@bradhertzler4451 you would be wrong, backpack nukes are bearable nukes
Yes please go over Heller and the other decisions in depth. Love you,
@TomGrieve The NRA and SAF have taken the position that states are free to ban Open Carry if concealed carry permits are shall issue. The NRA's argument in Peruta v. San Diego was that when Heller said that Open Carry is the Second Amendment right and the 19th-century prohibitions on concealed carry did not violate the 2A, what they really meant was the opposite. The SAF, in the combined case of Richards v. Prieto, dismissed that part from Heller as dicta. In NYSRPA v. Bruen, the NRA attorney, Paul Clement, said that Open Carry can be banned because people today are on a "different wavelength" from the American people who enacted the Second Amendment. I would like to see a video from you on the subject.
Miller always baffled me how any State could make the argument that semi-auto rifles were weapons of war and, therefore, should be banned. It doesn't square with Miller.
Thanks for your deep understanding of what is happening
Mr. Grieve, your ending quote is something I look forward to and your surprise ending made me laugh.
Exactly why the nfa need to be struck down and the fact that it's unconditional to tax a right.
But somehow paying a tax makes NFA items safe for the peasants to possess ????
And thousands of them still don't make them common use....
nope just funds the anti gunners against the patriots
There's is NO more gangsters and there is NO more Prohibition. So gov'ts argument of why it was instituted and why it should remain, fails.
Prohibition and gangsters are like falling off a bicycle and skinning your knee.
One is caused by the other lol😅
Ever hear of the drug war? It exists to create boogeymen to justify government authority and power, and the militarization of the police.
15:32 Scalia understood you don't eat the elephant in one bite. Relitigating Miller wasn't a winning strategy. Heller was a miracle given the makeup of the court at the time.
And that’s how dangerous and unusual get’s contorted in it’s extraction as a principle from affray laws, misapplied concepts to short stroke the legal logic just to satisfy the statist jurists… just like in Rahimi
Thanks.
Given courts modern eagerness to immediately cry "STANDING!" or "MOOT", I'm baffled how Miller came to pass at SCOTUS.
When standing or lack of mootness would be advantageous in order to set precedent in favor of the government, things seem to look a little more "prudential" (i.e., at the sole discretion of the court).
That still seems to exist today, just not as glaringly.
@@rhekman To quote Justice Thomas, though I’ve forgotten its timing relative to Heller, “we’ve (the court) been ducking that one” (2A cases).
The US government thought that smoothbore single shot pistols were "useful" weapons when the Liberator pistols were distributed to France in WWII. Such a single shot pistol is also an NFA item due to the smoothbore feature.
Excellent analysis
In Reality, I do desire to hear about EVERY firearms centered case which has reached the SCOTUS!
Thank you for covering these!
Miller was a BAD DECISION, PERIOD.
Great video! Loved it.
You are an honorable Man, Sir. Very informative presentation today. Thank You.
We still have survival over and under rifle/shotgun combos with barrels shorter than 18" used today in the military!
I learn something new every time I watch you.. Tks
we would love to see it all !!
The federal government does not have police powers as such.
awesome video !!!...i like the in depth views !!!
Looking forward to learning more about Supreme Court decisions.
Excellent videos!!! PLEASE do the same for Heller, McDonald, and Bruen!!
I would love to hear an hour long podcast on gun cases, laws, and news
Hey Tom , I’m a Gangster Buddy , but I’ve grew up !!! Luv your content and your way you deliver the information so that we the people can Understand your message !!! Great job 💥💥🔫 From Commy Ct.🇺🇸
Every time that I have read the Miller case, I've been reminded of the lengths to which the gun prohibitionist will go to win.
I've always felt it the sentence after the one you quoted is the crucial legal reason supporting the decision.
"Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense."
That is, because there had been no trial in therefore no evidence admitted at trial, the Supreme Court could not take judicial notice of the use of short barrel shotguns in the military. Thus, the holding in Miller is not that shotguns are NOT protected, but that the court couldn't make a determination they were protected, without evidence. It seems to me that the rest of the so-called analysis is simply obiter dicta.
But we all know that Miller was a setup designed to reach the end result that it did.
9:37 The government made the case that exclusively favored government? I'm shocked!
Great work and analysis. As a matter of courtroom procedure, why didn't the absence of counsel for Miller not make a difference? The Govt made some real wild jumps (lies) in their summation.
I would like to see a video on the case history of "standing" and why you have to be held in violation of a potentially unconstitutional law before it can be challenged.
Just started watching this one and I want my NUKE! Great stocking stuffer idea Tom!
Be still my heart, you had me at "recreational nukes"! 😂
Miller was an individual. Therefore, SCOTUS was ruling the 2A was an individual Right as, were it a collective Right, an individual would have no standing. This is ALSO true for the 91 other 2A cases that had been heard by SCOTUS.
It would be interesting to hear your review and analysis of specific cases Supreme Court related to the 2A
Yes do vids covering all the cases including the nfa case predating miller
I love these videos that explain more of the history and events surrounding the NFA, I really hope the NFA is struck down in this administration.
Did not the Founders expect the people to have access to the same light arms in use by the military? If so, why isn't that used in court cases?
The heavy discrimination against shorter barrels makes me furious! It’s not the size of the weapon it’s how you use it!
If anyone reads statements made by the Framers of the Constitution their will be no question they intended the people have a right to keep and bear arms.
The national guard is not the malitia. The malitia is the whole people.
The power of the sword, say the minority..., is in the hands of Congress. My friends and countrymen, it is not so, for the powers of the sword are in the hands of the yeomanry of America from sixteen to sixty. The militia of these free commonwealths, entitled and accustomed to their arms, when compared with any possible army, must be tremendous and irresistible. Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress has no power to disarm the militia. Their swords and every terrible implement of the soldier are the birthright of Americans.-Tench Coxe
Thank you ,sir, for all you do!
A perfect history lesson. Now I don’t think the NFA will be overturned.
"Recreational Nukes"...😳🤔😎🤠....I love it.
Great program Tom, I’ve been waiting for the second part of Miller, very interesting. I’ve been trying to research how many machine guns were owned by the people prior to the 1934 NFA, however I am unable to find that information, population in 1934 was 126,373,773 and in 1920 it was 106,460, 000, was trying to figure how many there were prior to. Do you have any suggestions?? Roughly I figured there were 814,419 machine guns private owned in 1920 these figures were based on ATF Stats released in 2021, using numbers they put out of a High of 14.99 per 1000 (New Hampshire) and 0.31 per 1000 (Hawaii) figured an average 7.65. Using the 7.65 per 1000, times the 106,460,000 population of the United States in 1920 I came up with a possibility of 814,419 machine guns and based on the U.S. population in 1934 using 7.65 X 126,373.4 there were 966,759.4 machine guns in the United States. Several factors could raise or lower this number. Just trying to look at commonly owned and how to fight the NFA lol 😂.
One thing unequivocally settles the individual vs. collective right issue. If the founders had not intended for the right to keep and bear arms to be an individual right, why would they mandate, in the Militia Acts of 1792, militiamen were required to provide their own firearms and ammunition? Case law need not even be considered.
The Militia Acts were, of course, adopted immediately after the adoption of the Second Amendment. So one might think that when the very men who wrote the Second then spelled out exactly how and by whom the militia was to be armed then maybe we should pay attention.
@@flatebo1 Which has nothing to do with answering the question, if the founders did not intend for the right to keep and bear arms to be an individual right, why would they mandate those militiamen were required to provide their own arms and ammunition? How could they if the right was not an individual right?
Also think about the 'poll tax' that is/was unconstitutional. The NFA 'tax stamp' is the exact same thing.
Poll taxes were entirely constitutional until they were banned via constitutional amendment.
Poll taxes were legal because the franchise is a privilege of citizenship, not an inherent right of deriving from the fact of existence. It is a right dependent upon your citizenship status.
The right to keep and bear arms is not a citizen right. It is a universal, human right, a right of the people - all people everywhere at all times regardless of citizenship status.
The right to vote is secondary to government. It is a right that only exists after government exists and only because government exists. It is a right contingent upon the individual meeting the relevant criteria to qualify for it.
The right to keep and bear arms exists prior to and independent of the existence of any government. The right does not come from government. Rather, government comes from it. Thus government can have no power over it.
I am pretty sure Associate Justice James McReynolds was not thinking of the M1918 Browning Automatic Rifle or the M1921 and M1928 Thompson submachine guns when he wrote the court's opinion. On the other hand, he was familiar with the Militia Act of 1792, which required those obligated to perform militia service to report for muster with personally owned firearms fitting in a specified range, as well as a bayonet, powder, and a quantity of ball ammunition.
The idea of a constitutionally protected right applying only to performing an obligatory service is a absurd. The popular view that "militia" applies only to the National Guard is equally ridiculous: The National Guard as it existed at the time of the Miller case had only existed since 1903. And even then, the National Guard was only a small subset of the Militia of the United States, which consisted of all able-bodied men at least 17 years of age and less than 45. In 2022, that age group had 63.5 million members, less those physically or legally unable to serve, as well as those in specified occupations. Remember that Article 1, §8, Clauses 15 and 16 apply only to militias called up by the federal government, which is responsible for arming, equipping, and provisioning such militia members.
So in 1870+ Wells Fargo, government contractor for delivery, they carried short barrel shotguns, agents of the government, the finding of SBR, modern historic test, modern M4 has 14.5 in barrel? Military and Police shotguns use 18.1-.5 barrels, those are short in comparison to hunting barrel lengths. The arguments that anti 2- A groups throw out nullifies the arguments of the NFA. The application of tax on Rights would be nullified by 1983-4 Minneapolis Star case, you can't tax a right!
While I don't believe I will see the end of the NFA or the GCA in my lifetime, I'm very interested to see if the reasoning for including SBRs, SBSs, and suppressors ever gets argued in court. It is my understanding that SBRs and SBSs were only included because originally, handguns were also included. As such, they would have been a workaround of a handgun ban had they not been included. However, the handgun ban was thrown out altogether, but somehow the so-called loophole weapons were left in....for no apparent reason.
The right to keep and bear ARMS shall not be infringed. It doesn’t say just guns.
Some states with severe knife prohibitions are discovering that knives are arms too. A federal district court in Hawaii found the prohibition on butterfly/gravity/switchblade knives was unconstitutional. I think the 9th Circuit either stalled on hearing the case or reversed it. I remember a few years ago, I lived in Maryland where handguns were prohibited in publicf without a permit, but switchblades are legal if carried openly, but in Virginia it was the reverse, handguns are legal but switchblades are not. Since then, VBirgibia has repealed the prohibition on swiotchblades.
Video on the other cases please 🙏
Some citizens appeared for militia duty "bearing" cannons on ships at the time.
Under the original meaning of the 2A, to "bear" is not limited to carrying on a human body.
A person can bring a tank's turret to "bear" on targets of hostilities.
Would the government restrict all drivers if a person was a dangerous driver? When someone breaks the law, you don't penalize everyone.
How would the SC uphold the regulation, and post 86 prohibition of machine guns in a post Cargill, post Bruen decision world? The Cargill decision highlighted the fact that machine guns are not defined by the speed they are able to empty a magazine. So if ROF was not allowed to be considered in the Cargill case, how else could true machine guns be considered "dangerous and unusual"?
Strange, I'm fairly sure that short barreled shotguns were used in trench warfare to clear out trenches of German tropps. In fact, didn't they complain that the use of of the trench gun violated treaties?
Thank you so much for because so many treat the 2A as a second class right that didn’t exist until 2008
Modern military M4's are 14.5" barrels, which are SBR's in common use. That's it. Ordinary SBR's to the people.
All it takes is an act of congress. Signature of the president. Two weeks later they will be in common use.
That would be AWESOME to be able to understand how we got to all these absurd decisions we're at now!
Wasn't the blunderbuss used for? A blunderbuss: A short musket with a wide bore and flaring muzzle, formerly used to scatter shots at close range.
Seems to me that short barrel rifles are ripe to be removed from the NFA.
Time to overturn the NFA. it was never constitutional.
I remember listening to Scalia giving the majority decision on Heller live and thinking "YOU COWARD! MACHINE GUNS ARE 100% PROTECTED! BY 2A" I was a rambunctious kid at the time. Coincidentally, I was also right.
I quote, no free man shall ever be debarred the use of arm's Thomas Jefferson. MAN NOT MELISHIA
I remember in the mid 1900's, my Dad had to pay $2 to pay a poll tax to vote in Arkansas. Sometimes he would rather buy a couple bags of groceries than vote.
1911s are semi-auto and were used by military. Mk18s are sbr's, and, full auto, also used by the military. Both semi auto and full auto are protected by the constirution and 2ndA.
Questions:
How does the militia i.e the people, execute the Laws of the Union, suppress Insurrections and repel Invasions?
And,
How does the militia i.e the people SECURE a free state?
Answer: With military arms...
Yes, there are no Arms for which the mere possession can be prohibited.
Only regulated them for safety (from imminent mass destruction) or regulating the CARRYING of certain weapons in order to terrorize people.
Grease guns -- SBR!
Scalia was WRONG.
Teach more, I enjoy you teaching 2a law. Professed gun law geek.
Being a non-lawyer, I really appreciate this explanation and find it very interesting. The question I have is how specific is the wording of the NFA with regard to types of weapons included? …or how much is up to the judgment of the ATF? Also how does the recent court limitations on Chevron Deference affect the ATF and our 2nd amendment rights?
It seems to me that SBRs and shotguns are no longer valid issues. with the various bullpup firearms and pistols of rifle calibers, can be shorter that a sawed off full length weapon.
The right to bear arms (not specific arms) I read that as all arms.
Whereas I read "shall not be infringed" are prohibiting to government any power or authority whatsoever to limit the right to keep and bear such arms. In short, that the Second Amendment is a flat rejection of the entire legal history/tradition of arms control legislation as fundamentally and irredeemably unjust. There can be no governmental power to restrict the possession of arms because it is not possible to grant government any such power.
In the case of Caetano v Massachusetts, SCOTUS held that stun guns could not be banned because they were in common use for lawful purposes. At the time, there were about 200,000 stun guns in private hands. The ATF has said that there are about 638,000 fully automatic rifles in private hands. Therefore, based on Caetano, fully automatic rifles are in common use and cannot be banned.
Since SBRs are common now in the military, does provide an opportunity to revisit SBRs and perhaps silencers/suppressers as well?
Part of the military just went with a 14 and 1/2 inch barrel rifle. Last I knew that was last length than the 16-in mention in the NFA. I believe it was found that a 64 grain bullet with that 14 1/2 inch barrel what's the new 'military standard'.
Can't support anyone that pushes USCCA knowing that USCCA has put their subscribers out to dry when they needed someone at their most vulnerable time of their life. How USCCA people sleep at night and can look at themselves in the mirror every morning is staggering!
The NFA clearly fails the History and Tradition test.
Where by history or text has it been illegal for citizens to own military or military like bearable arms ?
In WW2 the US Army sometimes had some of the Soldiers carrying,and using "Trench Guns" . My Dad carried one while fighting in the trenches of the French countryside....in 1942...
All taxes are extortion punishable by fines and jail
And theft