RKBA

2nd amendment penumbras II – disarming non-militia members

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Edit: Ugh, what was I thinking. I haven’t gotten a post this wrong this decade. I reread Heller, which I apparently desperately needed. Mea culpa. I’ll leave this up as penance, and a reminder that I can be a great fool.

Previous item in series here: I

If you start from zero on the gun debate, a curious fact emerges. The right to arms is recognized in federal and state law as a military right in the form of milita membership via the unorganized militia. Militas are generally limited to men and only up to age 45 or so. So why don’t gun controllers go after the right to bear arms of those who are not covered? Women’s gun rights are only protected under the penumbra of the 2nd amendment. So why have women’s right to bear arms not been put under any specific pressure by the gun control crowd? Common sense and a little thought explains why attempts to control guns like this simply aren’t done and modern case law on this point is rarer than 3rd amendment case law. The ladies need their weapons to defend against both stranger attack and to equalize matters when boyfriend turns to ex-boyfriend stalker. Those over 45 have similar issues.

Those excluded from militia statutes have, theoretically, less protection of their right to bear arms, yet in practice this weakness of protection is never exploited. How did a 2nd amendment penumbra manage to grow up as custom without ever having gone through the judicial process.

Perhaps there have been relevant cases that I missed. Please educate me in comments.

Edit: I should have made clear in the text, and I manifestly did not, that the right to bear arms is a basic human right held by just about everybody that precedes constitutions and laws and is not limited to military service. That pretty much was the point of Heller, that bearing arms is an individual right.

This makes the article something of an exercise in looking at it from the other side’s viewpoint and still finding the gun controller position incoherent. The problem of Miller’s ruling against sawed off shotguns still stands.

Tales from The Front (Part III)

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Our good friend Gerry from over at LITGM works for a major reseller of outdoor equipment including firearms and is on the “front lines” in this important debate. Here is his story…

In the wake of a senseless tragedy and the residual madness regarding the Second Amendment of the Constitution of the United States I try to find the positive things. It’s not easy if you pay attention to the media but there are plenty of positives to witness first hand while on the front lines.

Good news #1

Ammo is coming in again, that is some good news. The bad news is customers snap it up as soon as it hits the shelves. Even with a ten box limit it disappears fast as if it were being given away. The magazine aisle is still barren. No backorders or rain checks are being issued. The reason is because manufacturers cannot guarantee when they will get it into our supply chain and that goes for firearms as well. Much of it has been wiped off the website. If there is no guarantee from a manufacturer then the company will not disappoint customers with a potentially false promise. Seems like a sound business decision.

Yesterday a man approached me with the usual questions. Any .223 come in? No. Any 5.56 arrive? No. How about PMAG’s? No. What’s going on, when do you expect to get more? Don’t know. Do the delivery trucks come in overnight or during the day? Nobody knows. What is holding up the supply? Manufacturers cannot keep up with the demand. I heard some is coming in today, is that true? I’ll check.

I told him to stick around while I made a personal visit to the warehouse and see. Some ammo came in and was being unloaded off the truck. What was on the pallets was unknown because it is all mixed up and shrink wrapped so there is no way to tell what exactly was in the shipment but I did manage to make out some branded shotshell cases. After my trip to the back I saw the department manager. He told me he heard some 5.56 was in but didn’t know how much and would get back to me when it was unwrapped. I explained that a customer had the shakes for some AR ammo. He said to tell him to come back in an hour or so and even then he did not know how much would be available since it sells instantly.

By this time the man was accompanied by his wife who was pushing a cart with various handgun ammo boxes as I returned to the floor. I told him that yes, some had come in. When I told him it would be in an hour or so I detected that he was getting the shakes. On the floor I refer to these customers as being similar to drug addicts. I see it daily. Folks are so frightened of bans or restrictions or high prices they are taking the lack of availability way too seriously.

He introduced himself as Sam and his wife Jill (not their real names). His shakes were brought on by the fact that he was due in for work in an hour. They discussed their situation in private. My take was they were after a twenty box limit between the two of them. Ten wasn’t enough with him having to leave. He pleaded with me to make it quicker but I explained that it was out of my control.

Going about my business I spotted them an hour later in the archery department looking at crossbows. In another half hour I spotted them walking toward the checkout grasping their twenty boxes of American Eagle 55 grain 5.56 NATO. That’s 200 400 rounds total. They were all smiles as if they just scored an eight ball. We spoke.

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2nd amendment penumbras

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The US is ill served by having the gun lobby be the primary defender of the Constitution’s 2nd amendment. The first part of the text is, as the gun controllers correctly note, under analyzed:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The problem is that the gun controllers don’t seriously analyze it either. What is the militia is a question that has yet to be definitively answered. As clear from the statements of the Founders, the text of federal law, the collective wordings of the state constitutions and state laws, the militia is the whole of the people. Membership in the militia is pretty clear. But that doesn’t answer more than who is in the militia. It says nothing about what it is.

What does the militia do? It must do either exactly what the military does or some subset of what the military does. How do you describe what the military does? Well the military has a listing of job descriptions called Military Occupation Specialty Code (MOSC). You never hear either side of the gun control debate discuss which MOSC are covered under the penumbra of the 2nd amendment’s recognition that the security of a free state makes a well regulated militia necessary. The gun controllers get the vapors at the idea that the 2nd amendment even has penumbras while gun groups aren’t much interested in potential penumbras beyond the right to ammunition for those guns they want and other ancillary questions strictly related to the subject of pushing lead downrange.

I would suggest that seriously thinking about what a militia is and what it should be restricted from doing would leave a large body of activities that should be protected by the 2nd amendment but generally aren’t because of the outsized emphasis on the trigger puller protection portion of the text. What are the military missions that are appropriate for the US military that are inappropriate for the militia? That’s a reasonable question. Let’s start with a decidedly non-scary MOSC, quartermaster. The military will occasionally feed the hungry. Does the militia have that right? That seems fairly trivial but yes, they should be able to. But when cities try to stop the feeding of homeless in city parks, is it still trivial?

When you live in a land of very limited laws, such questions do not arise. Of course you can feed the hungry and nobody need think too hard under what bit of the Bill of Rights is usurpation prevented. We exited that territory a few new deals ago. It’s time to start going over the text without skipping parts.

Quote of the Day

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Ann Althouse:

The issue there was not guns but the use of tax money to pay for teachers of religion. In the paragraph quoted above, Madison went on to say that citizens should object to the requirement of paying even “three pence” to support a religion because a government that extracts even that trifle may go on to coerce religious conformity. The small things are not small. The small things are where the people still have the capacity to fight authoritarian government.
 
Democrats know this. They are part of this American culture of deeply engrained belief in constitutional rights. What is different to the Democrats is that they don’t believe that the right to keep and bear arms is a constitutional right. They think the Supreme Court misinterpreted the Second Amendment when it found a constitutional right. District of Columbia v. Heller was a 5 to 4 decision, and the 5 are the 5 Justices, still on the Court, whom the Democratic Senators would love to have a chance to replace.

Read the whole thing.

Democratic politicians claim that they don’t want to take away people’s guns, but the pols’ behavior belies the claim. As Althouse points out, the Democrats appear to be looking at all possible ways to restrict the right to arms. The only things that hold them back are the Republican controlled House of Representatives, fear of a backlash by voters, and the courts. But we can be sure that the Democrats will seize any opportunities to restrict the RKBA that appear.

If you haven’t yet done it, now might be a good time for you to join or renew your membership in the National Rifle Association. I just joined. The NRA isn’t perfect but it’s the most effective advocate for the right to arms that we have.

More Tales from the “Front Lines” on Gun Control

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This article is from our good friend Gerry over at LITGM, who works on the “front lines” of gun control.

While a good portion of the rifle display is vacant, while half the handgun case is empty and the ammo aisles are barren we still see a lot of customer traffic. A lot. One veteran employee coworker told me earlier in the season that after Christmas the store would be empty and part-timer hours would be cut. Some may be laid off. Didn’t happen. After five years of working there, Ed is surprised.

Ed claims four years ago, after his first election and due to his past history Obummer frightened the masses enough they began stocking up, causing a mad rush for ammo but not so much for firearms. After the ammo was gone (most popular was handgun ammo at the time I recall as a customer) the crowds subsided after a few weeks. Not this time. Customers flock in during certain hours interrupted by more moderate, what we now call rest periods. The worst times are early mornings, after 5pm and on weekends all day long. We are at the point where customers are buying anything in stock and will make compromises. Definitely a seller’s market.

They come in and comment on the barren shelves. Without a prompt they comment on politics and politicians. Military veterans and law enforcement officers seem to be the most vocal in opposition to potential new laws and bans. Do not believe the liberal media propaganda machine.

Some customers will stand and stare, some just gape, slack-jawed at what little ammo selection is left, as if miraculously more will appear or the price will suddenly drop. If you are reading this and like to shoot and/or hunt you had better buy any ammo available. Prices have already gone up and will not, in my opinion, be going down again anytime soon.

Last Friday an older retired gent pushing a cart wearing a hearing aid needed assistance. He and his wife were standing in front of a free-standing display that holds buckshot and slugs. Because of his hearing loss the wife acted as translator and at times repeated what I said very loudly. He explained that his WInchester pump shotgun was nearly fifty years old and he has had it in a closet, unused for the past twenty. His question was, is it safe for him to use 00Buck in such an old weapon? My response at first was to ask what was the fixed barrel choke (knowing that an older shotgun such as his was without changeable screw-in choke tubes) set at? He claimed that it was a full choke since he used it for goose hunting. We never recommend anything regarding firearms unless the customer is very specific in a request or I can visually inspect the firearm for which they want to buy ammo, scope mounts, scope rings, etc..

Here is where you may have a few problems sir. First you should have your shotgun inspected by a professional gunsmith. Second, a constricted full choke creates a potentially dangerous situation when firing 00Buck no matter how new a shotgun may be. when firing, the muzzle may splinter or the barrel may bulge by being over pressured. At that point his wife jumped in and loudly said, “That would be ironic, here we’re trying to protect ourselves and we could end up being the ones getting hurt.” In this situation something I often do is suggest they get a second opinion. There are two others who work in my area with much greater knowledge in firearms than I so I will call for one on the 2-way when the need arises. Roger came over and confirmed my advice. We then set the gent and his wife up with a box of #4 lead shot. It’s not 00Buck but #4 should get the job done. Larger lead shot for wing shooting such as #4 is always hard to find but we had a few boxes.

This couple is no different than many of the customers who have come in lately. They are either first time buyers or aged owners who put away their firearms long ago for whatever reason and now want to have them back in good working condition. These folks are taking what they believe could be their final chance to possess personal firearm protection legally.

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