Thursday, August 29, 2013

Obama's Watusi Around 2nd Amendment

Obama's office released two new executive orders regarding further infringements upon the Second Amendment. These are in addition to the 23 executive orders he announced in January.

"Trust loophole"

The first one is an attempt to close a loophole regarding fully-automatic "machine" guns. Current laws require detailed background checks, including fingerprinting, as part of the process to attain a Class III weapons permit. This measure allegedly prevents organized criminals from attaining these weapons.

Nobody should have any issue with a convicted, violent felon having certain constitutional rights revoked. They committed some act that deserves such a punishment. That punishment is given by a judge, through due process, with a system of appeals.

However, should the "sins of the father" be thrust upon the son?

Obama's new executive order mandates that all members of a trust or corporation to whom any Class III weapons (machine guns) are transferred be subjected to the same check. The executive order mandates that the ATF enact regulations that execute this policy.

Many trusts are set up as a means to insure inheritance. Should the owner commit a violent felony (or even felonious manslaughter while driving intoxicated), he may transfer his weapons to such a trust. Should his restriction  or prohibition ever be lifted, his rightful property can then come back into his control. Should it not, he can still will the items to his children should they be able to pass such background checks once they come of age. This is an individual right.

Many corporations have charitable foundations within them. Some of these include museums. Should a corporation be denied a lawfully purchased or donated museum piece just because some stockholder broke the law? Do we judge an entire group of people based upon the acts of a single individual? Moreover, corporations are owned by many people. What if the corporation to which the property is transferred is one whose shares span into thousands of mutual fund investors such as you, with the 401k? Should you be held guilty by association, then?

Military Surplus "Loophole"

Obama's second executive order is to close the "military surplus loophole". The US Military as well as US-based arms manufacturers who supply them have had a long-time practice of selling surplus arms as well as those "decommissioned" due to upgrades and improvements. They normally sell them to allies as approved by the United States, normally brokered through the US State Department. The executive order will, without congressional approval, make it illegal for those weapons to be resold to US importers.

This would make historical collectors' pieces such as the M-1 even more rare and unavailable for purchase except by government-approved museums.

This "loophole" ignores the fact that the most widely proliferated military-style rifle is the former Soviet Union's AK-47 series, not any US made or fielded weapon of issue.

This executive order also turns a blind eye to a US Supreme Court decision that gun-control advocates love to misrepresent.

Historically, the US Supreme Court has decided in favor of individual rights in Second Amendment cases more often than in favor of infringements of it. Three key cases: Gonzales v Castle Rock, Heller v DC, and McDonald v Illinois/Chicago all ruled in favor of the individual rights of self defense. They have also supported the notion that it is an individual's responsibility to defend his home, family, and property, not that of a militia (police force).

However, gun-control advocates claim this recent trend is counter to some of the historic decisions that seemed to lean in favor of the Second Amendment being for militia purposes only. That is a grand misinterpretation when taken out of context. Historically, every able bodied male is considered to be part of a state or municipal militia. That tradition dates back to the French And Indian War, continuing through the War for Independence and to the Civil War. In fact, most able-bodied males were expected to show to musters with their privately owned rifles, if they had one. They were tasked to protect their own families and properties should a threat emerge. They were also urged to aid their neighbor in the same. This legacy links directly to that individual right of self-defense and the intrinsic right to own and carry arms.

In many municipalities, there are still ordinances that state citizens can be deputized to act as auxiliary police and law enforcement forces. Police and law enforcement are considered paramilitary organizations, also known as militia. Many active law enforcement officers must provide their own service weapons. They are owned by the officers, not by the city/county. That is why you see some with Sig-Sauer, some with Taurus, and some with Glocks. There may be guidelines or restrictions on caliber. These officers are part of the active militia.

The inactive or irregular militia is comprised of each person enrolled in "selective service". 

From the Miller v The US decision:

"These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

This leads to that "key case" gun-control advocates misrepresent. In Miller v The US, The Supreme Court upheld the indictment of Miller. It was not because he transported a weapon across state lines. It was because the weapon was a sawed-off shotgun. It was modified in a way to make it no longer a military-style weapon. The court opined that a sawed-off shotgun was NOT a weapon that Miller could justify or prove  the US Military, any local or state militia (police force, national guard, state guard) would issue or consider for service. So, because it was not a military-style weapon, it was not protected.

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. 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."

This latest executive order seems to be in contradiction to their own argument for the constitutionality of gun control. Based upon the "Miller" argument that gun-control advocates propagate, shouldn't these "military-style surplus weapons" be first sold to US Citizens? Isn't that what Miller v US prefers?