Uphold or Evade?
There's some low-level simmer (and glimmer) in the gun rights community these days in the wake of the Big Beautiful Bill eliminating the $200 tax imposed by 1934's National Firearms Act (NFA) on certain types of guns and accessories. That tax was the means by which the government of that time imposed gun control on the American people in an effort to abate the crime it created via its previous abridgment of Americans' liberties.
I speak of Prohibition and its consequence: the creation of a black market and the emergence of organized crime. The St. Valentine's Day Massacre in 1929, when seven members of Chicago's North Side Gang were gunned down by (believed to be) a rival gang, was massively covered by the press across the nation, and eventually led to the enactment of the NFA five years later.
Among the items taxed in the NFA were suppressors (aka silencers), even though they were not used in the Massacre. The tax stamp was intended to discourage their use out of the (mistaken) belief that they facilitate crime by making gunshots un-hearable. That many people still believe this is Hollywood's fault, and firearms advocates should remind others of this (and many other) fallacy.
The tax stamp served as an excuse to require all regulated items to be registered at the federal level. Its elimination should also eliminate that registration requirement, and serve as a step forward in challenging the state-level bans of things like suppressors (prohibited in 8 of 50 states).
Meanwhile, the NFA was also used by the Bureau of Alcohol, Tobacco, Firearms, and Explosives (BATFE) just a few years ago to prohibit pistol braces, which are accessories one can attach to a handgun in order to allow one to support it with a shoulder. The bureaucrats in the BATFE decided they didn't like pistol braces, declared that their attachment to a handgun turned the handgun into a short-barreled rifle (which is one of the categories taxed by the NFA), and thus effectively turning anyone who performed such a union of firearm and accessory into a federal felon. The rule was deemed unconstitutional by several courts, and the end of the Chevron Deference (which required courts to defer to agencies' interpretations of laws) has effectively ended the BATFE's sojourn into that particular prohibition.
Both these matters raise the question of why Washington's bureaucrats are so hot to ban gun related stuff. Yes, it's rhetorical - people who go into such lines of work are very often people who relish the ability to tell others "no." That doesn't excuse the behavior, and it also underplays what's the most important aspect of all:
Government is only legitimate because the Constitution makes it so, and because of this government's first job is to uphold the Constitution.
Our politicians and bureaucrats should devote their energies to upholding our Constitutionally protected rights, and should do so vigorously. Instead, too many of them look for ways to weasel around those protections and impose restrictions and prohibitions where none should exist.
That they do so, as I suggested above, is not surprising. The people drawn to the power that is government are rarely the sorts who don't* seek that power to curtail the liberties of their fellow citizens. Rarely, but not never, as Argentina's Javier Milei has shown us, but we don't have a Milei or much support for one in America.
What we do have is a plethora of people who think the way to manage the bad people in our society - and there always are, always have been, and always will be bad people in societies - is by saying "no" to everyone, good people included.
This doesn't work.
Bad people will still do bad things when rights of good people are infringed. The remedy for bad people doing bad things is punishing them - not others - for doing those things. But that's not as robust or satisfying an exercise of government power, at least in the eyes of those who covet power.
So, rather than embrace the spirit of the American experiment by participating in protecting citizens' rights, they try to find ways to infringe those rights. They claim that they do so in order to protect the public, but the fact that they defend those infringements even when they are proven not to work tells us this is a convenient lie.
A lie that many of the people whose rights are infringed also continue to believe. When attempts to undo infringements that proved to be pointless or counterfactual are made, they are resisted rather than applauded, and usually by people who presume they know better than the people who wrote those protections for liberty, and better than the people who voted for those undoings of infringements.
People who express outrage at wealthy taxpayers getting creative in their interpretations of tax codes are often the same who applaud when bureaucrats get creative in using the law to take away others' rights. This may seem contradictory or hypocritical, but both instances are ones of putting the government ahead of the citizenry. That this is the opposite of the Constitution's intent doesn't bother them, but it should bother us when they have the power of government behind them.
The prohibition on pistol braces was short-lived. The restrictions on suppressors, unfortunately, have been around a lot longer. Some might be tempted to conclude that age itself grants validity - that decades of failure to undo a counterfactual wrong means we should be more deferential - but if a rule doesn't stand on its own merits, we should not care how long the rule has been there.
I am a second amendment absolutist. In fact, I believe that it should be updated to eliminate all references to the militia leaving us with "The right of the people to keep and bear Arms shall not be infringed." At the same time, the periodic mass killings particularly of kids at schools requires some kind of response. I'm not sure what that should be. Do we want to arm teachers or pay to have adequate armed security staff at schools and other public places?
I live in New York. The people here are conditioned to believe guns are evil and they don’t need one because the police will keep them safe. I laugh heartily at anyone who says that. Police are LAW ENFORCEMENT OFFICERS. In other words, they are there to enforce the law, period. Not to be personal bodyguards. My personal protection is MY RESPONSIBILITY. The protect and serve slogan is just that, a slogan. This is what I say after I’m done laughing. Liberal lunatic areas of the country are brainwashing their constituents into thinking like that. And in doing so, creating target rich environments for those who do not follow laws, otherwise known as criminals. If places like New York would stop being tyrannical cucks and let anyone arm themselves who want to, there would be far less crime. The numbers prove it. In jurisdictions where the 2nd amendment is not infringed, the violent crime rates are lower.
As for the idiocy of eliminating the tax stamp, $200 was enough of a deterrent in 1934, not now. The fact that one still must get a government permission slip to own one is abhorrent. A big opportunity was missed here and I’m losing faith that it will be revisited any time soon. Republicans can’t get out of their own way when it comes to the 2A. In fact, in my opinion, they suck.
One more thing, people do not understand the language that was common in 1791. I always get “well regulated means guns should be regulated!!!” Um…no. Read a damn book. Well regulated, at the time, meant well disciplined, as in trained. I am not only a 2A absolutist, I am a constitutional strict constructionist. The Constitution is not a “living document” subject to interpretation of the day. The founders wrote what they meant and meant what they wrote. Who is anyone to say other than that? Those who want to control us. Because that is what our government has become. A means to control the populace. And that is why the public education system is in the process of being dismantled, at the federal level. One size does not fit all.
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 first part, up to free state is called the prefatory clause. A preface to the actual right, the right of the people to keep and bear arms.
Here is a good breakdown of the 2A:
The prefatory clause
“A well regulated militia, being necessary to the security of a free State…”
This is the preface. It states an important REASON for the operative clause. It doesn’t limit or extend the individual right expressed in the operative clause.
Also, we will notice that State is capitalized. In this context is construed congruously as “country” or “society”.
Operative clause
“…the right of the people to keep and bear arms shall not be infringed.”
The OPERATIVE CLAUSE tells us what the actual protected right is and says that right belongs to THE PEOPLE.
In 2004, 4 years before the Heller decision, the DOJ issued a report over 100 pages. It stated that the 2nd amendment secured an INDIVIDUAL right to keep and bear arms NOT RESTRICTED TO MILITARY SERVICE.
“Well regulated”
Supreme Court decision Heller v District of Columbia, pg 23
“…Finally, the adjective “Well regulated” implies nothing more than the imposition of proper discipline and training.”
In other words effective or competent.
“Security of a free state”
Meant security of a free POLITY or people or society. Not security of each of the several states.
Heller v DC, pg 24
Also free society or free country
Definition of POLITY
The noun polity refers to a political group of any size or shape- it can be a government, a state, a country or even a social group.
The second amendment can be read this way:
“A well trained group of men being necessary to the security of a free society, the right of the people to own and carry firearms shall not be infringed.”
Militia referred to all able men between the ages of 18 and 45 at the time the Constitution was written.
“Keep and bear arms”
Some contend that it should only consist of muzzle loading firearms that were available at the time and not refer at all to modern firearms like the AR-15 or AK-47.
Definition of arms is no different today than it was in the 18th century.
1773 edition of Samuel Johnson’s Dictionary defines arms as, “weapons of offense or armor of defense.”
Therefore, New York State ban on body armor of Sept 2023 is facially unconstitutional.
Heller v DC, pg 8
“Some have made the argument bordering on fervacious, that only those arms in existence in the 18th century are protected by the 2nd amendment. We simply do not interpret constitutional rights that way. Just as the 1st amendment protects more modern forms of communications and the 4th amendment applies to modern forms of search, the 2nd amendment extends prima facie to all instruments that constitute bearable arms. Even those that were not in existence at the time of the founding.”
To bear means “to carry” now as it did at the time of the founding.
Heller v DC, pg 11, 12
“At the time of the founding, as now, to bear meant to carry. For our review of founding era sources, we conclude that this natural meaning was also the meaning that bearing arms had in the 18th century. In numerous instances, bear arms was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relative to the 2nd amendment. Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to bear arms in defense of themselves and the state. It is clear that these formations that bear arms did not refer only to carrying a weapon in an organized military unit.”
Heller v DC, pg 19
“Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation. This meaning is strongly confirmed by the historical background of the 2nd amendment. We look to this because it has always been widely understood that the 2nd amendment, just like the 1st and 4th amendments, codified preexisting rights.”
The founders did not believe that our right to possess firearms was granted to us by the bill of rights or granted by the government. In fact, these were God given rights, not to only us, but all people on earth.
Heller v DC, pg 19
“As we said in US v Kershaink, this is not a right guaranteed by the constitution. Neither is it in any manner dependent upon the instrument for its existence. The 2nd amendment declares that it shall not be infringed.”
Sorry, I know this was a long read, but it is something I am very passionate about and, as such, infuriates me when I see such a soft stance by republicans who describe themselves as staunch gun rights activists. Not so, as a whole…