B.L.U.F. What was supposed to be a short article regarding why we see “self-defense” in so many challenges turned into a 5000-word article covering the opening statements of the NFA hearings in 1934 plus random musings on yelling fire and other historical legal stuff.

If you get anything out of this, please at least click the like button. I’m having trouble justifying to myself the effort I’m putting into these articles.

Boris, you are correct. I agree that it is extremely irritating to hear, over and over again, that our rights are dependent on “self-defense” or being a member of the militia or “sporting purposes” and on and on and on.

This is a stepping stone. It took us a long time to get back to this level of Second Amendment protected rights.

Consider the testimony in Congress over the National Firearms Act.

Hearings before the Committee on Ways and Means, House of Representatives, Seventy-Third Congress, Second Session on H.R. 9066, the NFA

Emphasis added.

This was a tax bill. It wasn’t about infringing on the right of the people to keep and bear arms, it was just a tax bill. In particular, it was a tax bill authorized by the commerce clause.

We see the same emotional blackmail, with slightly better language, with slightly less blood being used in 1934.

More of the same as we heard in the courts of these United States last Friday.

Note how they give a great deal of time to the concept of keeping the legislation constitutional. It is also striking to me that they are attempting to keep the federal government out of local government affairs.

This is just lovely, I do not know exactly how this bill will work out. Nobody can tell. We must feel our way through these big problems. But, after all, it represents a lot of thought, and a lot of study. —id. The Attorney General of the United States is telling Congress that this proposed bill may or may not actually accomplish anything, but because his department put time and effort into the bill, it should be passed.

Aren’t you happy that the original version didn’t pass? The DoJ was suggesting that the definition of a “machine gun” include semi-automatic weapons that can fire 12 or more shots without reloading. My best guess is that this number was generated by a survey of all automatic and semiautomatic firearms, and they discovered that there were no firearms with a capacity of 12 or more that were not belt feed.

Wow, did you know that sawed-off shotguns are “dangerous and unusual?”. It really is shocking to see that after 90 years, the language of the infringers really hasn’t changed in the least.

Inflation is such that a 10% tax on pistols and revolvers brought in $35,000. Machine guns commonly sell for $10,000 up.

Now think of the dollar signs flashing in these politicians’ eyes. They made $35k last year on the sale of handguns. The DoJ is suggesting that there now be a $200 tax on the sale of any handgun. The DoJ just told them that there are around 500,000 taxable firearms in the hands of the criminal underworld. That means that this tax, in theory, would fully fund the entire federal government.

The committee asks if the NFA should include bullet-proof vests because …there-are very few people who are innocent wearing clothes of that kind, even for their own protection.—NFA Hearings, supra at 7

The point in all of this is that the language of the infringers of 1934 was to tax the right to keep and bear arms out of existence. “We didn’t actually ban firearms, we just taxed them. Oh, you can’t afford a $200 tax on a $12 pistol, so sorry.”

Why this is important

In 1934, everybody knew that the right to keep and bear arms was an individual right and extended presumptively to any arm. There were no federal laws restricting what arms a person could possess or use. If you wanted to buy a Maxim Machine gun, you could. Nobody carried. Did you want a BAR? Nobody cared.

This is the time of “yellow journalism”. The “If it bleeds, it leads.” style of selling newspapers. Hearst sold papers by printing giant headlines over lurid stories featuring crime, corruption, sex, and innuendos.—Wikipedia: William Randolph Hearst (Jun. 2023). The people of the country got their news from the newspapers. Some two-bit hoodlum in New York City shoots up a barber shop with a machine gun and the people are reading about the crime the next day, across the country.

Day after day, week after week, people hear about the actions of the “underworld”. In today’s press, that would be replaced with “right-wing extremest”. They were both afraid and excited. Bonny and Clyde were folk heroes. They robbed from the evil corporations (banks) and then spread the wealth around to the 99%.

People wanted the government to “do something!”. Those newspapers were constantly printing articles about how the criminals were out witting the flatfoots. (He was caught flatfooted).

As the testimony said, once a criminal crossed into another state, they were just about home free. Live in St. Louise, commit your crime in East St. Louise, cross the Mississippi and go home, free from any fear of being arrested for your crimes in Illinois.

The Federal government was looking at ways to combat that. While they were having hearings on the NFA, they were also having hearings on making it a federal crime to flee a state felony across state lines.

The state was looking to expand its powers. They wanted more.

Yet, even while all of this is going on, they are still giving a nod to the Constitution.

Miller

This brings us to the Miller opinion. This is one of those shit cases where we were stripped of our rights without even noticing. It was the first time that the Supreme Court had made any pronouncement as to the meaning of the Second Amendment.

The gist of the opinion was that the NFA was constitutional because the weapon in question was not protected by the Second Amendment to “keep and bear arms.” Is a sawed-off shotgun “arms”? Yes. Then the Second Amendment presumptively protects the conduct of possessing one.

The Miller court found that because a sawed-off shotgun did not have a military purpose, it was not protected. They based this on the “well regulated militia” clause of the Second. If an arm was useful to the militia (or military) then it obviously was a protected arm. They did NOT say that was the only type of arm protected.

One of the questions still to be answered is if a tax on arms is an infringement. We know that a tax on churches or free speech is unconstitutional. Why is a tax on keeping arms constitutional?

The argument is that the commerce clause allows the federal government to tax items in interstate commerce.

The good news for us is that is not how amendments work.

Consider this language:

Then consider the 14th Amendment. Which is controlling? The 14th or the original text of the Constitution?

And:

Then consider the Second Amendment. Which is controlling? The Second Amendment or the original text of the Constitution?

This is something that will be addressed in the future. Which takes us back to Boris’ original question, why so much on and on about self-defense?

The Removal of the right to keep and bear arms

Somewhere along the way, the people lost the right to keep and bear arms. The Sullivan Act of 1911 was a state law that required The People to get government permission before they would be allowed to keep and bear arms. The Sullivan act was put in place to allow the democrats in power to maintain that power with force.

You are welcome to go down the rabbit hole of Tammany Hall and all the evil done for the democrat political machine.

With the passage of the Sullivan Act, the State of New York could disarm anybody they wanted. Only the connected or powerful were able to get government permission slips.

Other states followed. There was soon an overarching gun control movement that said that “the old west” was no more. That in a civilized society the state would provide protection. Provide for your defense. If the state was providing for your defense, then you had no need for self-defense.

We saw more and more rights being slowly stripped away. The Fudds got to keep their hunting rifles and shotguns. Those evil weapons which …ought never to be in the hands of any private individual. There is not the slightest excuse for it, not the least in the world…—NFA Hearings, supra at 7 were being removed from polite, civilized, society.

Late 20th Century

In 1968, the Gun Control Act was passed. It was in direct response to the assassinations of multiple prominent political figures.

For the first time, we had a concept of prohibited person. That prohibition only extended to crossing state lines. They were still using Art. I Section 8 Clause 3 to justify the infringement. Later, that distinction would be lost.

That distinction was lost when the courts found that commerce that was entirely internal to one state would affect the commerce of another state, this allowing the federal government to regulate that entirely internal commerce. Thus, the commerce clause is now being used to allow the federal government to impose its regulations within a state.

All of these regulations were based on a balancing act. Balancing the good of the people against the rights of the people. The people wanting to ban guns were very loud and got lots of press. The people that just wanted to be left alone were not heard.

In addition, there was a social push that said it was impolite to talk about “self-defense” or even defense against a rogue government.

We were the most civilized nation. We had the police to protect us. There was no need for anything as crass as armed self-defense. The state was busy putting the bad guys in jail. The police were the good guys.

The only people impolite enough to carry a firearm in public were the bad guys. There were entire policing policies built around the concept that anybody with a gun was obviously a bad guy.

Which leads to things like Time’s Square being one of the filthiest, disgusting and dangerous places in America.

In addition to the socially unacceptable arguments of self-defense and defense against the government, the infringers got the courts to find that the Second Amendment actuallllllly meant that the Militia had the right to keep and bear arms, furthermore, the unorganized militia was no-longer a reality and only the organized militia remained. The organized militia being the National Guard.

In other words, the only entity that had standing to challenge a law on Second Amendment grounds was the National Guard, represented by the State Attorney General, who was charged with defending the law that would be challenged.

We had lost. The fact that we could still possess any arms was just a privilege granted to us by the government, which could be taken away at any moment. And if you don’t shut up and sit down, the privilege will be restricted even more. Be happy with the arrangement, or it will get worse.

In 1987, Florida became a “shall issue” state. The gun control people were screaming that this would lead to blood in the streets. It didn’t. Other states followed suit.

The Second Amendment Challenge

Dick Heller was in a great situation to represent gun owners. He lived in DC. He was a retired cop. Not only that, but he had been allowed to carry a firearm until he retired, and suddenly, he could not. In addition, the laws of the District of Columbia did not allow him to even have a functional firearm in his home.

He started his lawsuit. He made the argument that the Second Amendment gave him the right to keep arms in functional condition within his home for self-defense.

This argument is extremely targeted. He isn’t asking for the ability to wonder the streets armed to the teeth. He just wanted to be able to defend himself in his home. As a retired police officer, he had real enemies that the state could recognize. When the policy is to allow active duty officers to go armed when off-duty because some miscreant could recognize them and harm them to “oh, you don’t need the ability to protect yourself anymore.”, even the infringement loving courts had a hard time justifying the law.

When Dick’s challenge reached the Supreme Court, there was a significant concern that the court would not grant cert.

When the cert was granted, there was concern that we were going to see another decision that stripped our rights away.

When the Heller decision was issued, we were shocked. It was a fantastic win. For the first time in decades, we could challenge infringements and have standing. Our arguments were finally going to be heard on the merits. We were going to finally start winning!

Out in Chicago, McDonald filed suit when the state said that it didn’t matter. The Second Amendment doesn’t apply to us.

The Fourth Circuit Court said it didn’t apply to the state because the federal constitution didn’t apply to the state. Only those parts of the constitution which the Supreme Court had issued opinions on actually applied to the states. The Second Amendment wasn’t one of those, so it didn’t apply to the states.

McDonald got it all the way to the Supreme Court where the McDonald court said “Of course the 14th Amendment applies to you. And that means that the rest of the Constitution applies to you, including the Second Amendment.”

This made all states either “shall issue” or “may issue”.

The Core Right of the Second Amendment

This is the magic language This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.—District of Columbia v. Heller, 467 U.S. 837 (2008)

In this one phrase, we lost the Second Amendment battle for 14 years. If there is a “core lawful purpose” then everything else is of less importance. If it is of less importance, then there might be good reason to allow the regulation to stand.

One of the most missed used quotes in the infringing community is “You can’t yell fire in a theater!”

This has never been true. You have always been able to do so, and in some cases might actually be legally required to do so.

Consider the context of the quote. At the time, movie theaters were constructed of wood and other flammable materials. The film stock was highly combustible. There were multiple tragedies where a theater caught fire and people died.

If there was an actual fire in the theater, you damn well better be yelling “FIRE!” and trying to get out.

What all of this comes to is that in First Amendment challenges, the courts look at “the core lawful purpose” to determine what level of scrutiny should be applied. This is how come there can be libel and slander regulations. If the First Amendment was absolute, then you could not stop people from defaming you, lying about you.

Consider a world where a vengeful Ex would call your employer and tell them that you had a criminal record and were an abusive asshole, even though it was untrue. They would be allowed to do it under the First Amendment if there were no limitations.

In the same way, if it was absolute, then people could lie on the stand and there could be no punishment. Perjury laws would be unconstitutional.

In the same way, the right to keep and bear arms is not absolute. The Second Amendment has included in it the right to use those arms. It wouldn’t be much of a right if you could never use the arms you could possess and carry.

You do not have the right to use your arms to kill another unlawfully, murder.

The infringers used the analogy of First Amendment limitations and methodologies against the Second Amendment without actually matching.

The core lawful purpose of free speech has long been held to be political speech. A regulation that forbids vulgar language in public might be found constitutional. “Fuck the cops” is political speech and cannot be banned.

Saying “Fuck you” to a mom coming out of the grocery store might get you arrested and charged under a vulgarity ordinance. (Local regulation/law). Saying “Fuck you” to the cop that is trying to question you is considered a political statement, and the ordinance would be found unconstitutional as applied.

In the same way, saying that “Joe Bidden is a crook.” is protected political speech.

In multiple circuit courts, they found that there was a two-step process that should take place. The first step was to determine if the conduct at issue was within the plain text of the Second Amendment. If it was, the analysis moved on to the second step.

How much was the core lawful purpose of the Second Amendment implicated. In other words, just how much were you raped, Mrs Jones?

The infringement loving courts focused on that one phrase from Heller, the core lawful purpose of self-defense—Heller, 467 U.S. 837. If there was any other reason that you were challenging the law, it was of lesser importance and a lower level of scrutiny could be applied.

Because of this, many of the challenges brought used the core lawful purpose of self-defense as their wedge to get in the door.

At the same time, the courts would look at ways in which they could say that the core wasn’t really affected. Banning some guns didn’t stop you from using other guns for self-protection. Banning magazines with more than 7, 9, 10, 12, 15, 20 or whatever random number it is today, doesn’t stop you from using a magazine with lower round counts.

If there were some other means of armed self-defense, then the infringement loving courts would find that a lesser level of scrutiny was allowed.

Conclusion

You see so many Second Amendment Challenges with self-defense within them because that was the wedge that got them heard. Without that wedge, the cases would have lost or been without standing.

The power of the Bruen decision lays in how they affirmed Heller and explained in simple words to the inferior courts how to apply Heller.

Those instructions explicitly say that means-end is not allowed. It is a two-step process that goes one step to far.

We are seeing a change in the language of the current challenges.

In Bruen the challenge said, “we want the ability to carry our firearms for self-defense, the state won’t let us.” The post Bruen challenges more commonly read something like “the conduct proposed is within the plain text of the Second Amendment. It is presumptively protected by the Second Amendment.”

In exactly the same way, the state arguments are not about means-end. They are about not being within the plain text or “dangerous” or “unusual”. They are trying to find a way out from under the protections granted us by the Second Amendment.