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"Shall Not Be Infringed"

SECOND AMENDMENT PRIMER Part II


By —— Bio and Archives--May 31, 2017

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Weapons change, but the man who uses them changes not at all.”—Gen. George S. Patton

It seems that a segment of the shooting population pines for the old times, and actually believes things were better way back when. Guns were in .30 cal and .45 ACP, the uniforms were pressed to a razor’s edge, and Mitsubishi was a thing only known for being shot out of the sky. Back when the ships were made of wood, and the men were made of iron. But the truth is, weapons evolve. And you either get with that evolution, or you go extinct. To borrow a quote from my favorite humor website Cracked.com, showing up to fight iron age enemies with bronze age weapons, you might as well have been carrying a breadstick. GUNS AMERICA

The prevailing thought on the gun control political left is that times have changed but technology has no reason to. That is, while a man had the right to defend himself using a single shot musket in 1791 against an attacker using a single shot musket, a man in 2017 using a five shot revolver has no right to defend himself against a perp with a 30 shot semiauto AR. Or a variant: the home owner with a 30-round AR has no right to use his repeating firearm against four attackers using a 10 shot semiauto pistol, a crowbar, a butcher knife, or a runaway truck. For the left, self-defense is unfair to begin with, and for all self-defense cases the left has a pat answer: The Founders Never Gave Americans the Right.

Justice Scalia did.

For the left. equality is everything. Self-defense by its nature discriminates against the attacker who may not be as well-armed. What they would prefer is for the perp to have the 30 shot AR, and for the home defender to have a replica single shot musket, or better yet, an Obamaphone with which they can call 911.

As you can see in the linked video, the victim has plenty of time to make the call. And wait for the police to show up. And too, that a single shot firearm would have sufficed.

As in all things, the left takes a logical point illogically to its logical conclusion: meaning that in the 18th century when the Bill of rights were composed, man used mostly muzzle-loading single shot muskets. When the founding Fathers wrote the constitution, the gun controller will posit, they never had in mind repeating firearms for use by civilians

David Deming - - Wednesday, April 12, 2017 Washington Times

For decades the federal judiciary has been trying to interpret the Second Amendment out of the Constitution. It is, as Sanford Levinson has termed it, an “embarrassment” to an elite class of legal scholars that finds firearms to be unusual and repulsive objects. Now the 4th U.S. Circuit Court of Appeals has declared that the semi-automatic AR-15 rifle is not covered by the Second Amendment, despite that fact that is the most common rifle sold in the United States. This execrable decision is the latest outrage in a long series of disingenuous judicial contortions.

The courts have never come to terms with the fact that any intelligible reading of the Second Amendment requires an interpretation that acknowledges and reconciles its two clauses. The operative clause speaks of the “right of the people,” while the prefatory clause justifies the operative clause by professing that a “well regulated militia” is “necessary to the security of a free state.”

Prior to the Heller decision by the Supreme Court (2008), for 60 years or more the federal judiciary almost unanimously ruled that the Second Amendment did not guarantee an individual right. The militia mentioned in the prefatory clause was taken to be the National Guard. Thus, the right described in the operative clause was interpreted to be the right of states to maintain militia. This interpretation was never credible because it excised the Second Amendment from its contextual and historical underpinnings.

 

 

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The Obama-appointed left-liberal circuit courts, their predecessors and leftist media had the nation convinced that the 2nd Amendment ratified in 1791 actually meant the National Guard established in 1903. You see, not only are the political left Time Travelers, being delusional with uncontrollable tyrannical tendencies to rewrite law, they also live in the fourth dimension where $8000 deductibles actually mean AFFORDABLE Health Care.

The factual argument is that all firearms were designed for the military or police at first and came into general use later (and here I except fully-automatic small arms and artillery for what should be obvious reasons). Everyone belonged to the militia - as all able-bodied Americans legally do today unless they are prohibited from membership by law.

The militia is defined as all able-bodied non-trans-gendered Americans who used to be able to pick up a 12 lb. musket in 1791, but have trouble picking up a 6 lb. AR today that can fire 30 times as many rounds as the musket. Military and civilian small arms have operated in the same fashion (select auto fire is the exception, and have not been available to the general public since the 1930s.)

David Derning:

What weapons are excluded? Those not in the common use by an individual citizen, such as poison gas or large artillery pieces. The phrase used in Heller, “dangerous and unusual,” is properly understood to refer to weapons of mass destruction.

For the record, there are over a half million fully automatic firearms in the hands of specially-licensed American citizens and collectors and they are never used in the commission of crimes.

THE REPEATING FIREARM EXISTED IN PRE-REVOLUTIONARY AMERICA…

David Koppel of the Volokh Conspiracy, Washington TImes:

The first repeaters to be built in large quantities appear to be the 1646 Danish flintlocks that used a pair of tubular magazines, and could fire 30 shots without reloading.  Like a modern lever-action rifle, the next shot was made ready by a simple two-step motion of the trigger guard. These guns were produced for the Danish and Dutch armies. Brown, at 106-7.

 


30 rounds, just like the modern AR-15 - exactly the kind of firearm the Founders had on mind when they referred to “Shall Not Be Infringed.”

David Kopell continues:

Gun-control advocates often argue that gun-control laws must be more restrictive than the original meaning of the Second Amendment would allow, because modern firearms are so different from the firearms of the late 18th century. This argument is based on ignorance of the history of firearms. It is true that in 1791 the most common firearms were handguns or long guns that had to be reloaded after every shot. But it is not true that repeating arms, which can fire multiple times without reloading, were unimagined in 1791. To the contrary, repeating arms long predate the 1606 founding of the first English colony in America.

Firearms technology and the original meaning of the Second Amendment

One of the men to credit for why repeating arms became much less expensive during the 19th century is James Madison, author of the Second Amendment…

To function reliably, repeating firearms must have internal components that fit together very precisely—much more precisely than is necessary for single-shot firearms. Before President Madison and Secretary Monroe started the manufacturing revolution, firearms were built one at a time by craftsmen.

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THE REPEATING FIREARM IS EXACTLY WHAT THE FOUNDING FATHER HAD IN MIND

Koppel:
What kind of repeating arms were available before 1815, when the Madison-Monroe mass production innovation program began? The state of the art was the Girandoni air rifle, invented around 1779 for Austrian army sharpshooters. Lewis and Clark would carry a Girandoni on their famous expedition, during the Jefferson administration. The Girandoni could shoot 21 or 22 bullets in .46 or .49 caliber without reloading. Ballistically equal to a firearm, a single shot from the Girandoni could penetrate a one-inch wood plank, or take an elk. (For more on the Girandoni, see my article “The History of Firearms Magazines and Magazine Prohibitions,” 88 Albany L. Rev. 849, 852-53 (2015).)

Liberals who neither know history, civics, understand law, or how to count, may be surprised to find that 1779, just like the existence of repeating firearms, came before 1791 when the Second Amendment was ratified. Conservatives don’t find any of it surprising.

The first repeaters had been invented about three centuries before. The earliest-known model is a German breech-loading matchlock arquebus from around 1490-1530 with a 10-shot revolving cylinder. M.L. Brown, Firearms in Colonial America: The Impact on History and Technology, 1492-1792, 50 (1980). Henry VIII had a long gun that used a revolving cylinder (a “revolver”) for multiple shots. W.W. Greener, The Gun and Its Development, 81-82 (9th ed. 1910). A 16-round wheel lock dates from about 1580. Kopel, at 852.

Production of repeaters continued in the seventeenth century.”

The only factor for repeating firearms not being common in the Revolutionary War was cost. They were prohibitively expensive to manufacture with any precision - and it was specifically precision that was required to manufacture firearms capable of self-reloading.

THE AR-15 - THE BARBIE DOLL FOR GUYS

Designed a half-century ago, the AR-15 was the later of many self-loading repeating firearms that came before and now are in common use for over a century. It is common and for that reason is validated by the Heller decision to be legal for all. It is popular because it is a universal, it is light and maneuverable, it is user friendly and fast, and it is a capable firearm free people demand for its varied purposes.

© Andrew G, Benjamin—All Rights Reserved

David Kopel is Research Director, Independence Institute, Denver; Associate Policy Analyst, Cato Institute, D.C; and Adjunct professor, Denver University, Sturm College of Law. He is author of 17 books and 100 scholarly journal articles


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Andrew G. Benjamin -- Bio and Archives | Comments

Andrew G. Benjamin is a real estate and tax specialist, equities trader, a former economic advisor to New York city mayor Rudy Giuliani; serving on the transition team’s Subcommittee on Taxation, Finance and the Budget. Benjamin also wrote extensively about intelligence, economic issues, the Mideast, terrorism, technology, high end audio and transnational politics.


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