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BarnacleBob | 11-13-2009 11:36 AM
THE FEDERAL FIREARMS ACT. St John�s Law Review, 1939 Vol. 13, Page 437 http://www.saf.org/LawReviews/Ascione1.html Posted for Educational use only. The printed edition remains canonical. For citational use please visit the local law library or obtain a back issue. THE FEDERAL FIREARMS ACT.�The transition of crime from a chiefly local problem to one of interstate and even international proportion has been taking place since the World War. This gradual change, necessarily resulting in a partial disability of local law enforcement, engendered the clamour for federal crime control. Accordingly, in 1933, the Senate directed the Committee on Commerce to investigate the subjects of kidnapping, "racketeering", and other forms of crime, and to recommend the necessary remedial legislation.[1] To the layman it might seem that the only authority required for the passage of such laws would be the police power but actually, the United States Government is, in this respect, under the very burdensome restraint of the Tenth Amendment.[2] The national government [Page 438] has no police power except that expressly or impliedly granted it by the Constitution.[3] The important powers through which Congress may try to curb for crimes are the power to tax,[4] the power over interstate and foreign commerce, [5] and the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers." [6] The power to tax has been responsible for the control of narcotics [7] and machine guns,[8] while the power over interstate and foreign commerce has resulted in the control over kidnapping,[9] white slavery,[10] stolen motor vehicles,[11] and opium for smoking purposes.[12] Although it was common knowledge that many crimes occurred through the use of dangerous and deadly weapons, such as pistols and revolvers, control of these articles by the federal government was hampered by the Second Amendment [13] and by various groups favoring state control. Finally, the Committee on Commerce, through a subcommittee headed by Senator Murphy of Iowa, Senator Vandenberg of Michigan, and the late Senator Copeland of New York, proposed[14] the Federal Firearms Act15 which met with the approval of the National Rifle Association and the National Pistol Association[16] and which, as we shall see later herein, does not contravene the Second Amendment. I. The Federal Firearms Act[17] became law with the approval of President Roosevelt on June 30th, 1938. It went into effect on July 30th with the purpose of regulating interstate commerce in firearms and consequently curbing the possession of such weapons by criminals. The, Act provides for the licensing of all manufacturers and dealers in the interstate commerce of firearms. Criminals are banned from either receiving or sending firearms in interstate or foreign com- [Page 439] merce. Stolen firearms and those with obliterated serial numbers are barred from such commerce. The Act has nine sections but for purposes of clarity and brevity shall be treated under three divisions: definitions, prohibitions., and administration. Definitions. The terms "person", "interstate and foreign commerce" "manufacturer", "dealer" and "crime of violence", as defined[18] in the Act do not necessitate discussion. A "firearm", by its definition, would include all weapons such as pistols, revolvers, rifles, machine guns, "sawed-off" shotguns, and tear gas guns. The term "ammunition" specifically excludes .22-caliber rim-fire ammunition and impliedly excludes rifle and shotgun ammunition. This was done, no doubt, to appease the various sportsmen's and hunters' groups and farmers. The term "fugitive from justice" does not apply to one who has fled to avoid prosecution for a crime other than a crime of violence, but it does apply to one who' has fled to avoid giving testimony in any criminal proceeding even if the latter does not involve a crime of violence.[19] Prohibitions. The prohibitions may be properly classified according to the particular group prohibited from doing the enumerated acts. There are four groups: manufacturers or dealers, those under indictment for a crime of violence, fugitives or those convicted of a crime of violence, and the rather inclusive classification, "'any person". Manufacturer or dealer: This group is forbidden to ship, transport, or receive, in interstate or foreign commerce, any firearm or ammunition unless licensed to do so[20] and even if licensed, anyone within the group cannot ship or transport any firearm to any person [Page 440] in any state which requires a license for the purchase of a firearm, unless such license is exhibited to the manufacturer or dealer by the prospective purchaser, or unless the purchaser is another dealer or manufacturer licensed under the Act.[21] The above sections do not prohibit anyone not a dealer or manufacturer. Before the federal government can get jurisdiction under the preceding provisions, it must show: that either the shipper or receiver is a manufacturer or dealer and in such a case only the manufacturer or dealer is violating the Act. Those under indictment for a crime of violence: Under Section 902e of the Act, this group is forbidden to ship, transport, or cause to be shipped or transported any firearm or ammunition in interstate or foreign commerce.[22] There are no express provisions against receiving firearms or ammunition in interstate, commerce but it would seem that if such an article is received by one in this group because of an order placed in interstate commerce by such person, the clause, "cause to be shipped or transported", is violated. Therefore, such person may receive firearms or ammunition in interstate commerce only when he did not solicit or order such article. Fugitives or those convicted of a crime of violence: This group is under the, same prohibitions as the preceding group, [23] and in addition, under Section 902f, may not receive any firearm or ammunition in interstate or foreign commerce.[24] In conjunction with the latter provision, Congress has seen fit to add, " * * * and the possession of a firearm or ammunition by any such person shall be presumptive evidence that such firearm or ammunition was shipped or transported or received, as the case may be, by such person in violation of this Act."[25] This presumption must necessarily apply only to Sections 902e and 902f for it is only under these sections that such person is prohibited from shipping, transporting, or receiving firearms or ammunition. The presumption does not apply to Section 902f alone for the provision expressly states "in violation of this Act" and furthermore, to hold that it applies only to Section 902f would be to render the phrase "was shipped or transported" nugatory. For, if such person has the article in his possession, he could not have shipped it, although he might have transported it in interstate commerce, and in the latter case he would not be guilty under Section 902f because the crime thereunder is receiving in interstate or foreign commerce. Therefore, in order to give full effect. To the legislative intent, we must contend that the presumption applies to Sections 902e and 902f. Any person: No one is permitted, in interstate or foreign commerce, to receive any firearm or ammunition from an unlicensed dealer [Page 441] or manufacturer if he knew or had reasonable cause to believe such manufacturer or dealer to be unlicensed.[26] One notes that this provision does not apply to transactions between individuals neither of whom is a dealer or manufacturer. Nobody is permitted to ship, transport, or cause to be shipped or transported, in interstate or foreign commerce, any firearm or ammunition to any person, knowing or having reasonable cause to believe that such person is a fugitive or is under indictment for, or was convicted of a crime of violence.[27] Further, there is a prohibition against shipping, transporting, or causing to be shipped or transported, in interstate or foreign commerce, any stolen firearm or ammunition, knowing or having reasonable cause to believe such to have been stolen.[28] Nor may one deal in firearms which have been stolen from interstate commerce, knowing such to have been stolen.[29] Section 902i forbids the shipping, transporting, or knowingly receiving, in interstate or foreign commerce, of any firearm from which the manufacturer's serial number has been removed, obliterated or altered, "and the possession of any such firearm shall be presumptive evidence that such firearm was transported, shipped, or received, as the case may be, by the possessor in violation of this Act."[30] It is clear that the presumption applies only to the instant subdivision for only under this section is there any ban against such firearm. Administration. The Act is to be administered by the Secretary of the Treasury who may prescribe necessary rules and regulations,[31] and issue licenses to manufacturers and dealers.[32] Within forty-eight hours after conviction of a licensee for a violation under the Act, -the clerk of the court is to notify the Secretary of the Treasury who shall revoke such license, unless, upon appeal from such conviction, the licensee posts a $1,000 bond.[33] The bond stays revocation pending the appeal. Licensed dealers must maintain records of shipments, importations, and other disposal of firearms or ammunition.[34] [Page 442] The Act does not apply to the United States Government, nor to any state government, nor to any municipality, nor to any commissioned officer or agent thereof.[35] Banks, public carriers, express or armored-truck companies, or research laboratories may be granted exemptions.[36] Unserviceable firearms or ammunition held, as curios do not come within the Act.[37] Anyone who knowingly makes a false statement in applying for a license or exemption under the Act, shall, upon conviction, be liable to a maximum fine of $2,000 or a maximum prison term of five years, or both.[38] A violator of any of the provisions is liable to the same penalty.[39] II. Congress has the power to make all laws necessary for the regulation of interstate and foreign commerce.[40] The Federal Firearms Act [41] is well within the scope of such authority, and it matters not that the exercise of the power is attended by the same incidents that are prevalent in the police powers of the states.[42] Such legislation has been consistently upheld as evidenced by the banning from interstate commerce of lottery tickets,[43] adulterated and improperly labeled food,[44] opium for smoking purposes,[45] stolen motorcars,[46] prison made goods,[47] "white slaves",[48] and narcotics generally.[49] Are firearms less potentially dangerous or detrimental to the public welfare than any of these? Is society put in a greater state of unrest by a lottery ticket? The Act may possibly be contested on the ground that it infringes upon "the right to bear arms",[50] or that it violates the "equal [Page 443] protection of the laws" clause,[51] or that it violates the "due process" clause.[52] Right to bear arms:[53] The contention that the Act infringes upon this right has been answered about fifty years ago when it was held that "to regulate a conceded right is not necessarily to infringe the same."[54] It would be absurd to hold that provisions requiring a license infringe the right to keep arms. Equal protection of the laws: Class legislation is unconstitutional only when the classification is arbitrary and unreasonable.[55] it is clear that fugitives, those convicted of a crime of violence, and those under indictment for such a crime, are the ones who are most likely to use firearms to the detriment of all society. The classification is certainly not arbitrary for it is based on general considerations of prevailing conditions, and therefore does not unconstitutionally contravene the equal protection of the laws. Due process of law: The latter parts of Sections 902f and 902i are the controversial ones because they deal with statutory presumptions. The United States Supreme Court, in Mobile J. & R. C. R. R. v. Turnipseed,[56] set down the rule in reference to such presumptions: "That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law, * * * it is only essential that there be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate."[57] [Page 444] A recent authoritative article[58] sets forth a working definition: " * * * the fact out of which the presumption flows should be relevant to the crime charged, * * * should be an ingredient of the crime charged, * * * and should be one which experience has demonstrated to be closely connected with the establishment of the crime as distinguished from evidence of the crime."[59] In view of these attributes it is submitted that the presumptions in the Federal Firearms Act cannot be held constitutional. It does not seem logical to hold that possession of a firearm with an obliterated serial number evidences the fact that the possessor knowingly received the gun in that condition in interstate commerce. The reasonable man would presume that the possessor was the one who obliterated the serial number. Section 902f presumes that the possession of a firearm or ammunition by a criminal evidences the fact that such article was shipped, transported, or received by the criminal from another state. Considering outside factors,[60] it is submitted that the presumptions in Sections 902f and 902i are unreasonable, and therefore, unconstitutional. There is a similar presumption in the Narcotics Act.[61] Possession of narcotics or opium for smoking purposes is presumptive of illegal importation by the possessor.[62] This artificiality has been upheld because the courts have taken judicial notice that narcotics are not domestic commercial products.[63] It would seem that the constitutionality of these presumptions will not be determined for a long time. Federal agents may possibly use the presumptions as an excuse to hunt down criminals, and if state lines have not really been crossed, "release" the captured criminal into the arms of the state authorities, rather than make the Act stand the constitutionality test. In this respect, the Federal Firearms Act is analogous to the Lindbergh Act.[64] In the latter there is a pre- [Page 445] sumption that three days after a kidnapping, the victim, if he has not as yet reappeared, has been transported beyond the boundaries of the state.[65] This presumption enables the federal agents to arrive on the scene of a kidnapping before the clues disappear. Its constitutionality has never been determined because the facts in each case under the statute showed an actual interstate transportation,[66] and it is settled that constitutional questions are treated in the aspect presented by the facts of the particular case, rather than by facts which might exist in other cases.[67] Even if the presumptions in this Act are declared unconstitutional, the Act, as a whole, will not be affected, for it is the general rule that if the valid part of a statute is separable from the invalid part, the valid part will be sustained.[68] III. In the aggregate, the Federal Firearms Act is sensible and desirable. The individual states may aid the national government combat crime by passing legislation making it mandatory to obtain a license for the purchase or possession of a firearm. By this method most transactions between individuals and dealers would come within the purview of Section 902c.[69] Section 902c would be more comprehensive if the term "licensed manufacturer and dealer" were changed to read "person". The amended 902c would read: "It shall be unlawful for any person to transport or ship any firearm in interstate or foreign commerce to any person other than a licensed dealer or manufacturer in any state the laws of which require that a license be obtained for the purchase of such firearm, unless such license is exhibited to such person by the prospective purchaser." The Section so amended would cover transactions between individuals neither of whom is a dealer or manufacturer, and also transactions now covered by the Section as it is at present. Federal legislation providing for a nominal yearly tax or a nomi- [Page 446] nal transfer tax on firearms may possibly be effective, not as a crime deterrent, but as a means to enable states, requiring licenses for the possession of firearms, to enforce their licensing provisions. The federal authorities could give the names and addresses of firearms taxpayers to the state authorities. It is logical to suppose that criminals possessing guns would not register and pay the nominal tax; but then, because of the tax, the federal government would have jurisdiction and might concurrently help the state capture the criminal. As a further step to federal crime control, it would be very expedient to have the United States Constitution amended to forbid the carrying of concealed deadly weapons. In view of the fact that fifteen states have no constitutional provisions for the bearing of arms and therefore can pass such legislation [70] and at least twenty-nine other states have upheld statutes forbidding the carrying of concealed weapons or concealed deadly weapons, [71] there is every indication that such a proposed amendment would attract the required two-thirds of the state legislatures. ALFRED M. ASCIONE. 1.SEN. RES. No. 74 (May 8, 1933, as amended June 12, 1933). 2. U. S. CONST. Amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"). 3. United States v. Cruikshank, 92 U. S. 542 (1875); New Orleans, etc., Co. v. Louisiana, etc., Co., 115 U. S. 650, 6 Sup. Ct. 252 (1885); United States v. L. C. Knight Co., 156 U. S. 1, 15 Sup. Ct. 249 (1894); 12 C. J. 910. 4. U. S. CONST. Art. I, � 8, cl. 1. 5. Id. cl. 3. 6. Id. cl. 18. 7. 44 STAT. 120 (1926), 26 U. S. C. A. � 1040 (1934). 8. 48 STAT. 1236, 26 U. S. C. A. ��1132-1132q (1934). 9. 47 STAT. 326 (1932), 18 U. S. C. A. � 408a (Supp. 1938). 10. 36 STAT. 825 (1910), 18 U. S. C. A. � 398 (1926). 11. 41 STAT. 324 (1919), 18 U. S. C. A. � 408 (1926). 12. 35 STAT. 614 (1909), 21 U. S. C. A. � 173 (1926). 13. U. S. CONST. Amend. II ("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"). 14. 78 CONG REC. 448-460 (1934). 15. 2 STAT. 1250, 15 U. S. C. A. �� 901-909 (Supp. 1938). 16. 81 CONG. REC. 1527 (1937). 17. 52 STAT. 1250, 15 U. S. C. A. �� 901-909 (Supp. 1938). 18. Id. at 1250, � 901: "(3) The term 'firearm' means any weapon * * * which is designed to expel a projectile or projectiles by the action of an explosive and a firearm muffler or firearms silencer, or any part or parts of such weapon. "(6) The term 'crime of violence' means murder, manslaughter, rape, mayhem, kidnaping, burglary, housebreaking; assault with intent to kill, commit rape, or rob; assault with a dangerous weapon, or assault with intent to commit any offense punishable by imprisonment for more than one year. "(7) The term 'fugitive from justice' means any person who has fled from any State, Territory, the District of Columbia, or possession of the United States to avoid prosecution for a crime of violence or to avoid giving testimony in any criminal proceeding. "(8) The term 'ammunition' shall include all pistol or revolver ammunition except .22-caliber rim-fire ammunition." 19. Ibid. 20. 52 STAT. 1250, 15 U. S. C. A. � 902a (Supp. 1938). 21. Id. � 902c. 22. Id. � 902e. 23. Ibid. 24. Id. � 902f. 25. Ibid. 26. Id. � 902b. 27. Id. � 902d. 28. Id. � 902g. 29. Id. � 902h ("It shall be unlawful for any person to receive, conceal, store, barter, sell, or dispose of any firearm or ammunition or to pledge or accept as security for a loan any firearm or ammunition moving in or which is a part of interstate or foreign commerce, and which while so moving or constituting such part has been stolen, knowing, or having reasoanble cause to believe the same to be stolen"). 30. 52 STAT. 1250, 15 U. S. C. A. � 902i (Supp. 1938). 31. 52 STAT. 1250, 15 U. S. C. A. � 907 (Supp. 1938). 32. Id. �� 903a-903d (at least two years must elapse before a new license is issued if the previous one was revoked). 33. Id. � 903c. 34. Id. � 903d. 35. Id. � 904. 36. Ibid. 37. Ibid. 38. Id. � 905. 39. Ibid. 40. See notes 5 and 6, supra. 41. 52 STAT. 1250, 15 U. S. C. A. �� 901-909 (Supp. 1938). 42. Gibbons v. Ogden, 9 Wheat. (22 U. S.) 1, 197 (1824) ; United States v.Carolene Prod., 304 U. S. 144, 58 Sup. Ct. 778 (1938) ; Whitney, The Latest Development of the Interstate Commerce Power (1903) 1 MICH. L. REV. 615; (1938) 13 ST. JOHN's L. REV. 147. 43. Champion v. Ames, 188 U. S. 321, 23 Sup. Ct. 321 (1902). 44.Weeks v. United States, 245 U. S. 618, 38 Sup. Ct. 2119 (1917). 45. United States v. Yee Fing, 222 Fed. 154 (D. C. Mont. 1915). 46 Brooks v. United States, 267 U. S. 432, 45 Sup. Ct. 345 (1924). 47 Whitfield v. Ohio, 297 U. S. 431, 56 Sup. Ct. 532 (1936). 48.Hoke v. United States, 227 U. S. 308, 33 Sup. Ct. 281 (1913). 49. Yee Hem v. United States, 268 U. S. 178, 45 Sup. Ct. 470 (1924). 50.U. S. CONST. Amend. II 51. There is no "equal protection" clause in the Bill of Rights but it has been held that the constitutional guaranty of due process in the Fifth Amendment implies the equal protection of the laws. Sims v. Rives, 84 F. (2d) 871 (App. D. C. 1936), cert. denied, 298 U. S. 682, 56 Sup. Ct. 960 (1936). 52. U. S. CONST. Amend. V. 53. 2 STORY, CONSTITUTION (2d ed. 1851) � 1897 (The enormous expense of maintaining a standing army and the fear of having rights disregarded by unscrupulous rulers gave rise to the right to bear arms). McKenna, The Right to Keep and Bear Arms (1928) 13 MARQ. L. REV. 138, 149 (Today, in view of the well-regulated militia and of the comparative absence of having "raw levies * * * turn out overnight, * * * it is conceivable that the courts may well restrict the right * * * exclusively to the militia"). 54. State v. Workman, 35 W. Va. 367, 372, 14 S. E. 9, 11 (1891) ("Thus, a prohibition against passing any law abridging the freedom of speech or of the press would scarcely be so construed as to prohibit all statutes defining and punishing slander or criminal libel; and the inhibition against passing any law restricting the free exercise of religion would not prevent the passage of an act prohibiting immorality when practiced as a religious tenet"). 55. Orient Ins. Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. 281 (1898); Old Dearborn, etc. v. Seagrams-Dist., 299 U. S. 183, 57 Sup. Ct. 139 (1936) ; Gunn v. Minneapolis, etc., Ry., 34 N. D. 418, 158 N. W. 1004 (1916). 56. 219 U. S. 35, 31 Sup. Ct. 136 (1910). 57. Id. at 43. 58. O�Toole, Artificial Presumptions in the Criminal Law (1937) 11 ST. JOHN'S L. REV. 167. 59. Id. at 187. 60. 78 CONG. REC. 456 (1934) (There are fifteen to twenty million guns in the United States. These firearms are not centralized in one locality, nor are all manufacturers located in one community). 61. 48 STAT. 1236, 26 U. S. C. A. �� 1132-1132q (1934). 62. 38 STAT. 275 (1914), 21 U. S. C. A. �� 174, 181 (1928). 63. United States v. Yee Fing, 222 Fed. 154 (D. C. Mont. 1915). The law of artificial presumptions has been fully discussed in the following articles which cite sufficient cases: O'Toole, loc. cit. supra note 58; Brosman, The Statutory Presumption (1931) 5 TULANE L. REV. 178; Keeton, Statutory Presumptions�Their Constitutionality and Legal Effect (1931) 10 TEX. L. REV. 34; Lane, Presumptions (1923) 22 MICH. L. REV. 207; Morgan, Some Observations Concerning Presumptions (1931) 44 HARV. L. REV. 906; Note (1930) 43 HARV. L. REV. 100; Legis. (1935) 10 ST. JOHN'S L. REV. 169. 64. 48 STAT. 781 (1934), 18 U. S. C. A. � 408a (Supp. 1938). 65. Ibid. 66. Gooch v. United States, 297 U. S. 124, 56 Sup. Ct. 395 (1935) ; Bailey v. United States, 74 F. (2d) 451 (C. C. A. 10th, 1934) ; Kelly v. United States, 76 F. (2d) 847 (C. C. A. 10th, 1935) ; Seadlund v. United States, 97 F. (2d) 742 (C. C. A. 7th, 1938); United States v. Parker, 23 F. Supp. 880 (D. C. N. J. 1938) ; United States v. Powell, 24 F. Supp. 160 (E. D. Tenn. 1938). 67. Copperthwaite v. United States, 37 Fed. 846 (C. C. A. 6th, 1930). 68. Presser v. Illinois, 116 U. S. 252, 6 Sup. Ct. 850 (1886) ; Supervisors of Albany v. Stanley, 12 Fed. 82 (N. D. N. Y. 1882); Dundee Mortgage, etc., Co. v. School Dist. No. 1, 21 Fed. 151 (D. C. Ore. 1884) ; 52 STAT. 1252, 15 U. S. C. A. � 908 (Supp. 1938) (furthermore the Act itself provides that should "any section or subsection * * * be declared unconstitutional, the remaining portion of the chapter shall remain in full force and effect"). 69. 52 STAT. 1250, 15 U. S. C. A. �902c (Supp. 1938). 70. California, Delaware, Illinois, Iowa, Maryland, Minnesota, Nebraska, Nevada, New Hampshire, New Jersey, New York, North Dakota, Virginia, West Virginia, and Wisconsin. 71. Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Mississippi, Missouri, Montana, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Washington, and Wyoming (the missing states are Connecticut, Maine, Rhode Island, and Vermont)

BarnacleBob | 11-13-2009 11:58 AM
Re: THE FEDERAL FIREARMS ACT. Note that Miller and his counsel NEVER appeared before SCOTUS to argue their defense ... but thats another story told here: The Peculiar Story of Miller v United States http://www.law.nyu.edu/ecm_dlv/group...pro_060964.pdf U.S. Supreme Court UNITED STATES v. MILLER, 307 U.S. 174 (1939) 307 U.S. 174 UNITED STATES v. MILLER et al. No. 696. Argued March 30, 1939. Decided May 15, 1939. Appeal from the District Court of the United States for the Western District of Arkansas. [307 U.S. 174, 175] Mr. Gordon Dean, of Washington, D.C., for the United States. No appearance for appellees. Mr. Justice McREYNOLDS delivered the opinion of the Court. An indictment in the District Court Western District Arkansas, charged that Jack Miller and Frank Layton 'did unlawfully, knowingly, wilfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230, said defendants, at the time of so transporting said firearm in interstate commerce as aforesaid, not having registered said firearm as required by Section 1132d of Title 26, United States Code, 26 U.S.C.A. 1132d (Act of June 26, 1934, c. 757, Sec. 5, 48 Stat. 1237), and not having in their possession a stamp-affixed written order for said firearm as provided by Section 1132c, Title 26, United States Code, 26 U.S.C.A. 1132c (June 26, 1934, c. 757, Sec. 4, 48 Stat. 1237) and the regulations issued under authority of the said Act of Congress known as the 'National Firearms Act' approved June 26, 1934, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.' 1 [307 U.S. 174, 176] A duly interposed demurrer alleged: The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution, U.S.C.A.-'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.' [307 U.S. 174, 177] The District Court held that section 11 of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment. The cause is here by direct appeal. Considering Sonzinsky v. United States, 1937, 300 U.S. 506, 513 , 57 S. Ct. 554, and what was ruled in sundry causes aris- [307 U.S. 174, 178] ing under the Harrison Narcotic Act2-United States v. Jin Fuey Moy, 1916, 241 U.S. 394 , 36 S.Ct. 658, Ann.Cas.1917D, 854; United States v. Doremus, 1919, 249 U.S. 86, 94 , 39 S.Ct. 214; Linder v. United States, 1925, 268 U.S. 5 , 45 S.Ct. 446, 39 A.L.R. 229; Alston v. United States, 1927, 274 U.S. 289 , 47 S.Ct. 634; Nigro v. United States, 1928, 276 U.S. 332 , 48 S.Ct. 388-the objection that the Act usurps police power reserved to the States is plainly untenable. 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. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158. The Constitution as originally adopted granted to the Congress power- 'To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.' U.S.C.A.Const. art. 1, 8. With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view. The Militia which the States were expected to maintain and train is set in contrast with Troops which they [307 U.S. 174, 179] were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia- civilians primarily, soldiers on occasion. The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. 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. Blackstone's Commentaries, Vol. 2, Ch. 13, p. 409 points out 'that king Alfred first settled a national militia in this kingdom' and traces the subsequent development and use of such forces. Adam Smith's Wealth of Nations, Book V. Ch. 1, contains an extended account of the Militia. It is there said: 'Men of republican principles have been jealous of a standing army as dangerous to liberty.' 'In a militia, the character of the labourer, artificer, or tradesman, predominates over that of the soldier: in a standing army, that of the soldier predominates over every other character; and in this distinction seems to consist the essential difference between those two different species of military force.' 'The American Colonies In The 17th Century', Osgood, Vol. 1, ch. XIII, affirms in reference to the early system of defense in New England- 'In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to [307 U.S. 174, 180] cooperate in the work of defence.' 'The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former.' 'A year later (1632) it was ordered that any single man who had not furnished himself with arms might be put out to service, and this became a permanent part of the legislation of the colony (Massachusetts).' Also 'Clauses intended to insure the possession of arms and ammunition by all who were subject to military service appear in all the important enactments concerning military affairs. Fines were the penalty for delinquency, whether of towns or individuals. According to the usage of the times, the infantry of Massachusetts consisted of pikemen and musketeers. The law, as enacted in 1649 and thereafter, provided that each of the former should be armed with a pike, corselet, head-piece, sword, and knapsack. The musketeer should carry a 'good fixed musket,' not under bastard musket bore, not less than three feet, nine inches, nor more than four feet three inches in length, a priming wire, scourer, and mould, a sword, rest, bandoleers, one pound of powder, twenty bullets, and two fathoms of match. The law also required that two-thirds of each company should be musketeers.' The General Court of Massachusetts, January Session 1784 (Laws and Resolves 1784, c. 55, pp. 140, 142), provided for the organization and government of the Militia. It directed that the Train Band should 'contain all able bodied men, from sixteen to forty years of age, and the Alarm List, all other men under sixty years of age, ....' Also, 'That every non-commissioned officer and private soldier of the said militia not under the controul of parents, masters or guardians, and being of sufficient ability therefor in the judgment of the Selectmen of the town in which he shall dwell, shall equip himself, and be constantly provided with a good fire arm, &c.' By an Act passed April 4, 1786 (Laws 1786, c. 25), the New York Legislature directed: 'That every able-bodied Male Person, be- [307 U.S. 174, 181] ing a Citizen of this State, or of any of the United States, and residing in this State, (except such Persons as are herein after excepted) and who are of the Age of Sixteen, and under the Age of Forty-five Years, shall, by the Captain or commanding Officer of the Beat in which such Citizens shall reside, within four Months after the passing of this Act, be enrolled in the Company of such Beat. ... That every Citizen so enrolled and notified, shall, within three Months thereafter, provide himself, at his own Expense, with a good Musket or Firelock, a sufficient Bayonet and Belt, a Pouch with a Box therein to contain not less than Twenty-four Cartridges suited to the Bore of his Musket or Firelock, each Cartridge containing a proper Quantity of Powder and Ball, two spare Flints, a Blanket and Knapsack; ....' The General Assembly of Virginia, October, 1785 (12 Hening's Statutes c. 1, p. 9 et seq.), declared: 'The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty.' It further provided for organization and control of the Militia and directed that 'All free male persons between the ages of eighteen and fifty years,' with certain exceptions, 'shall be inrolled or formed into companies.' 'There shall be a private muster of every company once in two months.' Also that 'Every officer and soldier shall appear at his respective muster-field on the day appointed, by eleven o'clock in the forenoon, armed, equipped, and accoutred, as follows: ... every non-commissioned officer and private with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel, with a good bayonet and iron ramrod well fitted thereto, a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket, a good knapsack and canteen, and moreover, each non-commissioned officer and private shall have at every muster one pound of good [307 U.S. 174, 182] powder, and four pounds of lead, including twenty blind cartridges; and each serjeant shall have a pair of moulds fit to cast balls for their respective companies, to be purchased by the commanding officer out of the monies arising on delinquencies. Provided, That the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof. And every of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by his commanding officer. If any private shall make it appear to the satisfaction of the court hereafter to be appointed for trying delinquencies under this act that he is so poor that he cannot purchase the arms herein required, such court shall cause them to be purchased out of the money arising from delinquents.' Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed. But none of them seem to afford any material support for the challenged ruling of the court below. In the margin some of the more important opinions and comments by writers are cited. 3 [307 U.S. 174, 183] We are unable to accept the conclusion of the court below and the challenged judgment must be reversed. The cause will be remanded for further proceedings. Reversed and remanded. Mr. Justice DOUGLAS took no part in the consideration or decision of this cause. Footnotes [ Footnote 1 ] Act of June 26, 1934, c. 757, 48 Stat. 1236-1240, 26 U.S.C.A. 1132 et seq.: 'That for the purposes of (sections 1132 to 1132q) this Act- 'Sec. 1 (Section 1132). (a) The term 'firearm' means a shotgun or rifle having a barrel of less than eighteen inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition, (The Act of April 10, 1936, c. 169, 49 Stat. 1192, 26 U.S.C.A. 1132, added the words) but does not include any rifle which is within the foregoing provisions solely by reason of the length of its barrel if the caliber of such rifle is .22 or smaller and if its barrel is sixteen inches or more in length. 'Sec. 3 ( 1132b). (a) There shall be levied, collected, and paid upon firearms transferred in the continental United States a tax at the rate of $200 for each firearm, such tax to be paid by the transferor, and to be represented by appropriate stamps to be provided by the Commissioner, with the approval of the Secretary; and the stamps herein provided shall be affixed to the order for such firearm, hereinafter provided for. The tax imposed by this section shall be in addition to any import duty imposed on such firearm. 'Sec. 4 ( 1132c). (a) It shall be unlawful for any person to transfer a firearm except in pursuance of a written order from the person seeking to obtain such article, on an application form issued in blank in duplicate for that purpose by the Commissioner. Such order shall identify the applicant by such means of identification as may be prescribed by regulations under (sections 1132 to 1132q) this Act: Provided, That, if the applicant is an individual, such identification shall include fingerprints and a photograph thereof. '(c) Every person so transferring a firearm shall set forth in each copy of such order the manufacturer's number or other mark identifying such firearm, and shall forward a copy of such order to the Commissioner. The original thereof with stamps affixed, shall be returned to the applicant. '(d) No person shall transfer a firearm which has previously been transferred on or after the (thirtieth day after June 26, 1934), effective date of this Act, unless such person, in addition to complying with subsection (c), transfers therewith the stamp-affixed order provided for in this section for each such prior transfer, in compliance with such regulations as may be prescribed under ( sections 1132 to 1132q) this Act for proof of payment of all taxes on such firearms. 'Sec. 5 ( 1132d). (a) Within sixty days after the (thirtieth day after June 26, 1934) effective date of this Act every person possessing a firearm shall register, with the collector of the district in which he resides, the number or other mark identifying such firearm, together with his name, address, place where such firearm is usually kept, and place of business or employment, and, if such person is other than a natural person, the name and home address of an executive officer thereof: Provided, That no person shall be required to register under this section with respect to any firearm acquired after the (thirtieth day after June 26, 1934) effective date of, and in conformity with the provisions of, (sections 1132 to 1132q) this Act. 'Sec. 6 ( 1132e). It shall be unlawful for any person to receive or possess any firearm which has at any time been transferred in violation of section (1132b or 1132c) 3 or 4 of this Act. 'Sec. 11 ( 1132j). It shall be unlawful for any person who is required to register as provided in section ( 1132d) 5 hereof and who shall not have so registered, or any other person who has not in his possession a stamp-affixed order as provided in section (1132c of this title) 4 hereof, to ship, carry, or deliver any firearm in interstate commerce. 'Sec. 12 ( 1132k). The Commissioner, with the approval of the Secretary, shall prescribe such rules and regulations as may be necessary for carrying the provisions of (sections 1132 to 1132q) this Act into effect. 'Sec. 14 ( 1132m). Any person who violates or fails to comply with any of the requirements of (sections 1132 to 1132q) this Act shall, upon conviction, be fined not more than $2,000 or be imprisoned for not more than five years, or both, in the discretion of the court. 'Sec. 16 ( 1132o). If any provision of (sections 1132 to 1132q) this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of (sections 1132 to 1132q) the Act, and the application of such provision to other persons or circumstances, shall not be affected thereby. 'Sec. 18 ( 1132q). This (chapter (1132 to 1132q)) Act may be cited as the 'National Firearms Act." [ Footnote 2 ] Act December 17, 1914, c. 1, 38 Stat. 785, February 24, 1919, c. 18, 40 Stat. 1057, 1130, 26 U.S.C.A. 1040-1054, 1383-1391. [ Footnote 3 ] Concerning The Militia-Presser v. Illinois, 116 U.S. 252 , 6 S.Ct. 580; Robertson v. Baldwin, 165 U.S. 275 , 17 S.Ct. 326; Fife v. State, 31 Ark. 455, 25 Am.Rep. 556; Jeffers v. Fair, 33 Ga. 347; Salina v. Blaksley, 72 Kan. 230, 83 P. 619, 3 L.R.A., N.S., 168, 115 Am.St.Rep. 196, 7 Ann.Cas. 925; People v. Brown, 253 Mich. 537, 235 N. W. 245, 82 A.L.R. 341; Aymette v. State, 2 Humph., Tenn., 154; State v. Duke, 42 Tex. 455; State v. Workman, 35 W.Va. 367, 14 S.E. 9, 14 L.R.A. 600; Cooley's Constitutional Limitations, Vol. 1, p. 729; Story on The Constitution, 5th Ed., Vol. 2, p. 646; Encyclopaedia of the Social Sciences, Vol. X, p. 471, 474.

BarnacleBob | 11-13-2009 12:15 PM
Re: THE FEDERAL FIREARMS ACT. Sources on the Second Amendment and Rights to Keep and Bear Arms in State Constitutions http://www.law.ucla.edu/volokh/2amteach/SOURCES.HTM

BarnacleBob | 11-13-2009 12:17 PM
Re: THE FEDERAL FIREARMS ACT. Federal Cases Regarding the 2nd Amendment http://www.firearmsandliberty.com/fedcases.2nd.html

BarnacleBob | 11-13-2009 12:24 PM
Re: THE FEDERAL FIREARMS ACT. BEARING ARMS SECOND AMENDMENT Id. at 178. In Cases v. United States, 131 F. 2d 916, 922 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943), the court, upholding a similar provision of the Federal Firearms Act, said: "Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well-regulated militia." See Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (dictum: Miller holds that the "Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well regulated militia"'). See also Hickman v. Block, 81 F.3d 98 (9th Cir.) (plaintiff lacked standing to challenge denial of permit to carry concealed weapon, because Second Amendment is a right held by states, not by private citizens), cert. denied 519 U.S. 912 (1996); United States v. Gomez, 92 F.3d 770, 775 n. 7 (9th Cir. 1996) (interpreting federal prohibition on possession of firearm by a felon as having a justification defense "ensures that [the provision] does not collide with the Second Amendment"). United States v. Wright, 117 F.3d 1265 (11th Cir.), cert. denied 522 U.S. 1007 (1997) (member of Georgia unorganized militia unable to establish that his possession of machine guns and pipe bombs bore any connection to the preservation or efficiency of a well regulated militia). http://law.onecle.com/constitution/a...-02/index.html

GoldWampum | 11-13-2009 12:37 PM
Re: THE FEDERAL FIREARMS ACT. Main Entry: in�fringe Pronunciation: \in-ˈfrinj\ Function: verb Inflected Form(s): in�fringed; in�fring�ing Etymology: Medieval Latin infringere, from Latin, to break, crush, from in- + frangere to break � more at break Date: 1513 transitive verb 1 : to encroach upon in a way that violates law or the rights of another <infringe a patent> 2 obsolete : defeat, frustrate intransitive verb : encroach �used with on or upon <infringe on our rights> http://www.merriam-webster.com/dictionary/infringe Main Entry: en�croach Pronunciation: \in-ˈkrōch, en-\ Function: intransitive verb Etymology: Middle English encrochen to get, seize, from Anglo-French encrocher, from en- + croc, croche hook � more at crochet Date: 1528 1 : to enter by gradual steps or by stealth into the possessions or rights of another 2 : to advance beyond the usual or proper limits <the gradually encroaching sea> synonyms see trespass http://www.merriam-webster.com/dictionary/encroach Main Entry: reg�u�lat Pronunciation: \ˈre-gyə-ˌlāt also ˈrā-\ Function: transitive verb Inflected Form(s): reg�u�lat�ed; reg�u�lat�ing Etymology: Middle English, from Late Latin regulatus, past participle of regulare, from Latin regula rule Date: 15th century 1 a : to govern or direct according to rule b (1) : to bring under the control of law or constituted authority (2) : to make regulations for or concerning <regulate the industries of a country> 2 : to bring order, method, or uniformity to <regulate one's habits> 3 : to fix or adjust the time, amount, degree, or rate of <regulate the pressure of a tire> http://www.merriam-webster.com/dictionary/regulate As I read it encroaching on a right through regulation pretty obviously looks like infringement. Help a homey out here BB. This looks like a word game. IOW, I call bullshit. Use a different word to so the same thing and it changes it?

GoldWampum | 11-13-2009 12:41 PM
Re: THE FEDERAL FIREARMS ACT. Quote:
Originally Posted by BarnacleBob (Post 2023825) BEARING ARMS SECOND AMENDMENT Id. at 178. In Cases v. United States, 131 F. 2d 916, 922 (1st Cir. 1942), cert. denied, 319 U.S. 770 (1943), the court, upholding a similar provision of the Federal Firearms Act, said: "Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well-regulated militia." See Lewis v. United States, 445 U.S. 55, 65 n.8 (1980) (dictum: Miller holds that the "Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well regulated militia"'). See also Hickman v. Block, 81 F.3d 98 (9th Cir.) (plaintiff lacked standing to challenge denial of permit to carry concealed weapon, because Second Amendment is a right held by states, not by private citizens), cert. denied 519 U.S. 912 (1996); United States v. Gomez, 92 F.3d 770, 775 n. 7 (9th Cir. 1996) (interpreting federal prohibition on possession of firearm by a felon as having a justification defense "ensures that [the provision] does not collide with the Second Amendment"). United States v. Wright, 117 F.3d 1265 (11th Cir.), cert. denied 522 U.S. 1007 (1997) (member of Georgia unorganized militia unable to establish that his possession of machine guns and pipe bombs bore any connection to the preservation or efficiency of a well regulated militia). http://law.onecle.com/constitution/a...-02/index.html
Quote:
"Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well regulated militia"')
Neither does it give the government the authority to interpret what a militia needs to defend itself from "domestic" enemies or government. That leaves it to the states and the people the way I read it, and after distilling the wordsmithing used to try to hide that. Any weapon of defense would be useful to a well regulated militia. No? Unable to prove why bombs and machine guns are useful against an enemy with bombs and machine guns? Well, I guess the Armed forces can't prove how they need them either eh?

silverblood | 11-13-2009 12:47 PM
Re: THE FEDERAL FIREARMS ACT. There exists an inalienable right of any person to defend himself and his property from aggression. He doesn't have a right to initiate aggression against others. A person has a right to use any tool suited to defending himself. Guns are tools of self-defense. Atom bombs are not. (That doesn't mean a person doesn't have the right to construct and possess or use an atom bomb so long as he does so safely.)

BarnacleBob | 11-13-2009 12:52 PM
Re: THE FEDERAL FIREARMS ACT. Quote:
Originally Posted by GoldWampum (Post 2023849) Main Entry: in�fringe Pronunciation: \in-ˈfrinj\ Function: verb Inflected Form(s): in�fringed; in�fring�ing Etymology: Medieval Latin infringere, from Latin, to break, crush, from in- + frangere to break � more at break Date: 1513 transitive verb 1 : to encroach upon in a way that violates law or the rights of another <infringe a patent> 2 obsolete : defeat, frustrate intransitive verb : encroach �used with on or upon <infringe on our rights> http://www.merriam-webster.com/dictionary/infringe Main Entry: en�croach Pronunciation: \in-ˈkrōch, en-\ Function: intransitive verb Etymology: Middle English encrochen to get, seize, from Anglo-French encrocher, from en- + croc, croche hook � more at crochet Date: 1528 1 : to enter by gradual steps or by stealth into the possessions or rights of another 2 : to advance beyond the usual or proper limits <the gradually encroaching sea> synonyms see trespass http://www.merriam-webster.com/dictionary/encroach Main Entry: reg�u�lat Pronunciation: \ˈre-gyə-ˌlāt also ˈrā-\ Function: transitive verb Inflected Form(s): reg�u�lat�ed; reg�u�lat�ing Etymology: Middle English, from Late Latin regulatus, past participle of regulare, from Latin regula rule Date: 15th century 1 a : to govern or direct according to rule b (1) : to bring under the control of law or constituted authority (2) : to make regulations for or concerning <regulate the industries of a country> 2 : to bring order, method, or uniformity to <regulate one's habits> 3 : to fix or adjust the time, amount, degree, or rate of <regulate the pressure of a tire> http://www.merriam-webster.com/dictionary/regulate As I read it encroaching on a right through regulation pretty obviously looks like infringement. Help a homey out here BB. This looks like a word game. IOW, I call bullshit. Use a different word to so the same thing and it changes it?
Correct, yes, yes, yes ... The FFA was contrived for several reasons at that time ... mainly to prevent Negroes and minorities from legally and constitutionally acquiring firearms and guns ... but also to prevent any armed rebellion or insurrection against the installation of the defacto USA under FDR .... The courts as previously stated in another thread are employing circular tautological language to uphold the unconstitutional acts of CONgress. For instance Miller v United States holds that the "Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well regulated militia." Assault rifles, machine guns, military equipment, etc. are all REASONABLE components with a direct RELATIONSHIP to a modern well regulated militia! The courts however are playing games in an effort to uphold the previous erroneous decisions that violate the intent and spirit of the Second Amendment .... Did you know that there is a profound difference between a firearm and a gun? I'll try soon to post the regs and definitions, you will be surprised. However, the courts don't or won't allow the FFA administrative definitions into the record .... if they did, it would be game over ...

GoldWampum | 11-13-2009 02:14 PM
Re: THE FEDERAL FIREARMS ACT. Quote:
Originally Posted by BarnacleBob (Post 2023883) Correct, yes, yes, yes ... The FFA was contrived for several reasons at that time ... mainly to prevent Negroes and minorities from legally and constitutionally acquiring firearms and guns ... but also to prevent any armed rebellion or insurrection against the installation of the defacto USA under FDR .... The courts as previously stated in another thread are employing circular tautological language to uphold the unconstitutional acts of CONgress. For instance Miller v United States holds that the "Second Amendment guarantees no right to keep and bear a firearm that does not have 'some reasonable relationship to the preservation or efficiency of a well regulated militia." Assault rifles, machine guns, military equipment, etc. are all REASONABLE components with a direct RELATIONSHIP to a modern well regulated militia! The courts however are playing games in an effort to uphold the previous erroneous decisions that violate the intent and spirit of the Second Amendment .... Did you know that there is a profound difference between a firearm and a gun? I'll try soon to post the regs and definitions, you will be surprised. However, the courts don't or won't allow the FFA administrative definitions into the record .... if they did, it would be game over ...
Yes. post that bit BB, although arms cover both don't they? As well as a variety of other arms? ie, the amendment does not say "fire" arms.

BarnacleBob | 11-13-2009 02:31 PM
Re: THE FEDERAL FIREARMS ACT. The Federal Firearms Act "Original Intent" Where does the federal government get its Constitutional authority to enact laws such as the National Firearms Act, which has been codified to Chapter 44 of Title 18 of the United States Code? Upon whom are such laws operative, and where? Since a careful reading of the Constitution reveals that the federal government has no specifically delegated authority to regulate firearms, from where does the federal government's authority to regulate firearms come? One would think with the high number of Americans supporting the right to keep and bear arms, this question is one that would be of some concern. We've never heard the question asked. One would think that the firearms industry would ask such a question if for no other reason than that they will surely be an industry of the past if anti-gun legislation continues to propagate. In other words, without a solution, the firearms industry as we know it today will cease to exist. Over the last 30 years or so, laws concerning firearms have become a matter of "public policy", with no regard for the Constitutional elements involved. Why aren't more Americans challenging federal gun laws? We believe it is because The People of this great nation have an innate understanding that the federal judiciary is corrupt and will not honor the Constitution when required to do so. We also believe that Americans are not willing to challenge federal firearms laws because over the last 40 years or so, laws have been written in an ever-increasingly deceptive manner. Even laws that were clear when originally enacted have been amended over the last 40 years to remove the specificity of the law and render them more vague, and more prone to "flexible" interpretations by "cooperative" judges. Ironically, this has been done under the guise of making these laws more clear! As many laws stand today, the average American cannot understand them and attorneys generally will not explain the true meaning, lest they lose their monopolistic advantage over the machinery of the legal system. The Federal Firearms Act (as amended) (18 USC, Chapter 44) Try as you might to find the title, "Federal Firearms Act" associated with 18 USC, chapter 44, you will not. Why then do we refer to it as such here? Many of the provisions that are currently codified to Title 18, chapter 44, were not originally codified there. The Federal Firearms Act was enacted in 1938 and it was originally codified to Title 15. So what is Title 15? It is entitled "Commerce and Trade". Do you remember that little discussion about creating vagueness where none originally existed? Well here is a stunning example. From 1938 until 1968, the Federal Firearms Act was within Title 15. That's 30 years folks! Despite the law operating just fine for 30 years, someone deemed it no longer proper to have the law contained within Title 15. Want to guess why? That's right - the government's jurisdictional limits were far too easy to ascertain when the law was within the "Commerce and Trade" title. If it wasn't moving in interstate or foreign commerce, then the US didn't have jurisdiction over it! However, by moving the Act to Title 18, and thus disconnecting the Act from the Title of "Commerce and Trade", there are few clues left to the law's original intent and its Constitutional limitations. Despite the fact that chapter 44 of Title 18 has been amended many times, (most notably by the Gun Control Act of 1968) it is still essentially the Federal Firearms Act of 1938 [ch. 850, 52 Stat. 1252]. Having said all this, there is an interesting element to Chapter 44 and its interstate commerce authority that you should know about. There are two different definitions for interstate and foreign commerce in Title 18. The first is found in �10 of the Title and is the definition that is generally applicable through the entire Title, unless re-defined for a specific chapter or section of the Title. 18 USC �10: The term ''interstate commerce'', as used in this title, includes commerce between one State, Territory, Possession, or the District of Columbia and another State, Territory, Possession, or the District of Columbia. The term ''foreign commerce'', as used in this title, includes commerce with a foreign country. This is a pretty clear definition - and it will get clearer as this article proceeds! Interestingly, "interstate commerce" and "foreign commerce" are redefined just for chapter 44. For use within chapter 44, they are no longer two separate items, but have been combined into one legal term, to wit: 18 USC �921(2) The term ''interstate or foreign commerce'' includes commerce between any place in a State and any place outside of that State, or within any possession of the United States (not including the Canal Zone) or the District of Columbia, but such term does not include commerce between places within the same State but through any place outside of that State. The term ''State'' includes the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States (not including the Canal Zone). [emphasis and underlining added] You should recognize that as a legal term, the phrase "interstate or foreign commerce" does not mean what logic might tell you it means. You must remember that it means only what Congress says it means and nothing more! We have had to ask ourselves why the general definition provided in �10 was inadequate for use within chapter 44. If �10 was a good enough definition for all of Title 18 generally, why is it not adequate for chapter 44? The only distinction we find is in the use of the words "...any place in a State...". Why is that change so essential? Why go through the hassle of altering the definition just to add two little words? On the surface it doesn't seem to make sense - or does it? Maybe we should ask what "place within a State" might the definition be referring to, and why would that distinction be important? Let's explore! Title 18, �13 is a general provision section (which means it is operative throughout the Title) and is entitled "Laws of States adopted for areas within Federal jurisdiction". What does that title mean? One of the things it means is that there is "State jurisdiction" and there is "federal jurisdiction", and the two are not the same. Before we explore �13 any further, we need to take a brief side trip and look at �7. We need to do this because �7 is specifically referred to in �13, and we'll get lost if we don't understand exactly what is being referred to in �7. Section 7 defines the "Special maritime and territorial jurisdiction of the United States". Although the definition is a bit long and wordy, here is the essential part in reference to what we are discussing in this article: 18 USC �7(3): Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building. The basic meaning of that definition is any location that is not under State sovereignty, but solely under federal sovereignty, or otherwise within federal jurisdiction. It must be remembered that such federal "places" exist within the states of the Union. One should take note of the common language, and common meaning, between 18 USC �7, and Article I, Section 8, Clause 17 of the US Constitution: To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same [federal place] shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings Now that you can clearly see where �7 is taking us, let's go back to �13; specifically, subsection (a). [Editor's Note: We've removed some of the excessive wordiness from �13(a) that might tend to confuse the meaning for the first-time reader.] 18 USC �13(a): Whoever within...any places...provided in section 7 of this title...not within the jurisdiction of any State...is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State...in which such place is situated... Ah ha! Did you get that? Ladies and gentlemen, �13 (in conjunction with �7) defines the "places" that are referred to in the definition of "interstate or foreign commerce" at �921(2). The places made mention of in �921(2) are the "places...provided in section 7 of this title", which of course we now know are federal lands (and waterways) that are not within the jurisdiction of the State, but are within the geographical boundaries of the State! Now let's do a little of our own alteration to �921(2). Let's add the specificity that the legislative draftsmen intentionally left out when they wrote the definition of "interstate and foreign commerce" (at �921(2)). Our "clarified" version reads like this: The term ''interstate or foreign commerce'' includes commerce between any area of land under federal jurisdiction that is within a State and any area of land under federal jurisdiction that is outside that State, or within any possession of the United States (not including the Canal Zone) or the District of Columbia. Boy, that sure changes the meaning that you had of �921(2) about 10 minutes ago, doesn't it? Also, please note that after the part of the definition that addresses "States" is complete, it goes on to define other federal areas. In that portion, "interstate or foreign commerce" means commerce [solely] within any possession of the United States or within the District of Columbia! My, my, my. Congress sure defines terms to mean whatever the hell Congress wants them to mean! Are you getting the picture? Every "place" being referred to in �921(2) is a place within a State, or outside a State, that is under the exclusive legislative jurisdiction of Congress, pursuant to Article 1, Section 8, Clause 17 of the US Constitution. And the "interstate and foreign commerce" being described at �921(2), is a limited form that operates only between such "places". For the purposes of chapter 44, Congress has even defined "State" as "the District of Columbia, the Commonwealth of Puerto Rico, and the possessions of the United States". In short, it's all territorial. The definition of "interstate or foreign commerce", at 921(2), is only a "red herring" placed there by the legislative draftsmen to make you think the authority is nation-wide and all-pervasive under the US Constitution's interstate commerce clause. In point of fact, certain sections of chapter 44, such as 922(o)(1), which makes the mere possession of a machine gun a crime, can only be territorial in nature because Congress has no authority to define any act that takes place within a state of the Union as a crime (except such acts as take place against federal property or persons). The federal government cannot define a crime that would take place within a state of the Union because the US has no police powers in a state of the Union. Now do you see why it was so important that chapter 44 not use the general definition of "interstate commerce" provided at �10? Two little words - "any place" - needed to be added if the law was to pass Constitutional scrutiny. If one reads the "Congressional Findings and Declarations" in the notes for �921, one finds that Congress enacted the Federal Firearms Act, and its various amendments, in order to [ostensibly] assist the States in controlling crime. Well guess what? The Constitution does not grant the federal government any authority to assist the States of the Union in combating crime. The federal government may regulate interstate commerce; it can define crimes that may take place upon federal property; and it can exercise police powers within places that are embraced by the "exclusive legislative control" clause, but it may not do any of that upon land that is under the sovereignty of a state of the Union. Congress is free to make any asinine statement it wants about its "intentions" or its "goals", but the text of the laws it enacts must still adhere to the limits of federal power imposed by US Constitution. Laws No Longer Printed You should also be made aware that the historical notes reveal there have been some significant items that were "omitted" when the statutes were transferred from Title 15 to Title 18. It should be noted that there is no legal definition for the word "omit"; therefore it can only be defined by a standard English dictionary. The first definition that appears in Webster's II New Revised University Dictionary (1994) is, "Left out". When a section or portion of a statute is "omitted" it is exactly as Webster has stated - it is merely left out. The section or portion has not been repealed; it is still in full effect - it simply isn't printed in the United States Code any more! [Editor Note - The original language, in its entirety, can still be found in the original Statute-at-Large. See "What is the United States Code" for more on the Statutes-at-Large.] http://www.originalintent.org/edu/uscode.php So what are these sections that have been left out? The most interesting items left out in 1968 were subsections (f) and (i) of then section 902 (Title 15), which speaks of the rule of "presumption from possession". While we've not looked up the old section 902, our experience with such statutory "presumptions" tells us that the section likely raised a rebuttable presumption that if you were found with any firearm, suppressor, etc., that is defined in [the current] chapter 44, you acquired it through an act of "interstate or foreign commerce". Of course for a presumption to be rebutted, the accused would have to know that the US Attorney's Office and the United States District Court were functioning under a statutorily created presumption to begin with. Needless to say, that's a bit difficult when the law isn't printed in the Code any more! The other omitted items are subsections (b) and (c) of former section 902 which prohibits, "receipt with knowledge...that the transportation or shipment was to a person without a license where State laws require prospective purchaser to exhibit a license to licensed manufacturer or dealer, respectively." You've got to love what these guys choose to keep hidden from you! Summary Hopefully this article has helped you to understand the sophistry used when the legislative draftsmen wrote the text that now appears as chapter 44 of Title 18. Hopefully, this will assist Americans in not being wrongfully prosecuted for crimes they've never committed and hopefully this document will somehow get to the firearms industry, since it is the key to freeing that industry from the stranglehold of "public policy" law that will eventually take the industry's life, and with it the American Citizen's access to at least one form of arms. Let's review what we've covered: 1. Title 18 of the United States Code (USC), chapter 44, has its foundation as the Federal Firearms Act. 2. The Federal Firearms Act was enacted in 1938 and was originally codified to Title 15, "Commerce and Trade". 3. In 1968, most of the Federal Firearms Act was repealed and reenacted in Title 18. 4. Certain elements of the Federal Firearms Act were never repealed, but are no longer printed in the USC. [This is why one must always read the actual Act of Congress to see what they're really up to.] 5. Since 1968, chapter 44 has been amended numerous times, usually under the disingenuous rationale of securing the rights of law abiding gun owners! 6. The foundation of the federal government's authority in chapter 44 is territorial, i.e., Article I, Section 8, Clause 17 of the US Constitution. 7. Chapter 44 does contain a certain limited form of commerce authority, but it only controls commerce between federal places within States, or commerce within a federal possession, or the District of Columbia. 8. The definition of "interstate and foreign commerce" at �921(2) does not refer to the government's Constitutional authority to regulate commerce between the states of the Union. It is a territorial based power that relies on the federal government's police powers, which exist only within those places that are subject to the exclusive legislative authority of Congress. 9. The "declarations" or "findings" that Congress may issue have absolutely no bearing upon the words of an Act Congress passes. Such declarations and findings may contain any manner of outrageous lies or distortions, but the language of the laws that Congress passes must still adhere to the Constitution. If you have found this item to be informative, please send this URL to a friend, associate, or family member. http://www.originalintent.org/edu/chapter44.php http://www.originalintent.org/edu/chapter44.php

GoldWampum | 11-13-2009 04:10 PM
Re: THE FEDERAL FIREARMS ACT. Quite interesting BB. This is a great find and thanks for sharing. So... to recap... Regulation=encroachment=infringement and they know it. So they don't really do it, they just say they do and use color of law to prosecute. Am I missing something? And something else. Since they can only even "hope" to control through commerce from US jurisdiction to US jurisdiction, regarding arms, can they even keep someone living on US jurisdiction from going to town and ordering a gun from one State jurisdiction to another State jurisdiction. I'm thinking that can't be Constitutionally done.

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