The 2016 Presidential Race

With the election coming soon, here is a break down of the possible outcomes based on total votes cast for either candidate during the primaries, and total votes cast by either party during the primaries.

Victory is within grasp for the Republicans if they can get behind Donald Trump, but if all the Cruz, Rubio, and Kasich voters stay home, Hillary Clinton will be the next president.

Make sure you vote, because while Trump is a wild card, we all know where Hillary stands on Second Amendment Rights.

 

 

 

Thank you for reading and thank you for supporting Gun and Pen!

Word for word: A critical look at the language of the Second Amendment

 

Part 1 – Well Regulated Militia

While the Second Amendment and the right protected by it are acknowledged by many, the language, original intent, and historical context are vastly underappreciated and misunderstood.  In practice, it is often pigeonholed by many casual observers and ideologues to merely mean “you can have a firearm, as long as you possess it under certain conditions”.  Those sensibilities can range from “You can have a firearm if you pass a background check” to “You can have a firearm, but you can’t carry it outside of your home” to “You can have a firearm, but you can’t have an ‘assault weapon’”.  The qualified statements and limitations come in nearly endless varieties.

In spite of all the pandering, hand wringing, and emotionally-charged rhetoric, we’ll examine the actual words used in the amendment.  When they are broken down and understood through the lexicon of the 1790’s, we can begin to have an appreciation for what the Second Amendment actually stands for.

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.

 

We can’t make it past the first three words of the Prefatory Clause without running into two words hotly contested and endlessly argued over; well regulated.  Many anti-gun ideologues (self-described “common sense gun law” supporters) use those two words to justify any and every imaginable limitation on the right to bear arms.  From the National Firearms Act of 1934, to the Gun Control Act of 1968, to importation bans, “assault weapon” bans, magazine capacity limits, and the litany of State-level limitations, all are justified under this interpretation.  Those measures do not constitute an abuse of the right in the intellectually shallow opinion of anti-gun advocates.  They consider the gun-owning public to be “well regulated”, rather than under significant inhibitions due to federal law.

This belief gains traction from a fundamental disconnect present in modern vocabulary.  The word “regulated” is not used or understood today as it was in the 1790s.   In modern times, politicians and media pundits throw around the word “regulation” as if it is synonymous with law, when during the drafting of the Second Amendment it was widely understood to mean “in good working order”.  To say a militia is to be “well regulated” would be understood as a “well trained” and “well equipped”.  Some even still refer to fine Swiss watches as “well regulated” when they keep track of time accurately.

Keeping in mind that the wording “well regulated” serves as instructive guidance rather than conditional approval.  In order to keep the militia well regulated, rather than pass prohibitions and restrictions on entire classes of arms, Congress should pass laws that facilitate the acquisition of weapons by the public and remove barriers to effective training and education.  Nothing in the Second Amendment makes proficiency in arms compulsory on the part of the citizen however, it merely guarantees that the decision is a personal one.  A free individual, unconstrained by agents of the state, has the freedom to choose how best to provide for their security with respect given to the natural rights of others.

This leads to the next major misunderstanding of the vocabulary; militia.  Many anti-gun advocates assert that being part of a “well regulated militia” means only state-sanctioned military entities, such as the National Guard or the various branches of the Armed Forces.  This is not the case for more than one reason.  At the drafting of the Bill of Rights, the “militia” was understood to mean all able-bodied, military-age males.  They did not necessarily have a connection to the government.  In fact, the vast majority of the Continental Army started out as farmers and townspeople of various professions, hardly a professional military by today’s standards.  Translated into modern times, the militia is the citizenry; any and all peaceable members of the general public, armed and proficient in the use of arms, if they elect to be situated as such.

Another example of how the term “militia” should not be used to bar ordinary people from arms is evident when you examine the Second Amendment side-by-side with the rest of the Bill of Rights.  The overwhelming majority of each amendment is crafted to guard individual rights, not conditional rights or collective rights.  Just as the First Amendment does not only protect freedom of religion to members of a certain church, nor freedom of the press only to professional journalists, the Second Amendment does not limit the right to keep and bear arms to members of the military; it guarantees the natural right of ordinary citizens to provide for their own self defense and security.  That is another important distinction to make; none of the amendments in the Bill of Rights confer a right, they guarantee natural rights—the rights that you were born with.

This phrase is the first half of the Prefatory Clause.  It announces the characteristics important to, but not compulsory of, an individual seeking to exercise the right to keep and bear arms.  It is not a proclamation of necessary qualifications or conditions.  When this understanding is applied to a plain reading of the Second Amendment, the intent becomes clear and indisputable.

Thank you for reading and thank you for supporting Gun and Pen!

Hollis v. Lynch – Part 2

How to get a Post-86 Machine Gun, with ATF approval.

On June 21, 2013 a gentleman by the name of Brandon Maddox wrote a letter to the Firearms Industry Programs Branch of the ATF.  In his letter, he requested clarification as to whether or not a person receiving a NFA item on behalf of a trust needed to submit to a background check through the National Instant Criminal Background Check System (NICS) and complete an ATF Form 4473.  This was a source of confusion, because when a NFA application is approved, a background check is run and the same questions that appear on the Form 4473s have already been answered on either the Form 1 or Form 4 NFA application.  The ATF’s response revealed an enormous gap in the armor of federal firearm regulations pertaining to 18 U.S.C. § 922(o) – the ’86 Machine Gun Ban.

The ATF’s response detailed that Federal Firearms Licensees are required to conduct background checks on all “persons” before transferring a NFA item to them.  The ATF noted that under Title 27 of the Code of Federal Regulations (27 CFR 478.102) a NICS check is not required for a “person” when the transfer has been approved under the National Firearms Act.  Still, the ATF asserted that a NICS check must be run on the individual trustee because trusts are not considered “persons” under the Gun Control Act in 18 U.S.C. § 921(a).

The 1934 National Firearms Act (codified in tax law) defines a person as an individual, a trust, estate, partnership, association, company or corporation.  This is how the statue is written, the literal “letter of the law”.  Because a “trust” is among the entities considered a “person” by our tax laws, and the NFA is a tax law, trusts can legally take ownership of NFA items.

The 1968 Gun Control Act (codified in criminal law) defines a person as any individual, corporation, company, association, firm, partnership, society, or joint stock company.  Again, this is the “letter of the law”.  Trusts are obviously left out of the definition of “persons” in the GCA, and so by the ATF’s logic, a lawful transfer to a trust under the NFA is unlawful under the GCA if an additional background check is not run to satisfy GCA requirements.

This is all very convoluted at first glance, but the ATF’s ruling on NICS checks for NFA trust approvals provided an opening to challenging 18 U.S.C. § 922(o).  The ATF clearly states that trusts are not “persons” under the Gun Control Act.  The Gun Control Act was amended by the 1986 Firearm Owners Protection Act, which was amended further by the Hughes Amendment to include 922(o).  Since 922(o) declares it unlawful for any “person” to transfer or possess a machinegun, the statue, as written, does not apply to trusts.  This revelation, fueled further by the ATF’s own official statements, quickly circulated among NFA enthusiasts.  Before long, NFA applications for new machineguns were submitted to the ATF by trusts.  Many were denied.  At least two were approved.

Jay Aubrey Isaac Hollis received an approved Form 1 application to make a machine gun on behalf of his trust on September 8, 2014.  ATF officials realized this a short time after and contacted him demanding that the Tax Stamp and machine gun be surrendered to their field agents.  Mr. Hollis consulted with legal counsel and thus began the lawsuit Hollis v. Holder (later Hollis v. Lynch).

The next part in this series will focus on the progression of the lawsuit: Hollis v. Lynch.  Thank you for reading and thank you for supporting Gun and Pen!

 

Hollis v. Lynch – Part 1

 

Background of 18 U.S.C. § 922(o) as it concerns Hollis v. Lynch.

As of this posting, Hollis v. Lynch (formerly Hollis v. Holder) is an ongoing case against the U.S. Attorney General with the goal of judicially upending 18 U.S.C. § 922(o), commonly referred to as the ’86 Machine Gun ban.  To have an appreciation for the importance of this case, you first have to gain some historical context on the laws governing the possession and transfer of machine guns.

In 1934, Congress passed the National Firearms Act in response to gang violence during the prohibition era.  The 1934 NFA did not result in a ban, but rather severe restrictions on machine guns, silencers and other firearms.  The restrictions included submission of finger prints, photographs, approval of local law enforcement, and a $200 tax for any citizen seeking to obtain NFA-regulated items.  Due to the lengthy process and relative obscurity of the law, most Americans are still simply unaware of the path to legal machine gun ownership and assume that possessing them is illegal.  The rise of the Internet has helped tremendously in dispelling that myth, but there are still millions who simply believe machine guns “are illegal”.

Indeed, machine guns are very difficult to obtain presently.  But this is not due to the NFA, but rather an obscure amendment to a federal firearms law passed in the 1980s that later caused the market value of machine guns to sky rocket.  In 1985, Senator James McClure, a Republican from Idaho, introduced the Firearm Owners Protection Act to combat the Bureau of Alcohol, Tobacco, Firearms, and Explosives’ abusive practice of prosecuting otherwise lawful citizens with federal gun charges.  For the most part, this act was a net gain for lawful gun owners.  However, on April 10^th, 1986 when the FOPA was up for debate on the floor of the House of Representatives, Representative William Hughes, a New Jersey Democrat, offered an amendment aimed at killing the bill.  House Amendment 777 to H.R. 4332, now infamously referred to as the “Hughes Amendment”, amended Chapter 18 of the U.S. Code, section 922 to add subsection “o”, reading:

(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.

(2) This subsection does not apply with respect to—

(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or

(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

 

The Democrats added this language as poison pill, and it was defeated when initially brought to a full vote.  Nevertheless, Senate Democrats adopted the House version of the FOPA, complete with the Hughes Amendment, and the bill was signed by Ronald Reagan on May 19, 1986.  Many mistakenly claim that President Reagan “sold out” gun owners by signing this bill, however it is important to note that many of the things taken for granted today were extremely difficult, if not impossible, before the Firearm Owners Protection Act.  The 1968 Gun Control Act, forming the bulwark of federal gun laws, made the simple acts of interstate travel with a firearm or the mail-order of ammunition excruciatingly difficult, if not impossible.  Coupled with the BATFE’s abusive practices, the FOPA was necessary to ensure American’s could continue exercising their Second Amendment rights, albeit at the loss of new-production machine guns.  Therein lies the irony of 922(o); like the NFA before it, 922(o) did not ban all machine guns.  It banned machine gun production and sales after May 19, 1986.  Machine guns owned before that date were grandfathered, and remain legal today.

The grandfathering of pre-86 machineguns begs the question:  If machineguns are such a menace to society, why weren’t all of them banned in 1986?  Prior to the 1986 ban, there is no record of any murders committed with legally-owned machine guns.  After the ban went into effect, there were two murders committed with legally-owned machine guns; one by a police officer in 1988 and another by a physician in 1993.  According to the FBI’s statistics on violent crime, over 1,500 murders were committed in 2014 alone with knives.  To further emphasize, there were 780 times the amount of murders committed with knifes in a single year than there were with NFA register machineguns in the last 30 years.  The ’86 ban serves no useful purpose, as there is simply no inherent danger in private citizens possessing them.

Seeing as there is no real reason behind the ban other than to frustrate the Second Amendment rights of regular Americans, we’ll take a look at the draconian effects it has had on firearms commerce.  Since the supply of civilian-legal machine guns is frozen at May 1986 levels, there is an artificial scarcity.  This has predictably ballooned transferable machinegun values to dozens and in some case hundreds of times what the market value would be if new production were permitted.  At the time of this post, a Colt AR15 A4 has a MSRP of $999.  A pre-86 transferable Colt M16 (identical to the AR15 except for the fact it has a selectable automatic fire mode) can command up to $30,000 or more at auction.  Pre-86 transferable belt-fed machine guns can reach $50,000 and higher depending on the model and condition.  While the basic economic principles of supply, demand, and voluntary exchange should always be respected, it is worth repeating that machine gun values would not be what they are today without government interference.

It’s also important to note that the ban does not affect federal and state governments.  A reasonable person could conclude “of course it doesn’t affect the government, how would the military have the weapons needed for duty?” but that’s not quite the whole story.  In 2014, CNN reported that the U.S. Department of Agriculture purchased 85 submachine guns.  The agency tasked with overseeing federal policy on the quality of crops and livestock has its own enforcement department, armed with machine guns.  USDA’s machine gun ownership isn’t unique either.  The Environmental Protection Agency has approximately 200 “special agents” charged with enforcing federal environmental regulations.  These agents are typically armed with machine guns and other implements you would expect to see reserved for police SWAT teams.  In 2010, the U.S. Department of Education purchased several shotguns with 14” barrels.  While not machine guns, those shotguns would still be subject to the same NFA regulations as machine guns if a private citizen wished to purchase them, due to the short length of their barrels, but the Education Department gets a pass because they are a federal agency.  The fact is, the law doesn’t just exempt military and law enforcement agencies, but any agency within the government tasked with the slightest policy enforcement role.  It creates a scheme of “laws for me, and laws for thee” in which the “King’s men” enjoy rights that the general public is denied.

This is the legacy of 18 U.S.C. § 922(o); legal machine gun ownership for the wealthy, the well connected, and the government, and a contemptible view of ordinary, lawful gun owners.  With even some of the most basic machine guns costing well over several thousand dollars, what should be a utility item attainable by the common man is now a luxury item for only those with the resources to attain it.  This statement in no way condemns legal machine gun owners, it is merely an acknowledgement of the end result of rampant government interference.

The next part in this series will focus on the circumstances surrounding the initial push toward Hollis v. Lynch.  Thank you for reading and thank you for supporting Gun and Pen!

Soon…

 

 

Coming soon: A look at the legality of civilian-owned machine guns, the ban on new production, and the fight to bring them back.
Look for a new blog entry in the next couple days.

Launch

 

The Second Amendment enshrines and guarantees the right of an individual to own, possess, and if necessary, use weapons to defend against violations of one’s natural rights, whether those violations originate from a common criminal, a foreign invader, or the agents of an abusive domestic government.

If you agree with this statement, you likely already have an appreciation for the U.S. Constitution, the Bill of Rights, and America’s founding principles. If you do not, then you are likely going to disagree with many of the topics of discussion in this series. Either way, readers are invited to approach this commentary with an open mind. I have spent the better part of my adult life fascinated with the Constitution, the Bill of Rights, and the nuances of American government. Particularly, I have a profound appreciation for weapons, firearms specifically, and the role they have played in securing our nation’s freedom, as well as their continued role as objects of interest for citizens that wish to be responsible for their own defense and security.

In light of these experiences, I am starting this blog in an effort to raise awareness where there is currently widespread inaccuracies and misconceptions. The objective of this series is to address the many facets and modern controversy of the Second Amendment. Readers will be provided with education and insight into the more obscure aspects of the law and philosophy surrounding firearms, their history, and responsible ownership.

Occasionally, social or political commentary will be offered. The primary focus here is firearms, but we’ll also cover other topics of interest to concerned citizens. These topics are going to be explored primarily on social media, because open forums are a vital feature of a functional society. This blog will also disseminate notices regarding impending legislation or judicial decisions pertaining to firearms.

Thank you for joining this discussion. It is my sincerest hope that you walk away from the dialog here a more informed citizen.