From: barksdaf@infonode.ingr.com (Alan F. Barksdale)
Subject: Re: The guns of roston (wa
Organization: Intergraph Corporation, Huntsville, AL.
Date: Mon, 9 Nov 1992 19:16:15 GMT

In article <721037102.1@wyrm.rbbs-net.ORG> Rick.Moen@f207.n914.z8.rbbs-net.ORG (Rick Moen) writes:
[...]
>However, the applications of this provision in actual case law
>have not been consistent with this interpretation.  Every time
>someone has asserted the Second Amendment against efforts
>by states and other governmental bodies to regulate arms (including
>but not limited to firearms), the courts have ruled to the contrary.

Mr. Moen apparently missed my earlier posting demolishing his assertions.
Below I repeat a relevant fraction of that posting with additional
information.  The following comes from Mark Moritz:

Anti-gunners frequently use the "big lie" technique referred to
by D. Malbuff, to the effect that "the Supreme Court has
consistently ruled that the Second Amendment does not apply to
individual citizens; it only protects the right of the National
Guard to go duck hunting."  Here is a nutshell history of Supreme
Court rulings on the Second Amendment:

United States v. Miller, 307 U.S. 174 (1939).  Mr. Miller was a
very bad dude, charged with a laundry list of heinous crimes.
They threw the book at him, including carrying a sawed-off
shotgun, a violation of the National Firearms Act of 1934.  When
his case came up before the Supreme Court, Miller had skipped; he
was a fugitive.  No lawyer appeared to argue his side of the
case; only the government lawyers showed up.  (Some fair trial,
huh?)  Now, if the Second Amendment only protected the state
militia, the case would have been easy.  All the court would have
had to do was say that Miller could not own a gun because he was
not a member of the militia, end of discussion.  But they didn't
say that.  Why not?  In effect, they conceded that the Second
Amendment protects an individual right, but still said that it
was constitutional for the government to prohibit sawed-off
shotguns.  Their reasoning?

     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.

There are three interesting things about the court's statement.
First, of course it was not in their notice; nobody was present
to bring it to their notice!  Second, had a knowledgeable
advocate been present, he would have brought to the court's
notice that short-barrelled shotguns have long been used as
ordinary military equipment, from Revolutionary War blunderbusses
to luparas in the Spanish-American War to trench-cleaners in The
War To End All Wars.  Subsequently, U.S. troops used sawed-off
shotguns in World War II, and "tunnel rats" used them in Vietnam.

Third, and most important, is that the court seems to be saying
that the Second Amendment only protects the right of individual
citizens to have "ordinary military equipment."  Very
interesting.  What are semi-automatic "assault rifles" if not
ordinary military equipment?  When California's assault rifle ban
reaches the Supreme Court, Miller will present a real problem for
the anti-gunners.

There are no other Supreme Court cases in the 20th Century, but
there are dozens of state cases that support the individual right
to bear weapons (not "sporting goods").  See, for example,
State v. Swanton, 129 Ariz. 131 (Ct. App. 1981) ("[T]he term
'arms' as used means such arms as are recognized in civilized
warfare. . . . ")

State v. Kessler, 289 Or. 359 (1980) ("[T]he terms 'arms' most
likely would include only the modern day equivalents of the
weapons used by colonial militiamen.")

also

State ex rel. City of Princeton v. Buckner, 377 S.E. 2d 139
(W.Va. 1988)
Barnett v. State, 72 Or. App. 585 (1985)
State v. Delgado, 298 Or. 395 (1984)
City of Lakewood v. Pillow, 180 Colo. 20 (1972)
City of Las Vegas v. Moberg, 82 N.M. 626 (Ct. App. 1971)

and dozens more.
______________________________________________________________________________
| The conclusion is thus inescapable that the history, concept, and wording  |
| of the Second Amendment to the Constitution of the United States, as well  |
| as its interpretation by every major commentator and court in the first    |
| half-century after its ratification, indicates that what is protected is   |
| an individual right of a private citizen to own and carry firearms in a    |
| peaceful manner.  --- Report of the Subcommittee on the Constitution of    |
| the Committee on the Judiciary, United States Senate, 97th Congress,       |
| Second Session (February 1982)                                             |
| Alan Barksdale -- uunet!ingr.com!b30!alan!alan -- alan@alan.b30.ingr.com   |
| -- ingr.com!b30!alan!alan@uunet.UU.NET -- barksdaf@infonode.ingr.com --    |
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