{"id":103843,"date":"2024-08-24T10:07:18","date_gmt":"2024-08-24T15:07:18","guid":{"rendered":"https:\/\/milesfortis.com\/?p=103843"},"modified":"2024-08-24T10:07:18","modified_gmt":"2024-08-24T15:07:18","slug":"103843","status":"publish","type":"post","link":"https:\/\/milesfortis.com\/?p=103843","title":{"rendered":""},"content":{"rendered":"

\u2018In Common Use\u2019 Can Ultimately be Used to Make the Second Amendment a Moot Point<\/a><\/p>\n

Far-fetched? Who knows what will be available to the military and law enforcement in 100 years, and what it means to \u201cthe people\u201d of the Second Amendment if the government can deny future technology because it\u2019s \u201cdangerous and unusual,\u201d and not \u201cin common use\u201d?<\/p>\n

\u201cThe Second Amendment Allows a Ban on the AR-15,\u201d Harvard University Professor of Law Noah Feldman once declared in a\u00a0Bloomberg\/Washington Post<\/em>\u00a0\u201copinion\u201d piece.<\/a><\/p>\n

That it\u2019s an \u201copinion\u201d is the one truthful admission in this otherwise absurd act of academic gaslighting. Harvard, Bloomberg, and\u00a0WaPo<\/em> are all for eviscerating the right of the people to keep and bear arms and routinely spread whatever lies they can get away with (despite the disingenuous caveat that \u201cThis column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.\u201d)<\/p>\n

\u201cUnder current law, the Second Amendment extends only to weapons that are not \u2018unusual\u2019 and are \u2018in common use\u2019 by law-abiding citizens,\u201d Feldman asserts. \u201cWhether that includes AR-15s is a question the Supreme Court has not yet resolved, although the justices have recently been asked to weigh in. A key question today \u2014 though not when the Bill of Rights was ratified \u2014 is whether a weapon is ordinarily used for self-defense.\u201d<\/strong><\/span><\/p>\n

\u201cTo give you a sense of how different things were with respect to gun issues 84 years ago, the court held unanimously that the Second Amendment didn\u2019t protect [short barreled shotguns],\u201d Feldman misstates, citing<\/span>\u00a0the case of\u00a0U.S. v. Miller<\/em><\/a>.<\/em>\u00a0That\u2019s actually not what they said at all. In the opinion for that case, Justice McReynolds noted:<\/span><\/strong><\/span><\/p>\n

\u201cIn the absence of any evidence tending to show that possession or use of a \u2018shotgun having a barrel of less than eighteen inches in length\u2019 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.\u201d<\/strong><\/span><\/p><\/blockquote>\n

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They didn\u2019t have evidence because the case wasn\u2019t argued in front of them. Had it been, the military utility of such weapons could have been decisively established, starting with the\u00a0flintlock blunderbuss<\/a>:<\/p>\n

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\u201cThis short shotgun-type firearm utilized about a half-pint of shot. During the Revolutionary War, American warships used Blunderbusses for repelling unwanted borders. Gunsmiths made these specifically for defense at close quarters.\u201d<\/strong><\/span><\/p><\/blockquote>\n

Using\u00a0the\u00a0Bruen<\/em>\u00a0standard<\/a>\u00a0of text, history, and tradition as understood by the men who ratified the Second Amendment, plenty of subsequent \u201clegal\u201d rulings should fall. So would Feldman\u2019s proposed AR ban, as his own words about citizen militias indicate, if he would only heed them.<\/p>\n

\u201cThose militias, in turn, were made up of ordinary citizens,\u201d he instructs. \u201cAnd the ordinary citizens in the state militia\u00a0 were expected to provide their own weapons.\u201d<\/strong><\/span><\/p><\/blockquote>\n

What weapons were they expected to bring from home, and how did they compare to what enemy soldiers were issued?<\/strong><\/p>\n

\u201cFrom this, it followed, for McReynolds, that the Second Amendment protected only weapons that had \u2018some reasonable relationship to the preservation or efficiency of a well-regulated militia.\u2019 That did not include the short-barreled shotgun, he added. Such a weapon was not \u2018any part of the ordinary military equipment\u2019 nor would its use \u2018contribute to the common defense.\u2019\u201d<\/strong><\/span><\/p><\/blockquote>\n

In fact, citizens reporting for militia duty were expected to bring weaponry suitable for battle, and in many cases, these men \u201coutgunned the police,\u201d especially when considering the standard issue for British troops was the Brown Bess musket, while patriots who owned them came equipped with more accurate and longer-range Kentucky\/Pennsylvania rifles. Recall that the Founders considered the militia \u201cnecessary to the security of a free State,\u201d and to expect their equipment would be inferior to that of attackers they were defending against would have been suicidally absurd.<\/p>\n

The militia deployed with the intent to match and best a professional military threat. Its function was \u2014 and still is \u2014 to field citizen soldiers, and these citizens bore arms that were suitable for that purpose, \u201cordinary military equipment\u201d intended to be taken into \u201ccommon defense\u201d battles.<\/p>\n

Still, apparently believing he is making his case, Feldman continues offering pre-Bruen<\/em>\u00a0examples of infringements, in this case citing\u00a0Antonin Scalia\u2019s wholly uncalled-for concession<\/a>\u00a0that \u201cLike most rights, the Second Amendment right is not unlimited.\u00a0Miller\u2019s<\/em>\u00a0holding that the sorts of weapons protected are those \u2018in common use at the time\u2019 finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.\u201d<\/p>\n

He used that to imply banning weapons such as \u201cM-16 rifles and the like\u201d would not be an infringement. Otherwise, he asserted, \u201cit would mean that the National Firearms Act\u2019s restrictions on machineguns \u2026 might be unconstitutional, machineguns being useful in warfare in 1939.\u201d<\/p>\n

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Yes, it would be.<\/p>\n

But naturally, Feldman (and all the other prohibitionists) rely on that to exploit, beginning with a lie.<\/strong><\/p>\n

\u201cThe virtue of the Supreme Court\u2019s 1939 test is that it was at least true to the original meaning of the Second Amendment,\u201d he claims. \u201cIts practical disadvantage, of course, is that if updated to the present, the rule would protect military-style weapons \u2014 not only semiautomatic rifles but machine guns, RPG launchers, predator drones, and the like.\u201d<\/strong><\/span><\/p><\/blockquote>\n

Notice how he escalates \u201cdangerous and unusual\u201d to lump conventional small arms in with \u201cthe like,\u201d which could conceivably escalate up to weaponized anthrax and suitcase nukes. \u00a0The 1939 non-test (because it wasn\u2019t a test with no arguments and evidence) is hardly \u201ctrue\u201d to Founding Era intent, as the Framers never qualified the Second Amendment by declaring \u201cthe right of the people to keep and bear non-dangerous and usual arms in common use at the time shall not be infringed.\u201d<\/p>\n

\u201cScalia discounted the introductory clause that explains the purpose of amendment as ensuring a well-regulated militia,\u201d Feldman elaborated. \u201cHe shifted the meaning of the right to bear arms to personal self-defense.\u201d<\/strong><\/span><\/p><\/blockquote>\n

Inexplicably and unjustifiable, he did, and\u00a0we ignore the first 13 words of the Second Amendment at our peril<\/a>. Feldman takes full advantage of that, writing \u201cToday, the Second Amendment applies to all weapons that ordinary people carry on an ordinary basis for self-defense \u2026 Logically, it should also exclude AR-15s, which are not commonly carried for self-defense.\u201d<\/p>\n

Logically it shouldn\u2019t. But unfortunately for gun owners, too many influencers ostensibly on \u201cour side\u201d won\u2019t explore the militia aspect, and that dereliction makes the Second Amendment\u00a0more vulnerable to infringements<\/a>.<\/p>\n

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\u201cHere\u2019s hoping that, when the Supreme Court ultimately addresses the issue, the justices can recognize that that AR-15s do not belong in the same category as handguns,\u201d Feldman concludes. \u201cThey are weapons of war \u2014 for, in fact, a well-regulated militia \u2014 not for ordinary people to carry for ordinary use.\u201d<\/strong><\/span><\/p><\/blockquote>\n

Going back to the Founding Era for understanding, text, and tradition, we can see what Continental Congress delegate Tench Coxe\u00a0had to say about that<\/a>:<\/p>\n

\u201cTheir swords, and every other terrible implement of the soldier, are the birthright of an American\u2026 [T]he unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.\u201d<\/strong><\/span><\/p><\/blockquote>\n

The tradition is that citizens have militia-capable firearms. Although \u201cwell regulated\u201d is deliberately misrepresented to mean \u201cgun control\u201d is permissible, the militia system envisioned by the Framers is one where the \u201cregulation\u201d is through coordinated training and deployment, not in dictating what citizens are allowed to possess. That this has been intentionally ignored by those whose goal is a monopoly of violence undermines not only Founding intent, but guarantees the citizenry will be left out of all future technological developments. And that\u2019s made inevitable by the \u201cin common use test.\u201d<\/p>\n

Because what was in common use in the past is not what is in common use today, nor what will be in common use tomorrow. At least by the military and by law enforcement.<\/strong><\/p>\n

A persistent lie told by the prohibitionists is the Founders only had muskets and\u00a0would be so horrified by AR-15s<\/a>\u00a0that they\u2019d have never written the Second Amendment. That, of course, is a load. It relegates the role of prominent scholars, inventors, and innovators educated under the influence of the Enlightenment to that of unimaginative and non-observant dullards. They knew about multiple barrel cannons, volley guns, pepperbox revolvers, multiple shot Girardoni air rifles, crank-operated Puckle guns, breech-loading Ferguson rifles\u2026 \u201cdangerous and unusual\u201d all, and none of them \u201cin common use at the time\u201d when first developed.<\/p>\n

The Founders were at the vanguard of the technology of their day, and of pushing it to see what else could be discovered and achieved.\u00a0 They knew that times were changing, as theirs were the revolutionary, educated minds bringing the changes about. And when new developments did happen, they embraced them, as opposed to suppressing and outlawing them while \u201cswarms of officers\u201d issued arbitrary rule changes to ban them.<\/p>\n

That\u2019s what \u201chistory, text, and tradition\u201d will tell anyone who wants to look honestly.<\/strong><\/p>\n

By relegating what\u2019s \u201cin common use at the time\u201d to what\u2019s commercially \u201cpopular,\u201d as opposed to what modern infantry soldiers are armed with, the advantage will forever be with invaders and enforcers. Ditto the \u201cfor lawful purposes\u201d qualifier, as outlawing firearm types makes sure they can\u2019t be legally owned. We see that all the time with the restrictions on \u201ccivilian\u201d possession of machine guns (which the\u00a0government knows we have a right to own<\/a>), and it won\u2019t end there. (As an aside, if we relegate \u201cin common use\u201d to what\u2019s popular and neither \u201cdangerous\u201d nor \u201cunusual\u201d, so-called \u201csmart guns\u201d would fall into that category and could be banned!)<\/p>\n

Think about technological developments in small arms since the founding of the Republic. How would Washington\u2019s troops have fared against Grant\u2019s, Grant\u2019s against Pershing\u2019s, and Pershing\u2019s against Patton\u2019s\u2026? That\u2019s the past. What about the future?<\/p>\n

If \u201cthe people\u201d of the\u00a0 Second Amendment can be denied arms based on them not being \u201cin common use\u201d for sport and for limited \u201cself-defense\u201d situations, what chance would they have resisting tyranny equipped with weaponry that today would be considered the stuff of science fiction? Who knows what those imposing their demands will have at their disposal, along with the power to withhold from citizens 50 years from now, or 100, or beyond?<\/p>\n

Since no innovation begins \u201cin common use,\u201d a government with the power to do so can ban all new weapon developments from those they would rule, retaining them exclusively for itself. It\u2019s what I warned about when I wrote \u201cThings to Come\u201d back in 2002 for\u00a0Guns and Ammo<\/em>\u00a0(not online, and it\u2019s copyrighted, so I can\u2019t link to the entire essay):<\/p>\n

It\u2019s been said that a battle isn\u2019t won until a man with a rifle occupies the ground. We must keep in mind that someone probably once said the same thing about spears.<\/strong><\/span><\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

\u2018In Common Use\u2019 Can Ultimately be Used to Make the Second Amendment a Moot Point Far-fetched? Who knows what will be available to the military and law enforcement in 100 years, and what it means to \u201cthe people\u201d of the Second Amendment if the government can deny future technology because it\u2019s \u201cdangerous and unusual,\u201d and … Continue reading “”<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[64,8],"tags":[],"class_list":["post-103843","post","type-post","status-publish","format-standard","hentry","category-deceit","category-rkba"],"_links":{"self":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/103843","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=103843"}],"version-history":[{"count":1,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/103843\/revisions"}],"predecessor-version":[{"id":103844,"href":"https:\/\/milesfortis.com\/index.php?rest_route=\/wp\/v2\/posts\/103843\/revisions\/103844"}],"wp:attachment":[{"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=103843"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=103843"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/milesfortis.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=103843"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}