Some Hawaiian legislators have entered a most interesting bill.
Measure Title: URGING THE UNITED STATES CONGRESS TO PROPOSE AND ADOPT A PROPOSED AMENDMENT TO THE UNITED STATES CONSTITUTION PURSUANT TO ARTICLE V OF THE UNITED STATES CONSTITUTION TO CLARIFY THE CONSTITUTIONAL RIGHT TO BEAR ARMS.
Stripped to basics, it calls for the repeal of the Second Amendment, under the guise of “clarification.” Because…
“WHEREAS, under this “individual right theory”, the United States Constitution restricts legislative bodies from prohibiting firearm possession, or at the very least, the Second Amendment RENDERS PROHIBITORY AND RESTRICTIVE REGULATION PRESUMPTIVELY UNCONSTITUTIONAL” (emphasis added)
Their argument is that the individual rights “theory” currently — and correctly — held by the Supreme Court makes all their gun control victim-disarming people control laws unconstitutional.
No kidding. All else aside, you’d think they’d have noticed the separate usage of “people” (when talking about… people) and “states” and “congress” in the Bill of Rights. Perhaps they’re public school graduates and were unaware that the first ten amendments were proposed and adopted as a single document.
I was also amused by their claim that the MILLER case declared the Second Amendment to be a collective right. Yep, gotta be public school victims.
No. What MILLER did was merely say that in the absence of evidence that sawed-off shotguns are useful militarily, they “cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”
In fact, in describing militias, the Court specified that it is composed of individual civilians called up for service (and carefully differentiated the militia from government “troops” in regular service). What’s more, those called up for militia service are expected to appear with their own personal weapons. Which, by necessity, they’d have to own before and separately from militia service.
That’s about as individual as it gets. And a strict read of MILLER suggests that those in the militia could be required to own military-grade firearms. (I don’t go that far, but only maintain they must be able to acquire them in time for a call-up.)
The collective right theory of the Second Amendment is a relatively recent invention of gun controllers. It has never been held by the Supreme Court, which always recognized it as a right of individual people. It even factored into the infamous Dred Scott case in 1856, with the majority maintaining that if Scott were recognized as a citizen then he — as an individual — would have the right to bear arms and all other enumerated rights.
I very much hope Hawaii passes this bill. Imagine anyone busted for breaking the state’s gun laws walking into court and declaring, “Your Honor, even the State says this is unconstitutional.”
Ah, but so long as we’re talking about MILLER…
“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.”
TL;DR: Short-barreled shotguns can be regulated under the National Firearms Act because they weren’t shown to be suitable for military use.
I believe that is why the Supreme Court has never granted certiorari for a direct challenge to the NFA since MILLER. NFA items, under that ruling, are things that are not used by the military. Except… machineguns certainly are. And gun controllers whine about “military-grade” or “military-style” “assault weapons.” SCOTUS doesn’t really want to touch that.
Which is probably why the Court keeps granting extensions on the petition for cert in the Kettler NFA challenge. Their cert decision was due in February; they granted two extensions, making it — so far — due by April 22, 2019.
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