Justice Breyer Asks “What is the Scope of the Right to Keep and Bear Arms?”
WATCH THE VIDEO FIRST: Fox News Sunday with Chris Wallace, December 12, 2010
EXCERPT FROM TRANSCRIPT ON THE SECOND AMENDMENT
CHRIS WALLACE: Next Guest, Supreme Court Justice Steven Breyer, who’s just written a controversial new book about the role of the Court in American life called Making Our Democracy Work[: A Judge’s View]. And Justice Breyer welcome back to Fox News Sunday.
JUSTICE STEPHEN BREYER: Thank you.
WALLACE: In your book you explain your judicial philosophy, and I think it’s fair to say it’s going to make some conservatives break out in hives because you say the Supreme Court should take a pragmatic approach to interpreting the law. And you write this, “The Court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances.” Whatever happened to just applying the law as written?
BREYER: Ahh, the law as written. That is what is applying the law as written. Look, unless you read this document…
WALLACE: The Constitution. Why don’t we widen out this show. (humor).
BREYER: It shows. I mean turn to any page. It uses words like liberty. It uses words like Interstate Commerce. It uses words like THE [pronounce “TH-UH” with unecessary emphasis] freedom of speech. They stand for values. They don’t tell you how to apply those words to world of the Internet. The Founders didn’t know that Commerce included airplanes. They didn’t know about the Internet or even television. And so the difficult job in open cases where there is no clear answer is to take those values in this document which all Americans hold which do not change and to apply them to a world that is ever changing.
MY COMMENTARY: So, Justice Brewer believes the Constitution protects values and not rights, responsibilities, duties and powers reserved to the People. Rights, responsibilities, duties, and powers protected by the Constitution never changes. However values do change over a span of time as evidenced by National Open Carry of the ratification era of the Constitution and the Bill of Rights compared to today’s gun control era criminalized unlicensed National Open Carry. The trick Justice Breyer is using here to change the name of “rights” to “values” in order to have greater liberty to play with words to deceive the People into giving up more constitutional rights. I watched Justice Breyer’s body language which creeped me out because, in my opinion, his observed personality revealed a propensity to lie, to deceive as evidenced by the varying width of his Cheshire Cat smile. He appeared to have a preference for deception as annotated by his constant head swinging, looking away from Chris Wallace and looking down when speaking keywords intrinsic to our constitutional rights. I base my opinion of what I have learned from reading law review articles from PAPERS.SSRN.COM for the last 8 to 10 years and I believe I have a proper understanding of right and wrong when I see it and hear it. Justice Breyer is way out there in Loony Left Field!
WALLACE: Okay. But I’m going to take an example which you mentioned in your book which would seem to a lot of people not to be an open case of an unforeseen possibility but to speak directly the words in that booklet. Gun Control. Let’s put up the Second Amendment to the Constitution which says this, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, — the right of the people to keep and Arms — shall not be infringed.” Now. Just as I understand why as a matter of policy in a world with a lot of urban violence and big cities that some people would say we need gun control, particularly in a big city like Washington as they have here in Chicago. You ruled in both of those case and in both cases the Court voted twice over your dissent that the Founders meant what they said. People have a right to bear arms.
BREYER: Yes. Yes. That’s a wonderful example. Because of course its not a matter of policy. It’s a matter of what those Framers intended. And you saw that first phrase. “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.” What does that mean, the militia? The historians told us. And the dissenters that they were right. That what that meant was that James Madison thinking, “I’ve got to get this document ratified” was worried about opponents who would think Congress would call up State militias and nationalize them. That can’t happen said Madison and therefore he wrote the Second Amendment to prove it. Now if that was his motive historically, the dissenters were right. And I think more of the historians were with us.
MY COMMENTARY: Here we go again with the idiotic priority assignment of the right to keep and bear arms belonging to either the well regulated militia or to the people themselves. By that I am the comparison of (1) the Memorandum Opinion for the Attorney General of the U.S. Department of Justice, titled, Whether the Second Amendment Secures an Individual Right, dated August 24, 2004 that was not released to the public until mid-December 2004. That Memorandum Opinion concluded on its title page: “The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias.” And (2) Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review, Oxford University Press, USA, 376 pages, (December 8, 2005). It is my opinion that all nine Justices of the U.S. Supreme Court are waging war on Popular Constitutionalism in defense of Judicial Supremacy. However, the construction of the Constitution places We, the People, as the Final Arbiter on what the law is and what the Constitution means for ourselves. This is the meaning of Popular Constitutionalism and that value threatens the the U.S. Supreme Court’s claim to the thrown of Judicial Supremacy.
WALLACE: But the historians may have been with you but not most of the Justices.
BREYER: Ahh! But if your interested in history and in this one, history was important, then I think you do have to pay attention.
WALLACE: But when it says in the Constitution, it says the right, not the militia, the right of the people to keep and bear arms, when you start talking as you do in your book about changing circumstances and real world consequences aren’t you acting as a politician or policy maker and not as a judge?
BREYER: No. We’re acting as judges. If we’re going to decide everything on the basis of history — by the way, what is the scope of the right to keep and bear arms? Machine guns? Torpedoes? Handguns? I’m just pointing out the value here [showing the Constitution booklet].
WALLACE: I understand. But it certainly didn’t provide for a ban, at least that’s what the Court’s decision was, your Court, it didn’t provide for ban all handguns as they have here in Washington, DC.
BREYER: “Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don’t think, for anyone who really wants to have a gun.”
WALLACE: That’s a policy issue that’s not a constitutional issue.
BREYER: Ahhh, ahh. [That “Ahhh, ahh” was said (off camera at that moment) in a manner that implied a snobbishly condescending “Gotcha” moment with Chris Wallace]. THUH freedom of freedom of speech. Liberty. How do those words apply? How do they apply to the Internet. How do they apply to this program if you were to decide to put on the program a document that showed how to make a bomb. How do they apply to the Internet in recent cases we have seen being discussed. What a difficult question. And I’ll tell you we can find the answer to this question in large part by looking at the values that Madison, Hamilton, and the others wrote in this document [the Constitution] and it’s very hard to find the answer to those questions by looking at the word because the word is liberty. And it’s very hard to find the answer to this question by just thinking I’m going to see what Madison thought about the Internet. Because I’ll tell you right know he didn’t, honestly, he did not think about the Internet.
WALLACE: I suspect we would agree on that.
MY COMMENTARY: Some historical facts presented in a time line are appropriate here:
1675 Robert Boyle discovered that electric force could be transmitted through a vacuum and observed attraction and repulsion.
1729 Stephen Gray’s discovery of the conduction of electricity.
1733 Charles Francois du Fay discovered that electricity comes in two forms which he called resinous(-)and vitreous(+). Benjamin Franklin and Ebenezer Kinnersley later renamed the two forms as positive and negative.
1745 Georg Von Kleist discovered that electricity was controllable. Dutch physicist, Pieter van Musschenbroek invented the “Leyden Jar” the first electrical capacitor. Leyden jars store static electricity.
1747 Benjamin Franklin experiments with static charges in the air and theorized about the existence of an electrical fluid that could be composed of particles. William Watson discharged a Leyden jar through a circuit, that began the comprehension of current and circuit. Henry Cavendish started measuring the conductivity of different materials.
June 1752 Benjamin Franklin discovered that lightening was static electricity with his kite experiment. He then invented the lightening rod, saving his own home from a lighting strike (or deliberately attracked the lightening strike with his lighting rod).
1767 Joseph Priestley discovered that electricity followed Newton’s inverse-square law of gravity.
1786 Italian physician, Luigi Galvani demonstrated what we now understand to be the electrical basis of nerve impulses when he made frog muscles twitch by jolting them with a spark from an electrostatic machine.
June 21, 1788 the Constitution of the United States was ratified.
In 1788 the first issue of the New York Times is printed. March 10, 1876 (88 years after the ratification of the Constitution) Alexander Grahm Bell invented the telephone.
December 15, 1791 the Bill of Rights was ratified.
It is my opinion that the Founders had knowledge of electrical inventions at the time of the ratification of the Constitution and the Bill of Rights. There, it is an understable presumption that the Founders may have speculated on the future of inventions. It is my presumption that Internet bloggers today are the pamphleteers of the Founders’ era.
From Bloomberg Business Week Editorial, The Apple Case Isn’t Just A Blow To Bloggers: Why should bloggers be denied rights given a pamphleteer in the past? March 28, 2005:
“In principle, it’s only fair to say bloggers acting like journalists are, in fact, journalists — regardless of what platform they use. America has a long history of pamphleteers expressing their views, and it has extended First Amendment rights to nearly all of them over the years. Bloggers are no different.”
From Pamela Jean at Everyday Citizen: News, Opinion & Things that Matter (blog), Pamphleteering, September 14, 2008:
Thomas Paine blazed the first trail with “Common Sense”, first published anonymously on January 10, 1776, before the American Revolution. It was pivotal in growing popular support for independence from Britain. Even Thomas Jefferson took ideas from his pamphlet when he wrote the Declaration of Independence. Tremendously popular, as many as 600,000 copies of “Common Sense” were distributed among 3,000,000 people (one for every five people). That would be equivalent to 60,000,000 copies printed in present day America.
Before telecommunications, ordinary citizens with access to printing presses and some paper could use pamphlets for mass communications. Communicating this way was especially helpful since ordinary people couldn’t operate from within the power structures of main stream newspapers or books.
The 1st Amendment of the Bill of Rights was written, in part, to protect the liberties of everyday pamphleteers and assure their rights to free speech and freedom of their printing presses.
Christopher Wright, (Musician, Cartoonist, and Writer Monroe, LA), Net Neutrality is critical to preserving Democracy, SaveTheInternet.com, Feb 18, 2009:
One of the single greatest *losses* in the 20th century was the loss of prominence of the pamphleteer — citizens who would write articles, missives, what-have-you about issues that concerned them, and circulated those opinions to other citizens in an attempt to convince them of the rightness of those views.
This was an important part of our history and of the formation of our country — many of the Founding Fathers were pamphleteers (and the Federalist Papers are some of the most famous examples of pamphleteering) and their activities in this sphere were responsible for the very formation of our country. The freedom of the press, as it was conceived in those earlier days, went far beyond the publication of newspapers — it also included the freedom for anyone to print and publish their opinions. Very few of the founding fathers were reporters, but they used the medium of publishing to make it possible for their opinions to be known to others.
Over time this practice became more difficult to accomplish. Towns grew, making the use of the “public commons” difficult and impractical. Zoning and other local ordinances actually make it *illegal*, these days, for someone to just show up in a public place and deliver a speech about something that concerns them — not without acquiring the necessary permits and licenses first. Publishing, be it paper publishing, or broadcasting over the radio or the television, is exorbitantly expensive for the common man and has become the purview of political and corporate organizations who have the funding to do it. For a long time the last refuge of the pamphleteer was the editorial pages of the newspaper, which contained a limited amount of space for anyone who wished to communicate. For the last half of the 20th century anyone who tried to continue the tradition of the pamphleteer was considered at least a little bit crazy, or a political radical, and potentially dangerous.
The advent of personal computers in the 70s began to change this — instead of investing in tens of thousands of dollars of publishing equipment it became possible to buy a computer and software that did much, though not all, of what professional publishing studios could do themselves. Suddenly the average citizen had access to tools that allowed them to communicate with much of the same sophistication that more professional organizations did… and with the advent of the internet, and more specifically the World Wide Web, it suddenly became possible for other people to access these publications in a cheap and inexpensive manner.
It was no longer necessary for someone to have the financial resources that a political action committee or corporation had — with a modest income it was possible to publish content, and for other people to access that content. And because of that, and because of some specific technologies (like “blogging” software) there is now a standard in place that allows people to become engaged in political issues, social issues, or simply issues that interest them.
This has been, in other words, the rebirth of the pamphleteer.
This is not an event that occurred without controversy or protest. Certainly it has coincided with other events that are considered undesirable and disturbing, such as the presence of child pornography, the use of phishing to steal personal information from citizens, and the presence of computer and music piracy. But it has also allowed citizens to communicate with each other on a level heretofore unknown. It is now possible (even though it is not easy) for someone to publish an opinion that can be read and discussed all over the nation, in all fifty states. People in California and Louisiana and New York and Tennessee can meet on discussion forums and talk about issues common to all of them.
And right now everyone has an equal shot at being heard. It is not guaranteed that someone’s ideas will be heard, noticed, discussed by everyone, but everyone starts out with the same chance. This would not be true if the internet were “tiered” in a way that favored large internet providers and gave their content more preference and access over people who were self-publishing. If the tiered access plans were enacted we would once again find that the corporations and other groups with the finances to afford the highest levels of access would dominate this new publishing media, and the rest of us would once again be relegated to the editorial pages.
I won’t pretend that I am an impartial observer with no personal stake in the outcome of this — I am deeply involved in using the internet to publish my own views and an enthusiastic supporter of using this medium to communicate effectively. But I hope this bias will not be taken the wrong way — in fact, I hope this will not be seen as bias at all, but as an example of how the internet — a neutral internet, not tiered, but open to all and equally accessible by all — has allowed one citizen to become involved in something that he had not previously had the financial wherewithal to participate in.
I can’t stress enough how important I feel that as citizens we need something that we can all access equally — a large, abstracted common grounds, if you like. Even now this is not perfect, since today not everyone has the same quality of access (some have high speed internet, others have common dialup, still others have no access at all), but it is a more perfect solution than the tiered access proposals that some large internet access providers are lobbying for.
I hope that you will protect the new public commons, and preserve it for those of us who do not own media publishing empires, or who do not run political action committees, or who are not running for public office, but are instead citizens of the Republic who want our opinions and concerns to be heard by other citizens. Please protect this medium and keep it open to all who wish to use it. Thank you for your time and consideration.
Attacks on bloggers with the Net Neutrality Act is an attack on the First Amendment right to freedom of the press just as gun control is an attack on the Second Amendment. That is why, as a blogger, I got my own ISSN for my online blog and for a future print magazine. With the ISSN I could and did legally create my own Press Passes in 2010 and for 2011 that you see above.
Bloggers are today’s Pamphleteers with every right to protection under the First Amendment right to freedom of the Press and Freedom of Speech.
All bloggers, as members of the press, should apply to the Library of Congress ISSN Center to get their own ISSN to have legal protection under the First Amendment right to freedom of the press as distinct from freedom of speech as I did for my blog, American Common Defence Review.
Addressing the Full Scope of the Second Amendment
In Regard to Machine Guns
The Federal Courts and the U.S. Department of Justice have perfidiously avoided addressing the full scope of the Second Amendment because to do so would compel the federal courts and the U.S. Government to concede that the Second Amendment embodies the right to openly keep and bear arms in intrastate, interstate, nautical and maritime travel.
A. (October 16/18, 2001) United States v. Emerson, No. 99-10331 2001 WL 1230757 (5th Cir. 2001)
“We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller. However, because of our holding that section 922(g)(8), as applied to Emerson, does not infringe his individual rights under the Second Amendment we will not now further elaborate as to the exact scope of all Second Amendment rights.”
B. (December 5, 2002) Silveira, et al. v. Lockyer, No. 01-15098. 2003 WL 21004622 (9th Cir., May 06, 2003)
Despite the increased attention by commentators and political interest groups to the question of what exactly the Second Amendment protects, with the sole exception of the Fifth Circuit’s Emerson decision there exists no thorough judicial examination of the amendment’s meaning. The Supreme Court’s most extensive treatment of the amendment is a somewhat cryptic discussion in United States v. Miller, 307 U.S. 174 (1939). In that case, a criminal defendant brought a Second Amendment challenge to a federal gun control law that prohibited the transport of sawed-off shotguns in interstate commerce. The Court rejected the challenge to the statute. In the only and oft-quoted passage in the United States Reports to consider, albeit somewhat indirectly, whether the Second Amendment establishes an individual right to arms, the Miller Court concluded:
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.
Miller, 307 U.S. at 178. The Miller Court also observed more generally that “[w]ith the obvious purpose to assure the continuation and render possible the effectiveness of [state militias] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” Id. Thus, in Miller the Supreme Court decided that because a weapon was not suitable for use in the militia, its possession was not protected by the Second Amendment. As a result of its phrasing of its holding in the negative, however, the Miller Court’s opinion stands only for the proposition that the possession of certain weapons is not protected, and offers little guidance as to what rights the Second Amendment does protect. Accordingly, it has been noted, with good reason, that “[t]he Supreme Court’s jurisprudence on the scope of [the Second] [A]mendment is quite limited, and not entirely illuminating.” Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999). What Miller does strongly imply, however, is that the Supreme Court rejects the traditional individual rights view.
The only post-Miller reference by the Supreme Court to the scope of the amendment occurred in Lewis v. United States, 445 U.S. 55, 65 n. 8 (1980), in which the Court noted, in a footnote dismissing a Second Amendment challenge to a felon-in-possession conviction, that the federal gun control laws at issue did not “trench upon any constitutionally protected liberties,” citing Miller in support of this observation. In that footnote, Lewis characterized the Miller holding as follows: “[T]he 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.’ “ Id. (quoting Miller, 307 U.S. at 178). The Lewis Court, like the Miller Court, phrased its statements in terms of what is not protected. Lewis does, however, reinforce the strong implication in Miller that the Court rejects the traditional individual rights model.
C. (August 24, 2004) U.S. Department of Justice, Memorandum Opinion for the Attorney General [John Aschroft] Whether the Second Amendment Secures an Individual Rights.
[W]e conclude that the Second Amendment secures an individual right to keep and to bear arms. Current case law leaves open and unsettled the question of whose right is secured by the Amendment. Although we do not address the scope of the right, our examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collective-right views. The text of the Amendment’s operative clause, setting out a “right of the people to keep and bear Arms,” is clear and is reinforced by the Constitution’s structure. The Amendment’s prefatory clause, properly understood, is fully consistent with this interpretation. The broader history of the Anglo-American right of individuals to have and use arms, from England’s Revolution of 1688-1689 to the ratification of the Second Amendment a hundred years later, leads to the same conclusion. Finally, the first hundred years of interpretations of the Amendment, and especially the commentaries and case law in the pre-Civil War period closest to the Amendment’s ratification, confirm what the text and history of the Second Amendment require.
D. (June 26, 2008) District of Columbia v. Heller, U.S. Supreme Court, No. 07-290 at 52-53 and 54-56; 128 S.Ct. 2783; 554 U.S. ____, 478 F. 3d 370, affirmed.
We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)).
Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms ould be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
Miller was briefly mentioned in our decision in Lewis v. United States, 445 U. S. 55 (1980), an appeal from a conviction for being a felon in possession of a firearm. The challenge was based on the contention that the prior feloy conviction had been unconstitutional. No Second Amendment claim was raised or briefed by any party. In the course of rejecting the asserted challenge, the Court commented gratuitously, in a footnote, that “[t]hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller . . . (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’).” Id., at 65–66, n. 8. The footnote then cites several Court of Appeals cases to the same effect. It is inconceivable that we would rest our interpretation of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not argued.
 We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.
E. (August 13, 2008) United States v. Hollis Wayne Fincher, No. 07-2514 and No. 07-2888, 538 F.3d 868 (8th Cir., 2008)
In discussing the limitations the government can place on an individual’s right to possess firearms, the Court noted that Miller does not protect “weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” Heller, 128 S. Ct. at 2815-16. The Court also articulated a nonexclusive list of what it viewed to be acceptable government regulation of firearms:
[T]he majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”
Id. at 2816-17 (internal citations and footnote omitted).
F. Eighth Circuit’s Faulty Logic on Machinegun Prohibition in United States v. Hollis Wayne Fincher, No. 07-2514 and No. 07-2888 (August 13, 2008)
“Accordingly, under Heller, Fincher’s possession of the guns is not protected by the Second Amendment. Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use. Furthermore, Fincher has not directly attacked the federal registration requirements on firearms, and we doubt that any such attack would succeed in light of Heller. Accordingly, because [-8-] Fincher’s possession of guns is not protected by the Second Amendment, the district court did not abuse its discretion in preventing him from arguing otherwise to the jury.”
United States v. Hollis Wayne Fincher, 8th Cir., No. 072514 and No. 07-2888 (Aug. 31. 2008), p. 7-8.
“There’s a mighty big difference between good, sound reasons and reasons that sound good.” Burton Hillis, cited in Laurence J. Peter, Peter’s Quotations: Ideas for Our Time (1977), p. 425.
Let’s begin the “Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use” line of logical reasoning with United States v. Miller, 307 U. S. 174 at 179 (1939):
|The Post Hoc Fallacy of Logic over MachinegunsFalse Cause: This fallacy establishes a cause/effect relationship that does not exist. There are various Latin names for various analyses of the fallacy.|
|Event B.||Event C.|
|THE FALSE ARGUMENT: Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that . . .||. . . the government can prohibit for individual use.|
|THE INVERSE ARGUMENT: If machine guns were in common use by law-abiding citizens for lawful purposes (the Swiss model) they would not fall within the category of dangerous and unusual weapons and . . .||. . . the government could not prohibit machineguns for individual use.|
|Event A. The U.S. Government created the condition that machinguns are not in common use by law-abiding citizens for lawful purposes by regulating and outlawing machineguns beginning with the National Firearms Act of 1934.The Federal Courts ignore Event A in order to maintain the Post Hoc fallacy of logic (the false cause) between Events B and C to defend the U.S. Government’s actions prohibiting possession and ownership of machineguns.|
The two most common include these types of logical false causes:
(1) Non Causa Pro Causa (Literally, “Not the cause for a cause”): A general, catch-all category for mistaking a false cause of an event for the real cause.
(2) Post Hoc, Ergo Propter Hoc (Literally: “After this, therefore because of this”): This type of false cause occurs when the writer mistakenly assumes that, because the first event preceded the second event, it must mean the first event caused the later one. Sometimes it does, but sometimes it doesn’t. It is the honest writer’s job to establish clearly that connection rather than merely assert it exists. Example: “A black cat crossed my path at noon. An hour later, my mother had a heart-attack. Because the first event occurred earlier, it must have caused the bad luck later.” This is how superstitions begin.