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interesting case law

Discussion in 'Legal & Political Archive' started by probasco, Feb 25, 2013.

  1. probasco

    probasco abeaversboro Member

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    Carl F. Worden

    January 15, 2013

    There are two Supreme Court rulings that directly relate to the current anti-Assault Weapon issue everyone needs to be reminded of.

    The first is United States v. Miller 1939. Miller possessed a sawed-off shotgun banned under the National Firearms Act. He argued that he had a right to bear the weapon under the Second Amendment, but the Supreme Court ruled against him. Why? At the time, sawed-off shotguns were not being used in a military application, and the Supremes ruled that since it didn't, it was not protected. Even though Miller lost that argument, the Miller case set the precedent that protected firearms have a military, and thus a legitimate and protected Militia use. The military now uses shotguns regularly, but not very short, sawed-off shotguns, but an AR-15/AK-47 type weapon is currently in use by the military, therefore it is a protected weapon for the Unorganized Militia, which includes just about every American citizen now that both age and sex discrimination are illegal. (The original Militia included men of age 17-45) Therefore any firearm that is applicable to military use is clearly protected under Article II, and that includes all those nasty-looking semi-automatic black rifles, including full 30 round magazines.

    The second important case is that of John Bad Elk v. United States from 1900. In that case, an attempt was made to arrest Mr. Bad Elk without probable cause, and Mr. Bad Elk killed a policeman who was attempting the false arrest. Bad Elk had been found guilty and sentenced to death. However, the Supreme Court ruled that Bad Elk had the right to use any force, including lethal force, to prevent his false arrest, even if the policeman was only trying to arrest him and not kill him. Basically, the Supremes of the day ruled that as a citizen, you have the right to defend against your civil rights being violated using ANY force necessary to prevent the violation, even if the offending party isn't trying to kill you.

    Both of these cases are standing law to this day.

    The Miller decision clearly includes AR-15/AK-47 type weapons as having a military application. The Bad Elk decision means that if the government tries to confiscate your AR-15/AK-47, or arrest you for having one, you can kill the offenders on the spot, even if they are not trying to kill you.

    I didn't make these decisions; the United States Supreme Court did.
     
  2. Kable

    Kable Lynnwood Active Member

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    Also Heller vs DC they ruled that you cannot ban what is"common use“at the time.since Ar15 type rifles with 30 round magazines are the most sold rifle in the US that means they are obviously common use. Additionally when they mention what they can ban they say "dangerous AND unusual" not dangerous OR unusual. All firearms are technically dangerous(although this is dependant on the operator) and why would you need to ban an unusual weapon if it's not dangerous. They also mention WHO can be barred from owning a firearm and that SOME restrictions on the COMMERCIAL sale of firearms were constitutional.

    So essentially everything they are proposing is unconstitutional
     
  3. deen_ad

    deen_ad Vancouver, WA Well-Known Member

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    The reason Miller "lost" the case was that he didn't show up in court due to lack of money to contest the case.
     
  4. kumabear17

    kumabear17 Issaquah Active Member

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    Just a heads up on sawed off shotguns. My Son is a former Ranger and carried a sawed off 870 in a holster. It's true he used it for door breaching, but he said the rounds worked on people at close range.
     
  5. Stomper

    Stomper Oceania Rising White Is The New Brown Silver Supporter

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    The military doesn't use AR15's... based on the precedent you cite, we should be able to own M14's, M16's, M4's, M249's, etc. Sign me up, WOOT!
     
    jjackffrost, TKevlar, Nwcid and 5 others like this.
  6. chariot13

    chariot13 Near Eugene/Springfield Well-Known Member

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    In the case of the Bad Elk decision, its why anyone that wanted to, would of been justified in popping all 8 officers in the back of the head, when they opened fire on the two lil newspaper ladies in california during the dorner man hunt. To bad someone didn't save those girls from having their civil rights violated.
     
  7. One-Eyed Ross

    One-Eyed Ross Winlock, WA Well-Known Member

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    Miller was dead. He had been stabbed to death.

    The Court said "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."

    If this case were revisited today, the court would have to rule the other way, since the military and police departments (heck, even the Dept of Education) uses them....maybe someone with big bucks could do this one day...

    But, yes, the AR15 is the "type in general usage" at this time.
     
  8. chariot13

    chariot13 Near Eugene/Springfield Well-Known Member

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    Legally we should be able to have any of those firearms, but what is legal is not what the law will 'allow' you to do. Just look at the hellstorm people get when they legally open carry their firearms in some cities. You might get away with it in the end but not before they impede on your freedom of navigation & privacy.
     
  9. One-Eyed Ross

    One-Eyed Ross Winlock, WA Well-Known Member

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  10. dallen1x

    dallen1x Wil_Val, OR Active Member

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    So were does this ORS leave us with regards to John Bad Elk v. US?

    161.260 Use of physical force in resisting arrest prohibited. A person may not use physical force to resist an arrest by a peace officer who is known or reasonably appears to be a peace officer, whether the arrest is lawful or unlawful. [1971 c.743 §32]
     
  11. Grunwald

    Grunwald Out of that nut job colony of Seattle, WA Well-Known Member

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    Supreme court decision trumps state law. It would still be a hell of a legal fight to retain your freedom.
     
  12. cascadianliberty2012

    cascadianliberty2012 DPR Portland Well-Known Member

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    Great thing about sawed-off shotguns is that in those "situations" they can be made VERY easily. Remember the first Red Dawn? Might be a good idea to keep a good single or doubleshot 12g a around just sitting there that could be chopped up in case laws cease to exist.
     
  13. deen_ad

    deen_ad Vancouver, WA Well-Known Member

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    That's make Biden happy!!