United States v. Miller et al. History

B.L.U.F. — Examining the 1939 case of United States v. Miller 307 U.S. 174 where we first lost our Second Amendment Rights. Touching on how Heller, McDonald, and Bruen all reference back to Miller but how it got twisted to allow the courts to allow infringements to continue


Background

On April 18, 1938, the Arkansas and Oklahoma state police stopped Miller and Layton outside of Siloam Springs, Arkansas, en route from Claremore. They had an unregistered, short-barreled shotgun in the car and apparently were “making preparation for armed robbery.” So the police arrested them.

Miller and Layton ended up in Fort Smith, Arkansas, where United States Attorney for the Western District of Arkansas Clinton R. Barry charged them with violating the National Firearms Act. Barry knew all about Miller, as he had attended the O’Malley trials and seen Miller testify. Barry was eager to ensure the government could prove an NFA violation. It is “[e]xtremely important this case be investigated by competent federal officers quickly before these parties released on bond to prove possession this weapon in Oklahoma immediately before arrest in Arkansas to show transportation.” The United States Attorney’s office forwarded Barry’s request to the F.B.I. for investigation.
N.Y.U. Journal of Law & Liberty [Vol. 3:48 2008]

There is a different version of the arrest of Miller in Unintended Consequences, this appears to be more factual.

This is how the District Judge Heartsill Ragon described it:

The defendants in this case are charged with unlawfully and feloniously transporting in interstate commerce from the town of Claremore, Oklahoma, to the town of Siloam Springs in the State of Arkansas, a double barrel twelve gauge shot gun having a barrel less than eighteen inches in length, and at the time of so transporting said fire arm in interstate commerce they did not have in their possession a stamp-affixed written order for said fire arm as required by Section 1132c, Title 26 U.S. C.A., the regulations issued under the authority of said Act of Congress known as the National Firearms Act, 26 U.S. C.A. § 1132 et seq.
United States v. Miller, 26 F. Supp. 1002 (W.D. Ark. 1939)

There are some significant aspects to this case and how it was charged. The state would have to prove that the firearm in question required a NFA tax stamp, that it did not have that tax stamp, that it had been transported across state lines. And that the police had reason to make the stop.

This was before Miranda but the law still required some reason to arrest and search people.

The Miller case was a case of tax evasion. Failure to pay a $200 tax on a $15 shotgun. In addition, the NFA made transporting a registered firearm across state lines a crime unless the state first gave permission.
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Training firearms?

I am not an expert in this. These are my own personal opinions.

The first thing I would say is that for a first-time shooter, guns are scary. I have a difficult time remembering the first time I shot a firearm. I’m thinking it was a 12gage shotgun with my uncle. It was loud and exciting. We didn’t use ear protection, we didn’t wear eye protection.

We went to the end of his driveway and I got to shoot his gun. This was part of him making his house safe for me to visit. I was maybe first or second grade? The point of it was that he had a beautiful gun cabinet with lots, from the point of view of a very young child, guns in them. It was glass – fronted and beautiful.

Later I was exposed to more shotgun shooting, culminating with a wonderful rabbit hunt.

That was then. My housemate the summer after high school took the time to show me where he had his defense weapon stored. It was a derringer. It was so exciting to handle it when I was alone. I knew to keep my finger off the trigger and I never pointed it at me, but it wasn’t a “safe” situation.

When I finally got the money to buy my own firearms, I had a little more experience. My mentor had given me some lessons. Nothing spectacular. Nothing good.

I was self-taught. Not a good way to learn firearms.

Today, I teach firearm safety to anybody who wants to learn. Not the formal NRA training, but my own person version of firearms training.

Here is how I go about it:

First is the safety talk. This is where we go over the four rules until they have it. I do not go any further if they aren’t comfortable with the rules.

The next step is to let them handle different firearms. At this stage, they learn that they really, really should treat every firearm as loaded. They learn how to handle those firearms safely. They learn how to verify, for themselves, that the firearm is unloaded. They learn to keep the firearm pointed in a safe directly. They learn a bit about how it feels.

During this time, there is never more than one firearm out at a time.

We go through the different types of ammunition. This is partially to disprove the “AR-15 assault weapons fire the most deadly killing bullets!!!!”

At that point, I show them the .22LR we will be using for our first shots. The idea here is that I want them to see this as small and less scary.

We now move to the range. At the range, we will have four different firearms.

  • .22LR semi-automatic pistol
  • .22LR Bolt Action rifle
  • 9 mm semi-automatic pistol
  • .45cal semi-automatic pistol

There are many choices for .22LR semi-automatics. I choose to use a semi-automatic because that is what the rest of my primary pistols are. Yes, I have a few SAA style and one .357 Magnum revolver, but those are not my primary. Those are just for fun.

The next question is with regard to the manual of arms. When you look at .22LR pistols, you’ll find many different styles. For me, I needed a .22LR that had the same manual of arms as my other primary pistols.

What does this mean?

What this means is that everything that you have to do right with my primary firearms you need to do right with the training firearm.

For me, my primary firearm is a 1911. Because my primary is a 1911, my other firearms that I regularly use have 1911 style controls. I prefer a push button for a magazine release, just like the 1911. I want it to have a manual safety, just like my 1911. Likewise, I want it to have a slide release in nearly the same place as the 1911. And I want it to have good sights.

My choice was the M&P 22 Compact. Everything I needed for the manual of arms applies. In addition, it is just fun to shoot.

There are a number of .22LR rifles out there. Pick one that is of a comfortable size for you and the people you are training. I thought about getting a youth sized rifle, but by the time I was ready to do it, my kids didn’t need a youth sized rifle.

Start Slow

When starting, most of the time they want to start with a pistol. Starting with a pistol is a little easier in some ways.

Here is the big starting point, only put one round in the magazine the first time.

This person is going to pull the trigger. There will be a loud bang. You do not know what they are going to do next. Sometimes they will turn towards you, sweeping with the pistol, sometimes they will want to drop the pistol. Regardless of what happens, you want it to be as safe as possible.

I always stand where I can put a hand on their hand if they start to swing towards me, but that is not always the best choice.

Start with one round.

Once they have done one round a few times, then you can move to two rounds in the magazine. The idea, again, is to be safe.

During initial training, I normally do not put more than 5 rounds in the magazine. For you, it might not feel like anything to put 18 rounds of spicy 9 mm down range. For a new person, holding that pistol out for 15+ rounds can be tiring.

At this point, I will demonstrate the 9 mm and the .45. I only send one round down range. The idea is to let them hear that sound up close.

If it works for them, I will let them put a round down range from each of them.

From there we move to the rifle. This gives them a chance to better understand the loading process. We normally shoot offhanded because most of the time people don’t like to get prone. Depending on the range, we might be able to let them sit at a bench to shoot the rifle.

This is how I do it. Lots of talk beforehand. Lots of familiarization beforehand. It is about making them comfortable and to not do stupids or allowing them to do stupids.

Hanson v. District of Columbia, magazine ban is consitutional

The Judge Said What?

B.L.U.F. — Judge Rudolph Contreras believes that banning magazines with more than some magic number is constitutional. This leads to another WTF post analysis of a Judge’s opinion.


The Question

Is D.C.’s LCM ban Constitutional?

The ban basically says that it is illegal to possess, sell, or transferD.C. Code § 7-2506.01(b) a magazine that holds more than 10 rounds. The exception is for tube feed .22 caliber magazines.

Background

Some context is in order to understand the gun law at issue. An ammunition feeding device, more commonly known as a magazine, “is a vehicle for carrying ammunition. It can be either integral to the gun or detachable.” Ocean State Tactical, LLC v. Rhode Island, No. 22-cv-246, 2022 WL 17721175, at *4 (D.R.I. Dec. 14, 2022). “Most modern semi-automatic firearms, whether handguns or semi-automatic rifles like AR-15s, use detachable box magazines.” Id. The magazine is simply “inserted into and removed from the frame of the firearm, much as an extra battery-pack gets swapped in and out of a battery-operated tool, like a leaf blower, for example.” Id. Magazines come in different sizes and have different capacities. Under D.C. law, a large-capacity magazine, or LCM, is simply a magazine that can hold more than ten bullets. “When a multiple-round device like an LCM is attached, a handgun becomes a ‘semiautomatic’ weapon, meaning that it is capable of rapidly firing several bullets, one right after another. However, the gun still requires a trigger-pull for each round fired.” Id.
HANSON v. DISTRICT OF COLUMBIA, 1:22-cv-02256, D.D.C. (2023) ECF No. 28

This duffus had to go out and find another judge who is just as ignorant as he is in order to make a statement as stupid as saying that attaching a “large capacity magazine” to a handgun makes it into a semiautomatic.

He is quoting the memorandum and opinion out of the District Court of Rhode Island. He had this to say about an “LCM” challenge.

In summary, the Court finds that the plaintiffs lack a likelihood of success on the merits, that they will not suffer irreparable harm if the law is allowed to take effect, and that the public interest is served by denying injunctive relief. Specifically, regarding the merits, the plaintiffs have failed in their burden to demonstrate that LCMs are “Arms” within the meaning of the Second Amendment’s text. Moreover, even were they “arms,” the plaintiffs have failed to prove that LCMs are weapons relating to self-defense. There is no Second Amendment violation from the LCM Ban because of these two shortfalls of persuasion. The Court must therefore consider the LCM Ban outside the core of Second Amendment protection. The Court further finds that the statue is not vague. Because the LCM Ban is a valid exercise of police power, there is no “taking” requiring just compensation and, consequently, no violation of the Fifth Amendment. The Rhode Island General Assembly passed, and the Governor signed, legislation to lower the risk of harm that results from the availability of devices that assist someone intent on murdering large numbers of people. This common-sense public safety legislation does not implicate the Second Amendment and violates no one’s constitutional rights.
Ocean State Tactical, LLC v. State of Rhode Island, 1:22-cv-00246 (2022) ECF No. 37

Judge John J. McConnell, Jr, chief judge of the District Court of Rhode Island

The Supreme Court has not said anything about magazines being arms, which is what allows this level of disingenuous reasoning. Regardless, reading the Ocean State Tactical opinion was an exercise in self-control. Breaking monitors does not do any good. As Mark Smith said in a video the other day, when the Judge is a Firearms person, it shows. In the same way, when a Judge is ignorant of even the most basic aspects of a firearm, we get hurt.

It is easy to tell when the state is lying when you have personal knowledge of the subject, it is harder when you are trying to figure out whose experts to trust.

Standing

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Friday Feedback

This is it! Really.

This is that post where you give us some feedback.

Please add some down below.

You might have noticed that more and more I am linking to https://courtlistener.com. There is a very good reason for this. They are doing a great job.

I’ve talked about how hard it is to find case documents and how expensive it is to get them from the government. CourtListener is a sort of crowdsourced legal document repository. If you want to help out CourtListener all you need to do is to download their “RECAP” browser extension and signup for a PACER account. They have instructions on the site.

When you are looking at a case, on CourtListener, it will either tell you that they already have the document, and you can just read it on their site. If they don’t, they will have a link to buy the document on PACER. When you buy the document on PACER, the RECAP add-on automatically uploads that document to the RECAP archive.

While it is expensive to download PACER documents, the big cost is doing searches on PACER. By using the links supplied by CourtListener, you don’t do any searches on PACER. It takes you directly to the page to purchase the documents you are looking for.

In addition, if you buy less than $30 worth of searches and downloads per quarter, PACER doesn’t charge you. This means that if you only download a couple of documents for RECAP from PACER, no charges.

Anyway, go give them a look if you are interested in looking at or for court documents.

CourtListener is a project run by the Free Law Project. To quote them:

Started in 2010, Free Law Project is the leading 501(c)(3) nonprofit using software, data, and advocacy to make the legal ecosystem more equitable and competitive.

We do this by:

  • Curating and providing free, public, and permanent access to primary legal materials
  • Developing software useful for legal research and innovation
  • Fostering and supporting an open ecosystem for legal research
  • Supporting academic research in the legal sector

A number of major projects exemplify this approach:

  • The RECAP Suite — A collection of tools to open up federal court data.
  • CourtListener.com — Our fully-searchable and accessible archive of court data including growing repositories of opinions, oral arguments, judges, judicial financial records, and federal filings.
  • Bots.law — A collection of bots that help attorneys, journalists and the public keep up with court cases.

About Free Law Project

The Law in the Andrew Lester Shooting

We’ve heard the press statements, and some of it is pretty obviously slanted. Andrew Branca has done a couple of videos on it so far.

Yesterday, he brought up that you can use deadly force under other circumstances than in protection of self or others. In this case, he brought up Missouri laws on defense of highly defensible property.

The currently known facts show that Ralph Yarl was on Lester’s property. He was found shot on Lester’s property. We know that Yarl was 16 years old, large, black, and six foot tall or a bit more.

This can be seen as intimidating.

563.031. Use of force in defense of persons.

  1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person, unless:
    1. The actor was the initial aggressor; except that in such case his or her use of force is nevertheless justifiable provided:
      1. He or she has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force; or
      2. He or she is a law enforcement officer and as such is an aggressor pursuant to section 563.046; or
      3. The aggressor is justified under some other provision of this chapter or other provision of law;
    2. Under the circumstances as the actor reasonably believes them to be, the person whom he or she seeks to protect would not be justified in using such protective force;
    3. The actor was attempting to commit, committing, or escaping after the commission of a forcible felony.
  2. A person shall not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless:
    1. He or she reasonably believes that such deadly force is necessary to protect himself, or herself or her unborn child, or another against death, serious physical injury, or any forcible felony;
    2. Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person; or
    3. Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter private property that is owned or leased by an individual, or is occupied by an individual who has been given specific authority by the property owner to occupy the property, claiming a justification of using protective force under this section.
  3. A person does not have a duty to retreat:
    1. From a dwelling, residence, or vehicle where the person is not unlawfully entering or unlawfully remaining;
    2. From private property that is owned or leased by such individual; or
    3. If the person is in any other location such person has the right to be.
  4. The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.
  5. The defendant shall have the burden of injecting the issue of justification under this section. If a defendant asserts that his or her use of force is described under subdivision (2) of subsection 2 of this section, the burden shall then be on the state to prove beyond a reasonable doubt that the defendant did not reasonably believe that the use of such force was necessary to defend against what he or she reasonably believed was the use or imminent use of unlawful force.

Revised Statutes of Missouri, RSMo Section 563.031

The words in red are the ones to note. The question before the court is likely to become “Was Yarl attempting to unlawful enter as perceived by a reasonable person?” If this happens it is likely that the shooter will be found not guilty.

On the other hand, black person shot by white man, chances of white man getting convicted is damn high, even with no other evidence but for the skin color.

Bad Numbers, link dump

I’ve been working on a post that is taking a bit of research. It has required me to examine over a dozen cases and search the dockets of each one looking for supplemental testimony. I.e. experts weighing in with their opinions. So instead you get:

All those links to people claiming horrible numbers of people have somebody in their family that was killed bywith a gun.

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Here is a link to another WTF are they talking about article.

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Originally brought to my notice by 90 Miles From Tyranny

Tuesday Tunes

There are entire movies based on tropes. The trope of the tired old man that just wants to be left alone who is bothered to the point where he is forced to react, forced to take action.

People forget that there are old soldiers and there are bold soldiers, there are very few old and bold soldiers.

Those grizzled old men are sometimes more than they seem at first glance.

One of the favorite stories my family tells is of the day when a friend of ours, a former mercenary, yes, verified, was trying to teach my daughter some self-defense. I was only paying half an eye on them when I heard him tell her, “Just kick him in the balls”.

I stood up and told them both, “no”. Yes, if you get a guy in the balls he might stop attacking, but that is not for sure. In addition, most guys have a lifetime of experience guarding the family jewels. I told them that a leg sweep was much better.

Our friend is in his early to mid 20s. I’m old, slow, and fat in my late 50s at the time. I went over to give a short demo. He and I put hands on each other and I asked if he was ready.

On his “yes” I swept the leg, he went horizontal, I pulled up just before he hit the ground.

He was very, very surprised. He didn’t expect an old man to be able to do that.

Old men have to be tricky. Don’t assume that just because they don’t run like the wind they can’t do.

Remember that quote from Quigley Down Under I said I didn’t like them. I never said I couldn’t use one.

And another from Dean Brody

Why it is hard to unconditionally support the thin blue line, maybe?

Updated: When I was eating breakfast, Hagar watched the video.  When she came to the place where the cops opened fire, the cop yell’s “hands up”, not “Drop the Gun”.  I got it wrong. Eyewitnesses are notoriously unreliable.


Honest, I wrote this before J.Kb. posted his version.

At the end of May in 2020 I watched camera footage of a police officer kneeling on the neck of a black man, slowly chocking him to death while the man repeated over and over again “I can’t breathe”.

I was so angry. I was glad I had not observed that in person. I did not know if I would have had the courage to intervene to save that man’s life. An out of control cop murdered a black man while people were screaming at him to stop.

When we discussed that horrific video at the table that night, we were all convinced that we had witnessed a cop killing an unarmed, handcuffed black man. Why? Why would he do that?

Over the next few weeks, we started to find out more. As always, it is best to wait to find out the facts, not what we think we saw. It turns out that the black man was a career criminal who was in the process of overdosing. He had just tried to pass off counterfeit money, was attempting to evade the police and had been just been removed from the squad because he was “having problems breathing”.

It seems likely that he had swallowed his stash, which is the cause of the overdose. Once he was out of the squad and before the famous video began, he was struggling with a police officer. The police officer was not “kneeling on his neck” but actually had his knee on the man’s shoulders holding him down, waiting until it was safe to transfer him to the EMTs for transport.

This incident led to a summer of violence in multiple cities and is still with us today. That one video with the massive narrative behind it has done more to damage our society in the last 5 years than any single event I can think of outside of 9/11 and 12/7.

And it was all based on a lie.

When I received an email describing the outrageous behavior of a bunch of cops that murdered a man, I started to write a highly emotional response, ready to slam the cops for their actions.

Here is how that article began:

On April 5th, 2023 an elite team of officers were responding to a domestic violence report. The cops showed up at the house and did the cop knock. Of course, the left plenty of time for people to respond.
AWA, rough draft

I finished that short paragraph and realized that I wanted to verify the type of knock, the length of time that was allowed for the residents to respond. I watched the video. What I saw was stupidity that ended a man’s life and will or should end another’s career.

The facts of the incident:

Three cops respond to a domestic violence call. They approach on foot. The arrive at a suburbia home, nicely maintained, outside lights on, inside lights out. No noises from inside the house.

The lead officer opens the screen door and politely knocks. It wasn’t the demanding cop knock of fame. It was a polite knock on the door. He waited about 40 seconds and knocked again. He waited another 40 seconds and knocked a third time.

At that point, the cops start talking with dispatch to have dispatch call the 911 caller back to get them to come to the door. To quote a television cop, Something seemed hinkey. While waiting on dispatch, the three cops start talking and realize they are at the wrong address. The lead cop chuckles and starts to back away.

As this happens, he sees the male resident coming to the door. Lights come on inside the house for the first time. Lead cop exclaims something like “oh shit”.

As the door opens and the male resident starts to open the screen door, the lead cop’s gun starts to come up. In the video, I see what looks like a pistol coming up and the man going into a two-handed stance with the gun pointed straight at the cop.

When the door started to open, all three cops turned on their lights and pointed them at the door. The resident was not seeing anything but shapes behind those bright lights. There were no flashing red and blues. There was nothing except three very bright lights pointed at him.

Lead cop yells, Drop the gun! About the time you hear the n of gun, he opens fire and the man drops. The other cops start firing as well.

The cops move back, a female resident comes to the door screaming about her husband. As she comes out the door, there is a very, very short flash from her hands. My first thought on seeing that flash was that it looked like a gun shot. There was no sound to go with it, but all three cops respond by opening fire once again.

You can go watch it yourself, sorry, but it is on the book of acquaintances.

So what happened?

The cops showed up at the wrong fucking house. They were at the wrong house number. Some reports say it was even the wrong street. They woke up the residents at 2330. The residents responded poorly by, to quote Miguel, Breaking the perimeter.

These cops are going to get away with murder. They are going to be covered under qualified immunity. They fucked up so badly that at least one person is dead and another was wounded. They should be fired. They should have their cop licenses revoked. They should have to do pen entice for the next 40 years, daily.

Maybe somebody who is a law enforcement officer can tell me why they didn’t park in front of the house with lights on? That might have saved lives.

For us, it teaches us, once again, don’t break the perimeter. Don’t expose yourself. Know your target and what is beyond it.

I hurt for that family. I’m angry. I hope we all learn something from this.

Example Lawfare

B.L.U.F. When a family is hurting, they want somebody to pay. It is easier to put that anger against a company than a dead body. Especially when there are blood vultures at work.


History

On April 15, 2021, some asshole entered the FedEx facility in Indianapolis, Indiana, and proceeded to start shooting. Eight people were killed, and more were wounded. The asshole then killed himself.

He had two rifles with him, both AR-15-style semi-automatics.

Shortly after, the blood vultures started to congregate. President Biden had flags flown at half-mast. The usual suspects jumped up and down screaming that guns were the problem.

To this day I’ve never had a single firearm give me a motive for anything it has done. That’s because all of them are inanimate objects. Any evil attributed to a firearm is a figment of a human’s mental derangement.

Bains v. American Tactical, Inc

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