# US v. Miller, 1968 GCA, and "assault weapons" bans. **URL:** \ **Category:** Great Debates\ **Created:** [June 10, 2002, 9:59am UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223 "2002-06-10T09:59:48Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [June 10, 2002, 9:59am UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/1 "2002-06-10T09:59:48Z")
From the US v. Miller decision… > [@](#): > > \*\* > > In the absence of any evidence tending to show that possession or use of > a “shotgun having a barrel of less that 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 is use could contribute to the common defense. \*\* The last ruling of the Supreme Court on the second amendment held that Miller’s shotgun was not protected under the second amendment because it hadn’t been proven that it was a viable military weapon. (That he had no representation at the appeal to make the case that it was is another argument). Given that, the Supreme Court is saying that militarily useful weapons are the most protected weapons under the second amendment, which makes sense, given the historical context. The militia is required to supply their own weapons, of military usefulness. The [Gun Control Act of 1968](http://www.atf.treas.gov/pub/fire-explo_pub/gca.htm) put forth authority for the secretary of the treasury to ban firearms from manufacture or importation that are not “readily adaptable to sporting purposes”. This idea of firearms requiring a sporting purpose to be protected under the second amendment is in direct contradiction to the last Supreme Court decision on the Second Amendment. There is no historical or legal context which supports the idea that the Second Amendment has anything to do at all with “sporting” arms. This new standard is, in my opinion, blatantly unConstitutional, and flies in the face of US v. Miller. The justification of “assault weapon” bans, particularly of '89 and '94, has been that they did not suit a sporting purpose, but were military-style weapons. Under US v. Miller, and historical precedent, the obvious intent of the Second Amendment is to provide protection for militarily useful arms. And although sporting arms are assumably protected under the Second Amendment too (there’s no reason they wouldn’t be), militarily useful firearms are the most protected firearms. The Founding Fathers said so. Historical precedent says so. US v. Miller says so. The GCA of 1968 is blatantly unConstitutional. ---
**Author:** ![mswas](https://avatars.discourse-cdn.com/v4/letter/m/e99b99/32.png) [@mswas](https://boards.straightdope.com/u/mswas)\ **Post date:** [June 11, 2002, 12:12am UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/2 "2002-06-11T00:12:24Z")
My question is why is the ban on sporting weapons for protection as it says in US v Miller constitutional? Erek ---
**Author:** ![Spavined\_Gelding](https://avatars.discourse-cdn.com/v4/letter/s/958977/32.png) [@Spavined\_Gelding](https://boards.straightdope.com/u/Spavined_Gelding)\ **Post date:** [June 11, 2002, 1:47am UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/3 "2002-06-11T01:47:04Z")
Well, it looks like Mr. Miller and his sawed off shotgun are up the creek. He has a weapon not suitable for military or sporting use. As far as the 1998 Act is concerned, let me suggest that you make your self into a test case. Go get a weapon prohibited by the statute, a set of camies, and face paint, walk up to your local gandameri and announce that you are there to be arrested so as to contest the statute’s validity under the Second Amendment. Let us know how it goes. ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [June 11, 2002, 2:01am UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/4 "2002-06-11T02:01:38Z")
Thank you for that reply with absolutely no substance. Anyone want to take a real stab at it? ---
**Author:** ![zwaldd](https://avatars.discourse-cdn.com/v4/letter/z/a9adbd/32.png) [@zwaldd](https://boards.straightdope.com/u/zwaldd)\ **Post date:** [June 11, 2002, 2:43am UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/5 "2002-06-11T02:43:38Z")
> [@](#): > > \*Originally posted by SenorBeef \* > \*\* The GCA of 1968 is blatantly unConstitutional. \*\* Yet there it has stood since 1968, despite the protection from tyranny supposedly provided by the second amendment. Which supports my theory that many people either don’t believe a well regulated militia is necessary to the security of a free state, or don’t consider freedom to be a big priority. ---
**Author:** ![pkbites](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pkbites/32/204_2.png) [@pkbites](https://boards.straightdope.com/u/pkbites)\ **Post date:** [June 11, 2002, 4:01am UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/6 "2002-06-11T04:01:50Z")
> [@](#): > > \*Originally posted by SenorBeef \* > **Thank you for that reply with absolutely no substance.** Not only was his reply useless, he had the wrong year. ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [June 11, 2002, 4:53am UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/7 "2002-06-11T04:53:10Z")
> [@](#): > > \*Originally posted by zwaldd \* > \*\*Yet there it has stood since 1968, despite the protection from tyranny supposedly provided by the second amendment. Which supports my theory that many people either don’t believe a well regulated militia is necessary to the security of a free state, or don’t consider freedom to be a big priority. \*\* Nice. I agree with you on the latter part. People don’t value their freedom highly enough. But I don’t think people are well educated enough to understand the issue at hand. They don’t realize the significance of the “sporting clause” requirement. It’s hard to rebel against tyranny when you don’t see it coming. Hopefully, education on the subject will change that… but there is the problem that people (particularly in this society, modern day…) doesn’t value their freedom as much as I’d like. ---
**Author:** ![tracer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tracer/32/20578_2.png) [@tracer](https://boards.straightdope.com/u/tracer)\ **Post date:** [June 11, 2002, 6:32pm UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/8 "2002-06-11T18:32:06Z")
Were there **any** Constitutional challenges made to the Gun Control Act of 1968 in Federal courts? You don’t have to break the law in order to challenge its Constitutionality in a Federal court; you can sue the Federal government to have the law revoked. (This happened with the Communications Decency Act a few years ago.) Has anybody tried this with the 1968 Act? What was the outcome? ---
**Author:** ![Maeglin](https://avatars.discourse-cdn.com/v4/letter/m/8baadc/32.png) [@Maeglin](https://boards.straightdope.com/u/Maeglin)\ **Post date:** [June 11, 2002, 6:50pm UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/9 "2002-06-11T18:50:31Z")
You’re sixteen years too late, **Senor**. The Act of 1968 was repealed in 1986. Next question. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [June 11, 2002, 7:07pm UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/10 "2002-06-11T19:07:08Z")
Ask a legal question, get [a legal answer](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=10th&navby=case&no=006129) ([cert. denied](http://www.supremecourtus.gov/docket/01-8272.htm)). ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [June 11, 2002, 10:50pm UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/11 "2002-06-11T22:50:07Z")
> [@](#): > > \*Originally posted by Maeglin \* > \*\*You’re sixteen years too late, **Senor**. The Act of 1968 was repealed in 1986. > > Next question. \*\* Er, no. I assume you’re referring to the Firearms Owner Protection Act of 1986, in which a few of the most ridiculous aspects of the 1968 GCA were repealed. The bulk of it, including the ‘sporting clause’, is still in effect. ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [June 11, 2002, 11:01pm UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/12 "2002-06-11T23:01:00Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Ask a legal question, get [a legal answer](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=10th&navby=case&no=006129) ([cert. denied](http://www.supremecourtus.gov/docket/01-8272.htm)). \*\* Interesting. I didn’t know the judicial system was so widespread in it’s corruption. In any case, this decision seems (and I’m not a lawyer) to contradict US v. Miller, which stated that the militia was made up of all men capable of acting in the common defense. Given that US v. Miller occured in a higher court, as far as I know, the contradictory appeals court opinion is of lower standing. ---
**Author:** ![Qwertyasdfg](https://avatars.discourse-cdn.com/v4/letter/q/ecc23a/32.png) [@Qwertyasdfg](https://boards.straightdope.com/u/Qwertyasdfg)\ **Post date:** [June 12, 2002, 2:16am UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/13 "2002-06-12T02:16:05Z")
Believe it or not the Supreme Court’s previous decisions and, historical precedent, and the “original intent” (as interpreted by **SenorBeef** ) do not an unconstitutionality make. It could see the possibility that this law could be struck down as violating the Second Amendment (although I feel the law should stay in place.) But something can only be called “unconstitutional” if it violates the constitution itself, not any of the surrounding circumstances. If what you’re saying was the case, we’d have to overturn the Civil Rights Acts (and possibly Brown v. Topeka) as well, since original intent, Supreme Court decisions (Plessy v. Ferguson) and historical precedent were all against integration. ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [June 12, 2002, 2:18am UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/14 "2002-06-12T02:18:57Z")
If we can arbitrarily re-interpret what the Constitution means to suit our purposes, then it’s hard for anything to be unConstitutional. ---
**Author:** ![Maeglin](https://avatars.discourse-cdn.com/v4/letter/m/8baadc/32.png) [@Maeglin](https://boards.straightdope.com/u/Maeglin)\ **Post date:** [June 12, 2002, 3:28am UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/15 "2002-06-12T03:28:06Z")
> [@](#): > > If we can arbitrarily re-interpret what the Constitution means to suit our purposes, then it’s hard for anything to be unConstitutional. You do see the irony in this statement, correct? ---
**Author:** ![Maeglin](https://avatars.discourse-cdn.com/v4/letter/m/8baadc/32.png) [@Maeglin](https://boards.straightdope.com/u/Maeglin)\ **Post date:** [June 12, 2002, 3:32am UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/16 "2002-06-12T03:32:18Z")
> [@](#): > > I assume you’re referring to the Firearms Owner Protection Act of 1986, in which a few of the most ridiculous aspects of the 1968 GCA were repealed. The bulk of it, including the ‘sporting clause’, is still in effect. And this, by the way, is a complete crock. Your hangup is clearly the sporting clause. But the McClure-Volkmer Act changed federal laws in a number of far-reaching and crucial ways, hence the NRA claims it as a great victory. > [@](#): > > The FOPA, also known as the McClure-Volkmer Act, significantly amended the GCA, effectively liberalizing many of the restrictions on sellers of firearms. Among other things, the FOPA enacted provisions legalizing sales by licensed dealers away from the location shown on the dealer license if at a “gun show” within the same state; limited the number of inspections of dealers’ premises which could be conducted by the Bureau of Alcohol, Tobacco and Firearms (“ATF”) without a search warrant; prevented the federal government from maintaining a central database of firearms dealer records; and loosened the requirement for what constitutes “engaging in the business” of firearms sales for purposes of a federal license. You might try reading [www.firearmslawcenter.org](http://www.firearmslawcenter.org). You might learn something. ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [June 12, 2002, 3:46am UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/17 "2002-06-12T03:46:32Z")
> [@](#): > > \*Originally posted by Maeglin \* > \*\* > > And this, by the way, is a complete crock. Your hangup is clearly the sporting clause. But the McClure-Volkmer Act changed federal laws in a number of far-reaching and crucial ways, hence the NRA claims it as a great victory. \*\* Ok. You said they repealed the GCA. They did not. Not even the bulk of it. The ‘sporting clause’ element alone has been entirely low profile, and people don’t seem to care that much. But the introduction of the ‘sporting clause’ is the moment our government officially said 'Forget it. The Second Amendment is meaingless, we’re willing to infringe upon it." Everything else is just details. > [@](#): > > \*\* > You might try reading [www.firearmslawcenter.org](http://www.firearmslawcenter.org). You might learn something. \*\* You’re saying it repealed the GCA. It didn’t. It repealed some of the more ridiculous restrictions. _I’m_ the one that needs to learn something? ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [June 12, 2002, 4:44am UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/18 "2002-06-12T04:44:51Z")
> [@](#): > > \*Originally posted by Maeglin \* > \*\* > > You do see the irony in this statement, correct? \*\* I assume you’re implying that you think I’m arbitrarily interpreting the Constitution the way I want to see it. I, of course, may be wrong in my interpretation, but it doesn’t come from personal advantage, but objective analysis of the writings of those who wrote it, etc. Reinterpreting the Constitution to get rid of rights, on the consent of the majority, is called “the tyranny of the majority”, and was something that was specifically warned against. ---
**Author:** ![Alessan](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alessan/32/465_2.png) [@Alessan](https://boards.straightdope.com/u/Alessan)\ **Post date:** [June 12, 2002, 4:52am UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/19 "2002-06-12T04:52:33Z")
> [@](#): > > There never did, there never will, and there never can, exist a Congress, or any description of men, or any generation of men, in any country, possessed of the right or the power of binding and controlling posterity to the “end of time,” or of commanding for ever how the world shall be governed, or who shall govern it; and therefore all such clauses, acts or declarations by which the makers of them attempt to do what they have neither the right nor the power to do, nor the power to execute, are in themselves null and void. Every age and generation must be as free to act for itself in all cases as the age and generations which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies. Man has no property in man; neither has any generation a property in the generations which are to follow. The Congress or the people of 1789, or of any other period, had no more right to dispose of the people of the present day, or to bind or to control them in any shape whatever, than the parliament or the people of the present day have to dispose of, bind or control those who are to live a hundred or a thousand years hence. Every generation is, and must be, competent to all the purposes which its occasions require. It is the living, and not the dead, that are to be accommodated. When man ceases to be, his power and his wants cease with him; and having no longer any participation in the concerns of this world, he has no longer any authority in directing who shall be its governors, or how its government shall be organised, or how administered. ---
**Author:** ![SenorBeef](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/senorbeef/32/2220_2.png) [@SenorBeef](https://boards.straightdope.com/u/SenorBeef)\ **Post date:** [June 12, 2002, 7:59am UTC](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223/20 "2002-06-12T07:59:51Z")
Interesting quote. Where’s it from? [Next page](https://boards.straightdope.com/t/us-v-miller-1968-gca-and-assault-weapons-bans/113223.md?page=2)