Response to article:
New Assault Weapons Ban Urged
by Ernie Kubr
The founders of this nation believed that the sole purpose of government was to protect the rights of the people and leave them free to exercise "life, liberty, and the pursuit of happiness." Does the author believe in the same principles? The editorial tells the public, "No."
Are the rights of Americans subject to the abject failure of another corrupt nation to enforce its own laws? "Assault weapons" banned in Mexico are also heavily restricted here. An "assault weapon" is defined by the military as "a select fire weapon capable of fully automatic fire." They would be the authority on classifying weapons. Those are Class III weapons and have been severely controlled in this country since 1934. Studies have shown that only a small percentage of semi-automatics, mistakenly called "assault weapons," found in Mexico actually originated in this country.
What business is it of an officer that has sworn to "uphold, protect, and defend" the Constitution of the United States and the State he works in to advocate limiting the very rights those documents are supposed to protect? Did he lie when he took that oath? Violation of the oath is treason against the Constitution and therefore against the Nation and the People.
Let's go back to January of 1994, in front of the Nebraska Legislature's Judiciary Committee:
This testimony cites 5 U.S. Supreme Court cases and U.S. Code to prove that *all* bans are illegal. I believe it can be used nationwide to defeat any further ban attempts and educate officers.
During the original presentation of this testimony on Jan. 27, 1994 in Lincoln, NE, the sponsor of the proposed ban bill, State Sen. Brad Ashford, stormed out of the Judiciary Committee hearing. He apparently couldn't take the truth.
While speaking to former Omaha police chief James Skinner prior to the hearing, I mentioned the individual Right protected by the 2nd Amendment. He stated it was not so. I showed him the text of the Verdugo-Urquidez case I would cite in my testimony. He requested a copy of it.
After hearing my testimony and having a copy of a case cited in it, former Chief Skinner never spoke in favor of any firearms restrictions the rest of the time he was Omaha’s chief.
I wanted to make sure you are aware of some U.S. Supreme Court cases which are applicable to this issue.
1939, U.S. v. Miller 307 U.S. 174 Keep in mind that there was NO presentation by the appealees.
Pg. 178, paragraph 1
"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."
Had the appealees made a presentation to the court, they would have been able to inform them that the U.S. Government had purchased hundreds of thousands of shotguns for use by the military, thereby proving the shotgun did have "a reasonable relationship to the preservation or efficiency of a well regulated militia."
Pg. 179, paragraph 1.
"The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of the Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ... And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."
The men were to report WITH their OWN arms of the type IN COMMON USE AT THE TIME. For the past 60 years that would be semi-automatic or fully automatic firearms.
Is this just an old outdated idea? NO
From the United States Code 1988 Edition of the General and Permanent Laws of the United States in force on Jan. 3, 1989 we have in Title 10 Chapter 13: The Militia. Section 311 Militia: Composition and Classes:
"(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of he United States and of female citizens of the United States who are commissioned officers of the National Guard.
(b)The classes of the militia are-
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."
This is current law.
I am in the Unorganized Militia even though I have not served in the military as are a large portion of the people in this room even though they may not know it. If called upon, as men were during World War II to patrol and protect the coastline because most regular troops, including the National Guard, were overseas, we would be expected to appear bearing our own arms of the type in common use at the time which according to U.S. v. Miller would have "some reasonable relationship to the preservation or efficiency of a well regulated militia" or "is any part of the ordinary military equipment or that its use could contribute to the common defense." ALL FIREARMS CAN BE USED TO CONTRIBUTE TO THE COMMON DEFENSE. During World War II the U.S. Government purchased over a million single-shot .45ACP caliber handguns which were air-dropped to the French Resistance for use against German troops. The purpose was to shoot the soldier, take his firearm, and go on with the resistance. These handguns were made from sheet metal stampings, had a 2 inch barrel with no rifling, and were disposable. They cost $1.73 each. These disposable handguns were the ultimate definition of "Saturday Night Special" yet even they contributed to the common defense!
Is this a collective or state right? NO.
We can bypass all the arguments about original intent and go directly to the U.S. Supreme Court again.
1990 U.S. v. Verdugo-Urquidez, slip decision No. 88-1353.
Pg. 4, last 10 lines, and pg. 5, first 9 lines:
"..."the people" seems to have been a term of art employed in select parts of the Constitution. The Preamble declares that the Constitution is ordained and established by "the people of the United States." The Second Amendment protects "the right of the people to keep and bear Arms," and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to "the people." See also U.S. Const., Amdt. 1, ("Congress shall make no law...abridging...the right of the people peaceably to assemble"); Art. I, Sec. 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States") (emphasis added). While this textual exegesis is by no means conclusive, it suggests that "the people" protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community."
Even though this was a Fourth Amendment case, the U.S. Supreme Court ruled on the Second Amendment as an individual right by citing it alongside other individual rights which contain "the people." "The people" in the Second Amendment means the same as in the First, Fourth, Ninth, and Tenth Amendments.
You now may be wondering: Can we pass this as a restriction on those who are not in the militia? The answer is No. Quoting from Plyler v. Doe, 457 U.S. 202, 1982 at pg. 212 which quotes from Yick Wo v. Hopkins, 118 U.S. 356, 1886: The provisions of the Fourteenth Amendment "are universal in their application, to all persons within the territorial jurisdiction..." This quote from the Supreme Court now appears in three different decisions. The third decision which contains this quote is the above cited Verdugo-Urquidez case at the bottom of page 10. They obviously meant what they said or they would not have repeated it in the first place. The U.S. Supreme Court has on occasion allowed exceptions to this, but I believe you will find it was only in cases which did not pertain to constitutionally protected rights (taxes, valuation of property, commerce regulations, etc.)
The laws must apply to ALL persons. The exemption for law enforcement officers violates the 14th amendment. U.S. Gov't. troops would be exempt but state and local people, including the National guard and law enforcement, cannot be.
As for the registration portion of the bill: in Haynes v. U.S., 390 U.S. 85, 1968, the Supreme Court ruled that a proper claim of the right against self-incrimination provides a full defense to prosecutions for either failure to register, or possession of an unregistered firearm. When was the last time you saw a person convicted for felon in possession of a firearm who was also convicted of possession of an unregistered gun? It doesn't happen! Why? Did the felon register his gun? No. The prosecutors don't even bother to file that charge because they know it would be a waste of time because of the Haynes v. U.S. decision. So what is the purpose of the registration? Is it to do as New York did? Register to create a list, then ban possession and go door to door by the list?
In light of the facts which I have presented here today, I formally request this committee or any member of this legislature to request an opinion of the Attorney General of the State of Nebraska on the constitutionality of this bill.
Editor's note: The original article referenced by the author was not an editorial written by any member of the Omaha Police Officer's Association. The article was not published with an opinion one way or another on the matter, but only to serve as information on a "hot button" topic.
This testimony had such an impact on the committee chairman that he requested a copy of it so he could research the cases mentioned.
The proposed ban never got out of committee. It was "indefinitely postponed" which is their nice way of saying "killed."
[Permission is required to re-print or use as an editorial.]
About the author:
Ernie Kubr is 47 years in age in 2010 and is a mover and shaker in today’s society. He is making a difference for this generation and future emerging generations.
In 1994, he testified against a state semi-auto ban bill and was told by legislators that his testimony was responsible for killing it. They haven't tried anything like it since, even after a mass shooting at a local mall in Omaha a few years ago. That summer, he went to the NRA convention in Minneapolis (He dropped the NRA in '95) and gave copies of his testimony to several board members. Two of them brought NRA legal counsel Richard Gardiner to Ernie on the convention floor to talk to him about his testimony. Gardiner said it was very good and wanted to know where Ernie got the information. Ernie responded, "From various issues of your publications. “ Ernie asked Gardiner “Why haven't you put this chain together and used it yourself?" Gardiner was so embarrassed and speechless.
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anno Domini Two thousand ten
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