Lies the government told you by Andrew Napolitano (big screen ebook reader .TXT) 📕

raiser, not a prohibitory measure, to condemn it as a regulation of matters beyond the power of Congress.6

Stranger still, just a few years earlier, in the Child Labor Tax Cases, the Court held that imposing a 10 percent tax on the net profits of employers who employed child laborers was “an act of Congress which clearly, on its face, is designed to penalize and thereby to discourage or suppress, conduct . . . cannot be sustained under the federal taxing power by calling the penalty a tax.”7 Was that not the exact intention of the Firearms Act, to regulate and prohibit certain firearms? If charging 10 percent of earnings is considered penalizing, then what else but a penalty is a tax that is more than twenty-eight times the value of the taxed item? The Court apparently did not see this incongruence, noting that the Act did not expressly state the intention to prohibit certain firearms.

And so the government learned that as long as it lied convincingly about its intentions, no matter how unbelievable its claims, and couched the lies in constitutional verbiage, the Court would sanction its actions. And thus began the era of lies and deceit by the government in order to diminish slowly but surely that right the Founding Fathers saw as so fundamental, the right to self-defense.

Supreme Mistake

On the afternoon of June 22nd 1938, Frank Layton and Jack Miller were driving through Arkansas when Treasury agents stopped them. The agents, somewhat bored without booze smugglers to hunt, were hoping to make a bootlegging bust, but encountered a problem when they realized that Miller’s truck contained no illicit bootlegging equipment. Fortunately for the agents, all was not in vain, as the two men were in possession of an unregistered sawed-off shotgun, prohibited under the new laws. So, though no violent or criminal acts had been committed by the men, who were carrying Miller’s beat-up shotgun for protection as they traveled through lonely back roads, they were summarily arrested.

Unbeknownst to them—and to the joy of the agents—the shotgun was required to be registered under the new “revenue-raising” National Firearms Act. The two men therefore faced substantial fines and up to five years in jail, all for driving across a state border without an extra two inches of steel. They faced a long prison sentence for carrying a gun that was slightly too short. Of course, even if they had known about the legislation, it is doubtful that Miller and Layton would have registered their weapon, as the price of registration, as we have seen, was astronomical.

The implications of this case and the National Firearms Act on the Second Amendment were not lost on the federal district judge presiding over the criminal case against Miller and Layton in United States v. Miller. Dismissing all charges, the judge noted that charging a $200 tax on a $6.95 firearm was so expensive that it was in effect a direct infringement on the Second Amendment right to keep and bear arms. Miller and Layton were freed and continued with their lives, content in the knowledge that their fundamental rights were protected by the courts.

Unfortunately, the federal government was not willing to accept this condemnation of its convoluted legislation and appealed to the United States Supreme Court. When the case reached the Supreme Court, Miller and Layton were not available, while their counsel, having represented them for free, could not spare the expense of further litigation. The result was that neither briefs nor oral arguments were presented on their behalf. This was in itself a shocking result as it is unheard-of for the Supreme Court to hear and consider only one side of a case. But hear it and consider it the Court did.

Undisputed, uncontested, and undeterred, the government was able to argue that firearms with a barrel shorter than sixteen inches were not used in the military, that the Second Amendment only granted protection to arms that were used by the militia, and that the militia could only be armed with weapons used by the military. The government remembered its earlier lesson well, and knew that as long as it lied and lied well, the Court could be seduced. And that is exactly what occurred. The Supreme Court of the United States did not investigate the truth of the statements and accepted each false claim by the government with no scrutiny.8

Justice McReynolds simply stated that “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.” Of course it was not within judicial notice; how could it have been, when the only people providing information to the Court were lawyers for the federal government? Typically, in order to have a fact be taken into judicial notice, it must be so notoriously well-known that it is almost irrefutable. Yet here, the Court chose to turn the rule on its head, and accept something as fact because no other evidence had been brought to the Court to refute it. The Supreme Court in essence chose to ignore basic rules of evidence and accept an assertion to be fact with no evidentiary presentation and only the contention of the government. And unfortunately, there was no one to object or complain.

With little fanfare, the Supreme Court held that since there was “no evidence tending to show the 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.” Neither providing a historical analysis of the right to bear arms nor acknowledging that a militia historically consisted of a citizenry armed with their own guns rather than those of the military, the Court upheld the constitutionality of the National Firearms Act of 1934. Sadly, the Court’s flawed and convoluted reasoning was the