Quoting from President Biden's speech last night; followed by a comment and a question:
President Biden on April 28, 2021 wrote:
And no amendment to the Constitution is absolute. You cannot yell fire in a crowded theater. From the very beginning there are certain guns, weapons that could not be owned by Americans.
First the comment. The text of the 1st Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Constitutional freedom of speech does not and has never extended to every single thing someone might utter. I believe almost every state has had longstanding laws on their books regarding this. In Texas, we only need to look to the very beginning of Title 9, Chapter 42 of the Penal Code: "A person commits an offense if he intentionally or knowingly uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace." The 1st Amendment has never had a bearing on that, or on yelling "
Fire!" in a crowded theater. The 1st Amendment is expressly about restricting Congress's legislative ability. In no way does it imply that
all speech is permissible and
shall not be infringed.
I've heard this same hyperbolic comparison to the 2nd Amendment numerous times. Not only is it specious, it's plain ignorant. It would be one thing if this was a trademark BidenGaff, but everything was scripted and you know reviewed and rehearsed scores of times. I mean, heck, he waited longer than any president to finally address Congress...even though there were barely 50 people in the audience this time.
Now my question. I'm no historian, but I'm struggling here with, "From the very beginning there are certain guns, weapons that could not be owned by Americans." Can someone tell me, from the Framer's first meetings to the ratification of the 2nd Amendment even to the passage of the 14th Amendment, exactly what guns could not be owned by Americans "from the very beginning"? A wage-earning wheelwright in southern Virginia was highly unlikely to be able to afford his own battery of cannon, for example, but that doesn't mean he was constitutionally denied the right to own them.
In United States v. Miller in 1939 SCOTUS sustained a statute requiring registration under the National Firearms Act of sawed-off shotguns. It wasn't a weapon prohibition, but an enforcement of the NFA requirement to register. Regardless of how you feel about the NFA, even that 1939 the case didn't support Biden's statement.
In 1943's Cases v. United States SCOTUS upheld a similar provision of the NFA, saying, "Apparently, then, under the Second Amendment, the Federal Government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well-regulated militia." This not only doesn't support the President's claim, but kind of shoots down (pun intended) the notion of banning standard capacity magazines or modern sporting rifles, doesn't it?
But
Heller rejected the argument that "only those weapons useful in warfare are protected" by the 2nd Amendment, as the "traditional militia was formed from a pool of men bringing arms 'in common use at the time' for lawful purposes like self-defense." And in Caetano v. Massachusetts, 2016, SCOTUS vacated a ruling by the state court that a ban on stun guns did not violate the 2nd Amendment because such weapons were not "readily adaptable to use in the military."
The Gun Control Act of 1968 (and as amended by the Firearm Owners' Protection Act of 1986) which is now U.S.C. Title 18, Chapter 44, does state an individual prohibition--other than for shotguns or antique firearms--of a gun "which has any barrel with a bore of more than one-half inch in diameter." I believe that's a randomly arbitrary rule, but that's just me. If some company made a carbine in .68 Lapua Magnum with a 1,400-grain bullet and 3,900 ft/s muzzle velocity I certainly would
not be buying it. Continued use of my arm and shoulder is important to me. But you might want one. Of course, Ch. 44 includes "destructive devices," but the President wasn't talking pipe-bomb IEDs, he was talking firearms.
So that's the best guess I've got, That when the President said, "From the very beginning there are certain guns, weapons that could not be owned by Americans," the only thing he might be referencing was the GCA and FOPA of 1986. When the FOPA amendment was issued, BTW, Joe was already 44 years old.
Daily trivia: Then-Senator Joe Biden delivered the Democratic response to Republican President Ronald Reagan's State of the Union addresses in 1983 and 1984. Biden has been in federal politics since being sworn in as the junior senator from Delaware in January 1973. That's a
long time. I was actually quite surprised he got through an 80-minute scripted speech as well as he did. I was thinking that by the hour mark his reading of the teleprompters would start to fail.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.