"The General Assembly of Virginia, October, 1785 (12 Hening's Statutes c. 1, p. 9 et seq.), declared: 'The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty.'
It further provided for organization and control of the Militia and directed that 'All free male persons between the ages of eighteen and fifty years,' with certain exceptions, 'shall be inrolled or formed into companies.' 'There shall be a private muster of every company once in two months.'
Also that 'Every officer and soldier shall appear at his respective muster-field on the day appointed, by eleven o'clock in the forenoon, armed, equipped, and accoutred, as follows: ... every non-commissioned officer and private with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel, with a good bayonet and iron ramrod well fitted thereto, a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket, a good knapsack and canteen, and moreover, each non-commissioned officer and private shall have at every muster one pound of good [307 U.S. 174, 182] powder, and four pounds of lead, including twenty blind cartridges; and each serjeant shall have a pair of moulds fit to cast balls for their respective companies, to be purchased by the commanding officer out of the monies arising on delinquencies. Provided, That the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof. And every of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by his commanding officer. If any private shall make it appear to the satisfaction of the court hereafter to be appointed for trying delinquencies under this act that he is so poor that he cannot purchase the arms herein required, such court shall cause them to be purchased out of the money arising from delinquents.'"
Under accepted rules of statutory construction every part of a statute is presumed to have some effect. A word or clause contained in a statute may only be rejected as surplusage if it "appears to have been inserted through inadvertence or mistake, and which is incapable of any sensible meaning," or is otherwise repugnant to the rest of the statute. " Furthermore, "We must assume that the legislature did not intend to do a vain and useless thing."
The Supreme court either through error or on purpose did not cite section VI of the act which states:
"VI. And be if further enacted. That two years after the commencement of this act, shall be allowed for providing the arms and accoutrements herein directed; but in the mean time, the militia shall appear at musters with, and keep by them, the best arms and accoutrements they can get. "
Therefore the best arms and accoutrements they can get includes any and all types of firearms as long as they are the best they can get. This is consistent with earlier Militia acts such as in 1757.
“And if any soldier shall appear at any muster not armed, and without ammunition according to the directions of this act, it shall and may be lawful for the captain of the company to which such soldier shall belong to examine such soldier, upon oath, whether he hath any, and what arms and ammunition he really hath of his own property, and if on such examination it shall appear that such soldier hath any arms or ammunition of his own property, and hath not brought the same, or so much thereof as this act requires, to such muster, he shall be liable to the penalties inflicted by this act altho' he hath not been inlisted twelve months;” 7 Hening’s Statutes at Large, 1757, pp. 93-116. (1809).
This is a major blunder by the supreme court and in fact the ruling may be said to be the Blunderbuss ruling.
A Blunderbuss is a Sawed-off Shotgun
Blunderbusses at Williamsburg Armory
It is important to understand correct firearm terminology and history to understand the error of the court. Since the founding of Jamestown in 1607, there were three major classes of long-gun firearms known by many names but can be listed generally as Musket, Fowler, and Rifle. A musket is a smoothbore firearm primarily intended to be fired from the shoulder. A military musket generally discharges a single projectile called a musket ball. A Fowler is also a smoothbore firearm designed to be fired from the shoulder. A fowler however usually discharges multiple projectiles called shot, and is the reason that modern day fowlers are called shotguns. Both the musket and the fowler can shoot both single and multiple projectiles. A rifle is firearm with a rifled bore designed to be fired from the shoulder. A rifle is intended to shoot a single projectile called a ball. Within these three major classes are subclasses such as a carbine or short musket and a Blunderbuss which typically is a short fowling piece with a large flared muzzle. The flared muzzle's main purpose is to aid in loading by acting as a funnel. Blunderbusses were also called coach guns. A modern day "Sawed-off" shotgun is nothing more than a short barreled shotgun and in fact is legally defined by the length of the barrel not whether it was actually sawed off to be made short barreled.
" 18 USC § 922(k), (o) & (v); 26 USC § 5861. Punishable by up to 5 or 10 years imprisonment, depending upon specific violation.
C. Sawed-off shotgun with a barrel length of less than 18" or overall length less than 26";"
A detailed account of shotguns in the military and their origins to the blunderbuss has been detailed by the Army Judge Advocate General.
"The Military history of the shotgun dates to the sixteenth century, when the blunderbuss was invented... a close range anti-personnel weapon from the outset." Parks, W. Hays, Joint Service Combat Shotgun Program, The Army Lawyer, P.17 (1997).
Colonial blunderbusses were heavily used by the naval forces and privateers of the colony as they made excellent boarding guns. The following advertisements for sale of Blunderbusses in the Colonial Virginia Gazette is historical evidence of their freely being bought and sold and legal to own:
St. George Tucker: Several Small Arms, Pistols, Blunder Busses, Powder etc. September 1779
"By ca. 1673 the blunderbuss was recognized in English military circles as "very fit for doing great execution in a crowd, to make good narrow passage, door of a house, stair-case; or in boarding a ship" ...Admirably suited to its varied tasks, the blunderbuss in its time can be compared to the legendary sawed-off shotgun..." - Firearms in Colonial America 1492-1792, M.L. Brown, Washington City, p143 (1980) .
The military use of the blunderbuss was advised by the great Virginia General George Washington. In a letter To THE BOARD OF WAR he wrote on April 4, 1779:
"It appears to me that Light Blunderbusses on account of the quantity of shot they will carry, will be preferable to Carbines, for Dragoons, as the Carbines only carry a single ball especially in case of close action."
In a letter to Major General Robert Howe, General Washington wrote on June II, 1781.:
"Dear Sir: I am this moment favored with yours of the same date, together with the Report of the Board of Officers, appointed to inspect Provisions.
If there are any Blunderbusses and Swivels, I have no objection that Captain Pray should be furnished with them, 'tho I think, that vigilance and attention will be his surest protection against the Enemy."
It is clear from the Militia Act of 1785 that a blunderbuss would have been acceptable as a militia weapon or "the best arms and accoutrements they can get." A blunderbuss is in fact a militia/military weapon employed by the colony of Virginia and the continental forces under General Washington. A blunderbuss is the colonial equivalent of a modern day sawed-off shotgun. The United States Supreme Court in United States v. Miller , 307, U.S., 174 (1939) in declaring:
"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. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158."
made a major blunder.
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