Sailorcurt 
Member since Jul 10, 2008


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Re: “Lock and Load

What the Miller decision held was that the the firearm in question had no military use and, therefore, was not protected by the Second Amendment. Actually, in retrospect, THAT'S not even an accurate summation of the decision. The court held that no evidence had been presented to them to demonstrate that a short barreled shotgun had any military utility. 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.[emphasis added] The court didn't say absolutely that the shotgun had no military utility, just that no evidence had been provided to them to demonstrate such. That's not incredibly surprising considering that the Miller side didn't even bother to argue their side of the case. Miller's lawyer didn't even bother to file a brief, let alone present an oral argument. It's pretty easy to win when you have no opposition. I find it interesting that, in passing the laws that place restrictions on things like short barreled shotguns, the military is exempted. If such an arm has no military utility, why did they bother to exempt the military from the restrictions? Hmmmm. Either way, the point remains that the court did NOT find for a "collective right" (that makes me cringe to write, even when putting it in quotes. The concept of a "collective right" makes about as much sense as "dry water"...the terms are mutually exclusive).

Posted by Sailorcurt on 07/11/2008 at 7:29 AM

Re: “Lock and Load

The Supreme Court affirmed this in 1939, simultaneously emphasizing that the Amendment confirmed the collective rights of a militia, not individual citizens, and that the arms did not include sawn-off shotguns or assault weapons. Um...that's not entirely accurate. The Miller decision did not address the collective vs individual right aspect. Had the court decided that only members of an organized militia were endowed with the right to keep and bear arms, the only question then would have been "is Miller a member of a militia?" That question was never even asked. It was understood at the time (as it is now by people who actually understand the concept of a "militia") that EVERY able bodied male was a member of the militia by default. What the Miller decision held was that the the firearm in question had no military use and, therefore, was not protected by the Second Amendment.
In other words, the court did NOT find for a "collective right" (an oxymoron if I've ever heard one) reserved only to members of an organized militia. It found that the WEAPON must have some military use in order be considered among the "arms" protected under the Second Amendment. "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." ... "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of 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." --US vs Miller 307 U.S. 174 (1939)

Posted by Sailorcurt on 07/10/2008 at 7:37 PM

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