Right? wrong? My opinion on miller.


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beerslurpy
January 18, 2006, 03:48 AM
My rebuttal to ACLU position on 2nd amendment. I'll never give a penny to those worms.

Miller didnt create the "relation to a well regulated militia" test. That was a misinterpretation created during subsequent lower court applications of miller. US v Rambo, US v Hale etc where the lower courts basically decided that the act of possession had to have a locus to the maintenance of a state military apparatus.

Miller ACTUALLY says that the test is one of whether the weapon itself may be used for a military purpose. After spelling out that the militia is "the whole people" traditionally armed "with weapons supplied by themselves" they state:
In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less that 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.
The right to possess a particular implement hinges upon whether that implement is useful in a military sense. This is essentially a straight copy of the reasoning from Aymette, in which the banning of concealed bowied knives was deemed to not infringe upon the right to keep and bear arms.

Note that the first inferior court to apply Miller explictly rejects this test as meaningless in light of evidence that nearly any weapon can be put to some military use. 1942, US V Cases 1st circuit
At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon.
And there goes the 2nd amendment.

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zahc
January 18, 2006, 04:26 AM
In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less that 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.


So...We have no rights besides the ones enumerated in the bill of rights? Did I miss the memo?

publius
January 18, 2006, 08:31 AM
The right to possess a particular implement hinges upon whether that implement is useful in a military sense.

Miller could be narrowed somewhat from the broad interpretation which the later court decision in Cases rejected.

The Court said in Miller (http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0307_0174_ZO.html):

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. "A body of citizens enrolled for military discipline." 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.

A hammer could be useful for killing a person, but is it "in common use" at this time for that purpose? Not at all, let alone by any military.

The Court also said:

Clauses intended to insure the possession of arms and ammunition by all who were subject to military service appear in all the important enactments concerning military affairs. Fines were the penalty for delinquency, whether of towns or individuals. According to the usage of the times, the infantry of Massachusetts consisted of pikemen and musketeers. The law, as enacted in 1649 and thereafter, provided that each of the former should be armed with a pike, corselet, head-piece, sword, and knapsack. The musketeer should carry a "good fixed musket," not under bastard musket bore, not less than three feet, nine inches, nor more than four feet three inches in length, a priming wire, scourer, and mould, a sword, rest, bandoleers, one pound of powder, twenty bullets, and two fathoms of match. The law also required that two-thirds of each company should be musketeers.


and:

By an Act passed April 4, 1786, the New York Legislature directed:

That every able-bodied Male Person, being [p181] a Citizen of this State, or of any of the United States, and residing in this State, (except such Persons as are hereinafter excepted) and who are of the Age of Sixteen, and under the Age of Forty-five Years, shall, by the Captain or commanding Officer of the Beat in which such Citizens shall reside, within four Months after the passing of this Act, be enrolled in the Company of such Beat. . . . That every Citizen so enrolled and notified shall, within three Months thereafter, provide himself, at his own Expense, with a good Musket or Firelock, a sufficient Bayonet and Belt, a Pouch with a Box therein to contain not less than Twenty-four Cartridges suited to the Bore of his Musket or Firelock, each Cartridge containing a proper Quantity of Powder and Ball, two spare Flints, a Blanket and Knapsack;

They were not ordered to provide themselves with some kind of weapon which might be useful. They were ordered to provide themselves with the specific weapons in common military use at the time. If it might be useful, I'd say it should be protected under the Second, but an argument could be made that the Second intended to protect only those weapons in common military use.

That kind of thinking could lead to privately owned warships (http://www.geocities.com/tokyo/garden/5213/amermarq.htm)!!! :what: :eek: ;)

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