[Mark Tyson]

Hi everyone.

I am taking a college course in constitutional law. The second amendment will be addressed "if time permits" at the end of the semester.

Required reading will be the Miller case, Emerson case, and "the Embarassing Second amendment" by Stanford Levinson(99 Yale Law Journal) among others.

I'm usually very quiet in class, but I feel the need to say something here. Anybody familar with these texts want to give me some pointers?

Thanks!

M.T.

[Bob Locke]

In Miller, the defendant(s) never bothered to show, so their side of the case wasn't even presented.

Also, the salient point of the case is often overlooked by the anti's when citing it: The USSC held that the short-barreled shotgun was not protected by the 2nd Amendment because it had no value militarily (they were incorrect, of course, but the counter point was never made due to the no-show). Hence, if a weapon does have value militarily, it IS protected.

You may also want to do a little digging and find the recent (last three years) opinions issued by a couple of lefties (Laurence Tribe chief among them) that state pretty unequivocally that they are of the opinion that the 2nd Amendment, like most of the rest of the BoR, speaks to an individual right.

Disclaimer: I am not a lawyer, nor have I ever played one on TV. :D

Good luck!

[P12]

It's been a while since I read over the Miller info. IIRC the key point was something called "judicial notice". I believe the statement was " It is not within judicial notice" and went on about the use of a short-barreled shotgun during ones duties in the military.

From what I understand a court ruling has to be based on evidence that is presented in that court for that case. Each law is presented "a new" each time it comes before a court.

Even though the judges knew that a short-barreled shotgun was used in the military, the judges ruled that it was not because no evidence was given to that court for that case supporting Miller's stance. IIRC if they had ruled against the state, they would not have been an "impartial" judges. They would have been doing the job of the defense lawyer. That's the way I see it anyway.

Why? As stated by Bob Locke, they didn't show up. Miller or his lawyer. :cuss:

[roscoe]

interesting historical info on the 2nd amendment:

http://www.theamericanenterprise.org/taeso99b.htm

[Bob Locke]

You might find some help here:

Second Amendment Foundation - Legal Issues (http://www.saf.org/legal-issues.html)

[Don Gwinn]

"Judicial Notice" refers to facts that don't have to be presented because they're obvious common knowledge and are assumed to be known. The reason the court used the term in Miller was to note the fact that they didn't know whether shotguns were suited for military use and that information was not presented to them but was also not disproven by the U.S. attorney.
It's a fancy way of saying they didn't know and no one had shown them proof either way. It does not mean that they knew the facts from their own experience; that would actually have been within judicial notice.

[Don Gwinn]

The depiction of the Miller case in Unintended Consequences goes from Miller's arrest to the appearance before SCOTUS and explains the facts pretty well. Obviously it's heavily biased to our side of the debate, but I didn't see anything that was blatantly incorrect to my non-expert eye. You will of course have to disregard some of the assumptions the author makes about the thoughts of the participants.

I have a copy of Unintended Consequences in .pdf format if you'd like to read it.

UC brought up a gaping logical inconsistency in Miller that I had never considered, as well:

The same law (GCA '34) that established the "tax" on short-barreled shotguns also established the outrageous $200 tax and registration on machine guns (all full autos.) Miller represented the finding that the statute could stand because the 2nd Amendment only protected the keeping and bearing of arms that would be "suitable for military use in a militia." The Justices applied that test to the tax/registration/ban on short-barreled shotguns and found that it passed because it was not "within judicial notice" that SBS's are suitable for military use.

However, is it also "not within judicial notice" that machine guns are suitable for military use? Did the Justices have no personal knowledge of the vital role played by M2 machine guns, Thompson submachine guns, and Browning Automatic Rifles in the U.S. military? WWI had only been over for 15 years. Is there a judge alive today who couldn't tell you whether our military used automatic rifles in the Gulf War? Patriots? Smart bombs?

I honestly don't know how damning this is, because I don't know if SCOTUS is constrained to ruling only on the portion of the statute that affects the case at hand. Perhaps their hands were tied because machine guns weren't directly involved in Miller. I doubt it, though, because no dissent mentioned it and I can't find any statements to that effect in the 60-some years since the decision.

[UnknownSailor]

Gun grabbers havn't let some little old thing like facts stand in the way of their objective before, so I don't see how they would change their ways now.

[Waitone]

Bone up on Stephen P. Halbrook's "That Every Man Be Armed." Those who inhabit various online fora tend to focus on a small handfull of court rulings. What Halbrook does in his book is gives a long term historical perspective on the RKBA and not just the US. The RKBA grew up for some very good historical reasons and it is those reasons that provide a strong counterpoint to so much of the popular debate.

www.independent.org is a good place to start.

[Mark Tyson]

Thanks, guys! Very helpful info. And yes, I would be interested in that copy of Unintended Consequences in PDF format.

marktyson@mail.com