My little epiphany today related to the Supreme Court case "United States vs. Miller"

[my762buzz]

Since I first read about it, I have always remembered a little bit about the Supreme Court case United States vs. Miller (1939).
http://en.wikipedia.org/wiki/United_States_v._Miller

One detail that stuck out at me was that Quote" on May 15, 1939 the Supreme Court, in a unanimous opinion by Justice McReynolds, reversed and remanded the District Court decision. The Supreme Court declared that no conflict between the NFA and the Second Amendment had been established, writing:

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.
The Court indicated that only military type arms are constitutionally protected."

Wow, the court actually indicated that military arms are constitutionally protected. This was actually said imagine that. My little epiphany is related to the former statement combined with the fact that all able bodied males of at least 17 years of age are automatically part of the militia as defined by

quote:
http://www.law.cornell.edu/uscode/10/usc_sec_10_00000311----000-.html
311. Militia: composition and classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age ........

(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.


In theory, the NFA has not been applicable to restrict militia according to that Supreme Court case in 1939. Am I missing something here?

 

[NeoSpud]

... and yet, military-pattern "assault weapons" are constantly under attack. Interesting, huh?

I totally understand and agree with what you're saying.

 

[MDW GUNS]

I hate to say, but the 2nd does not free you form registration and the government from charging you a fee for it.
Of cause the $200 in 1934 (where a 1911 was less then $10) was so high, that only really rich people could afford it and that was sort of a prohibition.
So that is in my book then illegal!

I think the executive order from 1986 is a total violation of the 2nd.
Not only makes it for the command men impossible to own for example a MP5 or even an M16, it prevents the people to keep up with technical advance.

Today police (the government) has for example HK G36/k/c, P90 and other guns no one had in 1986 because they did not exist. My interpretation of the 2nd is, that the people should have equal guns what the government has, which with time and technical advance in the firearm sector is less the case!

 

[sully0812]

I hate to say, but the 2nd does not free you form registration and the government from charging you a fee for it.

I would disagree.

The Second Amendment clearly states "Shall Not Be Infringed." Infringement is not an absolute ban, it is anything that causes discomfort, or otherwise makes it difficult.

The NFA of 1934 was no different than the Jim Crow laws that were designed to keep blacks from voting, by making the restrictions so difficult that it was simply not worth it, yet still being able to say "Hey, it's still legal for you to do."

 

[MDW GUNS]

What if the registration was free??
Don't get me wrong, I am not for a registration, I am just saying what I think is possible by law.

 

[hoji]

I think the executive order from 1986 is a total violation of the 2nd.

That was Ronald Reagan's FOPA{Firearm Owners "Protection" Act} passed by Congress, not an Executive Order.

But that is what happens when you elect actors.

 

[mnrivrat]

What if the registration was free??

I suppose it matters how you look at infringment . There are more ways to infringe than just fee's.

The OP points out something that I have known for some time and found to be ironic in nature as well. In the 1930's the government lawyers argued that short barrel shotguns had no military value and therefore were not protected by the second amendment. That rather flys in the face of those who now want military style firearms banned because they have no sporting purposes and feel that is somehow in compliance with the 2nd amendment.

Bottom line is that neither argument is valid. The types of arms were not defined in the 2nd amendment and didn't need to be . At that time all firearms were of about equal in type and nature. The intent was to preserve the right of the people to have whatever arms existed - and for the people to be able to act as a militia in time of need using those arms. All technical advances to firearms are not relevant to the intent of the 2nd amendment.

 

[MudPuppy]

I hate to say, but the 2nd does not free you form registration and the government from charging you a fee for it.

Perhaps, but that should not be taken to mean that since the government isn't restricted from doing something, that it can. In other words, the government is the one with the requirement of having specific authority to take action. If the feds don't specifically have the authority granted as defined by the constitution, then the states can define authority and in absence, the people.

The interstate commerce excuse is often tossed around, with such brilliant court opinions like "if it could ever be sold or transported across state lines, then it falls under the authority of interstate commerce."

It just fries my heinie when so many pundits think that the government can do anything that's not prohibited by the constitution, when its the other way around---they can only do what is granted...


Anyhow, I think Ron Paul would try and legalize the bill of rights.

 

[pacodelahoya]

The types of arms were not defined in the 2nd amendment

I wholeheartedly agree. It says arms, not fire arms. Now where did I leave that pesky m203?

 

[my762buzz]

Ill try to be more descriptive.



Jack Miller and Frank Layton were arrested for transporting an unlicensed sawed-off shotgun across state lines while engaged in interstate commerce in violation of the NFA.


The defending attorney's argument boils down to " the NFA disrupts the intention of the second amendment".


The U.S. attorneys argued "the NFA is a tax device, the Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia, and the specific shotgun in question was never used in any militia organization".

The court said, "that only military type arms are constitutionally protected".


In the context of what was going on, the court was saying (paraphrased), " This shotgun (or a short barreled version of such) has not been used in militias, is not a militia type of weapon , and because it is not a military weapon the second amendment will not protect your use of this weapon in opposition to the NFA."

Thats basically saying that if Miller and Layton had been caught with a Thompson submachine gun the court would have had a reason to rule against the NFA regardless of whether Congress can tax interstate commerce.

All this because the court said military weapons are protected by the second amendment as in protected from regulation.

If the Supreme Court tested another case currently and reviewed the Miller case, wouldn't you think there is a potential legal loophole created by the Miller case that could collapse the NFA by interpretation?

 

[General Geoff]

Keep in mind that the government's prosecutor in the Miller case practically lied through his teeth by saying that that particular shotgun (with that specific serial number) was not in use by a militia or military. It was well-known that short-barreled shotguns were, in fact, used extensively during trench warfare in WWI.

The Supreme Court ruled the way it did, only because all the justices were ignorant to firearms and military technology, AND because there was nobody to argue against the prosecution.

 

[TEDDY]

miller

you know of course that no one represented Miller in the suprem so there for no defense.the NFA is a commerce clause.and probly illegal
got to go eat by

 

[paramedic70002]

I read somewhere that Miller's attorney didn't have the funds to go to D.C. for the case, and Miller was never seen again. Somehow I think if Miller and his attorney had shown up, the case would have been decided on different merits. Conspiracy anyone?

 

[unspellable]

<< The Supreme Court ruled the way it did, only because all the justices were ignorant to firearms and military technology, AND because there was nobody to argue against the prosecution. >>

It's not that they were ignorant, rather that since no argument was presented, they found a loop hole by saying no evidence was presented that a sawed off shoit gun was a suitable militia weapon. More weasel words.

 

[ProficientRifleman]

Finally!

The Court indicated that only military type arms are constitutionally protected."

Wow, someone else finally gets it. I have been posting that very notion here and on other boards for several years.

Congratulations on your epiphany!

Anyone else?

 

[Henry Bowman]

What if the registration was free??

The 2A says "shall not be infringed." The 1A says "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." Does that mean it's OK to require clergy and worshipers to register with the government? That's not "prohibiting," right? You want to switch from Baptist to Methodist? Re-register. You convert from Budist to Islam? Register.

 

[Havegunjoe]

"The U.S. attorneys argued "the NFA is a tax device, the Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia, and the specific shotgun in question was never used in any militia organization".

They missed the fact that Trench Sweepers used in WWl were short barreled shotguns also.

 

[Librarian]

Download the paper "The Peculiar Story of United States v. Miller"

A snippet:

This essay suggests the conventional wisdom is only half-
right, because Miller did less than generally supposed. Part I
presents a brief historiography of Miller. Part II recounts the
history of the case. And Part III analyses Miller in light of its
history. This essay concludes Miller is coherent, but largely
irrelevant to the contemporary debate over the meaning of the
Second Amendment. Miller was a Second Amendment test case,
teed up with a nominal defendant by a district judge sympathetic
to New Deal gun control measures. But the Supreme Court
issued a surprisingly narrow decision. Essentially, it held the
Second Amendment permits Congress to tax firearms used by
criminals. While dicta suggests the Second Amendment
guarantees an individual right to possess and use a weapon
suitable for militia service, dicta isn’t precedent.6 In other
words, Miller didn’t adopt a theory of the Second Amendment
guarantee, because it didn’t need one.

 

[bogie]

Campers, the whole "militia movement" started up around the late 1980s, basically saying that "we're a militia, so we can have guns" was a justification.

All that has done is guarantee that if someone says "militia," 95% of the population will counter with "loonie."

 

[ctdonath]

Somewhere SCOTUS (IIRC) ruled that the NFA was legit because it is a tax, not a prohibition. They admitted it strained the limits, but was allowable.

922(o) - the prohibition on post-'86 machineguns - is a prohibition. Once Parker is ruled on (DC will in all likelyhood appeal it thereto next week), between Parker declaring "yes, it's an individual right", Miller saying "applies to military weapons", and Congress defining any able-bodied male 17-45 being in the militia (to wit the Selective Service), there's a very good chance you can buy a new M4 in a few years.