Congress provided all the judicial notice reqired for Miller

[cropcirclewalker]

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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that is use could contribute to the common defense.

That is what McReynolds said in his opinion.

OK, so how come McReynolds didn't look at the act itself?

Namely, If these controlled weapons were not a part of the ordinary military equipment, why did congress see fit to exempt .gov from their possession?

Lets take chemical or biological weapons for instance. Maybe Mr. DMF or somebody else that is smart can post the link where congress exempted our military or police or other political subdivisions from the prohibition of their use. I mean, I think congress has told the military that they cannot use anthrax on our enemies.

I think I am right on that.

I think it's perfectly rational for a judge to look at an anthrax weapon and be able to take no judicial notice of its usefullness as a weapon that could contribute to the common defense.

18 USC CHAPTER 44 - FIREARMS Sec. 922. Unlawful acts.
(o)(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun.
(2) This subsection does not apply with respect to -
(A) a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political
subdivision thereof; or
(B) any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect.

18 USC Chapter 44, Sec. 925. Exceptions: Relief from disabilities
(a)(1) The provisions of this chapter, except for sections 922(d)(9) and 922(g)(9) and provisions relating to firearms subject to the prohibitions of section 922(p), shall not apply with respect to the transportation, shipment, receipt, possession, or importation of any firearm or ammunition imported for, sold or shipped to, or issued for the use of, the United States or any department or agency thereof or any State or any department, agency, or political subdivision thereof.

To reiterate.......If congress thought the NFA weapons had no use as military weapons, they would not have given our military the exemption. I am pretty simple, but even I can see that.

Capische?

 

[griz]

In that case they really did have an "absence of any evidence ", the guy didn't show up. The courts are supposed to rule on the evidence presented, so they did. It may not be a good way to make decisions, but it is what happened.

 

[cropcirclewalker]

Since Miller was dead at the time, I guess they thought it was unnecessary for him to have to show up.

The .gov did present evidence. They maintained that the shotgun in question had no legitimate use as a weapon suitable for the common defense.

If one party at suit presents evidence at an appeal trial which is not contradicted by the other party, does that mean the judges have to believe it?

I don't think so.

Since McReynolds reversed and remanded one would think that at the retrial the evidence would have been presented.

What? Miller was dead? So the case was moot?

How come it wasn't moot at the supremes? Same guy was dead then too.

 

[Bartholomew Roberts]

It was moot at the remand because Miller was dead. At the time of the Supreme case, Miller was merely missing and not known to be dead so the case was carried out as if the defendant had simply declined to show up. Miller was a bad decision for all kinds of reasons.

 

[cropcirclewalker]

Yes, I just can't get my brain around so many curiosities.

OK, I am only about a half a conspiricy guy, but I have to ask......Did they ever catch the guy or guys that shot Miller?

Did they look?

Next curiosity......If Layton had already had his case dismissed causa ona counta the US District Court ruled that NFA34 was unconstitutional, and it gets appealed and the supremes only remand it to get more evidence and don't say that NFA34 IS constitutional, then how come he would plead out?

Did he know something about Miller that the rest of us don't?

Prolly nothing, but to me it just seems curious.

 

[Malum Prohibitum]

What happened in plain English!

There is never any evidence presented in the Supreme Court on appeal. Before trial, the District Court had dismissed the charges after Defendants filed a motion. Such a motion does not permit evidence. In response to the motion, the District Court said the NFA was unconstitutional under the Second Amendment and dismissed the case. The government appealed. The Supreme Court was basically reversing the District Court on the basis that it was improper to make such a ruling without any evidence.

 

[ConstitutionCowboy]

My Take On US v. Miller(Cut and Paste from my archaives)

Here is the main line of reasoning that shows what the Court actually said in U.S. v. Miller(1939)...

Look at what the Court said here: "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." Referring to the text I put in bold, the Court said that they could not come to a conclusion without any evidence. The Court did not say that the "SHOTGUN HAVING A BARREL OF LESS THAN EIGHTEEN INCHES IN LENGTH" did not have "...SOME REASONABLE RELATIONSHIP TO THE PRESERVATION OR EFFICIENCY OF A WELL REGULATED MILITIA,..." If the Court had come to the conclusion that the sawed-off shotgun WASN'T a viable weapon for use in the militia, it would have said so. It didn't say so.


Further in that same paragraph the Court said, "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." Judicial notice is "n. the authority of a judge to accept as facts certain matters which are of common knowledge from sources which guarantee accuracy or are a matter of official record, without the need for evidence establishing the fact. Examples of matters given judicial notice are public and court records, tides, times of sunset and sunrise, government rainfall and temperature records, known historic events or the fact that ice melts in the sun." Here again, the Court is saying they don't know as a matter of record, don't have reference to any common knowledge, don't have a guaranteed source to refer to the fact in question, and can't say off the top of their head whether or not the sawed-off shotgun fit in the militia and, therefore, would require evidence to make the call.


Next, look at this: The Court said, "WE ARE UNABLE TO ACCEPT THE CONCLUSION OF THE COURT BELOW AND THE CHALLENGED JUDGMENT MUST BE REVERSED. THE CAUSE WILL BE REMANDED FOR FURTHER PROCEEDINGS." So, let's look at "WE ARE UNABLE TO ACCEPT THE CONCLUSION OF THE COURT BELOW ..." What does that tell you? It tells you that the Court didn't say that the conclusion of the court below was wrong, the Court said because there was no evidence presented, it cannot accept the conclusion. They said in the beginning that "In the absence of any evidence....we cannot say...". Then the Court continued with, "..AND THE CHALLENGED JUDGMENT MUST BE REVERSED. THE CAUSE WILL BE REMANDED FOR FURTHER PROCEEDINGS." Notice that the Court did not reverse or vacate the judgment of the lower court. The Court instructed the lower court to reverse it's judgment and to proceed further on the case, presumably, to have the needed evidence presented to support the lower court's conclusion that the NFA is unconstitutional by showing that the sawed-off shotgun is a viable weapon for the militia. Sadly, Miller had been murdered before the case even hit the Supreme Court, and Layton(Miller's co-defendant) accepted a plea. There was no one left to continue the case.


The Court was quite sneaky and devious in its wording with this non-ruling. Not only that, the Court, without proper amendment, amended the the Constitution on its own by interjecting a requirement not present in the Second Amendment that a weapon must be shown to have a viable place in the militia. The Court's ducking of one aspect of "judicial notice" is also despicable. That "judicial notice" is the obvious capability of a sawed-off shotgun to deliver a lethal dose of shot when properly aimed and fired by a person. I would equate what a member of the militia can do with a sawed-off shotgun to a similar level of common knowledge with the common knowledge that if you place a chunk of ice in the sun, it will melt.


Disclaimer: All this is moot in the light of the Second Amendment. The Second Amendment is absolute, unambiguous, unlimited, and universally binding on any and all levels of government. Our Right to Keep and Bear Arms is not supposed to be infringed. All levels of our government need to be made to toe that line.


Woody


A law that says you cannot fire your gun in the middle of downtown unless in self defense is not unconstitutional. Laws that prohibit brandishing except in self defense or handling your gun in a threatening or unsafe manner would not be unconstitutional. Laws can be written that govern some of the uses of guns. No law can be written that infringes upon buying, keeping, storing, carrying, limiting caliber, limiting capacity, limiting quantity, limiting action, or any other limit that would infringe upon the keeping or bearing of arms. That is the truth and simple reality of the limits placed upon government by the Second Amendment to the Constitution. B.E.Wood

 

[Brett Bellmore]

You have to put this in context; During the FDR admininstration, after the "switch in time that saved Nine".

The Supreme court had given up on enforcing the Constitution for a while. The government was going to win that case, no matter what kind of mental gymnastics the court had to engage in to accomplish it. It was just a given that they'd prevail, no matter what. At that period, federal claims of power just prevailed, period.

The way I see it, we were actually lucky Miller wasn't represented, because it allowed the Court to hand the government a win on the thinnest possible basis. If there'd been somebody there presenting arguments, the Court would have dismissed them all, without exception, no matter how persuasive, no matter how many damaging precidents were set.

We lucked out.