HR 1022 vs Miller

[ptmmatssc]

I'm still trying to wrap my head around the thought processes that certain people go through . I know , I know , it's about taking ALL guns away , but can't understand how past decisions can be ignored .

Text from HR 1022

`(L) A semiautomatic rifle or shotgun originally designed for military or law enforcement use, or a firearm based on the design of such a firearm, that is not particularly suitable for sporting purposes, as determined by the Attorney General. In making the determination, there shall be a rebuttable presumption that a firearm procured for use by the United States military or any Federal law enforcement agency is not particularly suitable for sporting purposes, and a firearm shall not be determined to be particularly suitable for sporting purposes solely because the firearm is suitable for use in a sporting event.'.

But Miller says just the opposite

While some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property as well as the right of the people to bear arms collectively (People v. Brown, 53 Mich. 537; State v. Duke, 42 Tex. 455), the cases are unanimous in holding that the term "arms" as used in constitutional provisions refers only to those weapons which are ordinarily used for military or public defense purposes and does not relate to those weapons which are commonly used by criminals. Thus in Aymette v. State, supra, it was said (p. 158):

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.

The Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its infringement by Congress.

Now , was Miller ever overturned or nullified? If not , how can HR 1022 even make it as far as it has ?

 

[Bartholomew Roberts]

Now , was Miller ever overturned or nullified?

No. Miller has never been overturned or nullified. However, several Circuit Court of Appeals (the courts below the Supreme Court) have decided to take the position that unless the weapon is used in military or police activity, its ownership is not protected by the Second Amendment (the collective rights theory). The Supreme Court has declined to overturn any of these lower court rulings and antis hold this forth as proof that this interpretation is the correct one.

Only in this century have other circuit courts (D.C. and the 5th Circuit) said that Miller represents an individual righ to bear arms under the Second Amendment. The Supreme Court has also declined to overturn those decisions so far (though the D.C. decision is being appealed to the Supreme Court and has not been denied)

If not , how can HR 1022 even make it as far as it has ?

H.R. 1022 hasn't really made it very far. It has 33 co-sponsors but other than that, it hasn't moved forward a single step in the process to becoming a bill yet since it was filed. The big concern over the bill is that the people who have a key vote in deciding how far the bill goes all have strong anti-gun voting records (some going back to 1968). So everyone has their eye on it; but generally, the bill hasn't really gone anywhere.

 

[Autolycus]

So the Miller case says I can buy a select fire M4 and have it with me? As well as a SAW...

 

[hugh damright]

It seems to me that the federal law says that the ATF has the power to determine whether guns with a bore over 1/2 inch have a sporting purpose ... I think the idea was that bores over .50 caliber are somehow a federal concern, but not 12 guage shotguns because they have a "sporting purpose" ... and now they are taking this idea and running with it, assuming that the US Congress has the power to determine whether any gun has a sporting purpose and is therefore acceptable to them.

Of course you are right ... the legitimate/delegated federal power is related to the militia and protects the individual RKBA as it relates to militia ... and they intend to reconstruct it into a federally protected individual RKBA as it relates to a sporting purpose, and at the same time they assume a federal power to ban guns ... so instead of a federally protected right to maintain militia to secure our free States, the US is going to take away our right to militia arms, our right to militia, and, of course, take away the free government that the RKBA is intended to secure.

I don't think even King George went so far as to tell us that we could have only the guns which he found suitable for a sporting purpose. We certainly did not delegate any such power to the US Congress.

 

[shield20]

Hey Bart

Bart, You may be able to answer this one, and correct me where I go astray...

HR1022 won't "go too far" until it is challenged in court, AFTER it (if) becomes law.

Was the Judiciary constitutionally intended to approve of Bills BEFORE they became law, or only after the fact IF challenged?




And yes - if Miller had a BAR instead of a sawed-off, according to the ruling that part of the NFA would have been deemed unconstitutional, and we could have M16s and M4s.

 

[Bartholomew Roberts]

Was the Judiciary constitutionally intended to approve of Bills BEFORE they became law, or only after the fact IF challenged?

You are right. It would have to become law first. Very early on in the history of the Supreme Court, the Court established a ruling that it would not give advisory opinions on whether a prospective law was constitutional.

 

[shield20]

Cheers - thanks!

(wondered about that)

 

[SoCalShooter]

Very early on in the history of the Supreme Court, the Court established a ruling that it would not give advisory opinions on whether a prospective law was constitutional.

See that is the problem right there, they are not doing a very good job at checks and balances.

 

[DoubleTapDrew]

Let me have a Ma Deuce and I'll find a "sporting purpose" for it!

The public and the politicians have been brainwashed into thinking the 2nd Amendment somehow pertains to hunting. It's hard to win support for your right when the people who will be voting on it don't even know what that right was about.

 

[DonP]

" ... as the Judiciary constitutionally intended to approve of Bills BEFORE they became law, or only after the fact IF challenged?"

After watching the debacle of the McCain - Feingold Campaign Finance Reform I would NEVER EVER count on SCOTUS to overturn a bad law.

Everyone said "don't worry about McCain-Feingold, it's bound to be obviously overturned as restricting the first amendment".

Didn't happen and probably will never happen.

We even had the strangest of bedfellows, like the NRA and the ACLU, arguing against it with Amicus Curae briefs.

Now it's the law of the land with a very dim probablility of repeal because it almost guarantees an incumbent re-election by muzzling their opponents supporters before an election.

 

[ctdonath]

can't understand how past decisions can be ignored.

Simple: ignoring them facilitates their cause.

I once saw a investigative "real crime" show that looked into hotel thefts by cleaning staff. A camera was hidden, and recorded a maid - clearly identifiable - plainly helping herself to the contents of a guest's purse. The maid was then shown the videotape, and proceeded to absolutely deny doing it. I mean, sheesh man, there was no question they caught her red-handed but she denied it.
Point: simply denying relevant truths is easy - and makes acting on those truths much harder for others.

The same mindset pervades those who would deny our rights: doesn't matter how plainly we have them in law (I mean, sheesh man, the 2nd Amendment is pretty dang clear!), they will twist, obfuscate, misdirect or flat-out ignore anything that stands in their way.

What do they have to lose by ignoring past decisions?
Worst case for them: after years of litigation, their law gets overthrown ... at which point they do it again.
Worst case for you: you go to jail or die while trying to get that law overthrown.

 

[DWARREN123]

The Right to Keep and Bear Arms says nothing about type or number!