"Miller" and the 2nd Amendment.

[ArmedBear]

The Miller case decided that someone didn't have the right to a short barrelled shotgun under the 2nd Amendment because it wasn't a military weapon or something that would be used by the militia.

Wouldn't this, using common sense, imply that an M4 Carbine IS protected by the 2nd Amendment under this decision, despite being a SBR and full-auto?

Why not? Lawyers?

 

[Henry Bowman]

Yes, it would. But lower level courts have been free to conclude the opposite since then since the SCOTUS has not rebuked them and we have been afraid in the last several decades to trust the SCOTUS to look at it again and make the right decision.

 

[ElTacoGrande]

Doesn't work that way.

The court basically said, "this weapon isn't a militia weapon, so the 2nd doesn't apply."

You can't read anything else into it. In particular, that is not the same thing as saying, "if this had been a militia weapon, it would have been protected by the 2nd." That question is unanswered.

There are several important questions about the 2nd that no court has ever answered:

1. Is the RKBA a collective right, which would be exercised by the National Guard, or an individual right, like the right to free speech?
2. Which classes of weapons does the 2nd apply to? Militia weapons, or weapons in general?
3. If it only applies to militia weapons, what is a militia weapon? Is that "anthing that complies with the rules of war, ie, no shotguns?" Or is it "whatever current infantry soldiers use, ie M4s"? Or is it "whatever the militia used in 1776, ie, blackpowder arms"?
4. And given the answers to the questions above, how may the exercise of this right be regulated? Which standard of scrutiny shall apply to laws which regulate this right?

From a plain common-sense English reading of the 2nd, the answers are obvious, but courts have an uncanny ability to read things which aren't written, and not read things which are written.

 

[Father Knows Best]

The Miller case decided that someone didn't have the right to a short barrelled shotgun under the 2nd Amendment because it wasn't a military weapon or something that would be used by the militia.

No, it didn't. In Miller, SCOTUS held that the Second Amendment did not render unconstitutional the NFA's requirement of a tax stamp for possession of a short-barreled shotgun. Everything else in the case is what lawyers refer to as "dicta", i.e., an expression of opinion on a point not central to the holding of the case. A case's holding constitutes binding precedent, but dicta is merely explanatory opinion that is not binding on future courts.

The precedential effect of Miller is therefore quite limited -- it stands for the proposition that the NFA does not violate the 2nd Amendment.

In addition, keep in mind that the Court in Miller did NOT rule that short barreled shotguns have no military use. It stated only that it was not within the "judicial notice" of the Court that they have such use. In other words, no one had presented evidence suggesting that there was a military use for such a weapon. That's not surprising, seeing as no one appeared for the Defendants in the case. In other words, the government was unopposed before SCOTUS; the lawyers for Miller and his co-Defendant never showed up.

 

[Henry Bowman]

The precedential effect of Miller is therefore quite limited -- it stands for the proposition that the NFA does not violate the 2nd Amendment.

...to the extent that the NFA requires the purchase of a tax stamp for the transfer of a weapon that has not been shown to be of use to the militia.

 

[ElTacoGrande]

In addition, keep in mind that the Court in Miller did NOT rule that short barreled shotguns have no military use. It stated only that it was not within the "judicial notice" of the Court that they have such use. In other words, no one had presented evidence suggesting that there was a military use for such a weapon. That's not surprising, seeing as no one appeared for the Defendants in the case. In other words, the government was unopposed before SCOTUS; the lawyers for Miller and his co-Defendant never showed up.

For those not familiar with the case, it is worth mentioning:Mr. Miller was dead when his case was heard by the SCOTUS.

He was a criminal, he had a public defender, and he was dead. Those are not good circumstances for a favorable ruling.

I hope I can make a ton of money in my business, and there's ever a good 2nd amend case, I will put millions of dollars into giving the guy the best legal team money can buy. All these cases (Bob Stewart, too) are cases where important constitutional issues are being argued by public defenders. I don't have anything against public defenders, but they are not equiped for this type of task.

 

[hugh damright]

I believe the truth is that, regardless of the Second Amendment, there is an intended federal protection of the individual RKBA as it relates to militia, as the SCOTUS said in Presser v Illinois:

It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question [Second Amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.

 

[Sam Adams]

Here is an excellent rundown of the legal filings and case law for the Miller case, from beginning to end: http://www.rkba.org/research/miller/Miller.html

Eltacogrande: You said that no court has ever answered the question of "Is the RKBA a collective right, which would be exercised by the National Guard, or an individual right, like the right to free speech?"

In the literal sense, you are right. However, from a logical point of view, I think that this is incorrect. Miller itself, by virtue of the fact that the Court heard the case and decided it on the merits, implied VERY strongly that Jack Miller, individual American citizen, had an individual 2A RKBA. Otherwise, the Court would simply have decided that the lower court had erred, owing to the fact that Jack Miller, individual American citizen, had no standing. The Court analyzed the history of the militia and stated that

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. 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. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.

By doing so, by implying very strongly that if there HAD been evidence that a short barreled shotgun had a "reasonable relationship to the preservation or efficiency of a well regulated militia," or "judicial notice" that such a weapon is "any part of the ordinary military equipment or that its use could contribute tot he common defense," then Jack Miller, individual American citizen, would have won the case and the NFA would be a mere footnote to history. (Of course, Miller was dead by then, so the decision wouldn't have done him any good). Had Justice McReynolds been informed that the US Army had purchased some 30,000 short barreled shotguns for use as "trench brooms" in WW1, maybe this case would've come out differently. I suspect that it would today if some poor soul was able to get his case about an AR-15 converted to a full auto before the Court, though the Court has studiously avoided hearing anything gun-related.

Of course, all hope may not be dead. Read the following to see something that Scalia said about guns, as well as some interesting comments: http://www.freerepublic.com/focus/f-news/1585980/posts

 

[ElTacoGrande]

In the literal sense, you are right. However, from a logical point of view, I think that this is incorrect. Miller itself, by virtue of the fact that the Court heard the case and decided it on the merits, implied VERY strongly that Jack Miller, individual American citizen, had an individual 2A RKBA. Otherwise, the Court would simply have decided that the lower court had erred, owing to the fact that Jack Miller, individual American citizen, had no standing.

Senor Adams, you are absolutely correct in this logic. If they had thought that the 2nd is about the NG they would have said, "sorry dude, you're not part of the NG so you can't even talk about the 2nd." That's an excellent point. If they hadn't thought that the 2nd applied to individuals, how could they have even discussed it?

So that still leaves questions about classes of weapons, and they said that they didn't find that a sawed-off was a "militia" weapon, but I guess that is not conclusive because Miller's defender didn't argue that it was.

I'm still hopefull for a 2nd amend case. I mean, come on, the thing is written in English, the Bill of Rights is about protecting the rights of individuals, and it's about limit Federal power. This is so obvious maybe even the SCOTUS would be able to see it.

 

[Maxwell]

Where does it say that our right to bear arms only encompases "military" weapons?

It says a militia is essential to the security of a free state.

Now, from a practical viewpoint: if we're driven to go knocking door to door to raise an army... I DONT GIVE A RATS A*** WHAT YOU GOT, BRING IT! BRING IT ALL!!

 

[BigRobT]

Now, from a practical viewpoint: if we're driven to go knocking door to door to raise an army... I DONT GIVE A RATS A*** WHAT YOU GOT, BRING IT! BRING IT ALL!!

Therein lies the rub. How are we, as a militia, going to be prepared to wage a fight against today's military?? Granted, semi-automatic mode is often preferred to full auto. FA wastes ammo (on the whole), provides poor accuracy, etc. But......there are times that FA mode may be required. Just like AP rounds and the like. As I see it, today's society couldn't wage an effective battle against today's troops. It has all been taken away from us as if we were children being punished.

 

[alan]

Re the "lack of judicial notice" concerning U.S. Military's use of SHORT BARRELED SHOTGUNS, and also the lack of counsel for Miller in Supreme Court hearings, one wonders as to how things would have turned out had counsel for Miller appeared.

Also, it appears that in Miller, the court offered that while "militia arms", arms of military issue, were protected, "sporting arms" might not be, which could have lead to the following interesting situation. Your possession of the venerable BAR or Thompson Sub-Machinegun would be constitutionally protected, while that old Model 94 Winchester 30-30 might not be.

Anyone with legal training or background have an opinion?

 

[TexasRifleman]

If Miller were to be fought with a good standing case, by competent attorneys, the results might be surprisingly good for us.

As it is, the case was about a not particularly good guy anyway, who didn't have very good representation at all.

Given the mess that was that case, I think the courts ruling is shockingly pro 2A.

Really good representation would argue that any gun could be used by the military and would trot out al kinds of "experts" to testify to the use in our military of short barrelled shotguns, bolt action rifles, revolvers, etc and make a pretty good case.

All kinds of wild things have been used by our armed forces at one time or another.

The court ruled the way they did totally on their own for the most part. Imagine if they'd had a little education on top of that.

I think the anti's, to a man, know deep down inside that the SCOTUS would NEVER rule their way in a Second Amendment case. I also think that's why they do all they can to keep those cases away from that court.

 

[Sam Adams]

TexasSIGMan

Really good representation would argue that any gun could be used by the military and would trot out al kinds of "experts" to testify to the use in our military of short barrelled shotguns, bolt action rifles, revolvers, etc and make a pretty good case.

I could make a pretty strong argument that ANY firearm used by any formally established army (which, of course, would include special forces thereof) which fired modern, cased ammunition is, in fact, a "militia weapon" and would be protected by the 2A. Think of the Liberator pistol of WW2 fame - a single shot weapon (.45 ACP) which took longer to unload than it took to manufacture - literally...that was made by the hundreds of thousands and dropped all over France and the other occupied countries to use against the Germans. Who could credibly say that it, no less the far more effective and efficient bolt-action rifles, short barreled shotguns, semi-auto handguns and rifles, subguns (full autos firing pistol-caliber ammo), burst-fire weapons (i.e. 3-shot bursts), machine guns (full autos firing rifle-caliber ammo) and crew-served machine guns weren't ALL "part of the ordinary military equipment or that its use could contribute to the common defense"? Oh, and the issue of suppressors is even more in our favor - how could it be that a militia member disguising or hiding his presence to an enemy would make the militia less efficient and effective? The short answer is that this is a winner for us, provided it gets to court (or THE Court).

I think the anti's, to a man, know deep down inside that the SCOTUS would NEVER rule their way in a Second Amendment case. I also think that's why they do all they can to keep those cases away from that court.

Well, there is that. To which one could add this: what happens if the antis win? I'll buy stock in the funeral industry if this happens - seriously. Even if 99% of gun owners turn in ALL of their firearms - a mighty big "if" - that would still leave 1%, or roughly 850,000 people. All of whom would be very pissed off, most of whom would have military training, most of whom were excellent shooters with good equipment and the means to feed (ammo and reloading equipment/supplies) and maintain those weapons. People with friends and relatives who would protect them, even if they didn't have the means or the guts to actively resist a tyrannical government. When you remember what 2 mentally-challenged and very careless murderers without any coherent plan did to commerce in the DC area a couple of years back - with thousands of police looking for them - then the mind shudders at what 850,000 such people could do. The nation would shut down (and I think that Blue Nation would get cold and hungry fast), and I suspect that there would be a whole lot less anti-gun politicians and media folk around when the dust settled. Not that I advocate such a thing, mind you, but I just wonder about it.

Bottom line - the antis are scared to death about a USSC ruling that settled the meaning of the 2A once and for all - either they lose, or they have a very Phyrric, very short-term victory.

 

[TexasRifleman]

Not that I advocate such a thing, mind you, but I just wonder about it.

I don't advocate it either, but if they made a movie about it I'd be in line opening day

 

[ArmedBear]

 

[Graystar]

Re the "lack of judicial notice" concerning U.S. Military's use of SHORT BARRELED SHOTGUNS, and also the lack of counsel for Miller in Supreme Court hearings, one wonders as to how things would have turned out had counsel for Miller appeared.

I can tell exactly what the outcome would have been. It would have been exactly the same.

There is absolutely no way Miller could have ever won that case.

It was more than simply a “lack of judicial notice.” The court included three excerpts from various militia acts that defined the type of weapon that a militiaman was expected to bear. In all cases, long guns were called for. And THAT is why there was no judicial notice of short guns being used by the Militia. All the judicial notice available called for long guns.

Also, by taking the course that they did, the court firmly established what was the norm all along...that the law determines what weapons the militia can bear.

 

[Bartholomew Roberts]

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. 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. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.

By doing so, by implying very strongly that if there HAD been evidence that a short barreled shotgun had a "reasonable relationship to the preservation or efficiency of a well regulated militia,"

It isn't the shotgun that the court said had to have a reasonable relationship to the preservation or efficiency of a well-regulated militia. That is an important point to notice; because it is certainly one the antis will be emphasizing when they argue the same case.

For those of you who haven't heard of it, http://www.guncite.com/ is a tremendous resource.

 

[beerslurpy]

No BR, they say "the possession or use" not "this possession or use" meaning possession/use of short barreled shotguns in general, not on a per-case basis.

The reference to Aymette is the really informative bit because Aymette was basically an antebellum holding that banning concealed bowie knives didnt violate the 2nd because bowie knives werent useful for the common defense.

Miller is a weapons test, not an individual "locus to preservation of the militia" test as it has been repeatedly misstated. Cases v US (1942 1st circuit) is really the bit giveaway about what Miller means because it directly addresses the weapons test and then rejects it because it would completely gut the control that they wished to preserve in the outcome of the trial.

All the subsequent circuit cases misapply Miller to create a test about whether a particular possession was related to preserving the militia, but that neither the national guard nor any private citizens militia counted for such purposes.

 

[Librarian]

Also note the meaning of 'judicial notice'. Without testimony, judges can accept things like "the sun rises in the east" on their own - within 'judicial notice'.

There never was a trial. The charges were dismissed before a trial; the government appealed; the SCOTUS remanded the case back for trial, which never happened (most likely because both Miller and Layton were dead by then, I believe).

Among others, David Kopel talks about it, and more here

See also Brandon Denning

 

[hugh damright]

the Bill of Rights is about protecting the rights of individuals, and it's about limiting Federal power.

That seems like a contradiction to me ... of course the intent was to limit federal power...but if the intent was also to protect individual rights, then that makes the feds the protector of individual rights, which does not limit federal power but rather empowers the feds to such an incredible degree that it would seem to transform the limited federal government into a national government.

Where does it say that our right to bear arms only encompasses "military" weapons?

It's not that the RKBA only encompasses military weapons, it's that the only federal power is over militia. Other aspects of the RKBA are State affairs, for safe keeping.

 

[dzimmerm]

Individual Rights

The Bill of Rights does not give the Federal Government the power to protect individuals rights. It prohibits the federal government from passing any law that restricts the individual rights so named.

It is the individuals job to protect their rights.

The framers of the constitution contended that individuals possessed rights as a matter of nature, some call them diety given rights. The gist is that we as humans have rights because we are humans.

There were some constitutional framers that were concerned that if they enumerated some rights then that enumeration of it's own accord would be misconstrued as meaning those were the only rights individuals could possess.

With our current educational state in regards to our constitutional beginnings it is no wonder there is so much confusion. While the confusion can be made less by education, education can never make the unscrupulous man honor a concept he is opposed to due to lack of charactor or outright human greed. That unscrupulous person will use the common man's ignorance as a gifted artist uses a paint brush.

Teach your children and peers well because an educated population is the only weapon that will work against those who would destroy personal freedom in order to gain a handfull of gold or a chest full of ribbons.

dzimmerm

 

[horge]

I've said it before and I'll say it again... as a foreign observer

Methinks SCOTUS erred in presuming a distinction could at all be made,
as to whether ANY weapon is fit/unfit for militia use. The needs of war
change rapidly, often demanding the unforeseen, else requiring the
return of the nearly forgotten.

It is a weakness of legal scholars that they look for highly-specific
documented precedent; for reassuring prior definition and minutiae,
even when dealing with something that your Founding Fathers so elegantly
left brief and yet powerfully flexible (to meet unimagined threats to freedom).

Using that sad aproach, one might as well forever fix the arms-ownership
covered by 2A protection from 'infringement' at Kentucky Rifles and
other period pieces.

A tax on firearms, like any other limiting encumbrance artificially-attached
to a natural RKBA is infringement, period. Free, mandatory registration
may not be, so long as the effort involved is easy to the point of
non-discrimination vs. the busy.

JM2pesos.

 

[TexasRifleman]

Methinks SCOTUS erred in presuming a distinction could at all be made,
as to whether ANY weapon is fit/unfit for militia use. The needs of war
change rapidly, often demanding the unforeseen, else requiring the
return of the nearly forgotten.

Well, they erred that way intentionally. They were never presented with evidence to the contrary since Miller didn't actually go to trial.

They just ruled this way to get this case closed. It wasn't wrong of them to do so, but it's a shame the case wasn't fought out.

No one else is likely to volunteer to be the test case.

Maybe some 87 year old pro 2A millionaire will try sometime and take one for all of us....

 

[Maxwell]

The 2nd amendment sounds more like "have gun, will travel". You let the people decide amongst themselves what guns are acceptable or if standardisation is needed.
Back then there wasnt much in the form of logistics. You packed your own powder and ammo. I doubt anyone would have said there was a "proper" weapon for a militia.

Weapons technology was considered as much of a factor as it is now. If I was looking up the road to rewrite the 2nd for the future, I would make it so vague that any weapon qualifies. From brass knuckles to plasma rifles.

A tax on firearms, like any other limiting encumbrance artificially-attached
to a natural RKBA is infringement, period. Free, mandatory registration
may not be, so long as the effort involved is easy to the point of
non-discrimination vs. the busy.

Registration is never free, someone pays to employ the list keeper. If its manditory then simple book keeping goofs can send folks to jail or stop new firearms sales.
Then theres the ominous question of what their going to do with all that data.
If we ever had another race war, do I risk being strung up by some KKK gang just because a corrupt fed saw my name on a list?

It might not be infringement directly, but its too easily abused.