"Miller" and the 2nd Amendment.

[alan]

As an ex Brooklynite to one who is still there, interesting point. BTW, I had previously come upon the bit from the English Bill of Rights.

Given that we have long since separated from Great Britain, I don't know what impact or validity that might have in the U.S. today.

 

[Graystar]

I'm pretty sure I'll never be able to carry my guns here in Brooklyn. My license renewal is coming up in a couple of months...340 bucks!

Several Supreme Court decisions, such as Cruikshank, refer to our rights as having been preexisting under the protection of the states. In Miller, the US argued the same point...that the right to keep and bear arms existed before the country was created, based on the English Bill of Rights, and as such, previously valid restrictions should continue to be valid, as well as new restrictions such as the NFA. So I think validity of the EBOR played an important role in Miller, as the judges did follow the route of law defining what weapons are acceptable.

It will take another court decision to change the way the right to keep and bear arms is viewed by the judiciary.

 

[ctdonath]

Colt M4LE "Commando": $1300. (Closest civilian-legal thing to a modern standard militia combat weapon.)
Inclusive taxes:
- Guns/ammo tax 10%: $118
Exclusive taxes:
- Sales tax 7%: $91
- NFA transfer tax: $200
- Background check fee: $25
- Fingerprinting fee $25

Gun cost: $1182
Taxes etc: $459 (Possibly much, much more passed on by dealer & manufacturer.)

At least 38% of cost of a "Miller" gun is taxes.

Just an observation.

 

[alan]

Graystar:

That $340 fee charged by NYC must, without the slightest possible doubt, surely keep guns out of criminal hands.

When I departed NYC, in 1967, as a result of the city ordinance requiring the registration of LONG GUNS (RIFLES AND SHOTGUNS) owned by city residents and kept within city limits, the fee charged was $5.00, which covered as many long guns as were being registered. What is it now, or does the $340 figure above noted answer that question?

 

[Graystar]

The long gun registration system is a NYC system only and is completely separate from the state handgun licensing system. I think the current fee is 100 bucks.

 

[unspellable]

It should be common knowledge that short firearms, pistols and sawed off shotgun or trench gun were standrad military issue. It seems to me that it was a dodge on the part of the SCOTU to say this had not bee brought under judical review.

It has always seemed to me that one of the reasons a 2A case has not made it to the STOTUS is that they simply do not wish to hear one, the wording is too plain and doesn't leave them room to rule anti-gun. The SCOTUS is a s polictical as any other part of the governmentand one of the ways they excercise this is in the choice of cases they hear.

As for laws requiring men to show up for training with specifc arms, that's "ORGANIZED" milita, not the unorganized militia. As a practical matter, if things come to a place where the unorganized miltia is required, then any weapon is appropriate including pitchforks.

 

[Graystar]

Not only was a trench gun not standard military issue, but it wasn’t even less than 18 inches. The so-called trench gun had a 20” long barrel.

And when those militia acts were passed there was no concept of an organized vs. unorganized militia. That’s a concept that came later with the creation of the national guard.

 

[unspellable]

trench guns

The trench gun was very much standard military issue. They were issued to US troops by the thousands in WWI and resulted in a protest from the Germans. They continued to be issued in WWII.

Whether the barrel was 17 or 20 inches long would be a fine point of distinction as a military weapon.

The founding fathers very much had the concept of both an organized and unorganized militia. They considered all able bodied males who were not officers or agents of the government to be part of the milita, organized or not.

As for the National Guard, that came long after, and is NOT part of the militia, organized or not. The militia is was defined as all able bodied males who were not offciers or agents of the government. The National Guard is under the control of the Federal Government and all of its members are officers or agents of the federal Government and as such are disqualifed as members of the militia. It must also be recognized that it is the National Guard and is not a state militia even though it may be under the command of a governor until such time as the federal authorities assume command. There is such a thing as an organized state militia distinct from the national Guard. My father was in the uniformed Michigan State Militia during WWII. This body was NOT under the direct command of the Federal Government, but was under the command of the Michigan State Police who were under the command of the governor.

The history of the various state police organizations in such states that have them is also interesting as they were originally formed as an organized milita and are not the same thing as a highway patrol or department of public safety as in such states as have those.

 

[Librarian]

unspellable notes

It should be common knowledge that short firearms, pistols and sawed off shotgun or trench gun were standrad military issue. It seems to me that it was a dodge on the part of the SCOTU to say this had not bee brought under judical review.

I suppose there are real lawyers in here somewhere, and such folks might have a better explanation than mine, but as I understand it, "judicial notice" is a term of art, and doesn't seem to mean what ordinary English construction would suggest. See, for example, this link, where they say

Judicial notice of facts can be broken down into three categories: adjudicative, legislative, and background. Although the distinction was perhaps first recognized by Professor Thayer, it was not until 1942 that Professor Davis coined the terms “legislative” and “adjudicative” facts:

When a court or an agency finds facts concerning the immediate parties -- who did what, where, when, how, and with what motive or intent -- the court or agency is performing an adjudicative function, and the facts so determined are conveniently called adjudicative facts. When a court or an agency develops law or policy, it is acting legislatively; the courts have created the common law through judicial legislation, and the facts which inform the tribunal's legislative judgement are call legislative facts.

Background facts are more difficult to distinguish because they are both adjudicative and legislative:

Courts notice without proof all, whether fact or law, that is necessarily or justly imputed to them, by way of general outfit for the proper discharge of the judicial function. . . . Among such things are the ordinary meaning, construction, and use of vernacular language; the ordinary rules and methods of human thinking and reasoning; the ordinary data of human experience, and judicial experience in the particular region; the ordinary habits of men. ​

Clearly, the courts could not function if proof was needed on the meaning of every word uttered by a witness that bore upon the outcome of a case. In a negligence case involving a motor vehicle, there is no need to offer proof as to the meaning of the word "car" or its dangerous nature if improperly handled, because both judge and jury assign meaning from their daily exposure as both drivers and pedestrians. Given the nature of such facts, it would be impossible to propose a rule that would govern them.

At the other extreme, adjudicative facts deal with the dispositive facts of the case which are in controversy between the parties; as Professor Davis explained: "who did what, where, when, how, and with what motive or intent." Courts are extremely hesitant to take judicial notice of such facts because they bear directly on the rights of the parties. This is based on the belief that in an adversarial legal system it is best to allow the parties to establish the facts that are essential to their cases:

The reason we require a determination on the record is that we think fair procedure in resolving disputes of adjudicative facts calls for giving each party a chance to meet in the appropriate fashion the facts that come to the tribunal's attention, and the appropriate fashion for meeting disputed adjudicative facts includes rebuttal evidence, cross-examination, usually confrontation, and argument (either written or oral or both). The key to a fair trial is opportunity to use the appropriate weapons (rebuttal evidence, cross-examination, and argument) to meet adverse materials that come to the tribunal's attention.​

Because parties are attempting to reconstruct a particular course of events that occurred in the past, a court will only take judicial notice of operative facts when an adjudicative fact is beyond dispute.

In Miller, the shotgun as 'an ordinary weapon used by the militia' was simply outside the common experience at the same level as 'what is a shotgun' - military experts, gun experts, possibly police experts might have been able to establish for the court what the usage of those shotguns may have been, but because there was no trial, there was no evidence introduced.

In other words, they were not dodging, they were following the rules.

(Which does not, by the way, mean that I think this is a good result or a well-written decision, just that this particular criticism is not one of the case's major defects.)

 

[Graystar]

The trench gun was very much standard military issue. They were issued to US troops by the thousands in WWI and resulted in a protest from the Germans. They continued to be issued in WWII.

Whether the barrel was 17 or 20 inches long would be a fine point of distinction as a military weapon.

The trench gun wasn’t standard issue. The government was not handing them out to everyone. It was a specialized weapons for special duty. The length is important because one cannot claim that Miller had a trench gun when his gun didn’t match the configuration of a trench gun. But such distinctions are moot anyways. Like I said earlier, the courts process validated the government's argument that the law defines what you get to bear...not the individual.

The founding fathers very much had the concept of both an organized and unorganized militia. They considered all able bodied males who were not officers or agents of the government to be part of the milita, organized or not.

Then it sounds like there was no concept of organized vs unorganized. I think their concept of an unorganized militia was one that hadn't been organized yet.

As for the National Guard, that came long after, and is NOT part of the militia, organized or not.

The National Guard is the organized militia and each state’s National Guard is the militia for that state. The other state militia, which is really the State Defense Force, is a form of militia and is authorized to the states by federal statute (Title 32 U.S. Code 109.)) So Here in New York we have the Army National Guard and Air National Guard as our organized state militia, and the New York Guard as the state Defense Force. We also have the Naval Militia as well.

Ultimately, ALL levels of militia can be called upon by the federal government to fight.

 

[Librarian]

The Militia Act of 1792, Passed May 8, 1792, providing federal standards for the organization of the Militia.

An ACT more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States.

I. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia, by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved. That every citizen, so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch, with a box therein, to contain not less than twenty four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of power and ball; or with a good rifle, knapsack, shot-pouch, and power-horn, twenty balls suited to the bore of his rifle, and a quarter of a power of power; and shall appear so armed, accoutred and provided, when called out to exercise or into service, except, that when called out on company days to exercise only, he may appear without a knapsack. That the commissioned Officers shall severally be armed with a sword or hanger, and espontoon; and that from and after five years from the passing of this Act, all muskets from arming the militia as is herein required, shall be of bores sufficient for balls of the eighteenth part of a pound; and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes.

The Militia Act created the organized militia of the United States, defining the membership as underlined above and specifying equipment required. In 1792, UN-organized militia would be anyone not required to belong to the organized militia - women, men under 18 or over 45, un-free people, not able-bodied people, non-citizens.

 

[unspellable]

militia

The founding fathers clearly recognized both the organized and unorganized militia and made the distinction between the two.

The National Guard clearly does not fit their definition of either and they equally clearly meant to exclude such organizations as the National Guard from the definition of the militia.

It is not the state militia since it is not the militia to begin with. As recognized by at least Michigan in WWII since the Michigan National Guard and the Michigan State Militia were two distinct and seperate organizations.

The National Guard is subject to federal control and as such is excluded from the militia. It also does not provide an argument for the collective interpretation of the 2A since it would be redundant to have an enumerated right protecting the government's right to bear arms from infringement by the same government.

When I exclude the National Gaurd from the militia, I follow the founding father's clear intent. This does not imply that I mean that since that time no legislature has passed a contrary law or no court has issued a contrary ruling. But keep in mind that clearly unconstitutional laws and rulings are, unfortunately, common place.

As for what is standard issue, I would certainly include the trench gun in WWI since they were issued by the thousands. No, not every soldier had one, but then not every US soldier had a 30-06 either, some still had the 30-40 Krag. Did that make the Krag non-standard issue? Some had revolvers rather than the 1911, did that make them non-standard issue? For that matter, not every soldier had a 1911. The mere fact that not evey soldier carried a certain weapon does not make it non-standard.

The Brits used a few elephant guns in the trenches for piercing barricades and light armor. THAT would be non-standard. But at the same time it establishes that an elephant rifle may have a military use.

 

[Graystar]

The National Guard clearly does not fit their definition of either and they equally clearly meant to exclude such organizations as the National Guard from the definition of the militia.

This is a country ruled by law, not deity. We do not hold any intent of the Founding Fathers above the law. Regardless of the what they thought a militia was, the Militia Act of 1903 restructured the nature of the militia. That is the law, and as such, the National Guard IS the militia.

The militia was always subject to federal control. It’s stated in the Constitution.

 

[Librarian]

National Guard IS the militia

A quibble - a militia, not the militia. Unless called into federal service, when it becomes part of the US Army/Air Force, the various Guard units belong to the states and qualify as one of the state militias. But several states maintain organizations not directly transferrable to federal control, and those organizations are militias, too; those of us too old for NG or not enrolled in any organization are yet the third class, the 'unorganized militia'. See also fyrd.

 

[ctdonath]

That is the law, and as such, the National Guard IS the militia.

No, it is NOT. Current federal law explicitly defines the National Guard as a SUBSET of the miliitia, not the same.

 

[hugh damright]

The militia was always subject to federal control. It's stated in the Constitution.

But the States were to retain control of their militia by reserving jurisdiction over training and appointment of officers. Yes, the US had the power to call forth the State Militias, but, being State Militias, they could ultimately refuse. For instance, in "Civil War" days, I believe that the US called forth Virginia Militia, and Virginia instead seceded.

 

[Jeff White]

Hugh,
The states still control the appointment of offiers in the National Guard. Everyone who enlists or is commissioned in the Guard also enlists or is commissioned as a Reserve of the Army (or Air Force if Air Guard).

The governor can still appoint anyone an officer in the Guard. However that officer has to meet the standards of the Army or Air Force for that rank for their commission to be federally recognized.

The selection of the top officer in each state's National Guard, the Adjutant General is controlled by the states. I believe it's still a directly elected office in one state. In many instances officers and sometimes even enlisted men (although that hasn't happened in a few decades that I am aware of) are appointed by the governer to be the Adjutant General. That person is automatically elevated on the state side of things to the rank of Major General. If that officer doesn't meet the requirements for federal recognition as a Major General, he reverts back to his previous rank when he leaves office. He's also only paid at his federally recognized pay grade when on federal duty, even though he's wearing two stars.

Jeff

 

[unspellable]

Militia

To get back to the origins. The second amendment among other things prohibits the federal governemnt from infringing upon the right of the militia to bear arms. The National Guard is clearly excluded from the definition of "militia" as it was understood by the men who wrote the second amendment. They specifically excluded any person who was an offcier or agent of the Federal Government. The National Guard is not a militia but rather a reserve of the regular military.

"Intent" is very much a consideration.

No legislation can supercede the second amendment. That's the whole point of having a written constitution.

 

[Graystar]

The Second Amendment merely states that the right to keep and bear arms shall not be infringed. It does not define a militia in any way. That is done by law. The National Guard is still commanded by the governor of each state and officers are still appointed by the state. There are no federally appointed officers in the states’ national guards.

 

[unspellable]

Militia

For the purposes of the 2A the term "miltia" must be intrepreted in according to the intent of those who wrote it. The word was well understood at the time and did not need to have a defining clause included. To do otherwise (Not that we don't.) invalidates the constitution. That negates the whole point of having a written constitution.

It matters not who appoints the officers of the National Guard, once in it they are officers of the Federal Government and as such specifically excluded from the militia as nderstood at the time the constitution was written. They operate wih federal funds, federal equipment, and under the command of the federal government when it chooses to excercise that command.

The 'militia" excluded such officers and agents that it might be a check on the federal Govenrment as part of the check and balance concept of government. The founding fathers had a deep mistrust of government, a distrust that has proven to be well founded.

If this were the "militia" refrred to in the 2A there would be no point in having the 2A.

Please realize I am talking about the original intent and do not quote latter day legislation to me. We are awash in plainly unconstitutional laws and regulations.

 

[Librarian]

To do otherwise (Not that we don't.) invalidates the constitution. That negates the whole point of having a written constitution.

I don't think I understand you here.

Article 8 of the Constitution gives to Congress the power

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

It seems pretty clear to me that part of 'organizing' is 'defining the membership', and exercising explicit constitutional power is constitutional.

It's certainly true the politicians of 1792 would not have thought of the NG as a militia - it would clearly be part of the standing army they did not want. That was established in modern times, when Rudy Perpich didn't want the Minnesota Guard to train outside the state Perpich v DOD. (Long discussion there of how we got from 1792 to today, well worth reading in this thread.)

 

[ArmedBear]

It seems pretty clear to me that part of 'organizing' is 'defining the membership'

Yes, but...

Defining the membership of something takes on an ENORMOUS number of other stipulations when the organizer is the government.

For example, a private shotgun club can include or exclude anyone it wants to, with or without a reason. The result could be a club consisting of female Catholics of Hungarian descent, and that's fine. A government organization, however, is bound by a whole set of laws and even constitutional provisions guaranteeing equality under the law. I've done some government hiring, and believe me this stuff is taken quite seriously, because the courts take it very seriously.

So we come back around to where it's not so simple as to have those in government just decide who the members are, and therefore who has the RKBA.

 

[Librarian]

Defining the membership of something takes on an ENORMOUS number of other stipulations when the organizer is the government.

It sure does. And I'm not claiming what the Congress does or does not do in this area is right, complete, or well implemented; I inferred that unspellable seemed to say that Congress making that choice was unconstitutional, and I was responding to what I thought I understood.

But the power to make that decision is a power given to Congress by the constitution.

If you believe that RKBA is necessarily tied to militia, you might be concerned. I don't believe that. See, for example, Professor Volokh's The Commonplace Second Amendment

 

[unspellable]

he constitution

<<< To do otherwise (Not that we don't.) invalidates the constitution. That negates the whole point of having a written constitution.

I don't think I understand you here. >>>


I mean that if you have a written constitution, you must follow it in order for it to mean anything. The old Soviet Union had a wonderful constitution that guaranteed many civil rights, but in practice it was pretty much ignored and so wasn't worth the paper it was written on.

Today we are running on something half way between the English "unwritten' constitution and the ignored Soviet constitution. The actual written constitution is widely ignored and in grave danger of being forgotten. You see this with claims of "the Constitution is a living document and must change with the times", translate, "It means what ever we say it means, when ever we say it means it." If the modern claim of a "living constitution" prevails the constitution will die a certain death. It lives only so long as it means what it says.

 

[hugh damright]

It seems pretty clear to me that part of 'organizing' is 'defining the membership'

It's not as clear to me ... couldn't the States define their own militia, and the US still have power to organize them? I'm thinking that the feds power to organize the militia didn't, for example, mean that the feds had the power to tell a Southern State that black men were part of its State Militia.

At any rate, the federal power to arm and organize the militia was not intended to be a power to disarm and disorganize the militia. And there is an intent behind militia that I consider to be above the power of the US to define away.

The way I understand it, the American revolution was all about replacing minority rule with majority rule. Instead of a King or Artistocracy, it was declared that all men are equal, and thus the sovereign or ultimate authority is the majority (at the State level). One way a minority might take over is if they were the only ones armed, such as a standing Army ... and so the intent of militia is that it is a military force which cannot turn, or be turned, against the people because it is inseparable from the people.

So where does the National Guard fit in? In my State of Virginia, is the National Guard inseparable from the people? Or is the National Guard a force independent of the majority of Virginians?

I may be confused but in the sixties wasn't the NG sent into a Southern State and the State Police were mustered? Are there instances of States using their National Guard to check the US?

If you believe that RKBA is necessarily tied to militia, you might be concerned. I don't believe that.

Me neither ... but I do believe that the only federal protection of our individual RKBA is as it relates to the federal militia power.