Questions about US vs Miller and Full auto/EBR

[PirateJoe]

i was doing some research on US vs Miller a few minutes ago and got to thinking. The SCOTUS ruled that the shotgun in question was not protected by the 2nd amendment because it did not have a legitimate use in a militia (am i interpreting this right? its hard to find non-biased info on US vs Miller). so, i was wondering, could this case be used to render laws against full-auto, and evil black rifle bans, such as that in california, unconstitutional? i think it would be pretty easy to justify why full auto and AR-15's would be well suited to militia use.

 

[El Tejon]

yes, the test was weaponcentric: does this weapon have some reasonable relationship to militia service?

Note, that since Jack Miller was without attorney before the Supremes, no one was there to point out that short shotguns have been in use since the AmRev1 (like that? I am so hip now. Dan Flory gave me Boston T. Party's book to read).

In order to overturn California's onerous statutes, we need to incorporate the 2d via the 14th to the states.

The Supreme Court can never hear a Second Amendment case. It would turn U.S. gun laws on their heads over night. The System could not tolerate that.

 

[Third_Rail]

Why does that mean they would never hear a case like that? Isn't that exactly their purpose, to do things that no other court can?

 

[unspellable]

Politics & the Supreme Court

Politics applies to the court as well. The most obvious place you see it in action is in their decision on what cases to accept. This is probably the primary reason no straight forward second amendment case has been to the Supreme Court since Miller. The Miller case was highly flawed on several counts.

 

[Malum Prohibitum]

El Tejon

Yes, the test was weaponcentric: does this weapon have some reasonable relationship to militia service?

To be more accurate, the test question was answered only with the declaration that the court was not simply going to declare a short barreled shotgun to be a militia weapon if nobody was going to present any evidence that it had some relationship to the militia.

When reading the following quote, the term "judicial notice" means something that the court recognizes without anybody needing to present evidence, like - the sun rises in the east and sets in the west.

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.

Given the use of short barreled shotguns in WWI, just 21 years prior to this ruling, I do not think it would have been difficult to show evidence that such an instrument was "any part of the ordinary military equipment."

Sure would be easy to meet that test with an M-4.

 

[PirateJoe]

so why won't the SCOTUS accept any more 2A cases? why is one of the most effective tools for preserving freedom not even acknowledging a case on one of the most fundamental constitutional rights?

this sickens me.

 

[Malum Prohibitum]

By the way, there was no evidence presented because the Defendants filed a motion to dismiss (called a demurrer back in those days, see the first paragraph) and the trial court agreed, dismissing the case on Second Amendment grounds.

A motion to dismiss is presented without evidence.

The Supreme Court was simply reversing the trial court's dismissal of the criminal case, essentially saying that they were not prepared to simply accept that such a weapon was any part of the ordinary military equipment with no evidence on the issue (one cannot present evidence for the first time on appeal).

Because the Second Amendment contains the word "militia," the question of who is the militia and who is to supply the weapons (and what type) was answered by the S. Ct. as follows:

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.

All bold emphases in both posts are mine, not the court's. I did it to simplify reading.

 

[Malum Prohibitum]

Pirate Joe:

so why won't the SCOTUS accept any more 2A cases?

Are we sure we want them to? Think about who is up there.

Anyway, maybe they will. This case sponsored by the Cato Institute has the best chance, I think. http://www.thehighroad.org/showthread.php?t=214203