My main objection to the line of "thought(s)" on Miller is the misconstrual of what the Court truly said in Miller. Surely it is understood by these nine that the Court in Miller pulled the "militia use" caveat out of the ether, and that The Fab Four along with the switch-hitter also pulled the alternate, and as totally irrelevant, definition of "in common use" out of the ether as well.
No argument that the Court pulled a lot out of the air or elsewhere in Miller. The "common use" term comes from Miller, though - Scalia et. al. did not make it up. I searched the decision again, Scalia brings up "common use" 4 times, putting it in direct quotes all but once. Each time it's clear he's referring to the Miller decision. While Scalia seemed to validate Miller (probably to placate Kennedy and had no reason in Heller to overturn), it's telling that he didn't apply the Miller test directly to decide Heller.
It may be that this addition of "in common use" - meaning in common use by Joe and Joy Average - to the definition of "in common use" by the militia that has stood since 1939, is just the ambiguity we need in order that: "has some reasonable relationship to the preservation or efficiency of a well regulated militia" comes before the court in the future for -well - lets call it "Clarity". It may turn out to be the fly in the ointment to do away with Miller. When you can pull two meanings out of the same context, the context is untenable.
Maybe I'm not understanding what you're seeing in the decision, but there's plenty of things wrong with Miller in addition to the above:
- Miller never showed up in Court to fully defend his case (he was dead, I think)
-Miller's interpretation of what the militia is is wrong - it only defines the portion of the militia called by Congress, not the whole militia.
- The Miller SC misapplied their own test: trench guns were in common use by the militia in WWI.
- Miller, interpreted literally the way some antis do, denies the right to be in the militia to women, the disabled, and people over 45 - this is in the same sentence as the infamous "in common use at the time" if I recall correctly.
- The Miller test would allow full auto (not a problem for us, but a problem for antis)
- Scalia, laid the groundwork to argue the individual right to self-defense embedded in 2A renders the Miller test unsuitable, because there's plenty of self-defense weapons not used by the militia that we have a right to. Scalia quote:
See also Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 244 (1983) (19th-century courts
never read “common defence” to limit the use of weapons to militia service)
This makes the Miller test a test of what they cannot ban at best rather than THE test. Scalia's words about self-defense being a right unconnected to the militia are pretty powerful. What Gang of Four tyrant would deny a disabled, 46-year old woman the right to use pepper spray because it's not used by Miller's militia and she's not a member?
I wish Scalia had ended it right here and now. If he only needed himself, Thomas, Roberts, and Alito, he probably would have done just that.
I think, given friendly courts in the future, he ended it "between the lines" of the decision.
They do know this, of that I'm sure. I'm afraid we'll have to choke it out of them before they'll put it on paper, though. We should never be less armed than those in government.
Scalia does say this:
There are many reasons why the militia was thought to be “necessary to the security of a free state.” See 3 Story §1890. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary—an argument that Alexander Hamilton made in favor of federal control over the militia. The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961) (A. Hamilton). Third, when the able-bodied men of a nation are trained in arms and organized, they are Cite as: 554 U. S. ____ (2008) 25 Opinion of the Court better able to resist tyranny.
The more I digest the decision and other interpretations, the more I realize:
- Scalia (and his allies) did an excellent job laying the groundwork.
- Scalia claimed every inch he possibly could without flipping Kennedy - this case was decided by a couple of sentences.
- The Gang of Four dissenters believe in an individual right that can be taken away at the whim of government, in other words, no right at all. They interpret the constitution anyway they want and have no particular regard for it.
- We can still lose. Friendly courts need to establish strict scrutiny, incorporation, and as you say, revisit Miller. If strict scrutiny and incorporation are not established, our right is guaranteed to disappear over time.
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