A brief History of US vs Miller

MOD,

I believe that in order for a state to have become part of the Union it must follow the Constitution. This includes the 2nd Amendment.

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John/az

"The middle of the road between the extremes of good and evil, is evil. When freedom is at stake, your silence is not golden, it's yellow..." RKBA!
 
MOD- It is not the definition of militia that is the problem. It's clear that the "unorganized" militia consists of all able-bodied men. However, the real question is does the militia clause of the Second Ammendment limit the persons and weapons that are protected? Does an old woman in a wheelchair have the right to own a Jennings for self-defense? If one presumes that the militia clause limits the right, she almost certainly does not. And this Miller decision treats the militia clause as a limitation!!!

It is very easy to say, "Yeah, I'm a member of the unorganized militia according to Title ten, and my assualt rifle here is protected by the second!" but that's conceding the point that the clause is limited to members of the militia. This concedes that the second is NOT also about private self defense, but rather the "common defense" and so private self-defense weapons are NOT protected, unless they are have "some reasonble relation to the maintaince of a well-regulated state militia."

And if we claim, quite correctly, that we are militia members, then they can say that we are "unorganized" militiamen, but not the "well-regulated" militiamen intended by the second. They can ask- Who is your militia officer? When is the last time you were mustered? What training or "regulation" have you recieved? Therefore, you are not the drilled, well regulated militia intended by the founders, so you do not have a right to own arms.

It's a wrongheaded argument, but it is utterly unavoidable if one concedes the militia clause is a limitation. Miller took exactly that stance- that the arms (and presumably the person) has to relate to the "preservation and maintance of a well-regulated state militia." If this point stands, we will lose our gun rights in the courts as well as in congress. If the second is limited to the "militia" (even a very broad one) and "militia arms" (even many of them) we will lose. Purely private self-defense arms must be recognized as protected. Miller does not do so.

Thoughts?
 
MOD,

I may have been a little harsh, and I am by no means the ultimate SC scholar, but the most recent case I've heard of involved some sort of strip club that went out of business years ago, yet lawyers (ACLU?) presented the case even though, as in Miller, the original complaintant was no longer around.

The most egregious case I can cite you is the famous Brown Vs. Board of Education. Yeah, its not a great analogy but it is shocking what the court did. Thurgood Marshall screwed up his original arguments so badly that they let the case be tried again with Justices on the Court(!) actually reviewing his arguments beforehand and telling him what to say! This is documented in a book by Paul Craig Roberts and L. Stratton.

Sorry I can't give you a cite but I have been told that it is not uncommon for the court now to appoint legal counsel in cases where the defendent is unable to argue before the court.

The interesting question about Miller is why if the court ruled that all that needs to be shown is that a short-barreled shotgun is acceptable for militia use, the next person charged with the crime didn't immediately in trial cite Miller and then bring in Military experts testifying that of course short barrelled shotguns had been used extensively in WWI and previously?

Do you know more about this MOD? Why don't we do this today?

I guess I probably know the answer, the lower federal courts throw the cases out and refuse to hear them?
 
An American citizen, that is, an American Militia member need not have a "militia leader" until the the militi is called up. And then the leadership is elected by the militia members themselves.

"This concedes that the second is NOT also about private self defense, but about the common defense."

No, the Framers specifically voted down the wording "for the common defence" when constructing the 2A.

"they can say that we are 'unorganized' militiamen, but not the "well-regulated"

Well-regulated means well-skilled. Are your gun sights well-regulated? Is your double-barreled rifle well-regulated?

Here is a citation for you which may explain the use of this term.

From Judge Cooley's Constitutional text

"The right is general. It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been explained elsewhere, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon...If the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or the neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. But this enables the government to have a well regulated militia; for to bear arms implies something more than mere keeping; it implies the learning to handle and use them in a way that makes those who keep them ready for their efficient use; in other words, it implies the right to meet in voluntary discipline in arms, observing in so doing the laws of public order."

The above also addresses your next question...

" When is the last time you were mustered?"

The Framers knew that the militia might be neglected by the legislature but that was no reason to disarm the citizenry. See the words of Richard Henry Lee, George Mason, Patrick Henry, etc.

" it is utterly unavoidable if one concedes the militia clause is a limitation."

The Second Amendment does two things. The first part explains why a citizens militia is needed. It shows the intent of the Framers that standing armies are dangerous to liberty. But the only requirement that the Second Amendment is found in the second half...that "the right of the people to keep and bear arms shall not be infringed."

Richard Henry Lee, who called for and signed the Declaration of Independence wrote the follwing:

"A militia, when properly formed are in fact the people themselves...and include all men capable of bearing arms...To preserve liberty it is essential that the whole body of people always possess arms...The mind that aims at a select militia, must be influenced by a truly anti-republican principle." Federal Farmer, 1788.

Samuel Adams: "The said Constitution [shall] be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms." Massachusetts' U.S. Constitution ratification convention, 1788.

And folks...don't forget the Ninth Amendment as well.

Rick

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"Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birth-right of an American." Tench Coxe 2/20/1788
 
BTR, Good point. From the language of the second it is clear that the people are granted the right in order to help ensure the security of a free state. It by no means follows that the right is thereby revoked if the State doesn't provide training, etc.

We know both Scalia and Thomas support the proper interpretation. Any chance in hell that Rehnquist, Kennedy and O'Connor might?
 
RickD- I agree with you wholeheartly about the militia, and what the founder's said about it, as well as it not being a limitation. The only exception I take to what you say is that "well regulated" does not refer to weapons, but rather that the company is led by a properly elected or appointed officer, and recieves training. My point was that the court treated the militia clause as a limitation. If the Supreme Court takes that as a precident, and says the Second only applies to certain militia weapons, or certain persons deemed suitable members of a militia, we can't win. If Miller stays, we lose. The court must recognize self-defense weapons completely unrelated to any militia service are protected. By the refusal of the Supreme Court to hear the appeal from the pistol ban in Morton Grove, we could be in trouble.

As Valdez said, does anyone know about the disposition of the current Supreme Court members?

[This message has been edited by BTR (edited December 23, 1999).]
 
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