publius42 wrote:
Hi Alan,
I think what I said was that the Miller court did not say whether or not sawed off shotguns were militia weapons, they only said that no one had proven to the court that they were militia weapons. If Miller had had a machine gun of the type in common military use at the time, that argument would not have worked. If he had appeared before the Court with evidence of the use of shotguns in WWI, that also would most likely have changed the ruling.
It's worth noting that they never questioned Miller's right to own militia weapons, nor whether he was part of any organized militia. They just said, "we're not sure a sawed off shotgun is a militia weapon, so we're sending this back to the trial court to answer that question." Unfortunately, Miller was a scumbag who fled and then died, so the question never went back to the trial court.
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That might have been generally what you said, I do not recall exactly either, though I do believe that you made mention, re the militia, of their being armed with arms of the same type as were issued to the regular military.From that came my reference to "assault rifles", which would be in the personal possession of militiamen, as they were expected to report, when/if called, with their own weapons, and suitable ammunition, these being of a type similar to those issued to the regular military.
As to Miller not himself appearing before The Court, nor his legal counsel, one wonders at to whether such a proceeding would have been allowed today. Obviously, it was allowed in 1939, the unfortunate result being that The Court had the "benefit" on only the government's side. Naturally, the government didn't bring before The Court, historical facts or other evidence that would have, to use a polite phrase, let the hot air out of their balloon, ergo The Court ruled as it did. Notwithstanding this, for as I understand, at least one of the then sitting justices had served in the military during WW 1, where he might well have personally seen the issue and use of "sawed-off shotguns", and others might otherwise have known of this aspect of the thing, the ruling of The Court strikes one as strange, in the light of history.
Of course, given that I have virtually no legal education or other background, what I understand or not might not amount to much, still I find The Court's ruling curious to say the very least. Who knows but that matters now before the court, or the eddies resulting from pebbles from this case being tossed into the legal pond, we might well see an overturning of any number of laws and previous court findings from an earlier date, Miller being one such.