Benjamin,
I would probably mention that the "Miller" case that most anti's base their opinion on, actually leads much to the "individual" rights argument, rather than the opposite. All the Miller case did was to say that a sawed off shotgun was not a militia weapon. They made no judgement on what the militia is. As you know the militia was "all" able bodied males (& females). I would also mention that almost every Constitutional scholar of note, including the very liberal Lawrence Tribe, has come out on the "individual" rights side of the argument. Tribe has received a lot of hate mail from his fellow liberals, due to his revised stance.
Here are my notes on the Miller case...
A brief History of US vs Miller
Sunday, 19-Dec-1999 19:50:54
Very briefly,Jack Miller was a moon shiner who had a dummy still set up where he could bring moon shine supplies without the batf finding the real still. Sure enough, BATF tried to bust him ,but the rusted out still at that location had been non functional junk for years.
So there was no still here,a bad bust.
BATF took Miller's stevens savage side by side double barrel 12 gague shotgun , worth
about $5.oo in 1938, and arrested Miller on violation of the National firearms act of 1934; Because Miller has not paid the US Treasury a $200.oo tax & registration fee on
the $5.oo , 16 &1/2 inch barreled shot gun.
The Batf did not have to go back enpty handed ,with yet more egg on its face, this time!
United States VS Miller, District Court, Western District of Arkansas,
Fort Smith Division; Judge Heartsil Ragon
Presiding.
In order to cut out 3 pages of print
I skip to the disposition of the case in lower court.
Mr. Defense Attorny Gutenson, the demurrer
you filed is accordingly sustained.
The National Firearms Act of 1934 violates the SecondAmmendment to the Constitution of the United States. Case dismissed. Mr Miller & Mr. Layton, you are free to go.
Now Jack Miller was a dirt poor moonshiner. He paid Attoury Gutenson only 26.oo, all the money Miller had.
Miller had won, the National Firearms Act of 1934 was an illegal law in voilation of the Second Ammendment of the Constitution.
But , a month later , the feds appealed the case to the US Supreeme Court in Washington Dc.
A week long seach could not find either Jack Miller or his associate Mr Layton , both of whom might possibly have been back up in the woods cooking up a new batch of shine . Any ways, no one could find them. Att. Gutensohn was unwilling to travel
at his own expense from Arkansas to Washington DC , there to defend a missing man for FREE and did not bother to file a typed brief with the Supreme Court, again, for
free.
Supreme Court of the United States, Chief Justice Mc Reynolds presiding.
For the United States, Att. Gordon Dean.
There was no legal represention for Miller,
Miller himself was missing and never again found by LEO's.No briefs for the defense were ever filed.
An opponent to the govt's challenge
about to be made would have doomed Dean's argument. Without opposition, there was a chance Dean could squeak by.All it would take Dean was some creative manipulation of the facts & some monumental omissions.
Yes ,your Honor. If it please the Court,the District Court's prior dismissal of
this case & the ruling that the National Firearms Act is in contravention to our
Constitution has no rational basis in law.
The NFA levies a tax on the intrastate commerce in sawed off shot guns, & affixes a Fed. stamp to the order as proof that the tax has been paid. THE WEAPON THAT --Mr Miller & Layton transported
in intra state commerce,a double barreled Stevens 12 ga.shot gun having a barrel length of less than 18 inches AND BEARING SERIAL #
76230, is not issued to any military entity
anywhere in our country. TO SAY THAT THIS WEAPON IS PART OF ANY WELL REGULATED MILITIA IS UTTER NONSENCE.
(Fed. prosecuting Att. Dean had just streched the truth as far as he ever had in his professional life).
[Short barrelled shot guns has been used in every military engagement in the past 50 years, BUT WHAT DEAN ACTUALLY HAD SAID
WAS: that Serial # 76230 was not government issue, so that it wasn't really a lie.
Dean also dreaded the question of how a $200.oo tax on a $5.oo gun could be anything but an infringement on the right to keep the weapon. The tax was , after all, 40 times the
cost of the weapon and carried a penality
of both a 5,000.oo fine and a 5 year jail sentence.
Because of Judges with no military or
firearms experience and no opposition legal representation, these questions were neither asked or even considered.
Without opposing counsel, the Court was never told that shotguns with barrells less than 18 inches were used in the military. The Court was never informed that the National Firearms Act of 1934 applied to automaic weapons that were obviously military issue, which would have killed the government's arguement right there. Finally, no one had pointed out , as had District Court Judge
Heartsil Ragon, that militia weapons were ,by defination,the personal arms of the private citizenry, and therefore weather or not a particular weapon was issued to army troops
was completely irrevelant.
The Decision:
In the absence of any evidence tending to show that possession or use of a shotgun having a barrell of less that 18 inches of
length at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia ,we can not say that the Second Ammendment guarantees the right to keep & 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.
-------------------------------------------------
"United States v. Miller, 307 U.S. 174, 86 S.Ct. 816 (1939) lends considerable
support to the proposition that the Second Amendment guarantees an individual right
to keep and bear arms. However, through selective quotation numerous appellate
courts have cited Miller as authority for their claim that the Second Amendment
guarantees only a collective right of States to maintain militias."
The reason Miller is bad law and will be overturned when the Court hears another 2nd A has to do with faulty findings. The Court merely found that a sawed off shotgun was not part of the military arsenal, therefore, a weapon not protected by the 2nd A. Thats all. The Court further admitted that they were not experts and that they could be wrong....and they were.
*******
Miller is totally confusing and lends itself to all sorts of interpretation.
In its literal sense it basically says, if the military doesn't have it, you can't have it. It in itself in no way denies the individual 2nd A rights, in fact it upholds them. But it is the first Federal law to infringe on 2ndA by selectively picking a type of firearm and saying "this gun is not protected by the 2ndA".
Good luck,
Joe
[This message has been edited by nralife (edited May 16, 2000).]
