Second Circuit Upholds Most of NY SAFE Act and CT Ban

[zukiphile]

Exactly! Even Justice Stevens, who dissented, is on record as saying that Heller did not overturn Miller.

Stevens wrote that as an admonition to the majority in Heller against expanding a recognition of the right to a protection of that right outside of military service.

Yes, Stevens wrote in praise of Miller. His take on Miller is that you have an individual right to serve in an organized militia and use a firearm in that militia.

While Stevens writes that he recognizes an individual right, he simultaneously argues that the protection not extend to a mere individual as an individual.

I do wonder, why it has to be one, OR the other? WHY NOT BOTH????

If your take on Miller is that "militia suitable" arms ARE protected, and Heller states that we have the right to arms, independent of the militia,

WHY CAN"T WE HAVE BOTH????

The short version of my longer answer below is that each position represents a reasoning and that while there may be overlap in the result, the reasoning itself is different.

If your read on Miller is that the core of the right extends particularly to items that are used in military service, and that's the test, then extending the protection to a lady's pocket pistol for her own personal protection doesn't make a lot of sense.

On the other hand, if you are describing a right held by free Englishmen for centuries and subject to some marginal regulation, then that lady's pocket pistol for personal protection makes lots of sense and we don't run into the purely political problem of legalizing fully automatic arms. That historical right of free Englishmen to arm themselves could extend to fully automatic arms dependent on political considerations.

As an analytical matter, I do see NFA regulations as infringing upon the right, but as a political matter with the court I imagine that the votes might have fallen very differently if that were the position taken before the court eight years ago.

 

[maestro pistolero]

EDIT - I would also note another facet of the curiosity. If I recall correctly, the item at issue was a sawed-off shotgun which the court found not suitable for militia use.

What the Miller court said was that it "(was) not within judicial notice" that the sawed off shotgun was useful for militia service. At this point the plaintiff was dead and the case was essentially orphaned at the courthouse steps. It is and was an incomplete mess.

Heller re-read Miller to mean only that the amendment protects the sort of weapons that citizens would commonly possess that they would supply themselves for militia service.

 

[zukiphile]

What the Miller court said was that it "(was) not within judicial notice" that the sawed off shotgun was useful for militia service. At this point the plaintiff was dead and the case was essentially orphaned at the courthouse steps. It is and was an incomplete mess.

Indeed.

Heller re-read Miller to mean only that the amendment protects the sort of weapons that citizens would commonly possess that they would supply themselves for militia service.

That gives the prefatory clause a function the majority didn't give it. It's lazy to quote a syllabus, but that what I've done below.

The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms

 

[maestro pistolero]

Heller re-read Miller to mean only that the amendment protects the sort of weapons that citizens would commonly possess that they would supply themselves for militia service.

That gives the prefatory clause a function the majority didn't give it.

That was from the majority opinion. I don't see how that reading of Heller changed the function of the prefatory clause. It actually refers to that very function. It may have narrowed the scope a bit WRT the type of weapons the amendment protects.

If I misunderstood please clarify.

 

[zukiphile]

If I misunderstood please clarify.

The misreading is my own.

I wouldn't say that the Court re-read Miller to be a decision on the narrow issue of the sort of arm protected, but that this is what Miller is most correctly understood to conclude.

What Heller changed was whether the prefatory clause defined the right at all. Where the Court in Miller takes the prefatory language as operative, the Court in Heller doesn't.