U.S. v. Miller

Discussion in 'National Laws, Bills and Politics' started by Malum Prohibitum, Aug 23, 2006.

  1. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    kkennett,

    I originally replied to you in the U.S. v. Parker thread, but I decided this was too much information not directly related to the Parker case, so I moved my reply here.

    I don't really have a problem with Miller. I have a problem with the way it is misinterpreted, but not the text of the original opinion itself. All it really said is that in the absence of any evidence the justices were not going to just assume that a short barreled shotgun was any part of the ordinary military equipment. As a result, it held that there was no basis to reverse a conviction on possessing a short barrelled shotgun without having paid the $200 tax.

    The opinion said of people showing up for militia duty: "ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

    M-4 or a SAW, anyone? :D

    There is a lot good that could come from Miller, if people did not make such an effort to twist it.

    Read it for yourself.

    http://caselaw.lp.findlaw.com/scripts/g ... &invol=174

    The only real issue I have with it is the cite to the Tennessee case, Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158, which is interpreting a state consitutional provision that protected the right to keep and bear arms only for "the common defence." As the Court itself states later in the opinion, "Most if not all of the States have adopted provisions touching the right to keep and bear arms. Differences in the language employed in these have naturally led to somewhat variant conclusions concerning the scope of the right guaranteed."
     

  2. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    WOW! Here is enough detail for a book. This person laboriously transcribed all the lower court documents in the Miller case, and gives a detailed history.

    http://www.gunlawnews.org/Miller.html
     
  3. kkennett

    kkennett New Member

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    MP, I agree. My post in Parker had to do more with frustration over the post-Miller court. After all, Miller was in 1939. How many 4th and 1st cases have they taken since then on finer points? We've now been through the gun control, "collective rights" phase, on which they never chose to act, despite several good opportunities from Circuit Courts. The Emerson opinion in the 5th Circuit was awesome, I think, for the 2nd A, ushering in the 'individual rights' phase. Why not grant cert on that case and make it the case law of the land? 67 years of no guidance from them on number 2 of the bill of rights? What exactly are we paying them for?
     
  4. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Ushering in the "individual rights" phase? Oh, how I wish it were true. the reality is that every circuit to consider the question since the Emerson case was decided has reached the opposite conclusion.

    The Supreme Court has mentioned the Second Amendment in passing several times since Miller, with dicta indicating that the people means, well, the people. They have no holding, however, on whether a non-felon has any Second Amendment right at all.

    Even a limited holding that does not outline the scope of the right but simply declares that there is one would put antis on the defensive everywhere, as the argument would soon turn to what is protected by the right, rather than IS there a right? Are semi auto AK-47 clones something one may keep and bear in California? I don't know, but litigation would soon ensue. May a person in New Jersey load a defensive handgun with hollowpoints? I don't know, but litigation would soon tell us.

    A bad holding by the Supreme Court, however, would not affect us much at all. The gun issue would remain what it has been since the 1930s, a political issue. The gun situation would be better in Alaska than in Illinois. And so it goes.

    There is also the state constitution.

    The only thing I could wish for is for one more Supreme Court Justice to retire and be replaced by a conservative prior to the first case since Miller being accpeted by the Court.
     
  5. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    http://armsandthelaw.com/archives/2009/ ... er_193.php

    Cool! :D
     
  6. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Cases v. United States, 131 F.2d 916 (1st Cir. 1942), cert.denied sub nom., Velazquez v. U. S., 319 U.S. 770 (1943).

    From the comments section
     
  7. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    back in those days, there WERE cannons. There WERE rockets with exploding warheads. Were there any laws against private ownership of such things? I don't think so.
    The trouble is, if you allow Joe Blow citizen to own a bazooka because he's a member of the unorganized militia at large, and he can keep this bazooka at home and use it without the knowledge or approval of anybody else in his community....
    ...what if Joe decides he wants to blast open a Brinks armored car with that bazooka?
    ... what if Joe hates the President so much he'll use that anti-armor weapon on the Prez's limousine the next time the Big O comes to town?
    ... what if Joe gets drunk and shoots that bazooka at squirrel on a limb in a tree in his back yard, and the projectile falls into a subdivison of homes half a mile away?
     
  8. seajay

    seajay NRA Certified Instructor

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    I would say Joe commited a crime and should be hunted down an dealt with.

    I would say that's what the 2A is for. To keep the Government in line so people don't end up hating it.

    That too woul be a crime. Same as yelling fire in a theater.

    Now I have another question for consideartion. What stops Joe from doing any of those things now if he really wanted to?

    No one wants to take out Obama. If they do we get Biden. If they take out Obama and Biden we get Pelosi. Lose=Lose=Lose. The country has been sick for about 80 years or so. Obama is the cure. Let the medicine work.
     
  9. Taler

    Taler New Member

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    Yell fire in a theater that's burning, and there's no crime though, wouldn't you agree?

    As for "the cure", I reckon committing suicide might be a cure for depression, from a particular viewpoint.
     
  10. seajay

    seajay NRA Certified Instructor

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    I do believe the yelling fire assumes there is no fire in order for it to be a crime. Same thing as shooting a rocket at a squirrel. Same as shooting a gun into the air on the 4'th of July. Reckless public enangerment. Point being there is no law than can prevent these things from happening now.

    You can look at suicide that way. You can also look a chemotherapy as a cure for cancer. It makes it worse in order to make it better.

    And to add to the point...Suicide is also illegal. Yet it still happens.
     
  11. fiwit

    fiwit New Member

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    Wait... so if I'm reading you correctly, you're telling me that just passing a law and making something illegal DOESN"T KEEP IT FROM HAPPENING????!!!!???? :shock: :panic: :panic:



    I wish other folks would realize that. Like the ones who keep saying "we need more laws!"
     
  12. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    QUOTE:
    '...there is no law than can prevent these things from happening now."

    MY RESPONSE:
    Yeah, but doing those things is worse with heavy military weapons and high explosives.

    Right now, it's virtually unheard of for a disgruntled employee to throw fragmentation grenades into his former place of work. People don't use anti-armor weapons to knock out Brinks armored cars and steal the money.
    The limos that VIPs ride in can be armored against all sorts of small arms, and that's the only realistic threat they face now. So they're pretty safe.

    If sporting goods stores were allowed to sell ANYTHING that shoots, to anybody, no questions asked (that's what the Second Amendment calls for, right???), don't you think we'd see more violent crime and more horrific accidents and more mass-casualty terrorist attacks using these weapons?
     
  13. commodore_dude

    commodore_dude Active Member

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    Let's see... Timothy McVeigh didn't need a bazooka, and you could just as easily shoot at a squirrel with your choice of rifle, miss, and have the round hit a baby half a mile away. We have a solution for that though, it's called jail, and maybe even a little lethal injection. And if you REALLY want to kill someone, I can't think of anything that's going to stop you (assuming you know where the person is, all the hate in the world hasn't done bin Laden in yet sadly). The tool involved really doesn't matter all that much. Fortunately the number of psychos that want to kill elected officials bad enough to follow through is typically low.
     
  14. seajay

    seajay NRA Certified Instructor

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    Hard to say if it would or wouldn't. I do know that if someone wanted to frag their former employer they could. 2 teens at a school come to mind. If someone wanted to use a rocket launcher to take out an armored vehicle they could. Why don't they? I don't have the first clue. Perhaps it's because even when people were to have their own artillery (such as cannons) they didn't use them to take out banks. Perhaps it's because taking out an armored carrier would be a waste of time because things would be scattered all over and the risk of resulting in fire would destroy the objective or make it impossible to gather. Building such a rocket is easy and buying the materials with no questions asked is easy now. You can make rocket fuel in your kitchen sink with nothing more than some parts available at your local auto supply store and stuff you already have on hand. Thermite and tannerite are easy to make as well. It's not done because it doesn't make sense to even the dumbest criminals. Black powder and smokeless powder are available as well. Why don't people use these? Because it's dumb that's why not.
     
  15. gunsmoker

    gunsmoker Lawyer and Gun Activist

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    Oh, okay.
    So then we don't need to repeal the National Firearms Act, because we the people already have the means to build anti-armor weapons, and nobody needs artillery because there are other ways of getting the same job done, and we don't need automatic weapons because you can kill people just as dead with a bolt action .22 rifle.
    So that the government denies these weapons to the people's militia is no big deal.
    I get it.
     
  16. EJR914

    EJR914 Cheezburger Operator

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    An excellent resource:

    Read it all here: http://rkba.org/research/miller/miller.html
     
  17. Malum Prohibitum

    Malum Prohibitum Moderator Staff Member

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    Good edition to this thread, EJR914. Thanks. :righton:
     
  18. oxfat

    oxfat New Member

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    Wow. Where did the last hour go?

    Good reading, thanks for posting this.