From the Heartland

This is my soap box, on these pages I publish my opinions on firearms and any other subject I feel like writing about.

Friday, August 13, 2004

What the Supreme Court really said in U.S. v. Miller

The Miller case, decided in 1939, long after the first World War and mere months before the second, has been the poster child for the removal of military type firearms from the hands of the general populace.

How anyone can deduce that from Miller is beyond me. I suppose if one only bases their argument on the October 1938 brief filed by Messers; Jackson, McMahon, Barron, Strine, Kneip and Smith they may have a weak arguement.

Going to great depth to cite English Common Law the Messers contridict themselves on several points. The most important being that the second amendmant applies only to idividual posession of military weapons for the common defense, then go on to assert that these same weapons are evil incarnate and machineguns, bowie knives and brass knuckles are the tools of gangsters and have no place in the hands of private citizens.

I find it hard to believe that as educated as these attorneys are suppose to be they had no knowledge of trench warefare where short barreled shotguns, machineguns, and knuckle dusters proved to be a decisive weapons used by the military of both sides in the previous war and certainly so in the one the Horizon

The italicized excerpts all come from the most comprehensive compelation of U.S. v. Miller that I have found.

The Opinion of the Court however barely aknowledges those and points to it's own historical references instead:

"In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and 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.

Nobody presented evidence that this could be considered a useful tool for the militia and the court was not asked to make that determination. What hey said then is simply; If you had told us this was a military firearm we would have concurred with the lower courts dismissal.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that 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.

The High Court infers that it is an individual right when it refers to those, "called showing up with arms the provided for themselves and of a common type for the time." The Founding fathers were very educated visionaries, that knew technology would advance. Common use of the time transcends the years. An Ar-15 is as common of this time as the Brown Bess was at the time that was written.

By an Act passed April 4, 1786 the New York Legislature directed: ........... That every Citizen so enrolled and notified, shall, within three Months thereafter, provide himself, at his own Expense, with a good Musket or Firelock, a sufficient Bayonet and Belt, a Pouch with a Box therein to contain not less than Twenty-four Cartridges suited to the Bore of his Musket or Firelock, each Cartridge containing a proper Quantity of Powder and Ball, two spare Flints, a Blanket and Knapsack; . . ."

Since every adult male was considered to be a member of the militia, enrolled would mean, a male coming of age, or one recently located in that community. Note that in addition to the firearm it required a ration of ammunition as well. These are things the Government requierd the able bodied citizens to posess as one of the duties of citizenry. How much more plain can that be made?

The fact that Miller died kept the lower court from rehearing evidence that the short-barreled shotgun was in fact a proper firearm of the Militia and deciding so.


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