From the comments to that blog post -
I find the misreading of Miller to be an ongoing problem in the legal world. Probably this is due to a multi-decade long misreading by liberal judges. The facts of the case are not hard to understand, unless one deliberately wants to do so.
1. Miller was charged with a violation of the National Firearms Act of 1934 (NFA-34) in the form of possession of a shotgun with a barrel shorter than 18 inches.
2. The judge who heard the case threw out the NFA-34 as a violation of the 2nd Amendment. He clearly understood what "shall not be infringed" means.
3. The US government appealed directly to the Supreme Court. That's why the case is US vs Miller, rather than Miller vs. US.
4. The USSC said essentially to the judge who had thrown out NFA-34 "We don't have any evidence in our court at this moment showing short barreled shotguns as part of the 2nd Amendment RKBA. So you can't just throw out the law, you have to have a trial. Please do so." The case was remanded back to be tried.
5. Since neither Miller nor his partner were around to be tried any more, no such trial was ever held.
Therefore, US vs. Miller decides nothing other than the fact that there should have been a trial in Arkansas in the 1930's. It didn't address what the militia clause means. It didn't address what "keep and bear" means. It didn't uphold the Constitutionality of NFA-34 all that much.
Upon this, legions of liberal jurists have constructed all sorts of nonsense. But the case itself is not as generally presented.
Corrections welcome, flames to /dev/null
Posted by: Nosy at June 14, 2008 04:24 PM
Yes, it's a widespread misconception that ordinary citizens cannot posses functional machine guns (also called "select fire" or "full auto" weapons). Machine guns can be legally owned by civilians under the provisions of the National Firearms Act (NFA) of 1934, as administered by the Treasury Department. I believe that approximately 40 states currently have little or no additional restrictions on private machine gun ownership.
A last-minute provision of the Firearm Owner's Protection Act (FOPA) of 1986 (inserted at the dead of night on a voice vote by a New Jersey congressman) prohibited the civilian ownership and transfer of full-auto weapons manufactured after May 19, 1986. That provision has created a very healthy and appreciating market among ordinary citizens in what are called "pre '86" transferrable machine guns.
To my knowledge, there has been no scholarly research or opinion suggesting that DC v Heller might somehow change this arrangement, notwithstanding the Solicitor General's inflammatory statements during oral arguments.
It's worth noting that obtaining an NFA-registered pre '86 full auto weapon is quite a bit more cumbersome than simply buying a semi-auto rifle, shotgun or handgun. Local law enforcement approval is required, and fingerprints must be submitted with an application to the Treasury for an NFA tax stamp, which is issued after the applicant passes a background check and pays a $200 fee.
Also, to my knowledge, only two murders have ever been committed since 1934 using an NFA-registered machine gun. One of these was committed by a police officer.
So-call semi-auto "assault weapons" are a recent semantic invention, as historically, a military assault weapon has always meant a select fire (full auto) machine gun. Semi-auto rifles, etc. are not "assault weapons." Attempts to ban them as such have simply focused on cosmetic features which might cause them to appear "menacing" or "evil" to someone unfamiliar with firearms.
Finally, contrary to some reporting and popular opinion, semi-auto firearms are quite difficult to convert to full auto. Doing so (including mere possession of the applicable parts) carries severe federal penalties, starting with a minimum 10 year prison sentence.
Posted by: Glen Alexander at June 14, 2008 05:19 PM
Assuming the Supreme Court rules it is an individual right, I would love to be used as a test case to get California's habit of taking away that right arbitrarily.
Background, when I separated from my wife (now divorced), she lied (through omission) that there was domestic violence. What she failed to mention was that the violence was her drug using daughter (my step-daughter) attacking me with a knife (because I told her she couldn't go out to party). Despite my filing, with a lawyers help, documents that clarified what happened, the judge put a restraining order on me. As part of the restraining order, I was forced to turn my deliver my firearms to the local police.
So without being convicted of any crime I was deprived of a Constitutional Right simply on the word of another person. Where's the justice in that!?
Unfortunately, I don't have the unlimited funds needed to take this kind of case through the long legal process.
Posted by: Ogre at June 14, 2008 05:46 PM
concurringopinions.com |
