"If the court did outright declare the 2nd amendment to be an individual right, would you accept that ruling? If not I'm not sure how useful it is to argue about court decisions. "
No...first the rulings of the lower courts only pertain to the jurisdiction they cover... That's why its only the Sup. Cts. rulings about which I care.
I was refering to the supreme court. Generally when someone in the US says "the court" and the context doesn't make it clear that it is some other court it is the supreme court. So again I ask if the supreme court did rule against your position would you accept the ruling?
from what I understand in reading the ruling, the Court states that "the right to bear arms" was referring to state militias, and was inserted to satisfy the anti-Federalists who wanted more power dispersed to the states. It was never intended for everyone to carry a a gun...
The milita at the time was able bodied men with their own guns. They where sometime organizied by the states/colonies but they where not created by them. The right was the right of an individual to own arms, it may have been justified by the need of the states to call people up, but these people where not normally part of any orginization before they where called up.
The parts of my previous post that are directly relevant to Miller follow
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In Miller v. Texas, the defendant challenged a Texas statute on the bearing of pistols as
violative of the Second, Fourth, and Fourteenth Amendments. The problem for Miller was that
he failed to timely raise these defenses in the state trial and appellate courts, raising these
issues for the first time in the U.S. Supreme Court. While the court held that the Second and
Fourth Amendment (prohibiting warrantless searches), of themselves, did not limit state
action (as opposed to federal action), the court did not address the defendant's claim that
these constitutional protections were made effective against state government action by the
Fourteenth Amendment, because Miller did not raise these issues in a timely manner. The
Court, thus, left open the possibility that these constitutional rights were made effective
against state governments by the Fourteenth Amendment. Lastly, it should be noted that in
this case, as in the other Supreme Court cases, the defendant was not a member of the
Armed Forces, and yet the Supreme Court did not dismiss Miller's claim on that ground; thus,
Miller, as a private citizen, did enjoy individual Second Amendment protection, even if he
was not enrolled in the National Guard or Armed Forces....
U.S. v. Miller was the first case in which the Supreme
Court addressed a federal firearms statute which was being challenged on Second
Amendment grounds. The defendants, who had been charged with interstate transportation
of an unregistered sawed off shotgun, challenged the constitutionality of the federal
government's National Firearms Act of 1934 ("NFA"). The NFA, a tax statute, did not ban any
firearms, but required the registration of, and imposed a $200 transfer tax upon, fully
automatic firearms and short barreled rifles and shotguns. The federal trial court held that
the NFA violated the defendants' Second Amendment rights. After their victory in the trial
court, defendant Miller was murdered and defendant Layton disappeared. Thus, when the
U.S. government appealed the case to the U.S. Supreme Court, no written or oral argument
on behalf of the defendants was presented to the Supreme Court.
Gun prohibitionists often cite this case for the proposition that the court held that the
Second Amendment only protected the right of the states' National Guard to have
government issued arms (i.e., the "Collective Rights" theory). This is an untruth. In fact, the
court held that the entire populace constituted the "militia," and that the Second
Amendment protected the right of the individual to keep and bear militia type arms.
Recounting the long history of the "militia" in the colonies and the states, and the
Constitutional Convention, the court stated that these "show plainly enough that the Militia
comprised all males physically capable of acting in concert for the common defense."
The court also made clear that it was the private arms of these men that were protected.
(O)rdinarily 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 court held that the defendants' right to possess arms was limited to those arms that
had a "militia" purpose. In that regard, it remanded the case to the trial court for an
evidentiary hearing on whether or not a short barreled shotgun has some reasonable
relationship to the preservation or efficiency of the militia. Thus, in order for a firearm to be
constitutionally protected, the court held, the firearm should be a militia type arm.
But the court did not require that Miller and Layton (neither of whom were members of the
National Guard or Armed Forces) be members of the National Guard or Armed Forces in order
to claim Second Amendment protection. Nor did the Supreme Court remand the case for the
trial court to determine whether Miller and Layton were members of the National Guard or
Armed Forces. Clearly, under the court's ruling, Miller and Layton had a right to claim
individual Second Amendment protection, even if they were not members of the National
Guard or Armed Forces. Thus, the case stands for the proposition that "the people," as
individuals (not the states), had the constitutionally protected Second Amendment right to
keep and bear any arms that could be appropriate for militia-type use....
Tim |
