Silicon Investor (SI) -- The First Internet Community

STOCKTALK

We've detected that you're using an ad content blocking browser plug-in or feature. Ads provide a critical source of revenue to the continued operation of Silicon Investor. We ask that you disable ad blocking while on Silicon Investor in the best interests of our community. If you are not using an ad blocker but are still receiving this message, make sure your browser's tracking protection is set to the 'standard' level.

Politics : Formerly About Advanced Micro Devices -- Ignore unavailable to you. Want to Upgrade?

To: tejek who wrote (142443)	2/5/2002 5:36:44 PM
From: TimF	Read Replies (1) \| Respond to of 1577894

"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 ______ 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

To: tejek who wrote (142443)	2/6/2002 12:14:50 AM
From: d[-_-]b	Read Replies (1) \| Respond to of 1577894

nationalreview.com Guns in Court The 1939 Supreme Court case of United States v. Miller is the best thing that the gun-prohibition groups have left, legally speaking. Mr. Kopel is research director of Independence Institute. Along with Andrew McClurg and Brannon Denning, Mr. Kopel is co-author of the law-school textbook Gun Control and Gun Rights, to be published by New York University Press in the spring of 2002. May 30, 2001 11:30 a.m. Astute media-watchers have been noticing that the Washington Post, despite its liberal reputation, has been getting ever more objective and careful in its news reporting. Meanwhile, the New York Times, despite its reputation for objectivity and accuracy, has been getting ever sloppier, and trending further and further left in its reporting — as documented by Smartertimes.com An excellent illustration of the Post's rise and the Times' degeneration can be seen in their contrasting treatment of the recent letter from Attorney General John Ashcroft to the NRA announcing his belief that the Second Amendment guarantees an individual right to arms. Both papers provided background to the Ashcroft letter by discussing United States v. Miller, the last Supreme Court case that analyzed the Second Amendment at length. The Washington Post described the case with perfect accuracy: "In the 1939 U.S. v. Miller decision, the U.S. Supreme Court ruled that there was no constitutional right to own a sawed-off shotgun because it had no 'reasonable relationship to the preservation or efficiency of a well-regulated militia.'" The Times, on the other hand, misrepresented the case, applying the spin which gun prohibition groups so often use about Miller: "Mr. Ashcroft's letter, sent last Thursday in response to an inquiry from the N.R.A., rejects another interpretation — applied by the Supreme Court in its last major ruling on the amendment, in 1939 — which holds that the Constitution guarantees only a collective right to guns through state and federal militias, not an individual's right." Note that the Post quoted directly from the Miller case, whereas the Times did not--and indeed could not, because the Miller Court never says what the Times claims. Miller nowhere explicitly says that the Second Amendment does or does not guarantee an individual right or a collective right. It is logically impossible, by the way, for a "collective right" to exist unless the individuals who belong to the collectivity possess an individual right. Otherwise, a "collective right" would be like "collective property" in a Communist country — meaning no right at all, but instead the government's destruction of the right. Miller grew out of a 1938 prosecution of two bootleggers, Jack Miller and Frank Layton, for violating the National Firearms Act by possessing a sawed-off shotgun without having paid the required federal tax. The federal district court dismissed the indictment on the grounds that the National Firearms Act violated the Second Amendment [26 F. Supp. 1002, 1003 (W.D. Ark, 1939).] Freed by the district court's ruling, Miller and Layton promptly absconded, and thus only the government's side was heard when the case was argued before the Supreme Court. Since a federal statute had been found unconstitutional, the federal government was allowed to take the case directly to the Supreme Court, under the law of the time. If the Second Amendment only protected the National Guard, then the Supreme Court would have thrown Jack Miller's case out of court for lack of standing, since Miller, an Oklahoma bootlegger, was plainly not a member of the National Guard. Yet the Supreme Court has never ruled that individuals cannot raise Second Amendment claims. Instead, the Supreme Court sent the case back to the trial court for fact-finding about whether Miller's particular firearm (a sawed-off shotgun) was a militia-type weapon. Miller and Layton being long-gone, the district court never heard the case again. The Supreme Court's decision was consistent with the main line of state court precedent from the nineteenth century, which said that the right to arms in state constitutions and in the Second Amendment applied to everyone, but the right included only arms suitable for militia-type use (e.g., a rifle) but not arms suitable only for brawling (e.g., brass knuckles). For example, in 1891 the West Virginia Supreme Court construed the Second Amendment to protect an individual's right to own: "the weapons of warfare to be used by the militia, such as swords, guns, rifles, and muskets-arms to be used in defending the State and civil liberty — and not to pistols, bowie-knives, brass knuckles, billies, and such other weapons as are usually employed in brawls, street-fights, duels, and affrays, and are only habitually carried by bullies, blackguards, and desparadoes, to the terror of the community and the injury of the State." State v. Workman, 35 W. Va. 367, 372 (1891). The minority of state cases extended protection to any weapon that was suitable for personal defense. The Miller Supreme Court explained that the "the militia comprised all males physically capable of acting in concert for the common defense…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." As the Miller case illustrates, individuals may raise Second Amendment claims even when they are not in the National Guard, and are not participating in any type of militia activity. But the only firearms that the Second Amendment protects are those that may be suitable for militia purposes. The confusion about Miller arises from the paragraph in which the Supreme Court said that Mr. Miller's sawed-off shotgun was not, as far as the Court knew, a militia-type arm: "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. Aymette v. State, 2 Humphreys (Tenn.) 154, 158." The case cited by the Supreme Court, Aymette, interpreted the Tennessee Constitution's right to arms to protect an individual right to own firearms, but only those firearms suitable for militia use. In dicta, Aymette stated that the Second Amendment has the same meaning. The Miller opinion's penultimate paragraph stated, "In the margin some of the more important opinions and comments by writers are cited." In the attached footnote, the opinion cited two prior U.S. Supreme Court opinions and six state court opinions, all of which treated the Second Amendment or its state analogue as an individual right, even as the opinions upheld particular gun controls: Presser v. Illinois, 116 U.S. 252 (1886) (Second Amendment not violated by ban on armed parades); Robertson v. Baldwin, 165 U.S. 275 (1897) (Second Amendment not violated by ban on carrying concealed weapons, because all constitutional rights contain implicit exceptions); Fife v. State, 31 Ark. 455 (Second Amendment does not apply to the states; state right to arms not violated by ban on brass knuckles); People v. Brown, 253 Mich. 537, 235 N.W. 245 (1931) (Michigan state constitution right to arms applies to all citizens, not just militiamen; right is not violated by ban on carrying blackjacks); Aymette v. State (discussed above); State v. Duke, 42 Tex. 455 (1874) (Second Amendment does not directly apply to the states; Texas constitution protects "arms as are commonly kept, according to the customs of the people, and are appropriate for open and manly use in self-defense, as well as such as are proper for the defense of the State."); State v. Workman (see above). The Miller footnote likewise cited treatises by Justice Joseph Story and Thomas Cooley explicating the Second Amendment as an individual right. Justice Story, in section 1891 of his treatise on constitutional law, explained, "The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them." But the same Miller footnote also cited a Kansas Supreme Court decision which was directly contrary; that case held that the right to arms in Kansas belonged only to the state government, and in dicta made the same claim about the Second Amendment. Salina v. Blaksley, 72 Kan. 230, 83 P. 619 (1905). So while the weight of the Miller opinion and the sources it cites are on the side of individual rights, the Court did cite one lower court case that rejected individual rights. And most importantly, the Court never explicitly endorsed the individual rights view or the "collective rights" view. Thus, my friend Andrew McClurg, a University of Arkansas Law Professor who opposes the individual-rights position, provides an accurate summary when he writes: "The truth is, Miller offered a little something for everyone. It is an ambiguous decision that failed to unequivocally adopt either a collective right or an individual right interpretation of the Second Amendment… "[W]hen all is said and done, the only certainty about Miller is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact. For example, Professor Eugene Volokh describes Miller as 'deliciously and usefully ambiguous' in an article about using the Second Amendment as a teaching tool in constitutional law. That is probably the most accurate statement that can be made about the case." [McClurg, "Lotts' More Guns and Other Fallacies Infecting the Gun Control Debate," 11 Journal of Firearms & Public Policy 139 (1999).] There is one other notable feature about Miller: It is the best thing that the gun-prohibition groups have left, legally speaking. Because Miller doesn't explicitly affirm the Standard Model of the Second Amendment (the individual-rights view) lower courts that are determined to uphold repressive gun laws can cling to it. As Southern Illinois University law professor Brannon Denning details in Can the Simple Cite be Trusted?, some lower courts have cited Miller for propositions which cannot reasonably be said to flow fromMiller, in order to uphold anti-gun laws. The tide of scholarly legal opinion today is overwhelmingly on the side of the Standard Model of the Second Amendment. Attorney General Ashcroft's recent letter is consistent with modern scholarship, and it is not inconsistent with Miller — despite what the New York Times wishes to believe.