United States vs Miller

[alamo5000]

Recently I, like the rest of you have gotten into arguments about the 2A. I have been looking up a bunch of nerdy legal stuff to back up my arguments and I found reference to a case that I found interesting. It's kind of deep but read on if you are so inclined. I am certain there would be opposing views so chime in if you would like. People are trying to argue that the Heller decision didn't guarantee the right to AR platformed firearms, but this case discussed and cited below, as I am reading it, most certainly does.

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Background

In 1939, shortly after the enactment of the National Firearms Act, arrests were made because individuals were in posession of a sawed off double barrel shotgun. The defendants argued that this was an infringement on their 2nd Amendment rights--while the Supreme Court ruled against those involved regarding shotguns--in that very same ruling the Court went on to spell out the litmus test for what is allowed and why it was put there--that being a firearm that is of equal force to what is a standard issue military firearm of modern common use, and that the standard is in 'continuation'--the Supreme Court went on to explicitly explain WHY this was so in common, current, and historical context.

Quotes and Comments

Supreme Court Quotes [indented]:

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" The Constitution, as originally adopted, granted to the Congress power --
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."

"With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made.""

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"The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.

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."

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While one could argue the case for 'common use at the time' to mean one thing, there is no question whatsoever about the following sentence;

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"With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. "

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The ruling also goes on to guarantee the right's to ammunition, and that the doctrine behind the second amendment is founded in a fundamental distrust of all standing armies, both in the United States and outside of the United States.

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"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; "

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"In a militia, the character of the labourer, artificer, or tradesman, predominates over that of the soldier: in a standing army, that of the soldier predominates over every other character, and in this distinction seems to consist the essential difference between those two different species of military force."

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"In all the colonies, as in England, the militia system was based on the principle of the assize of arms."

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Assize of arms refers to a proclamation of King Henry II of England concerning the obligation of all freemen of England to possess and bear arms in the service of king. Our American 'Assize of Arms' is enshrined in the 2nd Amendment.

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"The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former."

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This case while ruling in favor of the NFA and was subsequently cited in the Heller Decision as the basis for 'the 2nd Amendment is not unlimited' comment, in a modern current context seems to clearly protect semi automatic firearms including ARs or other firearms.

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"The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon."

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That comment still needs to be squared with what was also quoted above in two separate quotes:

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"The Constitution, as originally adopted, granted to the Congress power --
"To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."

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With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.""

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""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."

Sawed off shotguns were not used in Revolutionary times and as far as I know they also were not commonly used by any standard military issue past or present.
That said the same argument cannot be made for high capacity magazines or AR or AK platformed rifles. While they were not used in Revolutionary times, they are, and have been for a long time, standard issue across all militaries globally. The AK-47 has been standard issue since 1949, and the AR platform has been standard since 1964, and previous to that since 1925 the M series rifles were standard issue.

What gets them according to this case is the stated purpose for a 'militia' and what I call 'the continuation and effectiveness clause' which I cited a few sentences above. That is the standard and precedent set by a modern Supreme Court ruling. That is the precedent we currently have (as far as I have been able to find) so why is that not a common reference to fight assault weapons bans?

The standard and precedent is already set by this case, and in my opinion it's even grounds to challenge other current laws or proposed gun legislation, especially an assault weapons ban.

Here is a link to the Supreme Court decision so you can see for yourself these things in context.

https://supreme.justia.com/cases/fed.../174/case.html

[Aragorn]

Alamo when are YOU going to run for some sort of office?

[Tyrannosaur]

You lost me because there's no pictures. Just kidding great read but to use anything we need justices willing to A. Take it on (2a legislation and the reinstatement of rights) and B. Stand for the constitution. With a Potus who is seemingly showing his colors (blue) and well RINO politicians or should I say cowards posing as allies were screwed.

[alamo5000]

Alamo when are YOU going to run for some sort of office?

My dad ran for office before and other family members have been in politics for a really long time (now retired). I've been around politics since I was small. It's not foreign to me... I've been told about 20 times that I should go to law school...

I am not sure if you're seriously asking me or just busting my balls about running... but when you come from where I come from that's generally a serious question. LOL!!!!

[alamo5000]

You lost me because there's no pictures. Just kidding great read but to use anything we need justices willing to A. Take it on (2a legislation and the reinstatement of rights) and B. Stand for the constitution. With a Potus who is seemingly showing his colors (blue) and well RINO politicians or should I say cowards posing as allies were screwed.

I will try to include stick figures from now on... for the infantry types

There are a whole lot of problems right now... Congress has the power to slap down and remove judges that are basically twisting the law and are activists. For those in Congress they don't have the balls or the political capital to do what needs to be done. In all reality it's going to take a long time to fix things. Democrats ran everything for something like 50 years... and they caused a ton of damage, and the SCOTUS is no exception. If we can sway the bench to be 6-3 in our favor then we might have a shot. It's definitely not going to be easy or quick.

If we keep up our ground game it certainly won't hurt. I wish I knew how to fix it all. Getting people up there that will lay down the law and play dirty when they need to play dirty it will be helpful.

Honestly I have been around and in a lot of ways subject to a lot of the really sleazy politics stuff. It honestly scares the best people off because it's so nasty.

On that note I have been corresponding with my other Senator about this damn fix NICS thing. We've exchanged emails and this last one hopefully will get his attention. I hope.

[Aragorn]

My dad ran for office before and other family members have been in politics for a really long time (now retired). I've been around politics since I was small. It's not foreign to me... I've been told about 20 times that I should go to law school...

I am not sure if you're seriously asking me or just busting my balls about running... but when you come from where I come from that's generally a serious question. LOL!!!!

Slightly busting your balls, mostly being serious.

[Stone]

I would also add that the right to bear arms comes before the constitution. The constitution doesn't give me those rights it just prevents a government from infringing on those rights. So always debate from that foundation. To many people argue from the position that the constitution gives them those rights...

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

That unalienable right (life) comes with the responsibility of being able to defend it with any means possible. The framers of the constitution knew this. Hence why the right to bear arms shall not be infringed.

[BoilerUp]

I would also add that the right to bear arms comes before the constitution. The constitution doesn't give me those rights it just prevents a government from infringing on those rights. So always debate from that foundation. To many people argue from the position that the constitution gives them those rights...

That is spot on. And I'm continuously surprised and disappointed at how many "conservatives" don't understand that. What is the source of rights? 51% majority? No. It's a philosophical question that the founders sidestepped a bit and just declared them as "unalienable" sprinkled in with a bit of "consent of the governed". We didn't find a war of independence because we wanted a Democracy, we did so because we wanted Liberty, and a Democratic Republic was considered about the best hope for preserving that Liberty. Sad to see how much we've given up since then.

It's also worth highlighting that many people argued the 2nd amendment (and the entire Bill of Rights, for that matter) weren't required because there was nothing in the constitution granting the government the authority to infringe on those rights anyway.

[alamo5000]

Slightly busting your balls, mostly being serious.

HAHA!! I was expecting more ball busting! LOL! But like I said though, I wouldn't rule it out but getting into politics is really nasty business.

I would also add that the right to bear arms comes before the constitution. The constitution doesn't give me those rights it just prevents a government from infringing on those rights. So always debate from that foundation. To many people argue from the position that the constitution gives them those rights...

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

That unalienable right (life) comes with the responsibility of being able to defend it with any means possible. The framers of the constitution knew this. Hence why the right to bear arms shall not be infringed.

I agree with you on all levels. In this situation though there has to be some kind of legal precedence as a foundation so that these laws can be reversed. As of right now, the case above is your legal precedence for fighting an assault weapons ban.

Although the case is about restricting sawed off shotguns, and the case was actually from the looks of it pretty 'activist', their further 'explanations' in the text of the opinion gives it more power. They made those arguments, but then almost 80 years later their explaining and judicial reasoning gives clear framework for reversing any AW ban.

I wasn't 'arguing' just for the sake of arguing.... but if someone brought a case using and citing this landmark opinion, they would stand a really good chance to win that in court.

"In common law legal systems, a precedent or authority is a legal case that establishes a principle or rule.[1] This principle or rule is then used by the court or other judicial bodies use when deciding later cases with similar issues or facts.[1] The use of precedent provides predictability, stability, fairness, and efficiency in the law."

The precedent has been set, even though it was set in a 2A loss in the courts.

My view is that those judges back then were grasping at straws to keep the NFA laws intact--- they had previously been ruled unconstitutional--- and they said anything they had to in order to get it how they wanted. Now though, by their own reasoning it goes against what they are currently arguing.

[alamo5000]

Basically the SCOTUS in this case the justices argued that a requirement for a gun to be guaranteed protection is basically for it to have common military application as it relates to a militia.

Now though the left is fighting to 'remove military firearms'...

We all know the left will lie cheat and steal and even ignore election results and 'by whatever means needed' to get their way... but in a legal sense of the word, the SCOTUS back in this case set the legal precedence that doesn't fit the current narrative.

It sort of puts the left in a pickle, legally speaking.

[alamo5000]

Basically the SCOTUS in this case the justices argued that a requirement for a gun to be guaranteed protection is basically for it to have common military application as it relates to a militia.

Now though the left is fighting to 'remove military firearms'...

We all know the left will lie cheat and steal and even ignore election results and 'by whatever means needed' to get their way... but in a legal sense of the word, the SCOTUS back in this case set the legal precedence that doesn't fit the current narrative.

It sort of puts the left in a pickle, legally speaking.

Precedence is precedence.... the activist judges though will read that and say 'but they couldn't see our day back in 1939' or some other bullshit like that. The foundation for the 2A is discussed a lot--- and in particular that specific stuff I cited above though will be hard to judicially get around.

The "Continuation and Effectiveness Ruling" straight out of the mouth of the SCOTUS is going to be a real bitch to reverse, but that said the left like I said will ignore votes, lie, cheat, and steal and will go to any lengths needed, legal or not, to get their way.

[alamo5000]

Basically the whole whine that 'the Founding Father's couldn't see our day' or 'they didn't mean AR15's' or 'they only meant muskets'... that question has already been to---visited---and came back with a definitive answer from the SCOTUS in 1939.

At least that part is--or should be settled already-- on paper at least it is already.

[Stone]

True, if shooters were breaking into schools and using muskets then that could be argued as common. But they aren't, they are using what is common among the people today. That is also what is argued for our position, "what is common among the people today". That also brings up an argument GC folks use, "why do you need an AR15" To which I reply "Need has nothing to do with exercising a right". There is a reason they almost always lose the debate. Rule one of debating is "NEVER let emotion enter the debate" That is their WHOLE premise or argument which is why if you argue from the root of their argument they will always lose. When emotion enters a debate your side has lost because you are no longer using facts and statistics. If and when you debate a gun control fanatic watch for "key" emotional words and phrases like, "the children" or "you don't care" and "we want to save life" also "we want to reduce the deaths". Oh I love that one because that implies there is an acceptable loss of life number. At that point I corner them and say "what is that number"? Then I ask them "If the number of deaths was twice what it is now and we reduced that in half would that number be acceptable"? Whether they answer yes or no I have them locked in on their own BS.