Friday, June 5, 2009

Thoughts on the Second Amendment - Part III

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.

Those are the words of Justice McReynolds which were part of the unanimous opinion of the Supreme Court, dated May 15, 1939. It is known as United States v. Miller.

Am I missing something or is that as clear as a bell? What it means is if the possession of a gun does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia," then the Justices "cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."

Please leave a comment to tell me if you agree with my understanding or not. Feel free to elaborate.


  1. Yes, you got it. They basically ruled against Miller by saying that the sawed-off shotgun in question was not an "arm" under the 2nd Amendment because it was not suitable for militia use.

    Remember, Miller was never represented and thus didn't argue his side before the court. Courts can only rule based on the evidence they're presented. They were never presented with Miller & Layton's defense.

    I would be amazed if there were not history of short-barreled shotguns being used by military & militia in US history.

    JPFO has some info here, but I acknowledge they're a biased source. I can dig up some actual references later.

    I don't know enough about weapons history to know whether sawed-off shotguns were used in US military conflicts (in which case they would be a protected "arm"

  2. MikeB,

    Yes, you are missing something. The reality of what was meant by the 2nd amendment.

    The framers of the Constitution just finished a war against an unjust government. They wanted to preserve the right OF THE PEOPLE to overthrow another such government.

    The Militia was their last line of defense against an unjust government. Remember when the war started -- EVER -- Every piece of armament was owned by individuals.

    The framers of the Constitution wanted to protect an INDIVIDUALS right to keep and bear that IF NECESSARY they could form a militia.

    But it was inconceivable to them that their new government would try to take away the firearms of individuals.
    Read the writings of the founders. Search for Founding Fathers 2nd amendment quotes.

    Now onto the decision. First the "absence of evidence". The Justices never heard a defense at all. If they had, they might of learn about short barreled shot guns being used as "trench brooms" in WWI. Search Wikipedia. That is a direct reasonable relationship to a well regulated militia.

    Since that information was never presented and the country was trying to control guns, not the criminals (notice how 70 years later they are still doing the same thing --insanity!!) the court used a flimsy excuse to overturn the lower court.

    Note that Miller wasn't convicted of having a firearm that INDIVIDUALS CAN"T POSSESS, he was convicted of having a firearm that he didn't REGISTER and DIDN'T PAY TAX on. Still the individual right to keep and bear arms was UPHELD.

    Notice it was only that particular type of equipment that was NOT PROTECTED BY the 2nd amendment. Kinda like saying the 2nd amendment doesn't protect the right to have thermonuclear bombs.

    Take off the blinders MikeB, take them off and read what is there...all of what is there. I tore this apart at OneUtah. Even the Justices quotes support an individual right to keep and bear arms. The militia isn't the ONLY reason to keep and bear arms, just the primary reason listed in the amendment.

  3. Said a slightly different way.

    The SCOTUS did not rule that Miller did not have a Right to own a firearm because he wasn't a militia member. They ruled, do to the absence of any defense arguments, that a sawed-off shotgun was not suitable as a militia weapon and therefore not protected.

    As stated, sawed-off shotguns were used extensively prior to 1939 in WW1.

    On a side note, how do you feel about the SCOTUS deciding a case without the defendents present to state their case and totally absent of defense counsel? No defense oral arguments, no defense representation, nothing.

    Only the plantiffs presented before the court. Is that something you support as a fair trial?

  4. I almost forgot to mention.

    The core of Miller is that it ruled that only firearms usefull for military use are protected under the 2A.

    Think about that for a sec.

    That means full-auto machine guns, baby.

    That's the underlying concept behind the gun-control movement.

    The antis want to frame the 2A as something to do with hunting weapons. The whole "sporting purposes" test used by the BATFE comes to mind.

    That's the golden ring.

    Outlaw military weapons or weaponry usefull to the military and only allow the sheeple to have "hunting rifles."

    When that is achieved and all the "evil assault weapons" are confiscated and destroyed, then whip out Miller again and say, "Sorry, your hunting rifles aren't protected by the 2A, turn them all in.

    That's the end game.

    That's why we fight all gun control.

  5. Shotguns having a barrel of less than eighteen inches in length were not as well known as being used by the militia and military. Hence because Miller lawyer was not there to present such evidence he lost.

    If Miller had been charged with not registering and paying a tax on a machine gun then he probably would have won. This is because it is well known that "possession or use" machine guns have a "reasonable relationship to the preservation or efficiency of a well regulated militia".

  6. Isn't saying that Miller would have come out differently if there had been a defense the same as if I question Heller for some reason or other. Do you guys only accept the Supreme Court's opinions when they suit your agenda?

    I say Heller went the way it did because they were discussing the District of Columbia and not a state. When and if they look at the Chicago question, I guess we'll find out, huh?

  7. The famous excerpt that you quoted:

    "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."

    ... does not mean that the 2A protects only military arms, or that it only protects non-military arms. It means exactly what it says: there is an "absence of evidence" and "we cannot say". So the 1939 SCOTUS sent the Miller case back to the lower court, presumably for an evidentiary hearing (testimony by arms experts, military experts, military historians, etc.) on whether a 'shotgun having a barrel of less than eighteen inches in length' was a useful militia weapon. No hearing was ever held because Frank Miller was dead and the other defendant could not be located, so the case died there, with the clear implication from SCOTUS that they were going to rule that military weapons were protected by the Second Amendment. But that's all it was. Just an implication.

    And both sides in the debate have claimed that the Miller case supports their side. SCOTUS never overturned Miller's conviction because Miller was never convicted; it was the gov't that appealed.

    So it's one of the briefest, and most cryptic decisions in SCOTUS history. The unanimous decision was to send the case back down to a lower court; SCOTUS never voted Frank Miller either guilty or not guilty - they just voted unanimously to send the case back.

  8. "Isn't saying that Miller would have come out differently if there had been a defense the same as if I question Heller for some reason or other."

    Do you really have no clue what due process is all about?

    You questioning an aspect of Heller does not equate to the SCOTUS making a ruling in the total absence of a defense side.

    But the track record is building.

    You have a serious problem with the BOR.

  9. Turk, Thanks for that comment, which may have been the most unbiased, straight-up explanation we've seen around her for many a day.

    What side of the argument are you on? I don't know if I can tell from what you wrote.

  10. Don't bother with promoting gun control MikeB, it is obsolete.
    Existing Fablabs and digital fabrication technology has made it so. The rise of "nanofactories" and "universal assemblers" in the future will finish off the remnants of the gun control movement.

    Also today, one can use simple home tools to build a homemade submachine gun.

    Gun control is obsolete.

  11. Thanks R7 for that link. I've seen those things before about home-made guns, and actually we've discussed them a bit too.

    All I can say is "there oughta be a law."

  12. I have to say, the sentence structure of your constitution creates so much ambiguity, particularly the comma placement.
    Then again, that's an advantage for a living document, right?

  13. "All I can say is "there oughta be a law."

    All I can say is I wish we had criminals who obeyed the law.

  14. As far as the meaning of the Constitution is concerned, I would like an average American high-school graduate to be able to read the Bill of Rights and get pretty much the same meaning from it as a scholar of Constitutional law. If it says, "Congress shall make no law..." then that's what it means. It doesn't mean "Congress shall make just one or two little laws..." And it doesn't mean that Congress can make some "common sense exceptions". So that makes me what they call a "Textualist"; the main meaning of the law should be found in its text. Over the decades and centuries, as case law piles up, with decisions and appeals, there is a distinct possibility that the meaning of the law will be changed to the point where it actually contradicts the text, and that is where the Second Amendment was heading in the 1960's and 70's. Alan Derschowitz even made a famous comment about it, which I can paraphrase: "Foolish liberals who are trying to write the Second Amendment out of the Constitution because it's not an individual right or because it's a threat to public safety, don't see the danger in the big picture. They're making it easier for other groups to use similar means to get rid of parts of the Constitution that they don't like."

    If the meaning of the law varies too much from the text, we may someday have here in America a situation comparable to medieval Europe in which the common people could not read the law (the Bible, in those days) because it was in Latin, so they had to depend on priests, scholars and their rulers. And this led to terrible injustice on a grand scale, all because the common people could not gain the meaning of their laws by simply reading them.

    With the 2A, it was getting to the point where a defendant in a case of "unlawful possession of a firearm" would appear before a judge and say, "But, Your Honor, the Second Amendment says I can possess a gun." And the judge would reply, "No, actually what that means is that you cannot possess a gun. Guilty. Five years." And that actually is the situation in New Jersey today; and California is not far behind. Where I live, in Virginia, the opposite is true: law-abiding people attend public gatherings wearing loaded handguns, openly, secured in holsters. Occasionally the police take umbrage and arrest them; the police lose. In Virginia, judges impose civil fines and award legal fees against municipalities that infringe on the 2A rights of these citizens. I hope to live to see the day when this is true also in New Jersey.

    In the 80's and 90's, some legal scholars, mostly liberals, like Sanford Levinson and Lawrence Tribe, did some research into the legal backwater that the 2A had become and found that they could not find any evidence that it applied only to militias, or was conditioned by membership in a militia, or even by eligibility to join a militia. They found that it applied to individuals, just like the rest of the Bill of Rights. And in June 2008 the U.S. Supreme Court agreed, in the Heller case.

    So when people ask me what I think the Second Amendment says, I tell them to go back to their high school grammar and diagram the sentence. The 2A is only one sentence: diagram it! Where is the subject? Where is the verb? Where is the object? That will tell you the meaning of the 2A. Same thing with the rest of the Bill of Rights.

    So for the folks out there who favor gun control, their path is clear: their only hope is to repeal or amend the Second Amendment by passage of a Constitutional Amendment. No statute, law, ordinance, regulation or executive order can be allowed to trump the Second Amendment.

  15. "
    All I can say is "there oughta be a law.""

    Already is Mikey.

  16. Turk - They can repeal it if they want, but doing so doesn't mean my right ceases to exist.

    Repealing the 2nd Amendment doesn’t make it go away anymore than repealing the rest of the Bill of Rights would allow the government to kick in my door and rob, beat, imprison and torture me with impunity. The 2nd Amendment is inherent and inalienable just like the rest of the Bill of Rights. Words on ink & parchment don't "grant" me the right to keep & bear arms, they merely codify a pre-existing right. My rights, all of them, exist independent of the Constitution.