Friday, August 12, 2011

Essay question for Jim, using the Rule of Law, provide a basis for the Individual right..

Given the holding in Sandidge v. United States, 520 A.2d 1057 (D.C. 1987)

The purpose of the second amendment is "to preserve the effectiveness and assure the continuation of the state militia." United States v. Oakes, 564 F.2d 384, 387 (10th Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct. 1493, 55 L.Ed.2d 521 (1978). Appellant cannot show that possession of a handgun by an individual bears any relationship to the District of Columbia's desire and ability to preserve a well regulated militia. See D.C.Code '' 39-106, - 201 (1981) (provides for organized militia, called the National Guard, to be armed by government); Miller, 307 U.S. at 178, 59 S.Ct. at 818; Warin, 530 F.2d at 106 (possession of submachine gun by individual has no relationship to preservation or efficiency of a well regulated militia).
The rule of law requires deference to precedent. Likewise, the rules for constitutional interpetation require that the entire text be taken into consideration. The preamble thus both sets forth the object of the Amendment and informs the meaning of the remainder of its text. Such text should not be treated as mere surplusage, for “[i]t cannot be presumed that any clause in the constitution is intended to be without effect.” Marbury v. Madison, 1 Cranch 137, 174 (1803).

The Majority opinion in Heller denigrated the importance of this clause of the Amendment by beginning its analysis with the Amendment’s operative provision and returning to the preamble merely “to ensure that our reading of the operative clause is consistent with the announced purpose.” Ante, at 5. That is not how this Court ordinarily reads such texts, and it is not how the preamble would have been viewed at the time the Amendment was adopted. While the Court makes the novel suggestion that it need only find some “logical connection” between the preamble and the operative provision, it does acknowledge that a prefatory clause may resolve an ambiguity in the text. Ante, at 4. Without identifying any language in the text that even mentions civilian uses of firearms, the Court proceeds to “find” its preferred reading in what is at best an ambiguous text, and then concludes that its reading is not foreclosed by the preamble. Perhaps the Court’s approach to the text is acceptable advocacy, but it is surely an unusual approach for judges to follow.

Identification of language in the text that even mentions civilian uses of firearms is important since this goes to the rule of construction that no phrase is without meaning-"Expressio unius est exclusio alterius" (The express mention of one thing excludes all others) . Items not on the list are assumed not to be covered by the statute. Nowhere in the Second Amendment can one find the explicit words which allow for “the people” to own arms for personal defence or other non-military uses.

Self-defence is not explicitly mentioned in the Second Amendment (or the US Constitution).

Keep in mind that Justice William O. Douglas, who had just joined the court at the time the Miller decision had been argued, said in a later case, Adams v. Williams, 407 U.S 143(1972) at 150 -51:

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had "some reasonable relationship to the preservation or efficiency of a well regulated militia." Id. at 178. The Second Amendment, it was held, "must be interpreted and applied" with the view of maintaining a "militia."

The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be [p151] secured through the Militia -- civilians primarily, soldiers on occasion.
Id. at 178-179.

Critics say that proposals like this water down the Second Amendment. Our decisions belie that argument, for the Second Amendment, as noted, was designed to keep alive the militia. But if watering-down is the mood of the day, I would prefer to water down the Second rather than the Fourth Amendment.

Personally, I think that someone who was a member of the Miller Court would have a pretty good idea of how Miller should be interpeted. Don't you?


  1. I can do it:

    I can own guns, Bill of Rights.

    Heller says it applies to the 2nd and MacDonald says the 14th applies it to the states.

    There, all done.

    Seriously though Laci, I have always wondered:

    Your favorite decision, Miller, basically said that The NFA 1934 did not violate the 2nd Amendment because of the collective rights militia notion, and, that short barreled shotguns could be regulated because they were not used by the military and therefore were not protected by the 2nd Amendment. So, my question is, what if Miller had been arguing a machine gun instead of a short barreled shotgun? Would the court have ruled the same? And if so, how could they since the whole argument was that the gun in question was not a military gun when there is no way that they could say that a machine gun was not a military arm?

  2. FWM - don't you know that court rulings that Laci doesn't agree with are not legally binding. Just read her short novels below on why she knows best.

  3. They probably would have ruled the same way FWM. Miller had no defence presented to the court (defendent was dead when it was heard) so no evidence for the court to consider. SBSs were used by the military prior to Miller and still are today.