Wednesday, August 17, 2011

Miller and sawed off shotguns

The Heller court misinterpreted this from US v. Miller, 307 U. S. 174 (1939):

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 contention that Miller stands for the proposition that Congress may regulate only those classes of weapons which have, or have no, relationship to the militia is absurd. The Supreme Court "did not intend to formulate a general rule in Miller, but merely dealt with the facts of that case." Warin, 530 F.2d at 106 (citing Cases, 131 F.2d at 922). Given the destructive capabilities of modern weaponry, it is inconceivable and irrational to suggest that Congress may only regulate weapons which have no possible relationship to the common defense today "such as a flintlock musket or a matchlock harquebus."

I would also add that Miller uses the term Judicial Notice which is a rule in the law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known that it cannot be refuted. This is done upon the request of the party seeking to have the fact at issue determined by the court. Matters admitted under judicial notice are accepted without being formally introduced by a witness or other rule of evidence, and even if one party wishes to lead evidence to the contrary.

Judicial notice is frequently used for the simplest, most obvious common sense facts, such as which day of the week corresponded to a particular calendar date.

The fact that McReynolds states that "it is not within judicial notice that this weapon is any part of the ordinary military equipment" demonstrates that the firearm was not the issue.

Had it have been, then it would have been entered into evidence that sawed off shotguns were used for the common defence. It was an unrefuted fact that Sawed Off Shotguns are used by the military.

See This for an explanation of Aymette


  1. Unfortunately for you, it does not matter that you think they misinterpreted Miller. The decision is made and as of now it is the law of the land.

  2. "As Miller was settled law."

    Yes Miller was settled law until Heller changed it. We all agree on that I think.

  3. Miller is not settled law no matter how much one crazy dog says it is.

    "Had it have been, then it would have been entered into evidence that sawed off shotguns were used for the common defence. It was an unrefuted fact that Sawed Off Shotguns are used by the military."

    Except that Miller was dead by the time the case came to the SCOTUS and his lawyer did not even bother to appear before the court to argue the case. That's the reason no evidence was entered in defense of Miller.

    Nice try though Laci. You're still as wrong as ever.

  4. Anonymous is unaware that even though the appellee in Miller did not file a brief or make an appearance, although the court below had held that the relevant provision of the National Firearms Act violated the Second Amendment (albeit without any reasoned opinion). But, The Marbury v. Madison, 1 Cranch 137, also was one in which only one side appeared and presented arguments. The absence of adversarial presentation alone is not a basis for refusing to accord stare decisis effect to a decision of this Court. See Bloch, Marbury Redux, in Arguing Marbury v. Madison 59, 63 (M. Tushnet ed. 2005).

    Stevens pointed out in his dissent that:
    The key to that decision did not, as the Court belatedly suggests, ante, at 49–51, turn on the difference between muskets and sawed-off shotguns; it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns. Indeed, if the Second Amendment were not limited in its coverage to military uses of weapons, why should the Court in Miller have suggested that some weapons but not others were eligible for Second Amendment protection? If use for self-defense were the relevant standard, why did the Court not inquire intothe suitability of a particular weapon for self-defense purposes?

    Of course, if it can be demonstrated that new evidence or arguments were genuinely not available to an earlier Court, that fact should be given special weight as we consider whether to overrule a prior case. But the Heller Court did not make that claim, because it Could not. Although it is true that the drafting history of the Amendment was not discussed in the Government’s brief, it was not the drafting history that the Miller Court’s decision depended. Those sources upon which the Heller Court relied most heavily were available to the Miller Court. The Government cited the English Bill of Rights and quoted a lengthy passage from Aymette detailing the history leading to the English guarantee, Brief for United States in United States v. Miller, O. T. 1938, No. 696, pp 12–13; it also cited Blackstone, id., at 9, n. 2, Cooley, id., at 12, 15, and Story, id., at 15. The Heller Court was reduced to critiquing the number of pages the Government devoted to exploring the English legal sources. Only two (in a brief 21 pages in length)! Would the Heller Court be satisfied with four? Ten?

    So, you're wrong again, Mr. Anonymous.

    I sugggest that you actually read the cases before making comments in future.