The NRA's twisting of the right to bear arms, and why it's again relevant.

[wtmusic]

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

"Both sides (of the gun debate) agree that the final authority for interpreting the meaning of the Second Amendment of the Constitution (above) is the U.S. Supreme Court. On June 26, 2008, the Supreme Court made a landmark ruling upholding the right of individuals to bear arms for hunting and for self-defense.

A key case before this landmark ruling, according to both sides of the argument, is United States v. Miller 307 U.S. 174 (1939). In this case, the Supreme Court was asked whether the Second Amendment protected Miller's right not to register a "sawed off" shotgun, despite a federal law requiring it. The Supreme Court examined the original records of Congress to determine why the Second Amendment was written into the Constitution. They clarified the intent of the Second Amendment with this statement:

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. It must be interpreted and applied with that end in view.

The Supreme Court then ruled that Miller's shotgun was not for a militia-type purpose and that it therefore was not protected by the Second Amendment. The Supreme Court further explained that at the time the Second Amendment was adopted, Congress favored using the civilian population (adult males) as the State Militia for national defense rather than building an army of professional soldiers. The purpose of the Second Amendment was to support the national defense. Therefore, the only purpose for which owning and carrying a gun is protected under the Second Amendment is as part of "a well regulated militia," acting on behalf of the national government.

The NRA agreed that the Supreme Court ruling meant that only militia-type uses for guns are protected under the Second Amendment. However, the NRA has an additional interpretation of the ruling: Because the Supreme Court wrote about the purpose of the weapon, and did not specifically mention Miller's lack of membership in the military, the NRA therefore concludes that individuals not in the military have a right to bear arms, as long as they do so for a military purpose."

http://www.awesomelibrary.org/guncontrol.html

How did the NRA's original view that a military purpose was required to own firearms under A2 morph into the right of any individual to own guns for hunting and self-defense?

United States v. Miller occurred in the wake of the Roaring Twenties, Prohibition, bootlegging, and the worst organized crime violence in American history. The National Firearms Act (1934) effectively put the first nail in the coffin of the Mafia by strictly regulating submachine guns and sawed-off shotguns.

Sensible gun control works, despite of two rulings by arch-conservative Supreme Courts and a $35 million annual NRA lobbying budget.

[Statistical]

1. Miller said no such thing.

Miller did say the PURPOSE of the 2A was to enable effective militias. However the RIGHT remains with the people.
The PEOPLE have the right to keep and bear arms THUS states are able to raise effective militias.

You are arguing settled law. There was nothing in Miller that is contradicted by Heller.

What Miller specifically said was:
"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."

For a weapon to be protected it wouldn't need to be USED BY a militia simply have some reasonable relationship to efficiency of an effective militia. Sadly if Miller had a credible defense they could have shown Trench guns are used by militaries (and thus militias).

Still the point of Miller is one needs to merely show a reasonable relationship. An example would be a .22 target practice pistol. If Miller had been carrying a .22 pistol likely the decision would have been different. No militia would field .22 pistols however .22 target practice pistol would have a reasonable relationship to a militia because they aid in accuracy. Skills learned cheaply on the .22 translate to other weapona. Another reasonable relationship would be civilian AR-15. Likely they wouldn't be used by a militia as a militia would favor automatic weapons (select fire assault rifles). Still there is a lot of similarity between a civilian AR-15 and a military grade M-4. It is reasonable to assume civilians trainging with AR-15 would be more proficient and effective with the similar M-4 and hence a "reasonable relationship" exists.

Heller merely expanded on that "reasonable relationship" by stating any weapon in lawful use has a reasonable relationship. In essence this is true. The 2A doesn't protect arms it protects people rights to own and use arms. That use is what leads to an effective militia.

[hansberrym]

7. adding to your p[oint

What Miller specifically said was:
"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."



Plainly the Miller court read "keep and Bear Arms" not as the suposed idiomatic form, but rather as possession(keep) and use(bear).



"keep and bear such an instrument" is not idoiomatic

[SteveM]

43. "Absent any evidence" came in part as a result of Miller's death...

...and his attorney's no-show. In any case, so-called sawed-off shotguns were in fact used in WW-I as "trench guns."

[wtmusic]

8. That is exactly what Miller said.

From the decision itself, with some additional text in support, to which I link directly:

"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.' U.S.C.A.Const. art. 1, 8. 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.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they <307 U.S. 174, 179> 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 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."

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=307&invol=174

Second, the notion of "settled law" is a myth which advocates pull out to assert their position is the final word on the matter. Precedents are overturned all the time.

[Statistical]

10. All those quotes indicate the reason but not limit of the right.

As far as precedents being overturned. Not Supreme Court precedents they are extremely rare and only used in the most extreme miscarriages of justice. While some courts may expand or limit scope of previous decision and outright reversal is a very rare event. Sadly a lot of the bad decisions we have about incorporation of rights is due to Courts unwillingness to directly overturn prior courts.

There are only a couple dozen of cases in the history of the US in which Supreme Court directly overturn itself. However keep clinging to that false hope.

Heller will likely never be overturned and even if it is, it won't be in your lifetime.

[wtmusic]

13. Careful, your argument is biting you in the ass.

"Sadly a lot of the bad decisions we have about incorporation of rights is due to Courts unwillingness to directly overturn prior courts." But of course those bad decisions wouldn't include Heller, would they? I get that you think that precedents need to be overturned when it favors your position, but that does nothing to make your position more tenable. The quotes from Miller directly address the purpose of the Second Amendment, on which the entire argument is based. Do people have an implicit right to own handguns? If they do, the Constitution certainly doesn't say so.

I still haven't heard why the NRA has done an about-face, opportunistic reversal of their position, which is about as reasonable as their petitioning of Smith & Wesson to NOT add safety features to guns. Which borders on lunacy.

A couple of other observations: civil rights activists clung to the "false hope" of equal rights for a hundred years, that doesn't mean it's not worth fighting for. And it's encouraging when gun advocates pull out "it'll never happen" or "it's political poison", because impracticality arguments always reveal a moral position which is bankrupt.

[X_Digger]

30. Whoosh, I think the point just parted your hair..

What I read from Statistical's response relates to the 'Slaughterhouse' decisions- the whole idea of piecemeal incorporation of rights; which, if you read the congressional debate transcripts, is not what the framers of the 14th amendment had in mind.

the purpose of the Second Amendment, on which the entire argument is based

Only you are making that claim (that the argument is based on the purpose).

"The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject.." -- Rhode Island Constitution.

Are only sentiments relating to the security of freedom protected? No.

Analogous state constitutions- ones written by the same men for the most part- all make it clearer that they protect an individual right. Why? If these same framers had intended some 'collective' right, why did they trot back home and write an individual right into their state constitutions?

Pennsylvania (1790): "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned."

Vermont (1777): "That the people have a right to bear arms for the defence of themselves and the State.."

Kentucky (1792): "That the right of the citizens to bear arms in defence of themselves and the State, shall not be questioned."

Delaware (1793): "A person has the right to keep and bear arms for the defense of self, family, home and State, and for hunting and recreational use."

Alabama (1819): "that every citizen has a right to bear arms in defense of himself and the state"

eta: Perhaps you can also explain the preface to the bill of rights, and how you think it actually refers to limitations on the people, not on the givernment-

THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution

[SteveM]

45. More problems with this post...

"Do people have an implicit right to own handguns? If they do, the Constitution certainly doesn't say so."

The constitution doesn't say anything about a right to choice for pregnant women, nor does it say anything about T.V., radio, the Internet or the computer you are using now.

"Civil rights" activism includes the Second Amendment. I am sure you have noticed this, just as you have noticed that much data, sound argument and constitutional scholarship, related in this forum, are used to fight for the Second, and not merely the (quite true) practical politics. Frankly, it is the gun-controller/prohibitionist who must answer for moral bankruptcy, as well as bad argument.

[hansberrym]

12. And just how does that citation help your argument?

Your citation comntains yet another Miller court useage "bearing arms supplied by themselves" that disproves the "idiom" argument at the heart of Steven's dissent in Heller.

Moreover the Heller majority's view fits very well with the Miller court's "in common use at the time" conclusion.

[X_Digger]

24. You're balancing a lot on a case that was specifically chosen to buttress the NFA..

.. in part because Miller was already dead, and there was no counsel to argue the other side.

Have a read, it's a good article discussing the scope and application of Miller.

http://volokh.com/2010/02/27/united-states-v-miller/

[tortoise1956]

42. Do you even read your own sources?

Excerpt from Miller, and from your own post:

"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."

So the court stated that the "people" referred to in the second amendment are pretty much all males in the country. Also, they are expected to provide their own weapons if they are ever needed as a militia. That means they have to have them on hand.

So, they have the right to keep and bear arms. Correct? Or am I misreading plain English?


BTW, Miller is a really bad case to try to use as part of the tired old "Group Right" argument. A close reading of Miller would seem to indicate that automatic weapons such as the Thompson and the BAR should be both legal and unrestricted, since they are military weaponry that was in common use at the time this case was decided.

(Oh, if only that was true - I would love to have a BAR to shoot, when I have enough money saved up to buy enough ammo...)

[SteveM]

44. You are in error...

The original Articles gave the Federal government powers in organizing militias; the Bill of Rights recognized rights held by the individual. The RKBA is NOT contingent on a membership in a militia, but is a guaranteed right "of the people."

Be aware that most constitutional authorities have acknowledged that the individual has a RKBA, separate and distinct from the so-called "militia clause." Even Laurence Tribe, the popularizer of the militia-dependent view, has changed his views, and in 1999 joined with the great body of scholarship in recognizing this individual right. Even Alan Dershowwitz, no friend of 2A, has said that if you want to restrict the individual RKBA, then you will have to repeal the Second.

It would be interesting to see if you or others will try that.

[sharesunited]

2. The majority opinion analysis splits the 2A into a prefatory and an operative clause.

The militia is prefatory. The right of the People is operative.

Military purpose under the prefatory. Personal self defense under the operative.

The pernicious and diabolical aspect of Heller affirming Miller is that 2A protection extends to weapons "in popular use."

That is a one-way descent into hell since it incentivizes all the pro-gun stakeholders to proliferate products with more and more lethality.

[AtheistCrusader]

15. Who are you and what have you done with SharesUnited?

Well, except that last sentence.

Query: have crime rates gone up or down since Heller and McDonald?

[sharesunited]

17. Statistics lack humanity. The dismal tide has been advanced by the conservative majority.

[shadowrider]

18. Statistics may lack humanity but that doesn't mean they shouldn't be used

to either rebuke or support someones given position.

[AtheistCrusader]

20. Statistics are the only meaningful way to gauge humanity.

[sharesunited]

33. So just pour six dead and nineteen wounded in five seconds into the hopper?

Barely a statistical blip. Teardrops in the ocean.

[AtheistCrusader]

36. It will appear on the FBI Unified Crime Report

just like all the other people killed, raped, robbed, and committed suicide that day, that the media doesn't give a shit about.

[shadowrider]

3. Let me get my little violin and play it n/t

[spin]

4. In 2008 and 2010, the Supreme Court issued two Second Amendment decisions.

In District of Columbia v. Heller (2008), the Court ruled that the Second Amendment protects an individual's right to possess a firearm, unconnected to service in a militia<1><2> and to use that arm for traditionally lawful purposes, such as self-defense within the home. Additionally, the Court enumerated several longstanding prohibitions and restrictions on firearms possession that it found were consistent with the Second Amendment.<3> In McDonald v. Chicago (2010), the Court ruled that the Second Amendment limits state and local governmental authority to the same extent that it limits federal authority.<4>

Notes and Citations
# 1 "The court held that the second amendment recognized an individual right to possess and carry a firearm unconnected with militia service." Pollock, Earl (2008). The Supreme Court and American Democracy: Case Studies on Judicial Review and Public Policy. Greenwood. p. 375. ISBN 978-0313365256.
# 2 "held that the second amendment protects an individual's right to bear arms," Scaros, Constantinos E. (2010). Understanding the Constitution. Jones & Bartlett Publishers. p. 393. ISBN 978-0763758110.
# 3 "The Constitution of the United States, Analysis and Interpretation, 2008 Supplement (Senate document 110-17)"

. p. 83. http://www.gpoaccess.gov/constitution/pdf2002/2008supplement.pdf

.
# 4 Justices Extend Firearm Rights in 5-to-4 Ruling (http://www.nytimes.com/2010/06/29/us/29scotus.html?src=me)

http://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution

Prior to these two decisions by the U.S. Supreme Court, the argument presented in your link was interesting and worth debate. After the two decisions the discussion is irrelevant.

[msongs]

5. how many gun users are in the militia? not one that I know nt

[shadowrider]

6. You truly should try and acquire some knowledge before being allowed

to post on this subject.

Do some research on the unofficial militia. I won't do it for you.

[friendly_iconoclast]

21. If they are male U.S. citizens between 17 and 45, they ARE in the militia

According to Federal law, as descibed in the US Code:

Title 10, §311

a) The militia of the United States consists of all able-bodied
males at least 17 years of age and, except as provided in section
313 of title 32, under 45 years of age who are, or who have made a
declaration of intention to become, citizens of the United States
and of female citizens of the United States who are members of the
National Guard.
(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard
and the Naval Militia; and
(2) the unorganized militia, which consists of the members of
the militia who are not members of the National Guard or the
Naval Militia."

The exemptions are defined in § 312, and are:

(a) The following persons are exempt from militia duty:
(1) The Vice President.
(2) The judicial and executive officers of the United States,
the several States and Territories, and Puerto Rico.
(3) Members of the armed forces, except members who are not on
active duty.
(4) Customhouse clerks.
(5) Persons employed by the United States in the transmission
of mail.
(6) Workmen employed in armories, arsenals, and naval shipyards
of the United States.
(7) Pilots on navigable waters.
(8) Mariners in the sea service of a citizen of, or a merchant
in, the United States.
(b) A person who claims exemption because of religious belief is
exempt from militia duty in a combatant capacity, if the
conscientious holding of that belief is established under such
regulations as the President may prescribe. However, such a person
is not exempt from militia duty that the President determines to be
noncombatant.

You were saying?

[shadowrider]

22. Apparently they're saying they don't know any males between 17 and 45

Means they don't get out much.

[jody]

31. ALL CA males 18 to 45 are in CA's militia unless exempt.

CALIFORNIA CODES
MILITARY AND VETERANS CODE
SECTION 120-130

120. The militia of the State shall consist of the National Guard,
State Military Reserve and the Naval Militia--which constitute the
active militia--and the unorganized militia.

121. The unorganized militia consists of all persons liable to
service in the militia, but not members of the National Guard, the
State Military Reserve, or the Naval Militia.

122. The militia of the State consists of all able-bodied male
citizens and all other able-bodied males who have declared their
intention to become citizens of the United States, who are between
the ages of eighteen and forty-five, and who are residents of the
State, and of such other persons as may upon their own application be
enlisted or commissioned therein pursuant to the provisions of this
division, subject, however, to such exemptions as now exist or may be
hereafter created by the laws of the United States or of this State.

[Katya Mullethov]

9. Spend yet another day sand sledding sans a sled again ?

Or are "We People" the source of your itch ?

""How did the NRA's original view that a military purpose was required to own firearms under A2 morph""
The same way that "common sense" and " reasonable" morphs into " Awwwwww c'mon , just one more " , and then morphs into Jersey .
Turnabout's fair play , elections have consequences , you thought we brought a knife , so you brought a gun, but in actuality , it was state assembly "peeps"
we were toting .. openly ...for all the honest world to see .

Would you like to see mine ?

[aikoaiko]

11. I thought Miller died before the hearing and therefore couldn't present the evidence of trench guns

Because Miller couldn't show up there was "an absence of evidence" and did not rule that Miller's shotgun was not for militia-type purpose. We now that short barreled shotguns were used in WWI as trench guns.

The 2nd Amendment is safe guard against tyranny in any form.

[DonP]

39. Correct - No Miller, no attorney for his side either

Neither Miller, who was dead by the time it reached the court, or his attorney appeared before the court.

His attorney received less than 7 days notice of the hearing in SCOTUS and could not make arrangements to be in DC from Oklahoma (IIRC) in time. It was in the days of train travel.

The Miller case was decided completely on the governments presentation only. Nice fair ajudication that was.

This case and the findings have been seriously misrepresented for decades, according to Law professors like Alan Dershowitz and Laurence Tribe, not exactly right wingers by any stretch of the imagination. The whole idea that "short barrel shotguns were not military weapons" totally ignores the trench brooms of WWI.

[AtheistCrusader]

14. Problem is, militaries WERE using short barreled shotguns (trench guns) therefore

under the erroneous decision in Miller, he SHOULD have been able to carry that gun.

It might have helped if the defendent had shown up in court, or had decent council to present evidence to the court that that weapon is indeed used by militaries.


You realize you are making a case for civilians to own fully-automatic weapons and such, right?

[Euromutt]

41. They weren't, actually; at least, by the NFA definition

The Winchester M1897 and M1912, as used by the U.S. armed forces, had 20-inch barrels, while the Remington Model 10-A had a 23-inch barrel. That's "short-barreled" compared to your standard waterfowl or upland bird gun (which usually has a 26-30" barrel), but it's not "short-barreled" as defined by the NFA.

Moreover, Miller's gun was a Stevens 311 side-by-side, whereas the armed forces had been using pump-action repeaters for three decades by then.

[lawodevolution]

16. fail

[Pullo]

19. During Heller, Justice Kennedy suggested the Miller decision was 'deficient'

IMHO he was correct in his analysis, however its unlikely the SCOTUS was willing to overturn the Miller all together. This was due the fact that, while the court in 1939 had speculated the 2A MAY be a collective right and not an individual one, it did NOT rule on the matter. Since that question of 2A jurisprudence was not decided, there wasn't a compelling case for not following stare decisis on the individual versus collective right question in Heller.

[jody]

23. As others point out, you really should read and try to understand the Heller case so you know what

is the law on this issue.

[friendly_iconoclast]

25. You will notice there were *no* actual citations from the NRA's amici filings in Heller or McDonald?

For that matter, there weren't even any citations from the rulings themselves, not even the dissents which might be

expected to support the OP's arguments.


I call that a piss-poor excuse for legal scholarship.

[jody]

26. Ignorance is a curable disease, stupidity is a terminal illness. Earlier DU post discusses Heller.

"Conjecture: Heller was 5-4 meaning 5 justices said 2nd protects individual RKBA and 4 justices say 9th Amendment protects individual RKBA."

[one-eyed fat man]

27. Things you left out.

The notion that right to bear arms was not an individual right didn't gain much traction until Miller v US.

On April 18, 1938, the Siloam Springs police stopped Jack Miller and Frank Layton, two washed-up Oklahoma bank robbers. Miller and Layton had an unregistered sawed-off shotgun, so the police arrested them for violating the National Firearms Act (“NFA”). The district court dismissed the charges, holding the NFA violates the Second Amendment.

But gun control was a part of the New Deal program and legislation that would compel all sportsmen to register their firearms and store them in armories when they are not being used for hunting or target purposes had been proposed and was being debated in Congress.

So it was no surprise when Attorney General Homer Cummings, acted immediately to overturn the lower court judge, bypassing the Federal Appeals Courts and going directly to the USSC. The unprecedented speed with which the Federal government reacted was telling. From arrest to Supreme Court decision in under 11 months. Also curious, only the Solicitor General made arguments or briefed the appeal. The counsel for defense wasn't invited.

Makes one wonder, until you remember the Attorney General also said, “We certainly don’t expect gangsters to come forward to register their weapons and be fingerprinted, and a $200 tax is frankly prohibitive to private citizens.”

With no defense muddying the waters, it was the government’s ideal test case.

United States v. Miller

On May 15, 1939 the Supreme Court, in a unanimous opinion by Justice McReynolds, reversed and remanded the District Court decision. The Supreme Court declared that no conflict between the NFA and the Second Amendment had been established, writing:

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.

In case that just went past you, the Court did not say anything close to what you claim. What they did say was noone has shown that this violates the Second Amendment and sent it back to the district court (remanded) to be retried. Since Miller and Layton were dead, it never happened.

Indeed, the government itself argued the Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia.

Based on that argument that people only have a right to weapons which are militarily useful any claim that semi-auto copies of military weapons are "too military" for people to own is specious.

[jody]

28. Solid point and military-type weapons today are versions of the M-16 rifle and M9 pistol.

IMO if congress did its job under Article I, Section 8 "To provide for . . . arming . . . the Militia" it would provide M-16s and M9s for every member of the militia defined in 10 USC 311.

[AtheistCrusader]

37. Anti-war people should support the hell out of this idea. I know I do.

Guaranteed I won't be hiking my ass over to invade (Whoever) as a part of the 'militia'.

Maintain a modest nuclear deterrent, and cut the navy by half or more, scrap most of the 'rapid deployment' shit for the army, marines, and airforce.

Embrace a humble foreign policy, with good ACTUAL defensive measures, not offensive, provocative measures. Can't start nothin' if you can't GET there.

Almost all of our war technology and material is all about PROJECTING force, not on the off chance someone might say 'hey i'm gonna invade you' from Asia, and then intervening with that attack as it is launched. It's for GOING to Asia, and the Middle East and elsewhere and STARTING WARS.

[jody]

40. Agree all about STARTING WARS because God put OUR OIL under foreign soil. nt

[TPaine7]

29. To put it succinctly, your source is lying:

The Supreme Court then ruled that Miller's shotgun was not for a militia-type purpose and that it therefore was not protected by the Second Amendment. The Supreme Court further explained that at the time the Second Amendment was adopted, Congress favored using the civilian population (adult males) as the State Militia for national defense rather than building an army of professional soldiers. The purpose of the Second Amendment was to support the national defense. Therefore, the only purpose for which owning and carrying a gun is protected under the Second Amendment is as part of "a well regulated militia," acting on behalf of the national government.

The NRA agreed that the Supreme Court ruling meant that only militia-type uses for guns are protected under the Second Amendment. However, the NRA has an additional interpretation of the ruling: Because the Supreme Court wrote about the purpose of the weapon, and did not specifically mention Miller's lack of membership in the military, the NRA therefore concludes that individuals not in the military have a right to bear arms, as long as they do so for a military purpose."

There are several lies and distortions in the passage quoted. It is very clear from the record, especially and emphatically from the record of the Fourteenth Amendment, that the people who wrote the Constitution understood the Second Amendment to protect keeping arms and carrying them in public for private purposes having nothing whatsoever to do with acting on behalf of the national government. Read the history. I would suggest going to a library and checking out The Bill of Rights: Creation and Reconstruction by Yale professor Akhil Amar. Or you can purchase it at bn.com or amazon.com.

If you are honestly interested in the truth, you can get started by reading my post here ( http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=118&topic_id=300206&mesg_id=300331 ) especially the part under the heading "Fourteenth Amendment."

The source you quote may be ignorant of the history, they may be cynically depending on the ignorance of their readers, or they may actually think that they know more about the meaning of the Constitution than the people who wrote it. In any event, they are conveying false information authoritatively. Whether they know better or merely should know better, they are lying.

No matter how honest you may be personally, you cannot readily reach good conclusions using lies as premises.

[X_Digger]

32. but.but.but.. it says so on AWESOME LIBRARY!

What's with all these wacky sources recently?

[Surf Fishing Guru]

34. Sorry wt, on many levels, wrong you are. . .

Posted by wtmusic:

The Supreme Court examined the original records of Congress to determine why the Second Amendment was written into the Constitution. They clarified the intent of the Second Amendment with this statement:

"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."

That creates a rule for the application of the 2nd Amendment to a contested law, it does not define/describe/qualify the right protected by the 2nd.

The "declaration and guarantee of the Second Amendment" is not a allegory/euphemism/metaphor for the actual, pre-existing, "right of the people" . . . As SCOTUS has noted multiple times, the pre-existing right and the Amendment merely recognizing and securing the right are two separate entities and the right to arms does not depend, "in any manner" on the Constitution for its existence.

All Miller did was clumsily try to illuminate the "object" of the 2nd Amendment. McReynolds fully cites right there in the holding the foundation of the Court's reasoning on the purpose of the 2nd and how to treat Miller's shotgun; no worthwhile discussion of Miller can be undertaken without an inspection of that case. That case is the key to unlock Miller's poorly written holding and analysis, Miller held:

"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 of Tennessee, 2 Humph., Tenn., 154, 158."

United States v. Miller 307 U.S. 174, 178 (1939)

Aymette at page 158 states (inspecting the Tennessee constitution's Antebellum right to arms provision):

"The object, then, for which the right of keeping, and bearing arms is secured is the of the public. The free white men may keep arms to protect the public liberty, to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution. The words "bear arms," too, have reference to their military use, and were not employed to mean wearing them about the person as part of the dress. As the object for which the right to keep and bear arms is secured is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms the right to keep which is secured are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them is not,therefore, secured by the constitution."

Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158 (1840)

From this language, it is easy to see why the Miller Court cited Aymette as instructive on the question of how a sawed-off shotgun should be treated (hearing only the government's argument). The Court ruled against Miller for just one reason, because no evidence was presented that demonstrated the weapon, as constructed, was, (quoting Miller) "any part of the ordinary military equipment or that its use could contribute to the common defense." Had the court heard that evidence it stands to reason that the weapon would be protected under the 2nd and absolutely immune from federal action and control.

It is also important to note that the excerpt from Aymette absolutely and undoubtedly endorses an individual right, rather than a state power. It recognizes two separate entities. The "object" of the provision and the means to achieve it. The object is why the framers thought it important to forever secure the right, (which is not created by the provision, but merely recognized and "secured" by it).

"(T)he people acting in a body, for their common defence, . . . is "the object for which the right to keep and bear arms was secured." The object, the overall multiple intents of this state provision, (and with SCOTUS citing it, the federal 2nd Amendment), can not exist without the means to achieve it.

The individual right is secured also to bear arms against the government. If the citizen has military useful firearms "in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority," because, he and his neighbors are capable of acting in concert "to keep in awe those who are in power". If the authorities become tyrannical, it is every citizen's duty to assemble for a redress of grievances and if necessary, to bear arms against the authorities to regain and secure their liberties.

You have bought into an orchestrated misconstruction of Miller . . . The lower federal courts have over-read, misrepresented and misused a single sentence from Miller to create a profoundly illogical and historically and philosophically incorrect and thus complicated collective right interpretation from a simple collective object explanation.

It is this perverted interpretation that has created a trunkless tree of collective right "precedent" in the lower federal courts; Tot, Cases, Stevens, Johnson, Wain, etc, etc, etc, all of which Heller invalidated. On this tree, limbs grew in midair and not a word of these decisions are attached to the trunk of the Constitution or the roots of the founding principles. Here again is the misinterpreted clause from Miller:

"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."

This statement grows directly from Aymette's "object" explanation.

Under what justification can it be said that the "it" to be "interpreted and applied" in the Miller opinion above is the people's right to arms? It is plainly evident, the only thing that the judges are to consider, interpret and apply is, "the object for which the right is secured," NOT the right itself.

THAT MEANS, Any law that acts to impede the citizen's ability to acquire and have in their hands the types of arms that are usually employed in civilized warfare, and that constitute the ordinary military equipment, that prepare them in the best possible manner to protect the public liberty, to keep in awe those who are in power, to maintain the supremacy of the laws and the constitution and to repel any encroachments upon their rights by those in authority, are a violation of the individual citizen's right to arms secured and protected by the 2nd Amendment.

[Hoopla Phil]

35. I'm recommending this just because of the trampling that the OP is getting.

[cherokeeprogressive]

38. "...the right of the PEOPLE to keep and bear arms..."

Did you notice the phrase "the people" in there?

Who do you think "the people" means? It either has to be the Government, or its Citizens. Do you take "the PEOPLE" to mean "the GOVERNMENT"?

"... the right of THE PEOPLE to keep and bear arms shall not be infringed."

Think about it.