Miller Court says No Individual Right

[Hrumph]

Bullshit. The Miller Court says no such thing.

Directly from the text of U.S. v. Miller:

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 reason no such evidence was presented is that there was no one there to present it. Miller was murdered in 1938, before the Court heard the case and Layton could not be found. Neither did their lawyer appear. This is hardly the advisarial process at work. Also, the clear inference is that if such evidence HAD been presented (for instance the short-barreled trench guns in WWI) then they would have decided in favor of Miller.

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.

One might argue that "...enrolled for military discipline" meant they were Federal soldiers. One might argue that, but one would be wrong. The context of the complete paragraph (and, indeed the entire text of the decision) does not fit that interpretation. "These show plainly engough that the militia comprised all males physically capable of acting in concert for the common defense." Plase note: "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." THIS is why the subordinate clause exists in the Amendment in the first place - To ensure that the militia were able to effectively use MILITARY WEAPONS! And it's why the Court could not say that Miller had a right to own a short-barreled shotgun when the usefullness in a military context had not been evidenced.

Finally, the Court decided NOTHING in terms of a so-called collective right or of the guilt of Miller and Layton.

WE ARE UNABLE TO ACCEPT THE CONCLUSION OF THE COURT BELOW AND THE
CHALLENGED JUDGMENT MUST BE REVERSED. THE CAUSE WILL BE REMANDED FOR
FURTHER PROCEEDINGS.

We see that the Court did vacate the rulling of the Western District Court and sent the case back there to be argued again. THE SUPREME COURT DID NOT FIND IN FAVOR OF THE UNITED STATES EVEN THOUGH THE U.S. ATTORNEY WAS UNOPPOSED DURING THE PROCEEDINGS!

SOME people around here argue that U.S. v. Miller decided this or that. They're WRONG. What little they know they picked up from second or third hand accounts of lower court decisions that MIS-CITE Miller. The 9th Circuit Court lies through it's worm-wridden teeth every chance it gets.

Edited to correct the lying Circuit Court

[MrBenchley]

1. Be sure and write and tell them they're wrong....

I'm sure they could use a BIG laugh.

[Hrumph]

2. What? I can't hear you.

.

[mosin]

3. Thanks

Thanks for posting the truth. It often gets short-changed in the heat of the moment.

[happyslug]

4. You made an error in law

In the Miller case, Miller had been arraigned in front of a Federal Judge. At that Arraignment Miller's Attorney made the argument that the Federal Firearms Act Violated the Second Amendment. THE TRIAL JUDGE ACCEPTED THAT ARGUMENT AND DISMISSED THE CHARGES AGAINST MILLER.

Now since the Decision was NOT made at Trial (or after a trial) the rule of law is that the burden to carry the motion was on the Defense. i.e. For purposes of the Motion to Dismiss the Trial Judge had to assume ALL FACTS IN FAVOR OF THE GOVERNMENT. This is what the Trial Judge did, he ruled that even if the Government proved ALL OF THE FACTS THE GOVERNMENT ALLEGED IN THE COMPLAINT AGAINST MILLER, MILLER WOULD STILL BE RULED TO BE NOT-GUILTY BECAUSE THE FEDERAL FIREARMS ACT INTERFERED WITH MILLER'S RIGHTS UNDER THE SECOND AMENDMENT.

Since the case against Miller was DISMISSED PRIOR TO TRIAL, on appeal the same rule of law applies i.e. the COURT MUST PRESUME ALL FACTS OF THE CASE FOR THE GOVERNMENT AND AGAINST MILLER (If any potential fact support the Government's position than the Appellant court must reverse).

This is what the Supreme Court was facing in the Miller Case. The Supreme Court had to assume all of the facts of the arraignment to be true. This is why the Court ruled the way it did. The Court Ruled that the Trial Court Erred in finding as a matter of law that the Firearms in question where Covered by the Second Amendment.

The Supreme Court ruled that whether any particular weapon was a Militia Weapon was a Fact that had to be determined by a Jury and a Jury could Find that a Weapon was or was not a Militia Weapon. The trial Judge had ruled as a matter of law that the short-barreled shotgun in question was a Militia Weapon. The Supreme Court ruled that this was a legal error and reversed and remanded the case back to the Trial Judge to hold a trial and leave a Jury decide as an issue of FACT whether the short-barrel shotgun was a Militia Weapon or Not (and when the Jury had made that decision than and only than would the Trial Court be in a Position to Rule that the Federal Firearms Act regarding this weapon violated the Second Amendment).

This is why the Miller Case is so confusing, it is NOT a case where a person is claiming a law is unconstitutional (after trial when the facts had been determined by a Jury), but a case where the Government is saying the law is Constitutional based on POTENTIAL facts that if accepted by a Jury would exclude a Constitutional Challenge (i.e. a finding of fact that the weapon was NOT a Militia Weapon).

Now in its Brief the Government asked for a finding that the Second Amendment did not apply at all for the Second Amendment was a right of the States Not Individuals, but that argument was NOT cited by the Court which ruled on the issue that whether any weapon was a militia weapon or not is a finding of fact reserved to a jury.

The reason seems to be the Court was uncomfortable in striking down the Federal Firearms Act as to short barrel shotguns and sub-machine guns. Military "Experts" of the late 1930s viewed these as "Gangster" weapons NOT military weapons. Now had the weapon in question been a Model 1918 Browning Automatic Weapon (Which was the Automatic Weapon carried in the American Infantry Section of that time period, the "Squad" was not adopted till just before WWII) the Court may have agreed with the Trial Judge. The language of Miller suggest the court agreed with the fact that the Second protected a Individual right to own a weapon BUT ALSO PROTECTED THE RIGHT OF THE STATE AND FEDERAL GOVERNMENT TO BANNED ANY AND ALL NON-MILITARY USABLE WEAPONS.

To settle this argument the Court Ruled was up to a jury as the Finder of fact to decide the issue of whether any particular weapon was a Militia Weapon or not. This is the holding of Miller, nothing more and nothing less.

[mbnd45]

5. read this-

Why the second amendment guarantees the Individual's right to keep and bear arms.
First some background information.
What kind of government is the United States? Answer, it is a Federal Republic. Need documentation? OK, "I pledge allegiance to the flag of the United States of America and to the Republic for which it stands: One nation, under God, indivisible, with liberty and justice for all." That is the oath of loyalty that citizens recite.

What is a Federal Republic? A Republic is a State or Nation in which the supreme power rests in all the citizens entitled to vote and is exercised by Representatives elected directly or indirectly, by them and responsible to them. Curious, but the United States is NOT a democracy.

What is Federal? A Federal is a group or union of States which agree to subordinate its powers to that of the central authority in matters of common affairs. Generally this is in matters of foreign policy and common national defense from outside aggression. Explains why federal troops, unless requested by a State governor and placed under the control of the Army of a State cannot be used as riot control forces. This is exactly what happened in the LA riots.

What is a Democracy? A form of government in which the political power resides in all the people and is exercised by them directly or is given to elected representatives. Rule by the ruled. The United States is NOT a democracy. The Republic that is the United States does adhere to democratic principals when it comes to creating laws, etc. But note that new laws cannot contradicte existing laws or the Supreme Law of the land, the Constitution.

What is a State? One of the commonwealths or States which make up a Federal Republic. That is the body politic of a geographic area. The commonwealth refers to the body of people comprising a State.

What is a Constitution? A system of FUNDAMENTAL laws governing a nation, state, society, either written or unwritten. The United States has a written Constitution, the United Kingdom has an unwritten Constitution. The United States Constitution has seven Articles and twenty-six Amendments, the first ten Amendments constitute the Bill of Rights. Ammending the Constitution is usually made very hard, as in the case of the United States, to prevent it from being easily modified. A simple majority is not sufficient to modify the United States Constitution as spelled out in the document itself.

What is a Bill of Rights? A list of rights and freedoms assumed to be essential to a group of people. The first ten amendments to the United States Constitution guarantee certain rights to the people. Not the states, not the federal government but to the people.

What is a militia? Any army composed of citizens rather than professional soldiers, typically called in time of dire emergency. In the United States it is all able bodied males between the ages 18 and 45 years old who are not members of the Army, National Guard, Reserves, or any of the "Organized Services". Typically these militia members are referred to as the unorganized militia. In many cases the term able bodied would be expanded to refer to all able bodied people. Yes if called you are obliged to respond. It is part of your citizen oath in the pledge of allegiance.

What is a Right? A just and fair claim to anything, power, privilege, etc. that belongs to a PERSON by law, nature, or tradition. Hmmm, a right belongs to a person? The Constitution is the Supreme law of the land is it not? The common usage of the term right, could also lead one to conclude that States can also have rights etc.

What is a privilege? A right, immunity, benefit, or advantage granted to some person, group of persons, or class of persons, not enjoyed by others and sometimes detrimental to them. Hardly seems likely that owning firearms would be a privilege, since those without firearms would have a slight disadvantage that clearly could be detrimental.

What other freedoms were specifically enumerated in the Bill of Rights using "the right of the people" phrase?


First Amendment: Right of the people to peaceably assemble, petition the government for grievance.
Fourth Amendment: Right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures...
Tenth Amendment: Reserves powers not delegated to the people.
Interesting that the second amendment is one of these, indicating to me at least that it was placed higher on the priority list than say the mere right to free speech. Maybe without the second amendment there would be no free speech? Food for thought.
Now the fourteenth Amendment is interesting. It came into being after the civil war, it was ratified in 1868. There is a body of history which states that one purpose (among many) of this Amendment was to protect the right of the newly freed slaves to own firearms. Seems the southern states were passing restrictive gun laws, essentially limiting and in some cases preventing the former slaves from owning firearms. Abridging the right to own firearms was construed to be that you were not free person. So they fixed this.

So now with the background above read the second amendment.

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.

Curious that with the background above, the 2nd amendment takes on a quite clear meaning.

It clearly refers to the militia, that is all the able bodied people in a State.

Security of the free State is self explanatory, the States did not want federal mandates imposed on them, and by extrapolation the people within the State.

There is a direct reference to "the Right of the people" in the same context as the Right to peaceably assemble, (ever seen a state assemble?). So firearms ownership is a Right. Not the firearm the government says you can own, as the government cannot tell you what you cannot say or print.

Now you say what is this well regulated stuff? Hmmm, well regulated could very well mean simply that the militia's rifles were sighted in. Yes, it seems the founders may have expected the militia to practice and be ready. Regulated means to adjust, to meet a standard. Makes perfectly good sense when you look at it this way, does it not? The founding fathers were very pragmatic in their views it would seem.

Note also it says a free state, that is not the federal government being referred to, but the individual States. It seems States are also supposed to be free from the federal government to manage their own internal affairs. The only requirement is the States are not allowed to abridge or make any laws contradictory to the Constitution. The fourteenth amendment was ratified to re-assert this requirement it would seem.

Brings the argument back full circle. The Federal Republic called the United States is a group of free States composed of free people with a Constitution composed of a set of written Rights of the people and a set of FUNDAMENTAL laws to guide the making of laws and functioning as a society. Note that the procedure for modifying the FUNDAMENTAL Rights and laws was made purposefully hard so as to prevent a majority, as was happening in the south after the civil war, from taking rights from the minority. Again this makes perfectly good common sense. Why would you require such a detailing and enumeration of the FUNDAMENTAL rights, then turn right around and allow a one vote margin in the House of Representatives to make it null and void. Probably would not.

Note the overarching principal here that when we do things we should always uphold our end of the bargain as citizens and obey the law. This starts with the Constitution of the United States, and it includes Congress, the President, the Supreme Court and all other members of government. We are all in this together as a nation.

If you find this argument not to your liking, then apply this test. Take anything in the Bill of Rights you find you agree with and substitute it for the second amendment. If the argument applies to the right you personally believe is sacred, now explain to yourself why this reasoning doesn't also apply to the second amendment.

[Randall]

6. WELL WRITTEN

That was pretty well written. But I do believe that well regulated can also mean limits on what can be owned. I'm not for the banning of guns or any other poor idea like that, but I'm also not for allowing any old fool to own machine guns and RPG's.

Before any of you anti-gun, anti-death penalty people chime in, why don't you show some proof (ie. cite articles) that banning guns and banning the death penalty has great crime lowering effects. I can cite examples that proove liberal use of the death penalty lowers crime.

[mbnd45]

9. Not written by me

I just cut and pasted it. I can't take credit for it.

[Wickerman]

11. then you need to provide the link

when cutting and pasting. Otherwise that it might be considered theft of intellectual property - and I know gun owners pride themselves on being law abiding. :P Plus, its clearly written into DU rules.

welcome, by the way :hi:

[mbnd45]

14. sorry

I will find the links to my posts and edit the messages. I leaped before I looked.:hi: Right back atcha!

[MrBenchley]

12. Tsk tsk tsk tsk....

Somebody should look at the guidelines on copyright....

And I wonder what website you "lifted" this bit of gibberish from?

[MrBenchley]

7. Too bad for gun nuts this "individual right" is a pantload....

"Judge Sullivan wrote: "his Court would be in error to overlook sixty-five years of unchanged Supreme Court precedent and the deluge of circuit case law rejecting an individual right to bear arms not in conjunction with service in the Militia." "


"The Supreme Court has twice been presented with the opportunity to re-examine Miller and has twice refused to upset its holding. In Lewis v. United States, the Court concluded that a statute that criminalizes possession of a firearm by a convicted felon " trench on any constitutionally protected liberties." 445 U.S. 55, 65 n.8, 63 L. Ed. 2d 198, 100 S. Ct. 915 (1980)(citing Miller and three lower court cases rejecting Second Amendment challenges.) Further, the Court dismissed an appeal in which a state court held that the Second Amendment did not confer a right to bear arms unrelated to Militia service for "want of a substantial federal question." Burton v. Sills, 394 U.S. 812, 22 L. Ed. 2d 748, 89 S. Ct. 1486 (1969). <*8> Had the Court thought that the Second Amendment created an individual right that was infringed, the Court could not have reached these conclusions."


http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=118&topic_id=49341

[mbnd45]

8. That's one decision,

hand picked out of many. Give me some time and I'll find the Emerson case (I think that's the right one) which says otherwise.

[MrBenchley]

10. No that's every decision...

except one....

"Give me some time and I'll find the Emerson case"
In which the most corrupt conservative court in the country revesed two of their recent decision...and still took away the loony's guns. With an honest attorney general who isn't crazy as a shithouse rat, we'd have an appeal, and it would have been overturned.

I'll bet Tony Scalia agrees...but he's a fucking Nazi.

[mbnd45]

13. Why, because spoke the truth on this issue?

Anyway here it is for you guys to read and decide for yourself:



Summary of Emerson
Date: 10/19/2001


UNITED STATES v. EMERSON
U.S. Court of Appeals for 5th Circuit, Oct. 16, 2001

SUMMARY OF 5th CIRCUIT's DECISION

NON-SECOND AMENDMENT ISSUES

The court rejected a statutory construction argument because the
language was plain and it would have involved rewriting the statute; it
rejected the due process Fifth Amendment claim because Dr. Emerson
received notice and appeared at the hearing; it rejected the commerce
clause claim because the statute has a requirement that the firearm or
ammunition be shipped or transported in interstate or foreign commerce
or that the possession be in or affecting commerce; it rejected the
Tenth Amendment claim because it was abandoned on appeal. The court
then discussed the Second Amendment claim.

SECOND AMENDMENT ISSUE

Three Views Examined by the 5th Circuit

The court noted that courts and commentators have offered what may
fairly be characterized as three different interpretations of the Second
Amendment. The first is that the Second Amendment does not apply to
individuals; rather, it merely recognizes the right of a state to arm
its militia. This "states' rights" or "collective rights" interpretation
of the Second Amendment, as the court noted, has been
embraced by several U.S. Court of Appeals Circuits.

The second model admits that the Second Amendment recognizes some
limited species of individual right. This supposedly "individual" right
to bear arms, however, may be exercised only by members of a
functioning, organized state militia who bear the arms while and as a
part of actively participating in the organized militia's activities.
Under this theory, the "individual" right to keep arms applies only to
members of a militia, and then only if the federal and state governments
fail to provide the firearms necessary for such militia service. At
present, virtually the only such organized and actively functioning
militia is the National Guard, and this has been the case under law.
Currently, the federal government provides the necessary implements of
warfare, including firearms, to the National Guard, and this is likewise
historical. Under this model, the Second Amendment poses no obstacle to
the wholesale disarmament of the American people. The court noted that a
number of U.S. Court of Appeals Circuits have accepted this model,
sometimes referred to by commentators as the "sophisticated collective
rights" model.

Noteworthy, in its appeal to the 5th Circuit, for reversal of lower
court's Judge Cummings' decision, the U.S. Justice Department abandoned
the states' rights model and advocated the sophisticated collective
rights model.

The third model simply recognizes the Second Amendment right of
individuals to keep and bear arms. This view was advanced by Emerson and
adopted by the district court. None of the other circuits has subscribed
to this model the court said, known by commentators as the individual
rights model or the standard model. The court acknowledged the
individual rights view has enjoyed considerable academic endorsement,
especially in the last two decades.

Second Amendment Guarantees an Individual Right to Keep and Bear Arms

The court examined the text of the Second Amendment and concluded that,
taken as a whole, the text of the Second Amendment's substantive
guarantee is not suggestive of a collective rights or sophisticated
collective rights interpretation. It said the implausibility of either
such interpretation is enhanced by consideration of the guarantee's
placement within the Bill of Rights and the wording of the other
articles thereof and of the original Constitution as a whole.

Turning to the history of the Second Amendment's adoption, the court
found nothing inconsistent with the conclusion that, as ultimately
proposed by Congress and ratified by the states, it was understood and
intended in accordance with the individual rights model as set out
above.

The court stated:
"We find that the history of the Second Amendment
reinforces the plain meaning of its text, namely that it protects
individual Americans in their right to keep and bear arms whether or not
they are a member of a select militia or performing active military
service or training."
The court examined the preamble and harmonized it with the substantive
right. In sum, it held that, to give the Second Amendment's preamble its
full and proper due, there is no need to torture the meaning of its
substantive guarantee into the collective rights or sophisticated
collective rights model which is so plainly inconsistent with the
substantive guarantee's text, its placement within the bill of rights
and the wording of the other articles thereof and of the original
constitution as a whole. If the people were disarmed there could be no
militia (well-regulated or otherwise) as it was then understood. That
expresses the proper understanding of the relationship between the
Second Amendment's preamble and its substantive guarantee.

The court examined United States v. Miller, 307 U.S. 174, 59 S.Ct. 816
(1939). It held:
"We reject the collective rights and sophisticated
collective rights models for interpreting the Second Amendment. We
hold, consistent with Miller, that it protects the right of individuals,
including those not then actually a member of any militia or engaged in
active military service or training, to privately possess and bear their
own firearms, such as the pistol involved here, that are suitable as
personal, individual weapons and are not of the general kind or type
excluded by Miller."
The court further noted: "There is no contention here that the Beretta
pistol possessed is a kind or type of weapon that is neither 'any part
of the ordinary military equipment' nor such "that its use could
contribute to the common defense" within the language of Miller (nor
that it is otherwise within the kind or type of weapon embraced in the
government's second Miller argument, e.g., 'weapons which can have no
legitimate use in the hands of private individuals' so as to be
categorically excluded from the scope of the Second Amendment under
Miller's holding)."

Regulation of Right to Arms and Second Amendment

The court noted:
"Although, as we have held, the Second Amendment does
protect individual rights, that does not mean that those rights may
never be made subject to any limited, narrowly tailored specific
exceptions or restrictions for particular cases that are reasonable and
not inconsistent with the right of Americans generally to individually
keep and bear their private arms as historically understood in this
country."
This standard, at a minimum, requires that any law that
seeks to regulate the right to keep and bear arms must be
subjected to heightened scrutiny.

The court then examined the domestic violence restraining order statute
and Texas law. The court opined that "it is clear to us that Texas law
meets these general minimum standards. See, e.g., Texas Indus. Gas v.
Phoenix Metallurgical, 828 S.W.2d 529, 532 (Tex. App.-Hou. <1st Dist.>
1992):
"A trial court may not issue a temporary injunction except to prevent a
threatened injury. . . . The commission of the act to be enjoined must
be more than just speculative, and the injury that flows from the act
must be more than just conjectural. . . . The trial court will abuse its
discretion if it grants a temporary injunction when the evidence does
not clearly establish that the applicant is threatened with an actual,
irreparable injury."
The court further noted that "oreover, such orders are subject to
being set aside by the issuing court as well as being subject to some
review by an appellate court. In such a case, we conclude that the nexus
between firearm possession by the party so enjoined and the threat of
lawless violence, is sufficient, though likely barely so, to support the
deprivation, while the order remains in effect, of the enjoined party's
Second Amendment right to keep and bear arms, and that this is so even
though the party enjoined may not collaterally attack the particular
predicate order in the section 922(g)(8) prosecution, at least so long
as the order, as here, is not so transparently invalid as to have only a
frivolous pretense to validity."

The court closed by stating that
"e agree with the district court
that the Second Amendment protects the right of individuals to privately
keep and bear their own firearms that are suitable as individual,
personal weapons and are not of the general kind or type excluded by
Miller, regardless of whether the particular individual is then actually
a member of a militia."

SPECIAL CONCURRING OPINION

Judge Robert M. Parker specially concurred in the result, saying that
all references to the Second amendment are dicta and unnecessary to the
opinion. This is a bizarre position, since the U.S. District Court used
the Second Amendment to void the statute. Consequently, the Court of
Appeals was compelled to address the meaning of the Second Amendment.

The majority rejected his bizarre view: "We reject the special
concurrence's impassioned criticism of our reaching the issue of whether
the Second Amendment's right to keep and bear arms is an individual
right. That precise issue was decided by the district court and was
briefed and argued by both parties in this court and in the district
court." The majority also stated "e likewise reject the implied
criticism (in the special concurrence's fourth paragraph) for not
mentioning certain 'facts' not alleged in the indictment, not found to
be true by any trier of fact, and not relevant to the section 922(g)(8)
violation alleged. The district court dismissed the indictment and
Emerson has not yet been convicted of anything. In fact, we have been
informed that he has been acquitted of state charges relating to the
matter mentioned in the special concurrence."

INCORPORATION OF SECOND AMENDMENT
THROUGH FOURTEENTH AMENDMENT

This case had nothing to do with state action, therefore, the Fourteenth
Amendment was not an issue. The court, however, examined some cases
holding that the Second Amendment does not apply to the states. The
court noted that "these holdings all came well before the Supreme Court
began the process of incorporating certain provisions of the first eight
amendments into the Due Process Clause of the Fourteenth Amendment, and
as they ultimately rest on a rationale equally applicable to all those
amendments, none of them establishes any principle governing any of the
issues now before us." Therefore, the issue of incorporation can be
raised in an appropriate case.

COURT CRITICIZES INTELLECTUAL BANKRUPTCY
OF STATE COURTS

The court did not just reject federal court rulings that judicially
nullified the Second Amendment, it also criticized state courts: "We
also observe that to interpret state constitutional provision protecting
the right of the citizen or the people to 'bear arms' as applying only
where the individual is actively engaged in actual military service is
necessarily to either (1) contemplate actual military service for that
purpose as including military service other than that which is ordered
or directed by the government; or (2) construe the constitutional
provision as saying no more than that the citizen has a right to do that
which the state orders him to do and thus neither grants the citizen any
right nor in any way restricts the power of the state. Of course, the
latter difficulty is especially applicable to the theory that such state
constitutional provisions grant rights only to the state. While two (and
only two) state courts (both in the twentieth century) have seemingly
adopted that view, those two decisions do not appear to even recognize,
much less attempt to justify, the anomaly of construing a constitutional
declaration of rights as conferring rights only on the state which had
them anyway. See City of Salina v. Blaksley, 72 Kan. 230, 83 P. 619
(Kan. 1905) (in prosecution for carrying a pistol within city limits
while intoxicated, construing bill of rights provision 'that the people
have the right to bear arms for their defense and security' as one which
'refers to the people as a collective body' and which 'deals exclusively
with the military. Individual rights are not considered in this
section.'); Commonwealth v. Davis, 343 N.E.2d 847 (Mass. 1976) (in
prosecution for possession of shotgun with barrel less than 18 inches
long, provision of § 17 of bill of rights that 'the people have a right
to keep and bear arms for the common defense' is 'not directed to
guaranteeing individual ownership or possession of weapons;' while a
'law forbidding the keeping by individuals of arms that were used in the
militia service might then have interfered with the effectiveness of the
militia and thus offended the art. 17 right . . . that situation no
longer exists; our militia, of which the backbone is the National Guard,
is now equipped and supported by public funds.')." The court concluded
that these two bizarre cases rest on an intellectual foundation made of
quick sand.

CONCLUSION

The impact of the opinion in United States v. Emerson, ___ F.3d ___
(5th Cir. Oct. 16, 2001), on the anti-self-defense and anti-gun movement
must be devastating. It also demonstrates that the intellectual movement
in support of this right, including the writing of numerous law review
articles, which the court cited, strongly influenced this court.
This is a case of the pen saving the sword.

http://members.aol.com/alicebeard/law/summary.html

[Zynx]

15. Get a legal education Bench.

The rather long "lift" is entirely legally correct regarding the facts of Miller and the Supreme Court's consideration.

And, IIRC, cert was denied by SCOTUS on the Emerson case, which means that the ruling stands and is good law.

[MrBenchley]

16. Gee, zynx....you first