Posted on 07/06/2007 4:34:01 PM PDT by fight_truth_decay
This time, the Supreme Court may have to decide what the Second Amendment means. But how much will really change?
“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.” U.S. Constitution, Amendment II
Earlier this year, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit struck down the District of Columbia’s stringent gun-control regulations, ruling squarely that the Second Amendment protects an individual’s right to bear arms.
In the cultural and legal battle over gun control, the decision was the proverbial shot heard ’round the world.
The ruling—in Parker v. District of Columbia—marked the first time a gun law has been found unconstitutional based on the Second Amendment, and it set up a direct conflict among the circuits. Nine federal appeals courts around the nation have adopted the view that the amendment guarantees only the collective right of organized state militias to bear arms, not an individual’s right. (A 5th Circuit panel found that individuals have gun rights but upheld the regulation in question, so both sides claim that ruling as a victory.)
In May, when the full D.C. Circuit Court refused to grant a rehearing en banc, the stage seemed set for a showdown in the Supreme Court, which has thus far managed to dodge the question of whether the Second Amendment guarantees an individual’s right to bear arms.
According to HLS Professor Mark Tushnet, author of “Out of Range: Why the Constitution Can’t End the Battle Over Guns” (Oxford University Press, 2007), earlier petitions were cluttered by issues that allowed the Court to decline review or avoid the Second Amendment question. But Parker “is more straightforward,” Tushnet says, and the Court will have a tougher time avoiding the issue.
If Parker is the long-awaited “clean” case, one reason may be that lawyers for the National Rifle Association—who helped steer the legal strategy of the plaintiffs and backed them financially—have learned from earlier defeats, and crafted the case to maximize the chances of Supreme Court review. For one thing, it is a civil case, not a criminal one, and the six plaintiffs, in the words of NRA President Sandra Froman ’74, are “ordinary people whose lives are impacted by not having the right to protect themselves.” They include a woman who lives in a high-crime area and has been threatened by drug dealers, a gay man assaulted because of his sexual orientation and a special police officer for the Federal Judicial Center.
In addition, the laws challenged in Parker are among the most stringent in the nation: Handguns cannot be registered in the district; those registered before a 1976 ban cannot be carried from one room to another without a license; and any firearm in a home must be kept unloaded and either locked or disassembled.
Also important, says Tushnet, is the fact that because Parker emanates from the District of Columbia, where only federal law applies, it doesn’t involve the overlaying question of whether the Second Amendment applies to a state by way of the 14th Amendment—a question that clouded an earlier case involving one city’s complete ban on handgun possession. He adds that a number of states urged the Court not to take that case, and the solicitor general did the same in another one.
Pro-gun activists like Froman are confident that the Court will hear an appeal by the district in Parker, and they say that they couldn’t have gotten this far without help from an unlikely quarter: liberal law professors. In the past 20 years, several prominent legal scholars known for liberal views, including Professor Laurence Tribe ’66, have come to believe that the Second Amendment supports the individual-rights view. In the 2000 edition of his treatise “American Constitutional Law,” Tribe broke from the 1978 and 1988 editions by endorsing that view. Other liberal professors, including Akhil Reed Amar at Yale Law School and Sanford Levinson at the University of Texas at Austin, agree.
“My conclusion came as something of a surprise to me, and an unwelcome surprise,” Tribe said in a recent New York Times interview. “I have always supported as a matter of policy very comprehensive gun control.”
Froman says the fact that Tribe and others reversed their interpretation in recent years has had enormous influence. Indeed, the majority opinion in Parker, written by Judge Laurence H. Silberman ’61, referred specifically to Tribe’s revised conclusion.
The 27 words of the Second Amendment may be the most hotly contested in the Constitution. Gun-control advocates and opponents read its tortured syntax entirely differently. Each side resorts to what Tushnet calls “a simplified version of constitutional analysis” to support its viewpoint, looking solely at the wording of the amendment and what the language meant in 1791 rather than at whether society has changed in the meantime and what judicial precedents offer guidance. In “virtually no other area in constitutional law” is analysis done that way, he says, although he’s not sure why.
“There’s very little guidance on what the actual meaning of the Second Amendment is,” says Froman, a Tucson lawyer who was interviewed by the Bulletin when she returned to HLS in early April to speak on a panel. “The courts have talked a lot about the Second Amendment but have always been nibbling around the periphery. There’s never really been ‘Let’s explain and elaborate on what it means.’”
For Anthony A. Williams ’87, who served as mayor of the District of Columbia from 1999 until earlier this year and vigorously enforced the district’s gun laws during his tenure, the meaning of the amendment is unambiguous, no matter what interpretive theory is used. “Let’s take [Justice Antonin] Scalia’s approach,” he says. “I think the framers’ intent was to see to it that [through] militias, states as sovereign entities had a right to arm themselves. To me, it’s not about individuals—it’s about groups.”
But Froman firmly reaches the opposite conclusion: “A lot of people say that the prefatory clause of the Second Amendment—the words ‘A well regulated militia …’— limits the active clause pertaining to bearing arms. They want to say that means you can only exercise the right to keep and bear arms as part of a militia, meaning as part of the National Guard, forgetting that the National Guard didn’t exist then.”
“Remember,” Froman adds, “the Second Amendment guarantees a right—it does not confer a right. It’s God-given. It’s natural. The right of self-survival is a basic instinct of any organism.” The Constitution “acknowledges that.”
Tushnet believes that if the Court grants certiorari, it will ultimately overturn the decision of the D.C. panel. “My gut feeling is that there are not five votes to say the individual-rights position is correct,” he says. “[Justice Anthony] Kennedy comes from a segment of the Republican Party that is not rabidly pro-gun rights and indeed probably is sympathetic to hunters but not terribly sympathetic to handgun owners. Then the standard liberals will probably say ‘collective rights.’”
But Tribe is less confident of that prediction. Should the case reach the Supreme Court, he told The New York Times, “there’s a really quite decent chance that it will be affirmed.”
If that happens, Tushnet says, it is unlikely to end all gun regulation, because the Court would probably tailor its decision narrowly to reach consensus. The three-judge panel in Parker struck down only D.C.’s tight laws. “Once you recognize [gun ownership] as an individual right, then the work shifts to figuring out what type of regulation is permissible,” he says.
Tushnet says the gun-control debate is an intractable one in which neither side will move, and a constitutional “answer” from the Supreme Court will be something of a nonstarter. Like the arguments over abortion and stem-cell research, he says, the argument over guns is in truth another battle in the culture wars and cannot be solved by constitutional analysis because neither side can be persuaded.
No gun-control strategy with any chance of surviving the political process would have a significant effect on overall gun violence or crime, Tushnet believes. To say so publicly would be the boldest and most honest stand that a major politician or candidate could take, he adds.
The tragic shootings on the campus of Virginia Tech seem to have changed no one’s position: “People responded to it in exactly the way you would expect,” Tushnet says. Supporters of gun control sought stricter laws and better enforcement, and the NRA advocated that teachers and others be armed to protect themselves.
Activists on both sides bear out that observation. Williams believes that the district’s gun laws were having a demonstrable effect on gun-related violence. “When I started as mayor, we had well over 200 homicides a year,” he says. “We brought that down to below 160, so we made serious inroads in reducing violent crime; but still, in many neighborhoods, the situation is horrific.”
Says Froman: “Statistically, the parts of the country with the greatest number of firearms have the lowest rates of violent crime with guns. It’s easy to understand why. Let’s say there were 30 people in this room, and this was a state that allowed people to carry concealed weapons for self-defense, and a criminal walked in. At least half the people in the room would draw down on the criminal. That would be the end of it.”
Froman had nothing to do with guns until, some 25 years ago, someone tried to break into her Los Angeles home. “I was terrified,” she says. “It was a real epiphany for me, for someone who had never been a victim of crime, who never thought I needed to protect myself.” The next day, she walked into a gun shop to purchase a weapon. She has been a staunch gun advocate ever since.
Does Froman ever worry about repercussions, given that she’s at the center of such a heated issue? “I live in a very rural area, at the end of a long driveway,” she says. “People ask me, ‘Don’t you get scared?’ I say, ‘Are you kidding? I have a clear shot all the way to the road.'
Read it real slow.
the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."
And
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That each and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia
We are the militia either organized or unorganized. Now who is responsible for enrollment? The fact that the state elects not to utilize the militia by forming a Company is moot. If the state decides to then we are to show up with OUR arms.
and every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid,
Pretty simple. Thanks for the information.
Where do you get that? "Arms" are Militia-type arms. That's the original meaning. Even the Miller court acknowledged that.
Where do you get your definition of arms from?
"would include anybody who had an enforceable right to self defense."
The second amendment? Self defense? I don't know what you're smokin'.
"Once the courts brush away the "collective rights" nonsense and the idea that "the right of the people" is simply a right of a militia or the right of a state, what remains is an individual right to keep and bear arms for one's self, one's family, one's community, and one's nation."
Well sure, once all that nasty old militia nonsense is brushed away and we go with the living constitution version ....
By your own post citing the Militia Act and the one I supplied from USC I get the feeling your describing yourself. By the way who is responsible for enrollment under the Militia Act?
Hint
by the Captain or Commanding Officer of the company, within whose bounds such citizen shall reside, and that within twelve months after the passing of this Act. And it shall at all time hereafter be the duty of every such Captain or Commanding Officer of a company, to enroll every such citizen as aforesaid, and also those who shall, from time to time, arrive at the age of 18 years, or being at the age of 18 years, and under the age of 45 years (except as before excepted) shall come to reside within his bounds; and shall without delay notify such citizen of the said enrollment, by the proper non-commissioned Officer of the company, by whom such notice may be proved.
He was not charged with being a Militia member and lacking a tax stamp. He was not charged with NOT being a Militia member and lacking a tax stamp. He was not charged with possession of a weapon. He was not charged as an individual possessing this weapon nor as a Militia member in possession of this weapon.
Got it, yet?
He was charged with not having a tax stamp. Period. His defense was that the tax stamp was unconstitutional.
IF it could have been shown to the U.S. Supreme Court that Miller's sawed-off shotgun was indeed a Militia-type weapon, then the tax stamp would have been an infringement, the NFA would have been ruled unconstitutional, the charges dropped, and Miller freed.
And the court would never had had to rule on whether the second amendment protects an individual or a collective right.
"You are the one who pointed out that children would not have an enforceable right to keep and bear arms."
No. I said that, in 1792, the right of children to keep and bear arms was not protected by the second amendment from federal infringement. Children have the right. If the state wishes to protect that right they're free to do so. Do you want them to?
"If Miller had been a child, the Supreme Court could have dodged the whole matter of the scope of the Second Amendment by simply finding that "the people" does not include minors in this case."
Miller was NOT charged with being in possession of a sawed-off shotgun! For the gazillionth time, Miller was charged with not having a tax stamp. I don't care if Miller was an insane, 10-year-old, female, negro slave in the United States illegally -- she was charged with not having a tax stamp. This case went to the U.S. Supreme Court only because Miller claimed the tax stamp violated the second amendment and he never should have been charged to begin with.
"Similarly, the Supreme Court did NOT have to know anything about the shotgun if they could have decided that the scope of "the people" in the Second Amendment did not include Miller."
That wasn't the case before them. Why would they all of a sudden decide to make that the issue?
"THAT makes Miller an individual rights decision."
It would IF that's why the case was in front of the U.S. Supreme Court. Then again, IF a frog had wings he wouldn't have to drag his a$$ on the ground.
"Your claim that the cite of Sonzinsky establishes that the Second Amendment, or any other provision of the Bill of Rights, can be infringed by a tax is similarly preposterous."
You are correct. If I had claimed that Sonzinsky established that the Second Amendment, or any other provision of the Bill of Rights, could be infringed by a tax, it would be preposterous. I, of course, didn't claim that.
I claimed that Sonzinsky established that the NFA did not usurp the police power reserved to the States.
Fixed that one.
"Had that been the opinion of the Miller court, they had an obligation to say so."
True. And if it was the opinion of the Miller court that Marbury v Madison was decided incorrectly, they also had an obligation to say so.
Now, why the Miller court would have either one of those opinions to begin with is a mystery to me.
"This argument was made by the prosecution and was rejected by the Supreme Court."
No. This argument was made by the prosecution and was ignored by the Supreme Court. Don't lie, especially when I've already corrected you on this before.
"Miller's protection was to be based solely on the nature of the weapon"
Miller's defense was that the tax stamp on his sawed-off shotgun was unconstitutional.
"That's MILLER'S protection, not protection for the shotgun."
Ultimately, it was protection for whoever was arrested under the NFA. Could have been Osama bin Laden.
"Shotgun's could still be prohibited to felons, or illegal aliens, or minors, or anybody else"
Yes. But if THEY were arrested under the NFA because they lacked a tax stamp, then they, too, could claim that the NFA violated the second amendment.
"The Miller decision was that MILLER could not be denied the protection of the Second Amendment"
Not even close. The Miller "decision" was that IF the sawed-off shotgun was a Militia-type weapon, then the tax stamp requirement of the NFA violated the second amendment and Mr. Miller should never have been charged with violating Section 11.
I'm done with Miller.
Now, if your unorganized militia meets that criteria, then the second amendment applies.
Nope. I'm the one who has consistently and repeatedly said that the second amendment protects those in the state Militias from federal infringement.
You and others have been saying that's passe, old school -- that the second amendment protects the individual rights of everyone, even 85-year-old women.
" -- We are the militia either organized or unorganized. The fact that the state elects not to utilize the militia by forming a Company is moot. If the state decides to then we are to show up with OUR arms.
Pretty simple. --"
The Founders were very specific. The second amendment says a "well regulated" Militia. The U.S. Constitution says a "trained" Militia with "officers appointed by the state". Now, if your unorganized militia meets that criteria, then the second amendment applies.
I'm the one who has consistently and repeatedly said that the second amendment protects those in the state Militias from federal infringement.
You and others have been saying that's passe, old school -- that the second amendment protects the individual rights of everyone, even 85-year-old women.
The second amendment not only protects the individual rights of everyone [even 85-year-old women] from fed, state, or local infringements, it also protects those in the state Militias.
-- It's part of our supreme Law of the Land, - an inalienable right that no one is empowered to prohibit.
They could "all of a sudden decide to make that the issue" because the prosecution ASKED THEM TO. It was a relevant argument by the prosecution which would have rendered any mention of the nature of the "arms" irrelevant.
It is the policy of the United States Supreme Court to make its decisions on the narrowest possible grounds. To suggest that there is merit to the notion that Miller had to be in a militia is to suggest that the Supreme Court in Miller was DOUBLY incompetent. Not only did the court fail to respond to a key prosecution argument which you claim was valid, but, in addition, the Court failed to decide the case on the narrowest possible grounds.
If Miller was required to be in a militia to have Second Amendment protection, then it would be irrelevant which arms he failed to pay a tax on.
I don't think so.
We both seem to agree that the Supreme Court offers protection for Miller based on a factual determination regarding the weapon. The Court has done this because the Second Amendment protects SOMEBODIES non-infringed possession of SOMETHING.
The NFA 34 was, therefore, ruled unConstitutional, BUT the lower court dismissal is reversed and a trial will be held at which a defendant might be convicted.
But the Supreme Court, having ruled that NFA 34 is unConstitutional, because the Second Amendment protects SOMEBODIES un-infringed possession of SOMETHING, decided NOT to reverse the lower court dismissal with instructions to determine whether the defendant was one of the SOMEBODIES who are protected by the Second Amendment.
Evidently when the SOMETHING is in doubt, a trial is to be held. But if the SOMEBODY is in doubt, as the prosecution suggested in its argument might be the case, there is not a factual issue that is relevant to a trial.
Please tell me how you KNOW and how the Miller Court KNEW that Miller was not a member of a militia? Or that Layton was not a member of a militia? If the shotgun had been found to be "protected" why is it not relevant whether Miller is protected?
You are the one claiming that the Second Amendment only protects members of a militia because the word "people" in the Second Amendment doesn't include Miller if he is not a militia member. Why then does the Miller Court fail to include this test in their remand?
Just the opposite.
The prosecution's Brief focused on the type of arm protected by the second amendment -- everything in the brief is to support the prosecution's claim that only Militia-type arms are protected. Yes, he mentions members of a Militia -- only to demonstrate the purpose of the arms.
"If these general powers of the government are restricted in regard to the right to keep and bear arms, the limitation, to whatever extent it may exist, will be better understood, and more clearly seen, when the object for which right is supposed to have been retained, is stated."
The prosecution even acknowledges that the lower courts are at odds as to whether the second amendment protects an individual right or a collective right. He pushes all that aside and says he doesn't care. The ONLY thing the prosecution is concerned with is the type of arm protected.
"While some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property as well as the right of the people to bear arms collectively (People v. Brown, 53 Mich. 537; State v. Duke, 42 Tex. 455), the cases are unanimous in holding that the term "arms" as used in constitutional provisions refers only to those weapons which are ordinarily used for military or public defense purposes and does not relate to those weapons which are commonly used by criminals."
The prosecution never claimed or even suggested that Mr. Miller was not a Militia member and therefore not protected. That argument of yours is flat-out bull$%^&.
The lower courts are at odds as to whether the second amendment protects an individual right or a collective right.
"While some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property as well as the right of the people to bear arms collectively, - the cases are unanimous in holding that the term "arms" as used in constitutional provisions refers only to those weapons which are ordinarily used for military or public defense purposes and does not relate to those weapons which are commonly used by criminals."
What abunch of flat-out bull$%^&.
-- The issue here is whether 'We the people' have an uninfringable right to arms. - It's not about the specific types of guns criminals "commonly use".
From the prosecution's Summary of Argument in Miller: " Indeed, the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided for by law."
I can see why you smell BS. I smell it too.
Not really. All along I have said that the Miller court implied that the second amendment offers protection for Militia-type weapons. The fact that Mr. Miller was involved is secondary.
You continue to look at the Miller ruling as though it contains some significance as to Mr. Miller's status as an individual. Yes, he was the one charged, and he would be the one freed if it was determined that the sawed-off shotgun was a Militia-type weapon. But not because the second amendment protects his individual right to keep and bear a sawed-off shotgun.
He would be freed because he never should have been arrested and charged under the NFA to begin with, since the NFA would have been found unconstitutional becaused it taxed a Militia-type weapon.
"Please tell me how you KNOW and how the Miller Court KNEW that Miller was not a member of a militia?"
They didn't know and they didn't care. The prosecution was only interested in the weapon. The U.S. Supreme Court was only interested in the weapon.
As you said, the court wants to make the decision as narrow as possible. That's what they did. Now you're saying they also should have ruled on Mr. Miller's status (or non-status) in a Militia? Why do they need to do that?
"You are the one claiming that the Second Amendment only protects members of a militia because the word "people" in the Second Amendment doesn't include Miller if he is not a militia member. Why then does the Miller Court fail to include this test in their remand?"
Quite simply, they weren't asked. One of these days, someone will ask the U.S. Supreme Court to make this determination.
Here you have this phrase, "the right of the people to keep and bear arms". The word "arms" has already been defined by the Miller court as only Miltia-type arms. Yet you think that "the people" in the same phrase will be defined as other than Militia members?
The prosecution only references the Militia to support his claim that the second amendment only protects Militia-type weapons. I saw no references to hunting or target practice or self-defense, did you?
"... in regard to the kind of arms referred to in the amendment, it must be held to refer to the weapons of warfare to be used by the militia such as swords, guns, rifles, and muskets -- arms to be used in defending the State and civil liberty--and not to pistols, bowie-knives, brass knuckles, billies, and such other weapons."
If the Miller Court agreed with you, then it would have required that the case against Miller establish EITHER that Miller was not a member of a militia OR that the weapon was specifically not protected.
You persist in falsely claiming that a law which is sometimes unConstitutional can thus not be enforced at all. The Miller decision itself demonstrates clearly that the prosecution of Miller would be considered Constitutional IF the weapon was not of the "arms" protected by the Second Amendment.
Similarly, if the phrase "the right of the people" in the Second Amendment meant only "the right of the well-regulated Militia", then there would be NOTHING unConstitutional about prosecuting somebody who IS NOT a member of a "well-regulated Militia".
As I pointed out in a posting above, the prosecution DID argue that only militia members are protected by the Second Amendment. By not creating a militia membership test along with a test regarding the particular weapon, the Supreme Court REJECTED the argument that Miller or anybody else had to be a militia member in order to have an enforceable right to keep and bear SOME arms.
Here are all SEVEN sentences from the summary:
The Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its infringement by Congress.
It cannot be doubted that the carrying of weapons without lawful occasion or excuse was always a crime under the common law of England and of this country.
In both countries the right to keep and bear arms has been generally restricted to the keeping and bearing of arms by the people collectively for their common defense and security.
Indeed, the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided for by law.
The "arms" referred to in the Second Amendment are, moreover, those which ordinarily are used for military or public defense purposes, and the cases unanimously hold that weapons peculiarly adaptable to use by criminals are not within the protection of the Amendment.
The firearms referred to in the National Firearms Act, i.e., sawed-off shotguns, sawed-off rifles, and machine guns, clearly have no legitimate use in the hands of private individuals, but, on the contrary, frequently constitute the arsenal of the gangster and the desperado.
Section 11, upon which the indictment was based, places restrictions upon the transportation in interstate commerce of weapons of this character only, and clearly, therefore, constitutes no infringement of "the right of the people to keep and bear arms," as that term is used in the Second Amendment.
That is the ENTIRE Summary of Argument. The Supreme Court expects each identifiable argument to be summarized here.
Note that sentences three and four CLEARLY constitute an argument that the Second Amendment protects the right to keep and bear arms collectively for common defence and that only militia members are protected.
The transition to the second of the two prosecution's arguments is CLEARLY indicated by the use of the word "moreover" in sentence five.
If you claim that there is some context that indicates other than what I have stated, then supply the context.
1- You are correct about the DOD
2- I was in Vietnam(3 tours) and knew many of the draftees( also many men signed up because of the fear of the draft). The draft should only be used when the country declares War. We now have the best trained and most professional fighting force ever(all volunteers). Lets take your profession, imagine praying because you have been ordered to by your Goverment. When people consent they give of themselves at much higher level.
3- individual rights violated by a draft” is so much hogwash.
Since we are in a time of men and women are “equal”- do we draft women? I think not.
4- In the last years of the Vietnam War the draftees were some of the worst soldiers( not all). Do the research on crimes commented in Vietnam by our own soldiers during the last years.
5- Some of the bravest and greatest men I knew in Nam were Chaplains. I do not think any Chaplain was ever drafted.
6- The one exception I can think of was the Medical Doctors. It was standard procedure to draft all the surgeons and doctors coming out of the medical schools. We had 300,000 wounded. We had more amputees than WW2 and the Korean War together, so they were needed.
7- The left would prevent us from defending ourselves.
Good post. Thanks for your thoughts. I don’t agree with those who would deny a draft in time of crisis, because the Constitution says that Congress can call for the militia. The militia is not the Nat’l Guard and Reserve.
I do think we have a God-given right to protect ourselves, and that means that firearms are a right, and not a luxury.
The U.S. Supreme Court did not require diddley squat. It was presented with a weapons case, not an individual/collective case. It accepted the case solely as a weapons case.
In my opinion, the prosecution could have chosen to pursue the case on the fact that Mr. Miller was not a Militia member. He chose not to. He chose to make it a weapons case. The Miller court ruled on the weapon.
"You persist in falsely claiming that a law which is sometimes unConstitutional can thus not be enforced at all."
Nope. Never did.
"The Miller decision itself demonstrates clearly that the prosecution of Miller would be considered Constitutional IF the weapon was not of the "arms" protected by the Second Amendment."
The court implied that only a Militia-type weapon is protected. From that, we can safely assume that a non-Militia-type weapon without a stamp is not protected. If the weapon is not a Militia-type weapon and does not have a stamp, anybody, including Militia members, could be prosecuted under the NFA. So I don't disagree with your statement.
"Similarly, if the phrase "the right of the people" in the Second Amendment meant only "the right of the well-regulated Militia", then there would be NOTHING unConstitutional about prosecuting somebody who IS NOT a member of a "well-regulated Militia".
I have no idea. If the weapon is a Militia-type weapon and therefore protected, the Miller court never said one way or the other who may own it. Which is the frustrating fact for many people.
After the Miller decision, the lower court pursued the case against Mr. Miller. If shotguns are Militia-type weapons (as you insist) and protected by the second amendment, and individuals are protected (as you insist), why wasn't the case dropped?
There are only three possible answers: A) sawed-off shotguns are not Militia-type weapons and are not protected under the second amendment, B) sawed-off shotguns ARE Militia-type weapons and are protected under the second amendment, but individuals like Miller are not protected under the second amendment, or C) neither sawed-off shotguns nor individuals are protected under he second amendment.
If there is a "D", I'd like to hear it.
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