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To: Cboldt
The US Supreme Court reviewed that in US v. Miller, 307 U.S. 174 (1939), and said that finding the 1934 NFA unconstitutional was unsupported by the available evidence, but that it would be unconstitutional to apply the tax to a weapon that "has some reasonable relationship to the preservation or efficiency of a well regulated militia [or] is any part of the ordinary military equipment or that its use could contribute to the common defense."

Complete ruling: Unted States v. Miller

Well, then using that logic, the Supreme Court should have struck down the transfer tax on automatic weapons as unconstitutional, since those are "part of the ordinary military equipment."

But Mr. Miller's counsel didn't appear to argue the other side of the case, the weapon in question was a short barreled shotgun not an automatic weapon, and I believe that by the time the Supreme Court heard this case Mr. Miller had met an untimely death.

15 posted on 07/14/2011 12:38:29 PM PDT by Yo-Yo (Is the /sarc tag really necessary?)
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To: Yo-Yo
-- Well, then using that logic, the Supreme Court should have struck down the transfer tax on automatic weapons as unconstitutional, since those are "part of the ordinary military equipment." --

That's what they did, in a sense. They said that the decision below should be upheld (reinstated, whatever), if there was evidence of that nature. In order to provide for the entry of evidence, they had to reverse the decision below, where the indictment was quashed, because without a proceeding, there was no place for the judiciary to obtain evidence.

-- Mr. Miller's counsel didn't appear to argue the other side of the case, the weapon in question was a short barreled shotgun not an automatic weapon ... --

Yes, and the short barrel shotgun had widespread use by then, and similar had long been in use (blunderbuss) as military and defensive weapons. Bigtime use in trench warfare in WWI.

-- I believe that by the time the Supreme Court heard this case Mr. Miller had met an untimely death. --

He was a no show, and I think you are right, he was a no show because he was dead.

That said, the precedent is chronically misread and misapplied. Scalia did so in the Heller case; at first saying Miller's conviction was upheld! Ummm, Miller was NEVER convicted. The indictment against him was quashed.

16 posted on 07/14/2011 12:48:27 PM PDT by Cboldt
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To: Yo-Yo
-- Well, then using that logic, the Supreme Court should have struck down the transfer tax on automatic weapons as unconstitutional, since those are "part of the ordinary military equipment." --

Another favorite of mine is Presser v. Illinois, 116 U.S. 252 (1886), which is essentially a case about the constitutionality of parade permit laws. Presser argued that he didn't need a parade permit, if his parade was marching with guns.

Within that case are two statements that appear to contradict each other.

We think it clear that the sections under consideration, which only forbid bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, do not infringe the right of the people to keep and bear arms. But a conclusive answer to the contention that [the 2nd] amendment prohibits the legislation in question lies in the fact that the amendment is a limitation only upon the power of congress and the national government, and not upon that of the state.
vs.
It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the [federal] government, as well as of its general powers, the states cannot, even laying the [2nd amendment] out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.
Now, and honest citation to Presser would account for all of this; but the Federal Courts have, as far as know 100% of the time, selected only the 1st section for citation; and used it to support the proposition that a state MAY prohibit the people from keeping and bearing arms.

The 2nd Circuit, in Bach v. Pataki, 408 F.3d 75 (2005), held that Presser stood for the OPPOSITE of what Presser says.

Presser stands for the proposition that the right of the people to keep and bear arms, whatever else its nature, is a right only against the federal government, not against the States. The courts are uniform in this interpretation. See, e.g., Thomas, 730 F.2d at 42 (1st Cir.); Peoples Rights Org., 152 F.3d at 538-39 n. 18 (6th Cir.); Quilici, 695 F.2d at 269 (7th Cir.); Fresno Rifle & Pistol Club, 965 F.2d at 730-31 (9th Cir.). Just as Presser had no federal constitutional right "to keep and bear arms" with which to challenge Illinois's license requirement, Bach has none to assert against New York's regulatory scheme. Under Presser, the right to keep and bear arms is not a limitation on the power of States.

As far as the RKBA goes, the courts are totally corrupt; evidenced by their own words.

18 posted on 07/14/2011 1:01:29 PM PDT by Cboldt
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