Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: lentulusgracchus
lentulusgracchus said: "It [US vs. Miller, 1939] cries out for redecision, and overturning. "

To the extent necessary, it already has been. I'll explain.

The trial court in the case against Miller and Layton DISMISSED the charges on Second Amendment grounds with no detailed explanation.

It was the prosecution which appealed the decision directly to the US Supreme Court.

The prosecution, in their brief, made two major claims to overturn the lower court dismissal. Firstly, they proposed that the Second Amendment only protects members of an organized Militia. Secondly, they proposed that the particular weapon which required a government license under the National Firearms Act of 1934, a short-barreled shotgun, was not useful to a Militia and therefore the Second Amendment did not protect the possession of such a weapon.

On the first point, the Supreme Court didn't even respond. It was evidently so obvious that the Second Amendment protects a "right of the people" that it was not necessary to even comment on the idea that Miller was not the subject of the protection.

As to the assertion that the particular weapon was not useful to a Militia, the Supreme Court agreed with the prosecution (an agreement which would have been irrelevant to the case had Miller not been the subject of the Second Amendment) but pointed out that there had been no evidence submitted which would provide guidance to the Supreme Court as to whether the short-barreled shotgun would be protected.

Because the Supreme Court lacked evidence regarding the shotgun, they REVERSED the dismissal and REMANDED the case back to the lower court.

Since short-barreled shotguns had been used as trench guns in World War I, there is no reason to believe that the lower court would find that such weapons were not protected by the Second Amendment and a second dismissal should have resulted.

Because one of the original defendants, (there were two; Miller and Layton) had died and the other had taken a plea bargain, no such trial was ever held.

In a series of acts of supreme tyranny, the lower courts fabricated a "collective rights" interpretation of US vs Miller which was without legal foundation whatever. And the Supreme Court enabled this tyranny by refusing to review these lower court decisions for almost seventy years until the Heller decision in 2008.

The Heller decision DID overturn the narrow interpretation of the Second Amendment in Miller that only weapons suitable for a Militia were protected. By recognizing the legitimate right of self-defense with arms, we now have TWO categories of arms which are to be protected.

The Heller decision allows for exceptions to the protection of the Second Amendment "in sensitive places" and certain persons and unusual or dangerous weapons may still be regulated.

It would be a stretch to claim that AR type rifles and normal capacity magazines are too unusual or dangerous given that every soldier and most police departments use them.

17 posted on 01/13/2013 9:56:51 AM PST by William Tell
[ Post Reply | Private Reply | To 12 | View Replies ]


To: William Tell
Thank you for the explanation. It seems Miller's send-off was even wormier than I had read.

I still interpret this as the Roosevelt Administration playing rough with an indigent defendant to get the outcome the President wanted for political reasons.

And yes, the NFA would appear to be ripe for revisitation, especially as regards suppressed and short-barreled weapons. Under Heller, SCOTUS might agree -- if we could see a case there before Obama assassinates CJ Roberts and elevates Diesel Kagan to be his Vanguard CJ and Sister in the Righteous Struggle of the Narodny Proletariat -- that fully-automatic weapons are armory weapons and ought to be kept there, but any man of reasonable military age ought to be found to be a member of the Unorganized Militia and able to obtain them without onerous and confiscation-minded federal legal or processual attachments.

19 posted on 01/13/2013 1:00:19 PM PST by lentulusgracchus
[ Post Reply | Private Reply | To 17 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson