Hatch Legislation to Overturn D.C. Gun Ban Riles Some

The Cato Institute ^ | 7/21/03 | Jonathan Block

[gatex]

Here is a link to a compilation of the documents in the Miller case.

link to Miller documents

From brief filed by United States ---
Quote --- "summary of argument
----" 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...."

Other info --- "Alas, Jack Miller's end was an unhappy one. The Southwest American reported on April 6, 1939, that Miller's body had been found in the "nearly dry" bed of Little Spencer creek, nine miles southwest of Chelesa, Oklahoma. He had been shot four times with a .38. Miller's ".45 calibre pistol," from which he had fired three shots in his defense, was found near his body. He was forty years old. "

[justshutupandtakeit]

When the Louisiana Purchase was obtained and that area became a Possession of the United States a military government was established. Thus, there was no "republican" form of government there which is guaranteed to Americans living in states. This fact of history appears to support the argument that people living in federal territory do not have all the constitutional rights of those living in the United States, at least this was the case in the past. How far that extends now is not clear but they do not have representation in Congress and the 14th amendment speaks of "persons born or naturalized in the United States and subject to the jurisdiction thereof," being citizens of the US and the state wherein they reside. Now persons residing in US territory are "subject to the jurisdiction" of the United States so it is a murky area.

Is the District a "part of the United STates?" Or are only states? Are those born in American possessions citizens?

P.S. I agree with the NRA in not wanting to bring this case to the USSC. Wait until there are two or three more conservatives on this court until we do that since there are only 3 certain votes on the right side. Even 5-4 won't prevent further challenges, 6-3 might and 7-2 would.

[AdamSelene235]

Thanks for your comments. I've learned a thing or two from our, uh, friendly chats.

[justshutupandtakeit]

One of the great positives of this site is the opportunity to learn from those we disagree with as well as those we agree with.

[David]

Well your direct issue is whether the District of Columbia is a federal zone within the purview of Hooven v. Allison to the end that residents would not have the protection of the US Constitution against invasion of Constitutionally protected rights.

I have not done recent legal research on this issue but I tend to be fairly confident that the answer is NO. The Constitutional rights of District residents are protected. Does not mean the defined rights are "individual rights" per se but does mean the rights if they exist I think are protected.

The political arguments here however have some merit--I am not sure how much confidence I have in the Sup Ct as presently constituted to protect rights guaranteed by the Second Amendment.

The true balance on the Second Amendment is going to come down to this issue--if the Court were to decide that Congress and the several states can confiscate private weapons without regard to the Constitutional prohibition, would citizens cooperate? Since I think the answer to that question is also NO, when that issue gets to the Court, they will have some difficulty with the answer.