The enemies of America want to turn the entire country into a UN-occupied war zone and declare President Trump to be an “illegitimate dictator”

The UN?

The UN?

https://pluralist.com/tazewell-militia-resolution/

Virginia County Forms Militia in Response to Dems’ Gun Control Laws

By Pluralist | Dec 16, 2019

One southwestern Virginia county is fiercely pushing back against proposed restrictions on gun rights in the state.

Earlier this month, the Tazewell County Board of Supervisors passed two resolutions aimed at opposing potential restrictions on gun possession and ownership.

One made Tazewell County a “Second Amendment sanctuary.” The other authorized funding for the formation of a well-regulated militia, WJHL reported.

Both resolutions were unanimously passed on Dec. 3 to loud cheers from a standing room-only crowd at the Board of Supervisors meeting, according to the Bristol Herald Courier.

“Our position is that Article I, Section 13, of the Constitution of Virginia reserves the right to ‘order’ militia to the localities,” County Administrator Eric Young, who helped draft the ordinances, told the Herald Courier. “Therefore, counties, not the state, determine what types of arms may be carried in their territory and by whom. So, we are ‘ordering’ the militia by making sure everyone can own a weapon.”

Southern District Supervisor Mike Hymes said people in Tazewell County “feel the need to have a gun to protect themselves and their property.”

“We live in an area where the nearest deputy might be 45 minutes away,” Hymes told the Herald Courier.

Tazewell County Sheriff Brian Hieatt told NBC affiliate WWVA the militia resolution “gives us some teeth to be able to act and do something if a law comes out dealing with firearms that we see is illegal.”

According to Tazewell County Board of Supervisors Chairman Travis Hackman, the ordinance is aimed at sending a message to the state’s legislators in Richmond.

Virginia Democrats, who in November seized control of both houses of the state’s legislature for the first time in more than two decades, made gun control laws a focus of their campaigns.

Democrats’ electoral triumph has sparked fears of increased restrictions on firearms possession, which the state’s pro-gun advocates say infringe on their Second Amendment rights.

Last week, Democrats announced they were amending a pending ban on “assault weapons” in the face of political pressure.

An early draft of the bill would have made it a felony to possess any firearm defined as an “assault weapon.” Gun rights groups were particularly concerned by the lack of an exception for those who already possess such weapons.

The ban is backed by Democratic Gov. Ralph Northam, whose spokeswoman, Alena Yarmosky, told the Virginia Mercury that “the governor’s assault weapons ban will include a grandfather clause for individuals who already own assault weapons, with the requirement they register their weapons before the end of a designated grace period.”

The move to confiscate guns faced immense grassroots opposition in the state, which has seen a majority of its counties declare themselves “Second Amendment sanctuaries.”

A portion of the funds allocated by the militia resolution will go to programs such as the Boy Scouts and Girl Scouts, and weapons training courses, according to WJHL.

Cover image: New Virginia Militia. (Facebook)

- - - - - - - - - - - - - - - - - - - -

It is clear that the Tazewell County Board of Supervisors has passed not just one, but two resolutions, and they have sent a message. Yes, civil war is coming and they are prepared, with a militia having been formed, see picture above. When the 82nd Airborne arrives, as surely it will, the Tazewell Board of Supervisors will issue a third resolution, informing the 82nd Airborne that the militia has them surrounded, that there is no escape, and demand their surrender. The 82nd Airborne will surely surrender, knowing as they must, that one does not fuck with a superhero, and the Tazewell Militia has not one, but ten superheroes. The Fantastic Four were fabulous but the Tazewell Ten are terrifying. Following the surrender of the U.S. Armed Forces, the Tazewell County Board of Supervisors will issue a fourth resolution, establishing the sovereign nation of Tazewell.

https://www.heraldcourier.com/news/tazewell-county-becomes-second-amendment-sanctuary-adds-militia-ordinance-during/article_6a3d4e37-64f2-5365-9b71-7e4a694602e3.html

Tazewell County becomes Second Amendment Sanctuary, adds militia ordinance during widely attended meeting

Jim Talbert
The News & Press
Dec 3, 2019

TAZEWELL, Va. — Tazewell County joined the ranks of “Second Amendment Sanctuary” counties on Tuesday — and took it one step further.

Before a crowd of more than 200, the Board of Supervisors unanimously passed two resolutions during their meeting on Tuesday night. The Second Amendment Sanctuary resolution and a resolution promoting the order of militia within Tazewell County both passed to loud cheers from a crowd that overflowed the 189-seat board room.

Board Chairman Travis Hackworth announced at the beginning of the meeting that both resolutions would be unanimously passed. The militia resolution was approved on a poll earlier this month, but county residents via Facebook and other means kept asking for the sanctuary resolution as well.

Hackworth said board members started getting messages from state legislators following the Nov. 5 election, which saw Democrats take control of both the House of Delegates and the state Senate for the first time in 25 years.

He said elected officials expressed concern that legislation might pass that would chip away at Second Amendment rights. Southern District Supervisor Mike Hymes contacted Interim County Attorney Chase Collins and had him get a copy of the sanctuary county legislation passed in Carroll County, one of the first counties in the state to pass a resolution protecting gun rights, and similar resolutions from other localities.

“We went through them with three attorneys. It was not our intent to water anything down. We wanted something with teeth in it. Something we could use to file injunctions and defend in court,” Hackworth said.

County Administrator Eric Young, one of the attorneys, along with Collins and Eric Whitesell, who helped draft the ordinances, said the resolutions allow the county to take action in the event that state or federal laws are passed violating the Second Amendment.

Board member Charlie Stacy, also an attorney, praised the citizens for their knowledge of upcoming bills in the state Legislature. “This board is blessed with three lawyers, and they designed a strategy to win in a court of law,” Stacy said.

He said the ordinances approved by the board allow the county to challenge any resolution in state or federal court. “The resolution is truly designed to allow us to hire lawyers to see that laws infringing on the Second Amendment never last any longer than it takes a court to remove them,” he said.

Both resolutions call for the elimination of funding to any enforcement of laws that infringe upon the rights of law-abiding citizens to keep and bear arms. Stacy and other board members said a concern that state leaders might cut off funding to the county or remove elected officials who refuse to enforce state law prompted them to pass the militia ordinance.

“Our position is that Article I, Section 13, of the Constitution of Virginia reserves the right to ‘order’ militia to the localities,” Young said. “Therefore, counties, not the state, determine what types of arms may be carried in their territory and by whom. So, we are ‘ordering’ the militia by making sure everyone can own a weapon.”

The sanctuary resolution cites the Second Amendment to the Constitution, which states “the right of the people to keep and bear arms shall not be infringed.” Hymes said he knew what his constituents wanted and asked for the amendment last month.

“We live in an area where the nearest deputy might be 45 minutes away. People feel the need to have a gun to protect themselves and their property,” he said. In addition to allowing the county to order a militia, the ordinance calls for concealed weapons training for all residents of the county who are eligible to own a gun and the teaching of firearms safety in public schools.

Sheriff Brian Hieatt and newly elected Commonwealth’s Attorney Chris Plaster both expressed their support for the resolutions and belief that the Constitution of the United States supersedes state laws.

https://wvva.com/2019/12/09/militia-resolution-provides-extra-protection-for-tazewell-county-residents/

‘Militia’ Resolution provides extra protection for Tazewell County residents

Jade Burks
WVVA
December 9, 2019

TAZEWELL COUNTY (WVVA) -- More than 30 counties across the Commonwealth have passed 'Second Amendment Sanctuary' resolutions -- including Tazewell County.

But what does that really mean?

"What the Second Amendment sanctuary resolution is designed to do, primarily, is to demonstrate to the Virginia General Assembly the vast amount of people in the Commonwealth of Virginia that are fundamentally opposed to the proposed regulations that are there being submitted for the 2020 General Assembly that are significantly restricted on the Second Amendment rights to possess or operate firearms," says Eastern District Representative of the Tazewell County Board of Supervisors, Charles Stacy.

But what protection does that provide to the residents of "sanctuary counties?"

Officials say the resolutions are more like a 'symbol of opposition.'

"It's almost more of a proclamation of what the boards are prepared to do," Stacy says.

"It's a strong message to our legislators let them know that we don't want to see any changes in our gun laws," says Tazewell County Sheriff Brian Hieatt. "So we're seeing county after county doing the same thing and passing similar resolutions, to say that we do not want to infringe on our rights to have our weapons."

Therefore, the resolutions don't provide a legal defense.

"You can't simply present this in a court and say, 'Your Honor, I'm not guilty of possessing a firearm that the General Assembly has deemed illegal, because my home county passed a second amendment sanctuary resolution,'" Stacy explained. "What the resolutions are designed to do is prevent that legislation from even coming out of the Virginia General Assembly, by giving the proclamation of the localities to the General Assembly before they vote."

But a second resolution is providing the residents of Tazewell County with more protection.

"Tazewell County also passed a militia resolution, which gives us some teeth to be able to act and do something if a law comes out dealing with firearms that we see is illegal," Sheriff Hieatt explained.

That resolution actually gives Tazewell County the opportunity to challenge any law it feels violates the Second Amendment rights of its citizens.

"The stronger legal arguments are the ones that we are preparing in the second resolution to allow us a constitutional challenge," Stacy said. "If the Virginia General Assembly passes these laws as they are written, and the governor signs them; we have the immediate ability to challenge those in both the Virginia and the United States Courts to challenge the constitutionality of those laws."

If the laws do pass, Tazewell County is willing to do just that.

"Right now we're all just hoping that the public outpouring all across the Commonwealth is enough to maybe inform the General Assembly that on these particular issues, their proposed legislation has gone too far," Stacy said. "And if the people deem it to be a violation of their constitutional rights, they're not going to just sit back and take that. They're going to advocate, they're going to fight that as hard as they can. So hopefully that'll be heard in Richmond, and the General Assembly will modify what's been proposed to make it a little bit more constitutional, but also a little bit more along the wishes of what the people of the Commonwealth really want."

Therefore, the resolutions don't provide a legal defense.

Outright banning and confiscation of weapons legally owned by American citizens is tyranny.

There's nothing illegal about standing up to tyrants - with force if necessary.

You gun-grabbing assholes need to understand that.

So hopefully that'll be heard in Richmond, and the General Assembly will modify what's been proposed to make it a little bit more constitutional, but also a little bit more along the wishes of what the people of the Commonwealth really want.

You cannot vote away a Right to keep and bear arms. ANY law restricting the Right is unconstitutional and SHOULD BE MET with any force the citizens protecting their rights choose. Death to Tyrants, not jail.

You cannot vote away a Right to keep and bear arms. ANY law restricting the Right is unconstitutional...

True, as long as you understand what the Right to Keep and Bear Arms (RKBA) consists of.

The 2nd Amendment says "the right ... shall not be infringed."

What that connotes depends on what "the right" was defined as; what is it that cannot be infringed. The U.S. Supreme Court has not accepted the edicts of wacko dingbats on the internet that includes the right to keep any weapon, or that there can be no regulations or restrictions.

The "right to keep and bear arms" existed in the colonies, was brought forth into the states before the union, and was protected by the 2nd Amendment from Federal infringement. The right which existed in the colonies came from the English common law. The Framers saw no need to explain to themselves what that right to keep and bear arms was. It had been in the colonies since before they were born.

http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp

Blackstone's Commentaries on the Laws of England

Book the First - Chapter the First: Of the Absolute Rights of Individuals (1765)

5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

It has never meant a right to carry any and all weapons for any purpose. It does not mean that today.

http://laws.findlaw.com/us/000/07-290.html

DISTRICT OF COLUMBIA et al. v. HELLER

Certiorari to The United States Court Of Appeals for the District Of Columbia Circuit

No. 07-290.Argued March 18, 2008--Decided June 26, 2008

District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual's right to possess firearms and that the city's total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.

Held:

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2-53.

(a) The Amendment's prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause's text and history demonstrate that it connotes an individual right to keep and bear arms. Pp. 2-22.

(b) The prefatory clause comports with the Court's interpretation of the operative clause. The "militia" comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens' militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens' militia would be preserved. Pp. 22-28.

(c) The Court's interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. Pp. 28-30.

(d) The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30-32.

(e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court's conclusion. Pp. 32-47.

(f) None of the Court's precedents forecloses the Court's interpretation. Neither United States v. Cruikshank, 92 U. S. 542, 553, nor Presser v. Illinois, 116 U. S. 252, 264-265, refutes the individual-rights interpretation. United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47-54.

2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court's opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller's holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54-56.

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District's total ban on handgun possession in the home amounts to a prohibition on an entire class of "arms" that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. Pp. 56-64.

478 F. 3d 370, affirmed.

Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.

DISTRICT OF COLUMBIA, et al., PETITIONERS
v.
DICK ANTHONY HELLER

On Writ of Certiorari to the United States Court of Appeals
for the District Of Columbia Circuit

[June 26, 2008]

Justice Scalia delivered the opinion of the Court.

Miller's holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

Nothing uncommon or unusual about an AR-15, the police have one in the trunk, a semi-automatic pistol in the holster and a shotgun in the rack. So the government can regulate fully automatic weapons. They shouldn't be taxing ammunition, reloading tools or disallowing magazine sizes. Anymore than they should be outlawing training or shooting ranges.

Nothing uncommon or unusual about an AR-15, the police have one in the trunk, a semi-automatic pistol in the holster and a shotgun in the rack.

I was relieved to see that Cabela’s sells them all.

https://www.cabelas.com/category/Semiautomatic-Pistols/105529680.uts

https://www.cabelas.com/browse.cmd?categoryId=734095080&CQ_search=shotguns&CQ_zstype=REG

https://www.cabelas.com/browse.cmd?categoryId=734095080&CQ_search=ar-15&CQ_zstype=REG

So the government can regulate fully automatic weapons. They shouldn't be taxing ammunition, reloading tools or disallowing magazine sizes. Anymore than they should be outlawing training or shooting ranges.

What the government should, or should not, do does not define what the government has the power to do. Fact, the government may and does tax food. There is nothing to prevent the government from taxing ammunition. Power is power. The guy who created the Internal Revenue and initated the unapportioned income tax became a national hero carved into Mt. Rushmore.

Nobody has outlawed firearms training or shooting ranges. Some jackasses are pandering to the radical left during an election cycle. Others are pandering to the radical right. Any such bill, if signed into law, would be subject to an immediate restraining order, followed up by being struck down as unconstitutional.

There is sales tax on store sales, adding a special tax on ammo above and beyond that would define an infringement as much as a poll tax would. The same goes for loading tools and equipment. Tax the sales, a special tax is an obvious attempt to make it harder to exercise the RKBA.

There is a tax on practically everything, including food. In many states, prescription drugs are taxed. Income is taxed. Various Nevada locations have taxed sex at brothels, interfering with the right to get laid.

The right to keep and bear arms does not guarantee you may do it tax free.

d) The Second Amendment's drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. Pp. 30-32.

Dubious, indeed. Jefferson wanted the include the phrase “No free man shall ever be debarred the use of arms” in the proposed Virginia State constitution in 1776.

It was rejected.

1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Pp. 2-53.

Jesus. How in the hell did they ever come up with that little ditty? I suppose the second amendment's mention of a militia was superfluous.

So simple. The second amendment protects state militias from federal infringement and state constitutions protect the individual right.

United States v. Miller, 307 U. S. 174 ... limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. Pp. 47-54.

US v Miller does NOT say "those in common use for lawful purposes". It reads "of the kind in common use at the time". Period.

But the rest is correct -- the second amendment protects only militia-type weapons.

Miller's holding that the sorts of weapons protected are those "in common use at the time" finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54-56.

Miller said nothing about "prohibiting the carrying of dangerous and unusual weapons". Quite the contrary. Miller said the second amendment ONLY protects militia-type weapons.

If militia-type weapons (eg., machine guns) are banned, how are they ever to become "in common use"?

It has never meant a right to carry any and all weapons for any purpose.

Correct. According to Miller, the weapon had to have "some reasonable relationship to the preservation or efficiency of a well regulated militia”.

Weapons of war were protected by the second amendment.

Dubious, indeed.

The drafting history is of dubious interpretative worth as it does not express the will of the legislative body

US v Miller does NOT say "those in common use for lawful purposes". It reads "of the kind in common use at the time". Period.

No bother, the English Common Law, from which the right to keep and bear arms was directly derived, contains the content you question.

But the amendment says "the right of the people to keep and bear arms, shall not be infringed."

What is it that shall not be infringed?

One needs to determine what was intended by the term "the right of the people to keep and bear arms" to determine what shall not be infringed. As stated in 1802 and quoted in Lynch v. Clarke in 1844, "The constitution is unintelligible without reference, to the common law."

By the interpretation of some, one must find the Framers intended to protect, and did protect, a right that did not then exist and had never existed in the colonies, the several states or the United States.

It was the colonial common law right to keep and bear arms that was carried forth into the union.

Lynch v. Clarke, New York Legal Observer, Vol 3, 236, 245 (1844)

In 1795, Judge Wilson, of the Supreme Court of the United States, in delivering his charge to the grand jury, in the Virginia Circuit, went into an elaborate dissertation on the jurisdiction of the federal courts over crimes, and after enumerating such as he deemed cognizable by the circuit court, he continued as follows: "In the foregoing catalogue, murder, man slaughter, robbery, piracy, forgery, perjury, bribery and extortion, are mentioned as crimes and offences; but they are neither defined nor described. For this reason we must refer to some pre-existing law for their definition or description. To what pre-existing law should this reference be made? This is a question of immence importance and extent. It must receive an answer, but I cannot, in this address, assign my reasons for the answer which I am about to give. The reference should be made to the common law. To the common law then let us resort for the definition or description of the crimes and offences which in the laws of the United States have been named, but have not been described or defined. You will in this manner, gentlemen, be furnished with a legal standard, by the judicious application of which you may ascertain with precision the true nature and qualities of such facts and transactions as shall become the objects of your consideration and research." (3 Wilson's Works, 357, 371.) And in the debates on the judiciary in 1802, to which I have before alluded, Mr. Bayard, of Delaware, in an able speech in the House of Representatives, said on this subject, (what was not disputed, so far as facts were concerned,) that "the judges of the United States have held generally that the Constitution of the United States was predicated upon an existing common law. Of the soundness of that opinion I never had a doubt. I should scarcely go too far were I to say, that stript of the common law, there would be neither constitution nor government. The constitution is unintelligible without reference, to the common law. And were we to go into our courts of justice with the mere statutes of the United States, not a step could be taken, not even a contempt could be punished. There would be no form of pleading, no principles of evidence, no rule of property. Without this law the constitution becomes a dead letter. For ten years it has been the doctrine of our courts that the common law was in force." (Debates on the Judiciary, 1802, p. 372. And see 1 Story's Comm. on the Const., 140, 141,; § 157, 158, and note 2; 2 ibid, 262 to 267 ; § 794 to 797 ; Rawle on the Const. 258.)

Quotes from State Constitutions

Connecticut - 1776

Paragraph 1. Be it enacted and declared by the Governor, and Council, and House of Representatives, in General Court assembled, That the ancient Form of Civil Government, contained in the Charter from Charles the Second, King of England, and adopted by the People of this State, shall be and remain the Civil Constitution of this State, under the sole authority of the People thereof, independent of any King or Prince whatever.

- - - - -

Delaware 1776

Art. 25. The common law of England, as well as so much of the statute law as has been heretofore adopted in practice in this State, shall remain in force, unless they shall be altered by a future law of the legislature; such parts only excepted as are repugnant to the rights and privileges contained in this constitution, and the declaration of rights, &c., agreed to by this convention.

- - - - -

Maryland, 1776

III. That the inhabitants of Maryland are entitled to the common law of England, and the trial by jury, according to the course of that law, and to the benefit of such of the English statutes, as existed at the time of their first emigration, and which, by experience, have been found applicable to their local and other circumstances, and of such others as have been since made in England, or Great Britain, and have been introduced, used and practised by the courts of law or equity; and also to acts of Assembly, in force on the first of June seventeen hundred and seventy-four, except such as may have since expired, or have been or may be altered by acts of Convention, or this Declaration of Rights—subject, nevertheless, to the revision of, and amendment or repeal by, the Legislature of this State: and the inhabitants of Maryland are also entitled to all property, derived to them, from or under the Charter, granted by his Majesty Charles I. to Cæcilius Calvert, Baron of Baltimore.

- - - - -

New Jersey, 1776

XXI. That all the laws of this Province, contained in the edition lately published by Mr. Allinson, shall be and remain in full force, until altered by the Legislature of this Colony (such only excepted, as are incompatible with this Charter) and shall be, according as heretofore, regarded in all respects, by all civil officers, and others, the good people of this Province.

XXII. That the common law of England, as well as so much of the statute law, as have been heretofore practised in this Colony, shall still remain in force, until they shall be altered by a future law of the Legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this Charter; and that the inestimable right of trial by jury shall remain confirmed as a part of the law of this Colony, without repeal, forever.

- - - - -

New York, 1777

XXXV. And this convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that such parts of the common law of England, and of the state law of England and Great Britain, and of the acts of the legislature of the colony of New York, as together did form the law of the said colony on the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, shall be and continue the law of this State, subject to such alterations and provisions as the legislature of this State shall, from time to time, make concerning the same. That such of the said acts, as are temporary, shall expire at the times limited for their duration respectively. That all such parts of the said common law, and all such of the said statutes and acts aforesaid, or parts thereof, as may be construed to establish or maintain any particular denomination of Christians or their ministers, or concern the allegiance heretofore yielded to, and the supremacy, sovereignty, government, or prerogatives claimed or exercised by, the King of Great Britain and his predecessors, over the colony of New York and its inhabitants, or are repugnant to this constitution, be, and they hereby are, abrogated and rejected. And this convention doth further ordain, that the resolves or resolutions of the congresses of the colony of New York, and of the convention of the State of New York, now in force, and not repugnant to the government established by this constitution, shall be considered as making part of the laws of this State; subject, nevertheless, to such alterations and provisions as the legislature of this State may, from time to time, make concerning the same.

http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp

Blackstone's Commentaries on the Laws of England

Book the First - Chapter the First: Of the Absolute Rights of Individuals (1765)

5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

Miller said nothing about "prohibiting the carrying of dangerous and unusual weapons". Quite the contrary. Miller said the second amendment ONLY protects militia-type weapons.

It is about time you get past Miller and the transportation of a sawed off shotgun. Update to Heller and McDonald.

According to Miller

Update to where you can say according to Heller and McDonald.

By the interpretation of some, one must find the Framers intended to protect, and did protect, a right that did not then exist and had never existed in the colonies, the several states or the United States.

Exactly. And that was the right of the states to form militias and to have that right protected from federal infringement.

Update to Heller and McDonald.

That's like saying, "Update to Roe v Wade" or "Update to Kelo".

Heller and McDonald are flawed rulings. They're contrary to all previous rulings by the courts and contrary to the Framer's intent. State constitutions protect the individual right to keep and bear arms -- -- -- which is why gun laws vary from state to state.

Update to where you can say according to Heller and McDonald.

Heller cited Miller so why can't I?

The second amendment protects the right to bear arms.

The second amendment protected the right of "the people" as part of a State militia to keep and bear militia-type weapons from federal infringement.

That's the way it was written and that's the way it was interpreted by the courts for over 200 years.

[misterwhite #27] Heller and McDonald are flawed rulings.

[misterwhite #28] Heller cited Miller so why can't I?

[misterwhite #29] The second amendment protected the right of "the people" as part of a State militia to keep and bear militia-type weapons from federal infringement.

While Miller does not really conflict with Heller, Heller, as the more recent interpretation of the Constitution, strikes down all prior interpretations which conflict with Heller.

Heller applied to the District of Columbia. McDonald extended the application of Heller to the States. They are binding precedent, whether you agree with them or not.

Miller, does not conflict with Heller, as Heller interprets Miller.

You may cite Miller as in agreement with Heller. Any of your misbegotten fanciful interpretations of Miller are non-starters as being in conflict with Heller. Any holding of constitutional interpretation in Miller which actually conflicted with Heller would be struck down by Heller.

To cite Miller to interpret the Constitution in a fashion in conflict with Heller is an act of futility and a waste of time.

The law of the United States, as expressed in Heller:

SCALIA, J., delivered the opinion of the Court, in which Roberts, C.J. and Kennedy, Thomas, and Alito, JJ., joined.

District of Columbia v. Heller 554 U.S. 570 (2008) at 620-28:

[620]

Presser v. Illinois, 116 U. S. 252 (1886), held that the right to keep and bear arms was not violated by a law that forbade "bodies of men to associate together as military organiza­tions, or to drill or parade with arms in cities and towns unless authorized by law." Id., at 264-265. This does not refute the individual-rights interpretation of the Amend­ment; no one supporting that interpretation has contended that States may not ban such groups. JUSTICE STEVENS

[621]

presses Presser into service to support his view that the right to bear arms is limited to service in the militia by join­ing Presser's brief discussion of the Second Amendment with a later portion of the opinion making the seemingly relevant (to the Second Amendment) point that the plaintiff was not a member of the state militia. Unfortunately for JUSTICE STEVENS' argument, that later portion deals with the Four­teenth Amendment; it was the Fourteenth Amendment to which the plaintiff's nonmembership in the militia was rele­vant. Thus, JUSTICE STEVENS' statement that Presser "suggested that . . . nothing in the Constitution protected the use of arms outside the context of a militia," post, at 674-675, is simply wrong. Presser said nothing about the Second Amendment's meaning or scope, beyond the fact that it does not prevent the prohibition of private paramilitary organizations.

JUSTICE STEVENS places overwhelming reliance upon this Court's decision in Miller, 307 U. S. 174. "[H]undreds of judges," we are told, "have relied on the view of the Amend­ment we endorsed there," post, at 638, and "[e]ven if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself . . . would prevent most jurists from endorsing such a dramatic upheaval in the law," post, at 639. And what is, according to JUSTICE STEVENS, the holding of Miller that demands such obeisance? That the Second Amendment "protects the right to keep and bear arms for certain mili­tary purposes, but that it does not curtail the Legislature's power to regulate the nonmilitary use and ownership of weapons." Post, at 637.

Nothing so clearly demonstrates the weakness of JUSTICE STEVENS' case. Miller did not hold that and cannot possibly be read to have held that. The judgment in the case upheld against a Second Amendment challenge two men's federal indictment for transporting an unregistered short-barreled

[622]

shotgun in interstate commerce, in violation of the National Firearms Act, 48 Stat. 1236. It is entirely clear that the Court's basis for saying that the Second Amendment did not apply was not that the defendants were "bear[ing] arms" not "for . . . military purposes" but for "nonmilitary use," post, at 637. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: "In the ab­sence of any evidence tending to show that the possession or use of a [short-barreled shotgun] 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." 307 U. S., at 178 (emphasis added). "Cer­tainly," the Court continued, "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." Ibid. Beyond that, the opinion provided no expla­nation of the content of the right.

This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that "have some reasonable relationship to the preservation or efficiency of a well regulated militia"). Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen. JUSTICE STEVENS can say again and again that Miller did not "turn on the difference between muskets and sawed-off shotguns; it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns," post, at 677, but the words of the opinion prove otherwise. The most JUSTICE STEVENS can plausibly claim for Miller is that it declined to decide the nature of the Second Amendment right, despite the Solicitor General's argument (made in the alternative) that the right was collective, see Brief for United States, O. T. 1938,

[623]

No. 696, pp. 4-5. Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment. JUS­TICE STEVENS claims, post, at 676-677, that the opinion reached its conclusion "[a]fter reviewing many of the same sources that are discussed at greater length by the Court today." Not many, which was not entirely the Court's fault. The defendants made no appearance in the case, neither filing a brief nor appearing at oral argument; the Court heard from no one but the Government (reason enough, one would think, not to make that case the beginning and the end of this Court's consideration of the Second Amendment). See Frye, The Peculiar Story of United States v. Miller, 3N. Y. U. J. L. & Liberty 48, 65-68 (2008). The Government's brief spent two pages discussing English legal sources, concluding "that at least the carrying of weapons without lawful occa­sion or excuse was always a crime" and that (because of the class-based restrictions and the prohibition on terrorizing people with dangerous or unusual weapons) "the early Eng­lish law did not guarantee an unrestricted right to bear arms." Brief for United States, O. T. 1938, No. 696, at 9-11. It then went on to rely primarily on the discussion of the English right to bear arms in Aymette v. State, 21 Tenn. 154, for the proposition that the only uses of arms protected by the Second Amendment are those that relate to the militia, not self-defense. See Brief for United States, O. T. 1938, No. 696, at 12-18. The final section of the brief recognized that "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," and launched an alternative argument that "weapons which are commonly used by crimi­nals," such as sawed-off shotguns, are not protected. See id., at 18-21. The Government's Miller brief thus provided

[624]

scant discussion of the history of the Second Amendment—and the Court was presented with no counterdiscussion. As for the text of the Court's opinion itself, that discusses none of the history of the Second Amendment. It assumes from the prologue that the Amendment was designed to preserve the militia, 307 U. S., at 178 (which we do not dispute), and then reviews some historical materials dealing with the na­ture of the militia, and in particular with the nature of the arms their members were expected to possess, id., at 178-­182. Not a word (not a word) about the history of the Sec­ond Amendment. This is the mighty rock upon which the dissent rests its case.

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller's phrase "part of ordinary military equipment" could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Fire­arms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller's "ordinary mili­tary equipment" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense. "In the colonial

[625]

and revolutionary war era, [small-arms] weapons used by mi­litiamen and weapons used in defense of person and home were one and the same." State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (1973)).

Indeed, that is precisely the way in which the Second Amendment's operative clause furthers the purpose an­nounced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra. ²⁵

We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amend­ment.

[...]

[626]

III

Like most rights, the right secured by the Second Amend­ment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever pur­pose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohi­bitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students' Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws impos-

[627]

ing conditions and qualfications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have ex­plained, that the sorts of weapons protected were those "in common use at the time." 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weap­ons." See 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383-384 (1824); O'Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the concep­tion of the militia at the time of the Second Amendment's ratiication was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of it between the prefatory clause

[628]

and the protected right cannot change our interpretation of the right.

While Miller does not really conflict with Heller,

Miller protected militia-type weapons from federal infringement. Heller ruled that "common use" weapons are protected for self-defense in the home.

Totally different, a perversion of the second amendment, and a ruling which limits second amendment protection.

"They are binding precedent, whether you agree with them or not."

I see. They're binding, but Cruikshank, Presser and Miller are not.

"protects the right to keep and bear arms for certain mili­tary purposes, but that it does not curtail the Legislature's power to regulate the nonmilitary use and ownership of weapons." Post, at 637.

Oh? And where is that enumerated power listed in the U.S. Constitution?

"Had the Court believed that the Second Amendment protects only those serving in the militia, it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen."

Pure speculation. The Miller court ruled on the weapon being transported in interstate commerce and found that the second amendment did not protect it -- no matter who was transporting it.

Read in isolation, Miller's phrase "part of ordinary military equipment" could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Fire­arms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939.

Might be unconstitutional? The National Fire­arms Act's restrictions on machineguns ARE unconstitutional. And without those restrictions, machine guns WOULD be "in common use" today.

Miller protected militia-type weapons from federal infringement. Heller ruled that "common use" weapons are protected for self-defense in the home.

Anywhere that you project that Miller interpreted the Constitution differently than Heller, Miller is superseded by Heller. Your attempts to invoke Miller are futile and a waste of time.

On any particular point, a more recent holding supersedes any prior holding. If you wish to continue your misinterpretation of Miller you are free to do so. Heller said there was no conflict. If there were a conflict, Heller would supercede Miller or any prior precedent you may choose to drag up or misinterpret.

Might be unconstitutional? The National Fire­arms Act's restrictions on machineguns ARE unconstitutional.

Anywhere that you project that Miller interpreted the Constitution differently than Heller, Miller is superseded by Heller. Your attempts to invoke Miller are futile and a waste of time.

On any particular point, a more recent holding supersedes any prior holding. If you wish to continue your misinterpretation of Miller you are free to do so. Heller said there was no conflict. If there were a conflict, Heller would supercede Miller or any prior precedent you may choose to drag up or misinterpret.

You're wrong like you often are.

If you get confused again just let me know and I will set you straight.

Anywhere that you project that Miller interpreted the Constitution differently than Heller, Miller is superseded by Heller. Your attempts to invoke Miller are futile and a waste of time.

Case law is a waste of time. It isn't in the constitution. Read the constitution and understand it for yourself instead of relying on tyrants. If they get it right give them kudos. If they get it wrong don't pretend and do mental gymnastics to make words mean things they never said.

It must stuck to have to change the meaning of words based on what some judge says.

Nope it is an individual right. The right of the people to keep and bear arms.

Sure, if you ignore the rest of the amendment.

On any particular point, a more recent holding supersedes any prior holding.

Stare decisis be damned!

If there were a conflict, Heller would supercede Miller or any prior precedent you may choose to drag up or misinterpret.

Stare decisis be damned!

Case law is a waste of time. It isn't in the constitution.

The Constitution itself is drafted in the language of the English Common Law and SCOTUS itself has remarked that it is impossible to read and interpret without resort to the English Common Law. Common law itself is the collection of court-made law. If you do not like the common law system, you should experience just one case in the Code System of law, common in Latin Europe.

Case law is the very basis of the Common Law system of law adopted by the Federal government and all thirteen original States. All thirteen states adopted so much of the English Common Law as was not inconsistent with the Federal Consistution. They did so explicitly, either in their State constitution, or in their State statute law. You need not take my word for it. Long ago, I collected the source material for that claim and published it on scribd.

https://www.scribd.com/document/269168881/Common-Law-and-English-Statutes-Adopted-in-American-Founding-Era

Absent stare decisis, we would not have a functioning legal system at all.

Stare decisis be damned!

See #41 and stop being a jerk.

Then you have the balls to say that, well, if there is a conflict with Heller, too bad. Heller is now the new precedent and I must ignore all prior rulings ... because stare decisis.

You want to give this power to the Supreme Court? The power, for example, to define the type of arms protected and have that definition apply nationwide?

Already they've limited the definition to "in common use" for self-defense in the home. Yeah, that's what the second amendment means.

You're so eager to look to the U.S. Supreme Court to protect this right from state laws that you ignore the potential for abuse by some future, liberal-dominated court which now has the power to destroy the real meaning.

Me being a jerk? You lecture me on stare decisis while ignoring Cruikshank, Presser and Miller?

Then you have the balls to say that, well, if there is a conflict with Heller, too bad. Heller is now the new precedent and I must ignore all prior rulings ... because stare decisis.

Yes, that's how it works. When Brown v. Topeka Board of Education struck down Plessey v. Ferguson, neither Plessey nor anything else could be cited as making separate but equal lawful.

Repeating your bullshit endlessly does not polish those turds of thought into pearls of wisdom.

Heller and McDonald superseded all prior interpretations which conflicted with them. Heller states it did not conflict earlier precedents. Heller disagrees with your personal and very fanciful, but wrong, reading of those precedents. Your personal, but wrong, reading of those precedents does not strike down Heller. Deal with it.

Heller does not conflict with earlier precedent. If there were an earlier precedent in conflict, Heller would supersede it.

As for the actual law, can you go out and lawfully purchase a newly manufactured machine gun, or can't you?

As for the actual law, can you go out and lawfully purchase a newly manufactured machine gun, or can't you?

No. Only an existing one at an exorbitant price.

As for the actual law, can you go out and lawfully purchase a newly manufactured machine gun, or can't you?

No. Only an existing one at an exorbitant price.

Has it been that way since before you were born?

Has it been that way since before you were born?

1986 federal legislation called the Firearm Owners Protection Act (specifically the Hughes Amendment) prohibited the possession of “new” machine guns by citizens.

Signed into law 19 March 1986. Which commie was president then?

Passed in the Senate 79-15. The yeas were 49 GOP, 30 Dem. The Nays were 2 GOP, 13 Dem. Not voting 2 GOP, 4 Dem.

Passed in the House (amended) by voice vote.

Agreed to in the Senate by voice vote.

Passed in the House (amended) by voice vote.
Agreed to in the Senate by voice vote.

Yep. Usually how controversial and unconstitutional laws are passed. No individual accountability.

I've practiced both American law (common law) and French Civil Law. The systems get to about the same conclusions, but the pathways are different. That they arrive at the same place is testimony to the bedrock of COMMON SENSE that underlies law. Law is not an exercise in abstract philosophy. It is, in the final analysis, a TOOL of governance, where the rubber meets the road between actual citizens in real disputes with each other and/or with the state.

Nutty notions that some subject matter is, somehow, "above the law" just don't work in a world in which there are REAL disputes, with REAL economic and physical consequences. The reason we developed courts at all - whether Common Law or Civil Law - is precisely because if such places of official adjudication DON'T exist and DON'T have orderly rules and procedures that can be predicted and relied upon, people will resort to "self-help", which is a nice way of saying dueling, blood feud, vendetta, and private war. Civil Law, originally Roman Law, fell into disrepair after the fall of Rome, and with it, the Roman Peace evaporated. Feudal Europe was a pretty bloody and terrible place to live. Common Law grew up in places as a bulwark against the craziness of blood feud.

Granted, Christianity (specifically Catholic Canon Law, which was the only game in town in the 1000s (crazies' assertions to the contrary notwithstanding), very heavily inflected the civil and common law courts, by providing an overarching set of lofty (and often unachieved) standards. Still, courts evolved through experience and common sense.

People having the "God-given right" to carry around unregistered machine guns, set up AA missile batteries in their yards on short final to JFK airport, and keeping a stock of mustard gas and a nuke in their basement, "just in case" cannot be what the Second Amendment means. The Constitution is not a suicide pact!

People having the "God-given right" to carry around unregistered machine guns, set up AA missile batteries ....

People have a "God-given right" to self-defense. Beyond that, it's up to the law.

You accurately portray the legal system as it is, and particularly the system of precedent as it applies under the Common Law.

Oh? The system that says if you don't like precedent you can change it?

Then once you have the new "precedent" you're happy with, that precedent cannot be changed because shut up.

Yep. Usually how controversial and unconstitutional laws are passed. No individual accountability.

Hold 'em accountable. Them and President Ronald Reagan.

Senate Vote #142

1985-07-09

TO PASS S 49

REPUBLICAN - YEA

SD	Yea	Sen. James Abdnor [R, 1981-1986]			
ND	Yea	Sen. Mark Andrews [R, 1981-1986]			
MN	Yea	Sen. Rudolph "Rudy" Boschwitz [R, 1978-1990]	
MS	Yea	Sen. Thad Cochran [R, 1979-2018]		
ME	Yea	Sen. William Cohen [R, 1979-1996]			
NY	Yea	Sen. Alfonse D'Amato [R, 1981-1998]		
MO	Yea	Sen. John Danforth [R, 1976-1994]			
AL	Yea	Sen. Jeremiah Denton Jr. [R, 1981-1986]		
KS	Yea	Sen. Robert Dole [R, 1969-1996]			
NM	Yea	Sen. Pete Domenici [R, 1973-2008]	
MN	Yea	Sen. David Durenberger [R, 1978-1994]		
NC	Yea	Sen. John East [R, 1981-1986]				
WA	Yea	Sen. Daniel Evans [R, 1983-1988]			
UT	Yea	Sen. Edwin "Jake" Garn [R, 1974-1992]		
AZ	Yea	Sen. Barry Goldwater [R, 1969-1986]				
WA	Yea	Sen. Slade Gorton [R, 1981-1986]
TX	Yea	Sen. Phil Gramm [R, 1985-2002]			
IA	Yea	Sen. Charles "Chuck"Grassley [R, 1981-2022]	
UT	Yea	Sen. Orrin Hatch [R, 1977-2018]			
FL	Yea	Sen. Paula Hawkins [R, 1981-1986]			
NV	Yea	Sen. Jacob Hecht [R, 1983-1988]			
PA	Yea	Sen. Henry Heinz III [R, 1977-1991]		
NC	Yea	Sen. Jesse Helms [R, 1973-2002]			
NH	Yea	Sen. Gordon Humphrey [R, 1979-1990]		
KS	Yea	Sen. Nancy Kassebaum [R, 1978-1996]		
WI	Yea	Sen. Robert Kasten Jr. [R, 1981-1992]		
NV	Yea	Sen. Paul Laxalt [R, 1974-1986]			
IN	Yea	Sen. Richard Lugar [R, 1977-2012]			
GA	Yea	Sen. Mack Mattingly [R, 1981-1986]
ID	Yea	Sen. James McClure [R, 1973-1990]	
KY	Yea	Sen. Mitch McConnell [R, 1985-2020]		
AK	Yea	Sen. Frank Murkowski [R, 1981-2002]
OK	Yea	Sen. Don Nickles [R, 1981-2004]
OR	Yea	Sen. Robert Packwood [R, 1969-1995]		
SD	Yea	Sen. Larry Pressler [R, 1979-1996]			
IN	Yea	Sen. James "Dan" Quayle [R, 1981-1989]		
DE	Yea	Sen. William Roth Jr. [R, 1971-2000]
NH	Yea	Sen. Warren Rudman [R, 1980-1992]			
WY	Yea	Sen. Alan Simpson [R, 1979-1996]			
PA	Yea	Sen. Arlen Specter [R, 1981-2010]
VT	Yea	Sen. Robert Stafford [R, 1971-1988]		
AK	Yea	Sen. Ted Stevens [R, 1968-2008]		
ID	Yea	Sen. Steven Symms [R, 1981-1992]			
SC	Yea	Sen. Strom Thurmond [R, 1956-2002]				
VA	Yea	Sen. Paul Trible Jr. [R, 1983-1988]		
VA	Yea	Sen. Paul Trible Jr. [R, 1983-1988]		
WY	Yea	Sen. Malcolm Wallop [R, 1977-1994]			
WY	Yea	Sen. Malcolm Wallop [R, 1977-1994]	
VA	Yea	Sen. John Warner [R, 1979-2008]				
CT	Yea	Sen. Lowell Weicker Jr. [R, 1971-1988]		
CA	Yea	Sen. Pete Wilson [R, 1983-1991]			


DEMOCRAT - YEA

MT	Yea	Sen. Max Baucus [D, 1978-2014]			
DE	Yea	Sen. Joseph Biden Jr. [D, 1973-2009]		
NM	Yea	Sen. Jeff Bingaman [D, 1983-2012]			
WV	Yea	Sen. Robert Byrd [D, 1959-2010]			
TX	Yea	Sen. Lloyd Bentsen Jr. [D, 1971-1993]		
OK	Yea	Sen. David Boren [D, 1979-1994]			
AR	Yea	Sen. Dale Bumpers [D, 1975-1998]			
ND	Yea	Sen. Quentin Burdick [D, 1960-1992]		
FL	Yea	Sen. Lawton Chiles Jr. [D, 1971-1988]		
AZ	Yea	Sen. Dennis DeConcini [D, 1977-1994]		
IL	Yea	Sen. Alan Dixon [D, 1981-1992]			
MO	Yea	Sen. Thomas Eagleton [D, 1968-1986]		
NE	Yea	Sen. James Exon [D, 1979-1996]			
KY	Yea	Sen. Wendell Ford [D, 1974-1998]			
OH	Yea	Sen. John Glenn Jr. [D, 1974-1998]			
TN	Yea	Sen. Albert Gore Jr. [D, 1985-1992]		
IA	Yea	Sen. Thomas "Tom" Harkin [D, 1985-2014]		
AL	Yea	Sen. Howell Heflin [D, 1979-1996]			
SC	Yea	Sen. Ernest "Fritz" Hollings [D, 1966-2004]	
LA	Yea	Sen. John Johnston Jr. [D, 1972-1996]		
VT	Yea	Sen. Patrick Leahy [D, 1975-2022]			
MT	Yea	Sen. John Melcher [D, 1977-1988]			
ME	Yea	Sen. George Mitchell [D, 1980-1994]		
GA	Yea	Sen. Samuel Nunn [D, 1972-1996]			
WI	Yea	Sen. William Proxmire [D, 1957-1988]		
AR	Yea	Sen. David Pryor [D, 1979-1996]			
MI	Yea	Sen. Donald Riegle Jr. [D, 1977-1994]		
WV	Yea	Sen. John "Jay" Rockefeller IV [D.1985-2014] 
TN	Yea	Sen. James Sasser [D, 1977-1994]			
NE	Yea	Sen. Edward Zorinsky [D, 1976-1987]		


REPUBLICAN - NAY

RI	Nay	Sen. John Chafee [R, 1976-1999]			
MD	Nay	Sen. Charles Mathias Jr. [R, 1969-1986]		

DEMOCRAT - NAY

CT	Nay	Sen. Christopher Dodd [D, 1981-2010]		
HI	Nay	Sen. Daniel Inouye [D, 1963-2012]			
MA	Nay	Sen. Edward "Ted" Kennedy [D, 1962-2009]	
MA	Nay	Sen. John Kerry [D, 1985-2013]			
NJ	Nay	Sen. Frank Lautenberg [D, 1982-2000]		
MI	Nay	Sen. Carl Levin [D, 1979-2014]			
MD	Nay	Sen. Paul Sarbanes [D, 1977-2006]			
NY	Nay	Sen. Daniel Moynihan [D, 1977-2000]		
CA	Nay	Sen. Alan Cranston [D, 1969-1992]			
CO	Nay	Sen. Gary Hart [D, 1975-1986]				
HI	Nay	Sen. Spark Matsunaga [D, 1977-1990]		
OH	Nay	Sen. Howard Metzenbaum [D, 1976-1994]		
RI	Nay	Sen. Claiborne Pell [D, 1961-1996]			


REPUBLICAN - NOT VOTING

CO	NV	Sen. William Armstrong [R, 1979-1990]		
CO	NV	Sen. Mark Hatfield [R, 1967-1996]			

DEMOCRAT - NOT VOTING

NJ	NV	Sen. William "Bill" Bradley [D, 1979-1996]	
LA	NV	Sen. Russell Long [D, 1948-1986]			
IL	NV	Sen. Paul Simon [D, 1985-1996]			
MS	NV	Sen. John Stennis [D, 1947-1988]			

People have a "God-given right" to self-defense. Beyond that, it's up to the law.

Do Catholics, Protestants, Jews, Muslims, and Hindus have the same God-given rights recognized by the U.S. justice system?

Do athiests have God-given rights recognized by the U.S. justice system?

What does the U.S. justice system consult to determine which rights are given by God Hisself? Whose God is considered the Giver?

Does it matter whether the judge is a Catholic, Protestant, Jew, Muslim, or athiest?

Or does the U.S. justice system recognize the common law right of self-defense?

People having the "God-given right" to carry around unregistered machine guns, set up AA missile batteries in their yards on short final to JFK airport, and keeping a stock of mustard gas and a nuke in their basement, "just in case" cannot be what the Second Amendment means. The Constitution is not a suicide pact!

While the right to keep and bear arms may not be infringed, the right as brought forth from the English common law into the colonies and into the States, has inherent limitations. These limitations are part of the right, they define the right, they do not infringe upon the right.

http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp

Blackstone's Commentaries on the Laws of England

Book the First - Chapter the First: Of the Absolute Rights of Individuals (1765)

5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

It has never meant a right to carry any and all weapons for any purpose. It does not mean that today.

Oh? The system that says if you don't like precedent you can change it?

Then once you have the new "precedent" you're happy with, that precedent cannot be changed because shut up.

Yes, precedent can be changed. Were SCOTUS to issue an opinion that abortion was infanticide, and not a constitutionally protected right, Roe could no longer be cited to the effect that abortion is a constitutional right. The more recent precedent would prevail.

A prevailing precedent can be changed by amending the constitution. Opinions in Scott v. Sandford were not judicially overturned, but were overturned by post-war amendments which changed the law. As an historical note, SCOTUS found that it lacked jurisdiction to hear the case, that the lower court also lacked jurisdiction to hear the case, and SCOTUS remanded the case to the lower court with instructions to dismiss the case for lack of jurisdiction.

Minor v. Happersett in 1875 held unanimously that women did not have a constitutional right to vote for President. Moreover, neither did anyone else, and they still don't. But the 19th Amendment came along and said, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex." Women may not be denied the right to vote because of their sex. Where men are allowed to vote, women must be allowed to vote on an equal basis. Minor was correctly decided according to the law then in existence, so the law was changed.

A new abortion precedent could be changed by having the issue revisited by the Court yet again, and changing its interpretation of the Constitution. Plessy v. Ferguson in 1896 held that seperate but equal was constitutional. Brown v. Topeka Board of Education in 1954 revisited the issue and held that seperate but equal was inherently unequal and was unconstitutional. One cannot go to court and argue Plessy as precedent to overturn Brown.

What cannot be done is to cite a perceived conflict between Miller (1939)and Heller/McDonald (2008/2010) and claim Miller supersedes the more recent interpretation of the Constitution in Heller/McDonald. The precedent set by Heller/McDonald can be overturned by a subsequent, more recent interpretation by the U.S. Supreme Court. Should the Court issue a holding in misterwhite v United States, (2020) saying that the 2nd Amendment protects the right to own a newly manufactured machine gun, you would have a new precedent and could buy all the new machine guns you want.

Until the Constitution is amended, or the Supreme Court revisits the issue, you are out of luck.

Or does the U.S. justice system recognize the common law right of self-defense?

The Declaration of Independence declared that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights , that among these are Life, Liberty and the pursuit of Happiness". The right to self- defense is part of the right to life.

Now, if the right to self-defense includes the right to own an AK-47, then we would all have the right to own an AK-47. Correct? Even 12-year-olds? Certainly you wouldn't deny the right to self-defense to a 12-year-old!

What cannot be done is to cite a perceived conflict between Miller (1939)and Heller/McDonald (2008/2010) and claim Miller supersedes the more recent interpretation of the Constitution in Heller/McDonald.

I'm not saying Miller supercedes anything. I'm citing the doctrine of precedent -- stare decisis -- which Heller totally ignored.

Miller concluded the only arms protected by the second amendment were militia-type arms. That was ignored by Heller because it didn't fit their in-common-use-for-self-defense-in-the-home made-up interpretation.

The Hughes Amendment was a voice vote. It sounded like the Nays had it, but Rangel said the Ayes had it and refused a recorded vote.

The House vote to approve the Hughes Amendment to the Bill was a Record Vote 286-136.

The House vote to approve the bill as amended, including the Hughes Amendment, was a Record Vote 292-130.

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https://www.congress.gov/bill/99th-congress/house-bill/4332/titles

Titles: H.R.4332 — 99th Congress (1985-1986)
All Information (Except Text)

Short Titles
Short Titles - House of Representatives

Short Titles as Passed House
Firearms Owners' Protection Act

Short Titles as Reported to House
Federal Firearms Law Reform Act of 1986

Short Titles as Introduced
Federal Firearms Law Reform Act of 1986

Official Titles
Official Titles - House of Representatives

Official Title as Introduced
A bill to amend chapter 44 (relating to firearms) of title 18, United States Code, and for other purposes.

https://www.congress.gov/bill/99th-congress/house-bill/4332/actions

04/10/1986 Passed/agreed to in House: Passed House (Amended) by Yea-Nay Vote: 292 - 130 (Record Vote No: 75).

03/14/1986 Reported to House (Amended) by House Committee on The Judiciary. Report No: 99-495.

03/06/1986 Introduced in House

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https://www.congress.gov/bill/99th-congress/house-bill/4332

Shown Here:
Reported to House with amendment(s) (03/14/1986)

(Reported to House from the Committee on the Judiciary with amendment, H. Rept. 99-495)

Federal Firearms Law Reform Act of 1986 - Amends the Gun Control Act of 1968 to prohibit the transfer or possession of silencers.

Permits the interstate sale of rifles and shotguns, provided: (1) the transferee and the transferor meet in person to accomplish the transfer; and (2) the sale, delivery, and receipt comply with the legal conditions of sale in both States.

Makes it unlawful for any person to sell or ship any firearm or ammunition to someone who: (1) is under indictment for, or has been convicted of, a felony; (2) is a fugitive from justice; (3) is an unlawful user of or addicted to a controlled substance; (4) has been adjudicated as a mental incompetent or committed to a mental institution; (5) has received a dishonorable discharge from the armed forces; (6) has renounced his U.S. citizenship; or (7) is an illegal alien. Makes it unlawful for such persons to receive, possess, or transfer any firearm or ammunition in interstate or foreign commerce.

Permits gun sales at certain gun shows.

Prohibits the importation of the barrel of any firearm if the importation of that firearm is prohibited.

Revises the criteria reviewed by the Secretary of the Treasury in approving applications for licenses. Grants the Secretary authority to suspend (rather than just revoke) a license. Allows the Secretary to inspect the inventory and records of a licensee to ensure compliance with the recordkeeping requirements of such Act.

Modifies the penalty provisions for certain licensee violations. Eliminates the recordkeeping requirements for ammunition sales involving less than 1,000 rounds. Codifies existing regulations requiring reports of multiple firearm sales.

Establishes additional mandatory penalties for the use or carrying of firearms or armor-piercing ammunition during certain drug trafficking activities. Imposes additional mandatory penalties for machine gun use in crimes.

Limits to felony violations the Government's authority to seize firearms and ammunition.

Allows individuals who have violated the Gun Control Act of 1968 or the National Firearms Act to apply for relief from the legal disabilities imposed by such statutes. Authorizes the Secretary to grant such relief.

Allows the interstate transport of rifles and shotguns by individuals under certain circumstances.

Prohibits the sale, delivery, or transfer of a handgun from a licensed importer, manufacturer, or dealer to an unlicensed individual unless the documentation of the transaction is sent to local law enforcement officers and the Federal Bureau of Investigation.

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https://www.congress.gov/bill/99th-congress/house-bill/4332/all-actions?overview=closed&q=%7B%22roll-call-vote%22%3A%22all%22%7D

04/10/1986 Passed House (Amended) by Yea-Nay Vote: 292 - 130 (Record Vote No: 75).
Action By: House of Representatives

04/10/1986 H.Amdt.776 Amendment Passed in Committee of the Whole by Recorded Vote: 233 - 184 (Record Vote No: 72).
Action By: House of Representatives

04/10/1986 H.Amdt.770 Amendment Passed (Amended) in Committee of the Whole by Recorded Vote: 286 - 136 (Record Vote No: 74).
Action By: House of Representatives

04/09/1986 H.Amdt.775 Amendment Failed of Passage in Committee of Whole by Recorded Vote: 177 - 242 (Record Vote No: 71).
Action By: House of Representatives

04/09/1986 H.Amdt.773 Amendment Failed of Passage in Committee of Whole by Recorded Vote: 176 - 248 (Record Vote No: 70).
Action By: House of Representatives

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House Record Vote 74 was to amend the Senate bill.

https://www.congress.gov/amendment/99th-congress/house-amendment/770

Description: H.Amdt. 770 — 99th Congress (1985-1986)
All Information (Except Text)

A substitute amendment to ease the interstate sale of both rifles and handguns. It eliminates the requirement that gun dealers notify police of handgun purchases and preempts state and local laws to ease interstate travel with handguns as well as rifles for any legal purpose. It also eliminates the need for many gun sellers to obtain a license and keep records of their gun sales.

https://www.congress.gov/amendment/99th-congress/house-amendment/770/actions

04/10/1986 Amendment Passed (Amended) in Committee of the Whole by Recorded Vote: 286 - 136 (Record Vote No: 74).

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House Record vote 75 was to adopt the bill, as amended, including the Hughes Amendment.

Record vote 75 (S.B. 49), adopted H.R. 4332, an amendment to the final bill.

https://www.congress.gov/bill/99th-congress/house-bill/4332/all-actions?overview=closed&q=%7B%22roll-call-vote%22%3A%22all%22%7D

04/10/1986 Passed House (Amended) by Yea-Nay Vote: 292 - 130 (Record Vote No: 75).

Action By: House of Representatives

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An additional wrinkle is that when the Supreme Court rules as a basis of existing law, including constitutional law, Congress might go ahead and pass new law that purports to change the law, or provides a guideline definition of terms that changes the constitutional meaning.

The Supreme Court can, of course, find that the Congressional attempt is unavailing, because of the Constitution, or the Supreme Court can find that the Congressional effort, the new law, is constitutional, as written, and accept the legislature's redefinition of the bounds of the law.

The same things is theoretically true with regulations as well, though I can't think of any examples.

Oh? The system that says if you don't like precedent you can change it?

Correct. The Supreme Court makes precedent by deciding cases. And the Supreme Court can overrule itself and previous precedent and establish NEW precedent, which stands until it overrules itself again, or until a constitutional amendment is ratified that overrules a Supreme Court position, or a statute is past that has the effect of overruling a Supreme Court precedent, and the Supreme Court acquiesces to the new statute. Precedent is always changeable by the authority that issued it. There is not one single aspect of US law or the Constitution that cannot be changed, amended, altered, with time, following the proper procedures. Supreme Court precedent is changed by later Supreme Court rulings. That's how the system works. NOTHING in the world of law is absolute, fixed and permanent. Law is made by man, and man can always change every single aspect of it, without any exceptions whatsoever, if enough men want to change it, and are able to sufficiently organize themselves to do so. That change might not be legal within the existing system. A SYSTEM may have sacrosanct laws that cannot be changed, in which case men determined to change it have to overthrow the system itself, in a revolution. And they do, from time to time. But the American Constitution contains within itself the means by which it can be amended, and there is nothing in it off limits to amendment. Some things are harder to amend than others, but NOTHING is off limits.

While the right to keep and bear arms may not be infringed, the right as brought forth from the English common law into the colonies and into the States, has inherent limitations. These limitations are part of the right, they define the right, they do not infringe upon the right.

Exactly. Well put.

What does the U.S. justice system consult to determine which rights are given by God Hisself? Whose God is considered the Giver?

Does it matter whether the judge is a Catholic, Protestant, Jew, Muslim, or athiest?

Or does the U.S. justice system recognize the common law right of self-defense?

I would say, in truth, that the US justice system does not fully incorporate the Common Law of England as far as the right to keep and bear arms and self-defense goes.

Rather, I'd say that a common law of America, which has come to differ substantially from old England, has developed over time, and that beyond that, American judges are all politicians, and live within a political and cultural climate that inflects their own beliefs, and sense of limitation, when it comes to the matter of guns and gun rights.

In England, the restriction of guns came easily, because an iron-clad top- down legalism rules the road there. In America, it's not so easy because the people are neither as obedient nor as malleable as the English.

And the judges come from the people and share those animal spirits. So while I would not dispute that American judges do indeed cite to the chains of laws going back, and conduct chains of reason that purport to simply be logical and inevitable extensions of the common law of jolly old England, in truth, their programming and prejudices make the result a sui generis common law of America, which is very distinctive on certain things, particularly matters of black-white race relations and guns.

And the Supreme Court can overrule itself and previous precedent and establish NEW precedent

Thereby making the concept of legal precedent a joke.

For over 200 years, those rights were secured by state constitutions.

The Hughes Amendment to H.R.4332 passed on a controversial voice vote. The entire H.R.4332, including the Hughes Amendment, passed by a recorded vote.

Your Congressional Record must read differently than the one that I just linked and quoted. Link and quote yours.

The Declaration of Independence declared that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights , that among these are Life, Liberty and the pursuit of Happiness". The right to self- defense is part of the right to life.

The DoI is not, and never has been, part of U.S. law. It was a political statement made before there was a United States.

Now, if the right to self-defense includes the right to own an AK-47, then we would all have the right to own an AK-47. Correct?

It doesn't. We don't.

If there were no laws, you would be correct. There are laws, and they do not support your dreams.

I'm not saying Miller supercedes anything. I'm citing the doctrine of precedent -- stare decisis -- which Heller totally ignored.

Miller concluded the only arms protected by the second amendment were militia-type arms. That was ignored by Heller because it didn't fit their in-common-use-for-self-defense-in-the-home made-up interpretation.

You are full of crap, so there's that.

Heller did a thorough review of existing precedents. It found none inconsistent with its own ruling. It did not ignore precedent as you claim.

Heller demolishes your wrongheaded misreading of those precedents.

Notably, Heller finds that,

Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.

Your wrongheaded reading of Miller affects nothing.

Published on Jul 19, 2011

This is recently discovered footage from the early morning of April 10th, 1986. The committee chair, Charlie Rangel, allows the language known as The Hughes Amendment, into an amendment for the Firearm Owners Protection Act. This amendment banned the possession of automatic firearms by civilians except those already registered with BATFE. An unrecorded voice vote is used by Rangel to insert the amendment into the bill.

Explanation: Around 3:16 the clerk attempts to read the amendment which bans the manufacture of new machine guns while Hughes asks that the reading of the amendment suspended. A Republican objects to the fact that the amendment will not be read and forces the reading to go forward. This goes back and forth for a while. The time for consideration runs out, and Hughes asks for additional time for consideration around 5:46.

At 6:03 Rangel holds a voice vote (after the Republicans demand a recorded vote) in which he declares that enough ayes were heard, even though the nays are clearly more numerous. Rangel attempts to move forward, but enough Republican's speak up to demand a recorded vote on the previous voice vote and Rangel is unable to ignore them. When the recorded vote is held, it shows that the nays were indeed the majority and time is forced to expire on discussion of the Hughes amendment.

At 8:17 a voice vote is held in which Rangel declares it passed. At 8:41 Rangel ignores a call for recorded vote (while smirking) and moves forward without taking a recorded vote which would have shown that the amendment failed.

Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

OK. And what weapons would those be? According to Miller.

Thereby making the concept of legal precedent a joke.

No. That IS the concept of legal precedent. All lower courts must obey the precedent set by the high court. The high court cannot permanently bind itself with an opinion any more than a Congress can permanently bind the country with a law. Later courts and later Congresses can always revisit and change the opinion, or the law. There is no permanent unalterable law. Absolutely everything can always be amended.

Explanation: Around 3:16 the clerk attempts to read the amendment which bans the manufacture of new machine guns while Hughes asks that the reading of the amendment suspended. A Republican objects to the fact that the amendment will not be read and forces the reading to go forward. This goes back and forth for a while. The time for consideration runs out, and Hughes asks for additional time for consideration around 5:46.

At 6:03 Rangel holds a voice vote (after the Republicans demand a recorded vote) in which he declares that enough ayes were heard, even though the nays are clearly more numerous. Rangel attempts to move forward, but enough Republican's speak up to demand a recorded vote on the previous voice vote and Rangel is unable to ignore them. When the recorded vote is held, it shows that the nays were indeed the majority and time is forced to expire on discussion of the Hughes amendment.

At 8:17 a voice vote is held in which Rangel declares it passed. At 8:41 Rangel ignores a call for recorded vote (while smirking) and moves forward without taking a recorded vote which would have shown that the amendment failed.

As I said, look at the Congressional Record. Approval of the Hughes Amendment and the main bill, as amended, was by Record Vote.

Listen to the very start. "The COMMITTEE is not in order."

"The question is on the motion for the COMMITTEE to rise. All in favor indicate by saying "Aye".

The Chairman ordered that a recorded vote be taken on the motion for the COMMITTEE to rise, by electronic device.

Recorded vote: Aye 124, Nay 297, NV 14 (vid)

The committee did not rise.

There was then a vote on adoption of the Hughes amendment to the Volkmer substitute. The Chairman announced that the Ayes had it.

Then there was a voice vote on adopting the Volker substitute, as amended.

The Chairman announced that the Noes had it.

A recorded vote was ordered by electronic device. Yea 286, Nay 136, NV 18.

Congressional Record:

04/10/1986 H.Amdt.770 Amendment Passed (Amended) in Committee of the Whole by Recorded Vote: 286 - 136 (Record Vote No: 74).
Action By: House of Representatives

At this point, the Volkmer substitute, as amended by the Hughes amendment to the Volkmer substitute, was agreed to.

There followed consideration of the Judiciary Committee amendment, as amended, to the main bill, and a voice vote followed. The Chair announced the Ayes had it. "According to the rule, the committee rises."

That was COMMITTEE proceedings.

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Speaker Tip O'Neill took over for House proceedings

House consideration of House Bill 4332.

Mr. Greaves (ph) "moves to recommit the bill 4332 to the committee on the judiciary."

Speaker O'Neill announced the Noes had it.

"The question comes on the passage of the bill."

The Speaker announced that the Ayes had it.

On motion, a recorded vote was ordered. Yea 292, Nay 130 NV 13. (on vid)

Congresional Record:

04/10/1986 Passed House (Amended) by Yea-Nay Vote: 292 - 130 (Record Vote No: 75).
Action By: House of Representatives

OK. And what weapons would those be? According to Miller.

Those typically lawfully possessed by law-abiding citizens for lawful purposes. Those weapons in common use at the time.

Heller at 624-25:

“In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.

We conclude that nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment.

Heller at 627-28:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Those typically lawfully possessed by law-abiding citizens for lawful purposes. Those weapons in common use at the time.

You cited Heller.

In your post #70, you said, "Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons."

I asked what "certain types of weapons" Miller stood for. Not Heller.

In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.”

Not true.

Weapons used for hunting and self-defense were rifles. Expensive, but accurate. Weapons used by the militia were smooth-bore muskets fired in volley. Inaccurate, but cheap.

The Militia Act of 1792 required militiamen to bring a musket with them, not their home rifle.

We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

But Miller actually said, "the Second Amendment does not protect those weapons not typically possessed by members of a militia".

Heller made things up out of thin air.

But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.

Yep. And if that has changed it's up to the people to change the second amendment. Not Congress and certainly not the courts.

Since about half the states still have a State Militia (in addition to the National Guard), I doubt that will happen.

That was COMMITTEE proceedings.

That was COMMITTEE OF THE WHOLE proceedings.

I'll get back with text of the video. That may help.

The Militia Act of 1792 required militiamen to bring a musket with them, not their home rifle.

The Militia Act of 1792 was repealed, in its entirety, in 1795, and then it did not refer to muskets any more.

But Miller actually said, "the Second Amendment does not protect those weapons not typically possessed by members of a militia".

Heller made things up out of thin air.

Heller agrees that the Second amendment does not protect those weapons not typically possessed by members of a militia. That particular Miller assertion does not say what the 2nd does protect.

You cited Heller.

In your post #70, you said, "Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons."

I asked what "certain types of weapons" Miller stood for. Not Heller.

Heller is currently the definitive legal interpretation of what Miller says.

Miller involved one (1) unlawful to possess weapon involved in interstate commerce for non-militia purposes, and opined it enjoyed no 2A protection.

And if that has changed it's up to the people to change the second amendment.

A constitutional amendment is not needed to change the conception of what the militia does.

That was COMMITTEE OF THE WHOLE proceedings.

I know. The committee could not conduct House passage of the bill. The amended main bill, with the Hughes Amendment to the Volkmer substitute, was passed by the House with a recorded vote of the House.

The Hughes Amendment to the Volkmer substitute was passed by the Committee of the Whole. Meeting as a committee may follow a different rule.

I would say, in truth, that the US justice system does not fully incorporate the Common Law of England as far as the right to keep and bear arms and self-defense goes.

The original states seperately each adopted so much of the English Common Law as was not inconsistent with the Constitution. The Framers copied the term right to keep and bear arms from the English Common Law and pasted it into the Constitution. There was no dispute about what the term meant as the Framers were not changing the then-existing law.

Common Law itself stands only in the absence of statute law, so what was initially a direct transplant has been subjected to modifications. The definition of the right could certainly be modified by court interpretation, but it appears that Scalia went back to English Common Law and Blackstone to state what the Federal right is.

554 U.S. 595

As the most important early American edition of Blackstone's Commentaries (by the law professor and former Anti-federalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the "right of self-preservation" as permitting a citizen to "repe[l] force by force" when "the intervention of society in his behalf, may be too late to prevent an injury." 1 Blackstone's Commentaries 145-146, n. 42 (1803)(hereinafter Tucker's Blackstone).

554 U.S. 626

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

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Rather, I'd say that a common law of America, which has come to differ substantially from old England, has developed over time....

I not sure here in that there is no general federal common law in the United States. This is because there are no Federal common law courts in the United States. The entirety of the Federal system was created by the Legislature via written law pursuant to the Constitution.

What common law does exist is created by State courts, but these are inconsistent, and the unique system in Louisiana is a hand-me-down from Napoleanic France.

It certainly seems that the enjoyment of the right varies from state to state, and even between localities within a state.

The amended main bill, with the Hughes Amendment to the Volkmer substitute, was passed by the House with a recorded vote of the House.

Or the Volkmer substitute to the Hughes Amendment. Either way, I agree the main bill was passed by a recorded vote of the House.

My point is, and has been, the Hughes amendment to the bill containing the machine gun ban was passed by voice vote only and was never recorded.

Hughes himself, on the video, wanted more time to explain why such a ban was necessary. He knew he didn't have the votes.

Heller is currently the definitive legal interpretation of what Miller says.

Yes. Third request. What did Miller say?

A constitutional amendment is not needed to change the conception of what the militia does.

A constitutional amendment IS needed to change the definition of "arms" from "weapons suitable for use by a well-regulated militia" (Miller) to "those in common use for self-defense in the home"(Heller).

At a minimum it would require a finding by Congress which could then be challenged in the courts.

As is, the USSC drew their own conclusions based on misinterpretations and gobbledygook.

Miller involved one (1) unlawful to possess weapon involved in interstate commerce for non-militia purposes, and opined it enjoyed no 2A protection.

Had Miller transported a machine gun across state lines, would that have been protected by the second amendment (per the Miller court)?

The Judiciary bill was never directly considered by the House. Instead, members voted 286-136 April 10 to adopt the Volkmer substitute. (Vote 68, p. 22-H)

286-136 was the recorded vote for the Volkmer substitute, NOT the Hughes Amendment.

The amended main bill, with the Hughes Amendment to the Volkmer substitute, was passed by the House with a recorded vote of the House.

Or the Volkmer substitute to the Hughes Amendment. Either way, I agree the main bill was passed by a recorded vote of the House.

No, not or. The Hughes Amendment amended the Volkmer substitute. The Volkmer substitute was passed, as amended, to substitute its text for that of the existing main bill.

Hughes himself, on the video, wanted more time to explain why such a ban was necessary. He knew he didn't have the votes.

It had the votes. It passed. That is how the Hughes text got into the Volkmer substitute text, and with the rest of the Volkmer substitute test, was reported to the House for consideration. If it did not have the votes, it's text would not be there.

Voice vote on Hughes Amendment to the Volkmer substitute on video at 8m:26s

At 8m28s, "The Ayes have it."

At 8m:30s, Voice in background: Let it go, let it go. You've got it."

It's on the video. The AYES had it. It PASSED in the Committee of the Whole.

What failed was the first motion to rise, made before the vote on the Hughes Amendment.

Heller is currently the definitive legal interpretation of what Miller says.

Yes. Third request. What did Miller say?

Frankly Scarlett, I don't give a damn what Miller said.

Miller was superseded by Heller. It's a discussion of law, not history. Heller is the prevailing precedent.

Miller involved one (1) unlawful to possess weapon involved in interstate commerce for non-militia purposes, and opined it enjoyed no 2A protection.

Had Miller transported a machine gun across state lines, would that have been protected by the second amendment (per the Miller court)?

That was not before the Court in Miller and could not have been decided by Miller. The Court does not decide issues not presented.

Syllabus

The National Firearms Act, as applied to one indicted for transporting in interstate commerce a 12-gauge shotgun with a barrel less than 18 inches long without having registered it and without having in his possession a stamp-affixed written order for it, as required by the Act, held:

1. Not unconstitutional as an invasion of the reserved powers of the States. Citing Sonzinsky v. United States, 300 U. S. 506, and Narcotic Act cases. P. 307 U. S. 177.

2. Not violative of the Second Amendment of the Federal Constitution. P. 307 U. S. 178.

The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

26 F.Supp. 1002, reversed.

Heller at 554 U.S. 623:

Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.

It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.

Miller decided upon only one weapon being transported by Miller in interstate commerce, "a 12-gauge shotgun with a barrel less than 18 inches long without having registered it and without having in his possession a stamp-affixed written order for it, as required by the Act."

I will not entertain your fantasies about Miller, yet again. Whatever you imagine it says or decided cannot supersede anything in Heller/McDonald.

The House passed HR 4332 April 10 by a 292-130 vote after substituting the text of Volkmer's bill for the provisions of the Judiciary Committee measure. (Vote 69, p. 22-H)

The Judiciary bill was never directly considered by the House. Instead, members voted 286-136 April 10 to adopt the Volkmer substitute. (Vote 68, p. 22-H)

286-136 was the recorded vote for the Volkmer substitute, NOT the Hughes Amendment.

The Hughes Amendment amended the Volkmer substitute text, not the existing main bill text, by a COMMITTEE vote.

Then the Committee voted to rise. A COMMITTEE motion to rise is a motion to rise up and report a bill to the House for passage or rejection.

MOTION TO RISE

https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-115/pdf/GPO-HPRACTICE-115.pdf

HOUSE PRACTICE

A Guide to the Rules, Precedents, and Procedures of the House

Charles W. Johnson
John V. Sullivan
Thomas J. Wickham, Jr.

The Motion to Rise

With one exception in the Committee of the Whole, a motion to amend a bill has precedence over a motion to rise and report it to the House. 4 Hinds §§ 4752-4758. However, the motion to amend yields to the simple motion that the Committee rise. 4 Hinds § 4770. Under clause 2(d) of rule XXI, the motion to rise and report, if offered by the Majority Leader (or designee), takes precedence over an amendment after a general appropriation bill has been completely read for amendment. Manual § 1040. In the 109th Congress, the House adopted a resolution creating a point of order against a motion to rise and report an appropriation bill that exceeded an applicable allocation of new budget authority under section 302(b) of the Congressional Budget Act of 1974. Such a point of order has been carried forward in subsequent Congresses by separate order contained in the opening-day rules package. Manual § 1044b.

For precedence as between particular forms of amendment, see § 21, infra.

The Hughes text was incorporated into the Volkmer substitute text. The vote on the Volkmer substitute text approved the Volkmer substitute with the Hughes text incorporated, and was a vote of the HOUSE.

That was not before the Court in Miller and could not have been decided by Miller. The Court does not decide issues not presented.

I didn't ask the court. I asked you, coward.

Answer: They would have thrown out the case since machine guns are suitable for use by a well- regulated militia and protected by the second amendment. Which makes the Heller definition an invented joke.

Both the Volkmer substitute and the Hughes Amendment were added to HR 4332 and passed in a recorded vote.

Voice vote on Hughes Amendment to the Volkmer substitute on video at 8m:26s

No. That was a voice vote on the Hughes Amendment. The vote on the Volkmer substitute was a recorded vote.

That was not before the Court in Miller and could not have been decided by Miller. The Court does not decide issues not presented.

I didn't ask the court. I asked you, coward.

You asked, I answered. You just don't like the answer. Here is what you asked:

Had Miller transported a machine gun across state lines, would that have been protected by the second amendment (per the Miller court)?

The Miller court held that transporting an unregistered shotgun in interstate commerce for non-militia purposes enjoyed no 2A protection. If you imagine that it decided some other issue, that is your personal problem. Heller stated, "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessby by law-abiding citizens for lawful purposes, such as short-barreled shotguns."

What Miller noted about machine guns was:

Act of June 26, 1934, c. 757, 48 Stat. 1236-1240, 26 U.S.C. § 1132.

"That for the purposes of this Act --"

"(a) The term 'firearm' means a shotgun or rifle having a barrel of less than eighteen inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition [The Act of April 10, 1936, c. 169, 49 Stat. 1192 added the words], but does not include any rifle which is within the foregoing provisions solely by reason of the length of its barrel if the caliber of such rifle is .22 or smaller and if its barrel is sixteen inches or more in length."

"Sec. 3. (a) There shall be levied, collected, and paid upon firearms transferred in the continental United States a tax at the rate of $200 for each firearm, such tax to be paid by the transferor, and to be represented by appropriate stamps to be provided by the Commissioner, with the approval of the Secretary, and the stamps herein provided shall be affixed to the order for such firearm, hereinafter provided for. The tax imposed by this section shall be in addition to any import duty imposed on such firearm."

"Sec. 4. (a) It shall be unlawful for any person to transfer a firearm except in pursuance of a written order from the person seeking to obtain such article, on an application form issued in blank in duplicate for that purpose by the Commissioner. Such order shall identify the applicant by such means of identification as may be prescribed by regulations under this Act: Provided, That, if the applicant is an individual, such identification shall include fingerprints and a photograph thereof."

"(c) Every person so transferring a firearm shall set forth in each copy of such order the manufacturer's number or other mark identifying such firearm, and shall forward a copy of such order to the Commissioner. The original thereof, with stamps affixed, shall be returned to the applicant."

"(d) No person shall transfer a firearm which has previously been transferred on or after the effective date of this Act, unless such person, in addition to complying with subsection (c), transfers therewith the stamp-affixed order provided for in this section for each such prior transfer, in compliance with such regulations as may be prescribed under this Act for proof of payment of all taxes on such firearms."

"Sec. 5. (a) Within sixty days after the effective date of this Act every person possessing a firearm shall register, with the collector of the district in which he resides, the number or other mark identifying such firearm, together with his name, address, place where such firearm is usually kept, and place of business or employment, and, if such person is other than a natural person, the name and home address of an executive officer thereof: Provided, That no person shall be required to register under this section with respect to any firearm acquired after the effective date of, and in conformity with the provisions of, this Act."

"Sec. 6. It shall be unlawful for any person to receive or possess any firearm which has at any time been transferred in violation of section 3 or 4 of this Act."

"Sec. 11. It shall be unlawful for any person who is required to register as provided in section 5 hereof and who shall not have so registered, or any other person who has not in his possession a stamp-affixed order as provided in section 4 hereof, to ship, carry, or deliver any firearm in interstate commerce."

"Sec. 12. The Commissioner, with the approval of the Secretary, shall prescribe such rules and regulations as may be necessary for carrying the provisions of this Act into effect."

"Sec. 14. Any person who violates or fails to comply with any of the requirements of this Act shall, upon conviction, be fined not more than $2,000 or be imprisoned for not more than five years, or both, in the discretion of the court."

"Sec. 16. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of the Act, and the application of such provision to other persons or circumstances, shall not be affected thereby."

"Sec. 18. This Act may be cited as the 'National Firearms Act.'"

Had the Miller firearm been a machine gun, it would have fallen within the 1934 Act and it would have been seized for the multiple violations of the Act.

Answer: They would have thrown out the case since machine guns are suitable for use by a well- regulated militia and protected by the second amendment. Which makes the Heller definition an invented joke.

The Heller court found no conflict with Miller in stating that "M-16 rifles and the like — may be banned...." No joke. I understand you prefer your imaginary bullshit better.

Heller supercedes Miller where there is any conflict of holdings.

In dicta, Miller opined that "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." A machine gun in not the type of weapon in common use at this time.

This embed is queued up to start at 8:12.

Rep. Charlie Rangel can be seen and heard stating

QUOTE

The question is heard. The question is on the adoption of the Hughes Amendment to the Volkmer Substitute.

CLOSE QUOTE

Technically it was the Hughes amendment to the amendment to the amendment offered as a substitute for the commit­tee amendment in the nature of a substitute.

The Hughes Amendment amended the Volkmer Substitute. Your imaginary bullshit does not change the video or the Congressional Record.

The Hughes Amendment text was added to the Volkmer Substitute text before the amended Volkmer Substitute text was approved and replaced the text in the main bill.

The Hughes amendment to an amendment to an amendment to the Volkmer amendment in the nature of a substitute was approved in committee to become part of the Volkmer Substitute.

The Volkmer Substitute, as amended, including the text of the Hughes amendment to the amendment to the amendment was voted on in committee to replace the Hughes-Rodino Bill, the main bill. Then the Bill, now with the text of the Volkmer Substitute (as amended) was approved by the House and signed into law.

Voice vote on Hughes Amendment to the Volkmer substitute on video at 8m:26s

No. That was a voice vote on the Hughes Amendment. The vote on the Volkmer substitute was a recorded vote.

At 8m:26s comes the vote on the Volkmer Substitute as amended. It was just amended by the Hughes Amendment, and included the text of the Hughes Amendment.

The House only took one vote, and that was on the Volker Substitute as amended. The other votes were committee votes. When sitting as a committee of the whole, only 100 members need be present. The committee as a whole cannot vote approval of any legislation. They vote that a Bill is, or is not, reported to the House.

Under Fire: The NRA and the Battle for Gun Control

By Osha Gray Davidson

At 75:

But the smile on Volkmer’s face disappeared as Rangel, instead of recognizing McCollum, gave the nod to William Hughes.

"Mr. Chairman," called out Hughes, "I offer an amendment to the amendment to the amendment offered as a substitute for the committee amendment in the nature of a substitute."

At 76:

Hughes’s amendment would ban machine guns. These weapons, which fire a stream of bullets as long as the trigger is kept depressed, had been strictly regulated since 1934, but Hughes’s bill would fully outlaw the manufacture and sale of these automatic firearms— although those who already owned machine guns would be allowed to keep them.

At 77:

Hughes was moving that the committee end its session so that he could then ask the Rules Committee to allow more time for debate. But Hughes’s attempt failed, His motion was soundly defeated, 124 to 298.

At precisely 11:30, Rangel announced that time had run out for debating Hughes’s amendment—which, of course, had not been de­bated at all. Hughes rose to request unanimous consent that debate time be extended another five minutes. Sensenbrenner once again objected and this time Hughes sat down, defeated. A vote on his amendment to ban machine guns was called. What happened next would be a point of contention—and contempt—for years to come.

Charles Rangel, still sitting as chairman of the Committee of the Whole, called for a voice vote on Hughes’s amendment. All those in favor of the amendment called out “Aye"; those opposed yelled "No”

Rangel declared that Hughes’s ban on machine guns had passed.

At 78:

Volkmer fumed, but there was nothing he could do.

Immediately, Rangel turned to the larger question of McClure-Volkmer. The question before the House was, Should the Hughes-Rodino bill be replaced by Volkmer’s bill? A voice vote was called. The ayes and nays were shouted out and Rangel announced that the noes had it. The McClure-Volkmer bill had been defeated.

This time Volkmer jumped to his feet and, in a voice that could not be ignored, demanded a recorded vote. He needn’t have worried. Rangel had no intention of ignoring him and risking the undying enmity of a majority of the House for using a trick to defeat the legislation as a whole. The recorded vote was taken.

Harold Volkmer inserted his plastic identification card into an elec­tronic console, about the size of a cigar box, which was mounted to the chair back in front of him. He waited for the computer, located across Independence Avenue in the Rayburn House Office Building, to send a "ready" signal: a blue light illuminated on the console. When the light came on, Volkmer didn’t hesitate. He jabbed the yea button, which lit up green, to signal that his vote was locked in. Volkmer looked up at one of the four electronic tally boards mounted above and behind the Speaker’s rostrum. A green yea light blinked on next to his name.

As the minutes went by, Volkmer watched with growing satisfac­tion as more and more green lights flashed on. He figured that the green lights outnumbered the red nay ones by at least two to one.

Finally, the vote was announced. The U.S. House of Representa­tives had voted to toss out the Hughes-Rodino bill and replace it with the McClure-Volkmer bill. The vote was 292 in favor of the move, 130 against it. Harold Volkmer and the National Rifle Association had, at long last, won their battle.

The Miller court held that transporting an unregistered shotgun in interstate commerce for non-militia purposes enjoyed no 2A protection.

Where did you get "for non-militia purposes"? You're just making shit up.

The court didn't even get that far. They couldn't say it was a weapon suitable for use by a militia. They remanded back to the lower court to get that resolved before they would even hear the case.

Heller stated, "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessby by law-abiding citizens for lawful purposes, such as short-barreled shotguns."

Sure. That's the way THEY read it. That's why they're wrong.

Miller said no such thing. It said the Second Amendment does not protect those weapons not suitable for use by a militia.

HAD THE MILLER COURT SAID that the Second Amendment does not protect those weapons not typically possessby by law-abiding citizens for lawful purposes, such as short-barreled shotguns. they would have ruled against Mr. Miller right there and then."

Had the Miller firearm been a machine gun, it would have fallen within the 1934 Act and it would have been seized for the multiple violations of the Act.

Correct. It violated the Act.

But the issue before the USSC was did the Act violate the second amendment, and I say the Miller court would have ruled -- based on their statements in the actual case -- that a machine gun IS protected by the second amendment since a machine gun is suitable for use by a well-regulated militia.

The Heller court found no conflict with Miller in stating that "M-16 rifles and the like — may be banned...."

I know what Heller said. And I say they're wrong.

If the federal government can ban "M-16 rifles and the like", states will not have the ability form a citizen's militia -- the protection of which the second amendment guaranteed and the whole reason for the second amendment.

A machine gun in not the type of weapon in common use at this time.

The National Firearms Act of 1934 saw to that, didn't it?

Offer any gun owner the choice between a single-shot AR-15 and a full-auto AR-15 and they'll take the full-auto every time. So don't give me your "not in common use" bullshit.

that a machine gun IS protected by the second amendment since a machine gun is suitable for use by a well-regulated militia.

Excellent point misterwhite.

The question is heard. The question is on the adoption of the Hughes Amendment to the Volkmer Substitute.

I see. And what was the recorded vote of that adoption?

Excellent point misterwhite.

Thank you.

Had Mr. Miller been transporting a machine gun instead of a sawed-off shotgun, the U.S. Supreme Court would have ruled the recently passed National Firearms Act of 1934 unconstitutional.

Now, since the second amendment only applied to the federal government, states were free to regulate (not ban) machine guns according to their state constitution. They could rule, for example, that machine guns had to be registered and stored at a state armory or private gun range. Or not.

The point being -- there were other ways of addressing the problem rather than a federal ban.

Where did you get "for non-militia purposes"? You're just making shit up.

As you have apparently never bothered to read Miller, all further stupid comments about it will be ignored.

[Miller Syllabus] "The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon."

[Miller Opinion of the Court at 178] "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. "

[Lewis v. United States, 445 US 55, 65-6 (1980)]

These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U. S. 174, 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia"); United States v.Three Winchester 30-30 Caliber Lever Action Carbines, 504 F. 2d 1288,1290, n. 5 (CA7 1974); United States v. Johnson, 497 F. 2d 548 (CA41974); Cody v. United States, 460 F. 2d 34 (CA8), cert. denied, 409 U. S.1010 (1972) (the latter three cases holding, respectively, that § 1202 (a) (1),§ 922 (g), and § 922 (a) (6) do not violate the Second Amendment).

that a machine gun IS protected by the second amendment since a machine gun is suitable for use by a well-regulated militia.

Excellent point misterwhite.

The logic is ass backwards.

That a weapon must bear some relationship to a well-regulated militia in order to enjoy 2A protection, does not infer that ALL weapons that do have some relationship to a well-regulated militia enjoy 2A protection.

For example, an AK-47 or an RPG launcher.

I see. And what was the recorded vote of that adoption?

Who gives a shit and why?

I see. And what was the recorded vote of that adoption?
Who gives a shit and why?

Well, if you recall about 100 posts ago I said the Hughes Amendment was passed by voice vote. All you've done since then was tell me I was wrong.

Here you now have a chance to prove it and you slither away.

That's why.

Where did you get "for non-militia purposes"? You're just making shit up.
As you have apparently never bothered to read Miller

The Miller court was ruling on the type of weapon protected by the second amendment. They described the type of weapon as that suitable for use by a militia.

They NEVER limited the use of those weapons to "militia purposes". Just the opposite. They expected militia members to bring the same weapons used for "non-militia purposes".

That a weapon must bear some relationship to a well-regulated militia in order to enjoy 2A protection, does not infer that ALL weapons that do have some relationship to a well-regulated militia enjoy 2A protection.

Two words for you: Bull. Shit.

ALL weapons that have some relationship to a well-regulated militia enjoy 2A protection. How else to maintain a well-regulated state militia?

Now, it is up to the militia of each state how those weapons will be stored. I would imaging most would be stored in the state armory, with personal weapons taken home.

Heller stated, "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by by law-abiding citizens for lawful purposes, such as short-barreled shotguns."

Then why didn't the Miller court issue a ruling based on that? Pretty cut and dried, right?

I'll tell you why. Because that's NOT what the Miller court said.

The Miller court said the second amendment protects arms suitable for use by a militia and we're not sure that a sawed-off shotgun fits that category.

Well, if you recall about 100 posts ago I said the Hughes Amendment was passed by voice vote. All you've done since then was tell me I was wrong.

You said all manner of ridiculous shit. So what?

The Firearms Owners Protection Act (FOPA) was passed by the Senate on May 19, 1986. The Bill that passed into law was the Senate bill, S.49.

No part of the FOPA passed into law other than as part of Senate Bill 49 which was passed on May 19, 1986.

The Hughes Amendment passed in Committee in the House by a voice vote as an amendment to an amendment to an amendment to the Volkmer Amendment which was in the nature of a substitute for the text of the Hughes-Rodino Bill in the House. Who gives a flying shit about a committee vote in the House?

By voice vote in Committee, ruled the Ayes had it, the Hughes Amendment became part of the text of the Volkmer Amendment which was in the nature of a substitute for the text of the Hughes-Rodino Bill in the House.

The House Hughes-Rodino Bill, H.R.4332, before or after the Hughes amendment to the amendment to the amendment to the Volkmer Amendment in the nature of a substitute, was never adopted as law.

In April 10, 1986, the House incorporated HR. 4332 into Senate bill S.49 as an amendment.

The Senate Bill, S.49 became the law known as the Firearms Owners' Protection Act of 1986.

On May 19, 1986, the Senate voted its approval of S.49, as amended, and President Reagan signed it into law the same day.

S.49 - Firearms Owners' Protection Act

99th Congress (1985-1986)

If it's not a law, stop bitching and just go out and buy yourself a brand new machine gun.

ALL weapons that have some relationship to a well-regulated militia enjoy 2A protection.

Heller at 626:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).

Heller at 627-28:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Black's Law Dictionary, 6 Ed.

Arms. Anything that a man wears for his defense, or takes in his hands as a weapon.

The "right to keep and bear arms" existed in the colonies, was brought forth into the states before the union, and was protected by the 2nd Amendment. The right which existed in the colonies came from the English common law. The Framers saw no need to explain to themselves what that right to keep and bear arms was.

http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp

Blackstone's Commentaries on the Laws of England

Book the First - Chapter the First: Of the Absolute Rights of Individuals

5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

Heller at 593-95:

By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.

And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1968). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145–146, n. 42 (1803) (hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833).

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.

Heller at 626-28:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

The Miller court was ruling on the type of weapon protected by the second amendment. They described the type of weapon as that suitable for use by a militia.

They NEVER limited the use of those weapons to "militia purposes". Just the opposite. They expected militia members to bring the same weapons used for "non-militia purposes".

misterwhite, victim of dictum.

Heller at 625:

Miller was briefly mentioned in our decision in Lewis v. United States, 445 U. S. 55 (1980), an appeal from a conviction for being a felon in possession of a firearm. The challenge was based on the contention that the prior felony conviction had been unconstitutional. No Second Amendment claim was raised or briefed by any party. In the course of rejecting the asserted challenge, the Court commented gratuitously, in a footnote, that “[t]hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller . . . (the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’).” Id., at 65–66, n. 8. The footnote then cites several Court of Appeals cases to the same effect. It is inconceivable that we would rest our interpretation of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not argued.

Heller at 625:

Miller was briefly mentioned in our decision in Lewis v. United States, 445 U. S. 55 (1980), an appeal from a conviction for being a felon in possession of a firearm. The challenge was based on the contention that the prior felony conviction had been unconstitutional. No Second Amendment claim was raised or briefed by any party. In the course of rejecting the asserted challenge, the Court commented gratuitously, in a footnote, that “[t]hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller . . . (the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’).” Id., at 65–66, n. 8. The footnote then cites several Court of Appeals cases to the same effect. It is inconceivable that we would rest our interpretation of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not argued.

misterwhite, victim of dictum.

I'm mailing him a sympathy card as I type this.

The Hughes Amendment passed in Committee in the House by a voice vote

Finally. Thank you.

For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.

There have never been any federal laws against concealed carry, so there were never any Second Amendment challenges.

States have always been free to regulate firearms under their respective state constitutions.

"Indeed, it may be true that no amount of small arms could be useful against modern- day bombers and tanks."

Which is why the second amendment protects ALL arms -- including bombers and tanks -- suitable for use by a state militia. The second amendment was written to protect state militias from federal infringement.

Individual arms for personal use were protected by state constitutions. Who in their right mind would look to the federal government to protect such an important right?

It is inconceivable that we would rest our interpretation of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not argued.

I would hope not.

Yes, it's true that United States v. Miller was mentioned in Footnote #8 in Lewis v. United States -- a 1980 case involving a firearm possessed by a felon.

Why would the Heller court even mention this case, much less consider it?

Probably because if they looked at the Miller case directly -- not footnoted dictum -- they would see that the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’.

The Hughes Amendment passed in Committee in the House by a voice vote

Finally. Thank you.

You're welcome. To avoid your future confusion, the Hughes Amendment passed in Committee as an amendment to an amendment to an amendent to the Volkmer Amendment in the nature of a replacement text to the text of H.R. 4332, the Hughes-Rodino Bill. However, H.R. 4332 was not signed into law. Senate Bill S.49 was signed into law. Just to be clear.

Individual arms for personal use were protected by state constitutions. Who in their right mind would look to the federal government to protect such an important right?

The Framers of the Second Amendment.

There have never been any federal laws against concealed carry, so there were never any Second Amendment challenges.

There were loads of State laws prohibiting concealed carry, as early as an 1820 Kentucky concealed carry law that was the subject of litigation in Bliss v. Commonwealth.

Bliss v. Commonwealth of Kentucky

12 Littell 90 Ky. 1822

This was an indictment founded on the act of the legislature of this state, "to prevent persons in this commonwealth from wearing concealed arms."

The act provides, that any person in this commonwealth, who shall hereafter wear a pocket pistol, dirk, large knife, or sword in a cane, concealed as a weapon, unless when travelling on a journey, shall be fined in any sum not less than one hundred dollars; which may be recovered in any court having jurisdiction of like sums, by action of debt, or on presentment of a grand jury.

The indictment, in the words of the act, charges Bliss with having worn concealed as a weapon, a sword in a cane.

Bliss was found guilty of the charge, and a fine of one hundred dollars assessed by the jury, and judgment was thereon rendered by the court. To reverse that judgment, Bliss appealed to this court.

In argument the judgment was assailed by the counsel of Bliss, exclusively on the ground of the act, on which the indictment is founded, being in conflict with the twenty third section of the tenth article of the constitution of this state.

That section provides, "that the right of the citizens to bear arms in defence of themselves and the state, shall not be questioned."

The provision contained in this section, perhaps, is as well calculated to secure to the citizens the right to bear arms in defence of themselves and the state, as any that could have been adopted by the makers of the constitution. If the right be assailed, immaterial through what medium, whether by an act of the legislature or in any other form, it is equally opposed to the comprehensive import of the section. The legislature is no where expressly mentioned in the section; but the language employed is general, without containing any expression restricting its import to any particular department of government; and in the twenty eighth section of the same article of the constitution, it is expressly declared, "that every thing in that article is excepted out of the general powers of government, and shall forever remain inviolate; and that all laws contrary thereto, or contrary to the constitution, shall be void."

It was not, however, contended by the attorney for the commonwealth, that it would be competent for the legislature, by the enactment of any law, to prevent the citizens from bearing arms either in defence of themselves or the state; but a distinction was taken between a law prohibiting the exercise of the right, and a law merely regulating the manner of exercising that right; and whilst the former was admitted to be incompatible with the constitution, it was insisted, that the latter is not so, and under that distinction, and by assigning the act in question a place in the latter description of laws, its consistency with the constitution was attempted to be maintained.

3. That the provisions of the act in question do not import an entire destruction of the right of the citizens to bear arms in defence of themselves and the state, will not be controverted by the court; for though the citizens are forbid wearing weapons concealed in the manner described in the act, they may, nevertheless, bear arms in any other admissible form. But to be in conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form--it is the right to bear arms in defence of the citizens and the state, that is secured by the constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the constitution.

If, therefore, the act in question imposes any restraint on the right, immaterial what appellation may be given to the act, whether it be an act regulating the manner of bearing arms or any other, the consequence, in reference to the constitution, is precisely the same, and its collision with that instrument equally obvious.

And can there be entertained a reasonable doubt but the provisions of the act import a restraint on the right of the citizens to bear arms? The court apprehends not. The right existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms. Diminish that liberty, therefore, and you necessarily restrain the right; and [Volume 5, Page 213] such is the diminution and restraint, which the act in question most indisputably imports, by prohibiting the citizens wearing weapons in a manner which was lawful to wear them when the constitution was adopted. In truth, the right of the citizens to bear arms, has been as directly assailed by the provisions of the act, as though they were forbid carrying guns on their shoulders, swords in scabbards, or when in conflict with an enemy, were not allowed the use of bayonets; and if the act be consistent with the constitution, it cannot be incompatible with that instrument for the legislature, by successive enactments, to entirely cut off the exercise of the right of the citizens to bear arms. For, in principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise.

We may possibly be told, that though a law of either description, may be enacted consistently with the constitution, it would be incompatible with that instrument to enact laws of both descriptions. But if either, when alone, be consistent with the constitution, which, it may be asked, would be incompatible with that instrument, if both were enacted?

The law first enacted would not be; for, as the argument supposes either may be enacted consistent with the constitution, that which is first enacted must, at the time of enactment, be consistent with the constitution; and if then consistent, it cannot become otherwise, by any subsequent act of the legislature. It must, therefore, be the latter act, which the argument infers would be incompatible with the constitution.

But suppose the order of enactment were reversed, and instead of being the first, that which was first, had been the last; the argument, to be consistent, should, nevertheless, insist on the last enactment being in conflict with the constitution. So, that the absurd consequence would thence follow, of making the same act of the legislature, either consistent with the constitution, or not so, according as it may precede or follow some other enactment of a different import. Besides, by insisting on the previous act producing any effect on the latter, the argument implies that the previous one operates as a partial restraint on the right of the citizens to bear arms, and proceeds on the notion, that by prohibiting the exercise of the residue of right, not affected by the first act, the latter act comes in collision with the constitution. But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution.

4. Hence, we infer, that the act upon which the indictment against Bliss is founded, is in conflict with the constitution; and if so, the result is obvious—the result is what the constitution has declared it shall be, that the act is void.

And if to be incompatible with the constitution makes void the act, we must have been correct, throughout the examination of this case, in treating the question of compatibility, as one proper to be decided by the court. For it is emphatically the duty of the court to decide what the law is; and how is the law to be decided, unless it be known and how can it be known without ascertaining, from a comparison with the constitution, whether there exist such an incompatibility between the acts of the legislature and the constitution, as to make void the acts?

A blind enforcement of every act of the legislature, might relieve the court from the trouble and responsibility of deciding on the consistency of the legislative acts with the constitution; but the court would not be thereby released from its obligations to obey the mandates of the constitution, and maintain the paramount authority of that instrument; and those obligations must cease to be acknowledged, or the court become insensible to the impressions of moral sentiment, before the provisions of any act of the legislature, which in the opinion of the court, conflict with the constitution, can be enforced.

Whether or not an act of the legislature conflicts with the constitution, is, at all times, a question of great delicacy, and deserves the most mature and deliberate consideration of the court. But though a question of delicacy, yet as it is a judicial one, the court would be unworthy its station, were it to shrink from deciding it, whenever in the course of judicial examination, a decision becomes material to the right in contest. The court should never, on slight implication or vague conjecture, pronounce the legislature to have transcended its authority in the enactment of law; but when a clear and strong conviction is entertained, that an act of the legislature is incompatible with the constitution, there is no alternative for the court to pursue, but to declare that conviction, and pronounce the act inoperative and void. And such is the conviction entertained by a majority of the court, (Judge Mills dissenting,) in relation to the act in question.

Note well that it is the duty of the judicial branch to decide whether a law is constitutional when such decision become material to the rught in contest.

Now, before you get all warm and fuzzy about that law being overturned as repugnant to the Kentucky constitution, the People of the Great State of Kentucky saw fit to amend their constitution and in 1850 the Kentucky constitution Bill of Rights provided:

Sec. 25 That the rights of the citizens to bear arms in defence of themselves and the State shall not be questioned; but the general assembly may pass laws to prevent persons from carrying concealed arms.

Ain't that an aw shit moment.

Yes, it's true that United States v. Miller was mentioned in Footnote #8 in Lewis v. United States -- a 1980 case involving a firearm possessed by a felon.

Why would the Heller court even mention this case, much less consider it?

Probably because if they looked at the Miller case directly -- not footnoted dictum -- they would see that the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’.

Lewis in 1980 quoted from Miller.

Lewis was fully argued before SCOTUS.

At 445 U.S. 56:

Andrew W. Wood argued the cause for petitioner. With him on the briefs was Neal P. Rutledge.

Andrew J. Levander argued the cause pro hac vice for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Frey, Jerome M. Feit, and Joel M. Gershowitz

It was Miller that was not fully argued before the Supreme Court. A dictum from Miller is no less a dictum because it is described as such by the Supreme Court in a footnote of a subsequent opinion.

While the appearance of attorneys and argument for both sides in Lewis is clearly documented, in Miller it is clearly documented that there was "No appearance for appellees." 307 U.S. 175

As we also know, Miller's corpse did not appear for argument or the reading of the Opinion.

- - - - - - - - - - - - - - - - - - - -

Clayton E. Cramer, For the Defense of Themselves and the State, The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms, Praeger Publishers, 1994, page 189:

In some of the most convoluted language the Court has used to justify a position, the majority decided:

"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."

The Court did not say that a short-barreled shotgun was unprotected—just that no evidence had been presented to demonstrate such a weapon was "any part of the ordinary military equipment" or that it could "contribute to the common defense."

- - - - - - - - - - - - - - - - - - - -

Brian L. Frye, The Peculiar Story of United States v. Miller, NYU Journal of Law and Liberty, Vol 3:48 at 50:

This essay concludes that Miller is coherent, but largely irrelevant to the contemporary debate over the meaning of the Second Amendment. Miller was a Second Amendment test case, teed up with a nominal defendant by a district judge sympathetic to New Deal gun control measures. But the Supreme Court issued a surprisingly narrow decision. Essentially, it held that the Second Amendment permits Congress to tax firearms used by criminals. While dicta suggest the Second Amendment guarantees an individual right to possess and use a weapon suitable for militia service, dicta are not precedent.7 In other words, Miller did not adopt a theory of the Second Amendment guarantee, because it did not need one.

At 57:

On March 30, 1939, seven justices of the Supreme Court heard oral argument in United States v. Miller. Chief Justice Hughes was ill, and the newly appointed Justice Douglas was not confirmed until April 4. Gordon Dean represented the United States and no one represented Miller or Layton. Two days later, Gutensohn finally received four copies of the government’s brief.

Gutensohn was attorney for Miller.

- - - - - - - - - - - - - - - - - - - -

Heller at 626-28:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

It was Miller that was not fully argued before the Supreme Court.

The Miller court held they cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore could not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

And they reversed a lower court decision that said it did.

Hardly dictum.

The Court did not say that a short-barreled shotgun was unprotected—just that no evidence had been presented to demonstrate such a weapon was "any part of the ordinary military equipment" or that it could "contribute to the common defense."

Correct. So what are we to deduce from that statement by the U.S. Supreme Court?

The Miller court held they cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore could not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

And they reversed a lower court decision that said it did.

Hardly dictum.

You are full of crap and don't know what you are talking about.

Quote your imaginary holding from Miller, do not provide your nonsense variation of the dictum therein and call it a holding. The Opinion of the Court in Miller begins at 307 U.S. 175, and the relevant paragraph is in Miller at page 307 U.S. 178, second paragraph.

Try reading Miller and the case cited therein, Aymette. Digest the holding in Aymette which is cited as authority by Miller.

The Court did not say that a short-barreled shotgun was unprotected—just that no evidence had been presented to demonstrate such a weapon was "any part of the ordinary military equipment" or that it could "contribute to the common defense."

Correct. So what are we to deduce from that statement by the U.S. Supreme Court?

We are to deduce that Miller filed a demurrer, filed no brief, and made no appearance in the court, personally or through attorney. A demurrer is an assertion, made without disputing the facts, that the opponent's pleading is insufficient as a matter of law.

We are to deduce that the Court, in the absolute and complete absence of any evidence presented which could even tend to show that the weapon had any reasonable relationship to the preservation or efficiency of a well regulated militia, could not make believe there was such evidence. The Court did not find that such evidence did not exist, just that none had been presented. Lacking evidence upon which to form an opinion, the Court went on to relate the matter upon which it could not form an opinion. Because no relevant evidence whatever had been presented, the Court could not say that the weapon was any part of the ordinary military equipment or that its use could contribute to the common defense. That is what the Court could not say, due to a complete absence of evidence. The Court then cited as authority, Aymette v State, 2 Humphrey's (Tenn.) 154, 158.

Quote your imaginary holding from Miller

The Miller court held:

2. (The National Firearms Act) Not violative of the Second Amendment of the Federal Constitution. P. 178.

AND

The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

MEANING that if a weapon has today any reasonable relation to the preservation or efficiency of a well regulated militia, the Second Amendment DOES guarantee to the citizen the right to keep and bear such a weapon.

We are to deduce that the Court, in the absolute and complete absence of any evidence presented which could even tend to show that the weapon had any reasonable relationship to the preservation or efficiency of a well regulated militia

Ah. So their decision was to be based on whether or not the weapon had any reasonable relationship to the preservation or efficiency of a well regulated militia.

I agree and that's the only point I was making. Because Heller ignored that important point.

We are to deduce that the Court, in the absolute and complete absence of any evidence presented which could even tend to show that the weapon had any reasonable relationship to the preservation or efficiency of a well regulated militia

Ah. So their decision was to be based on whether or not the weapon had any reasonable relationship to the preservation or efficiency of a well regulated militia.

You evidently have a reading comprehension problem.

If the weapon had not relationship to the preservation or efficiency of a well regulated militia, 2A did not apply. If the weapon did have some relationship to the preservation or efficiency of a well regulated militia, then the court had to consider if it was protected by 2A. The court overruled an unexplained grant of a demurrer and remanded the case to the District Court. Further proceedings did not occur because Miller disappeared.

Quote your imaginary holding from Miller

The Miller court held:

2. (The National Firearms Act) Not violative of the Second Amendment of the Federal Constitution. P. 178.

AND

The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

THAT is not even part of the Opinion in Miller. It is from page 307 U.S. 174. In my #131 I led you by the nose to the precise page and paragraph of the Opinion of the Court to which you are obviously very reluctant to quote, rather preferring to misrepresent and misread the court reporter's syllabus.

Quote your imaginary holding from Miller, do not provide your nonsense variation of the dictum therein and call it a holding. The Opinion of the Court in Miller begins at 307 U.S. 175, and the relevant paragraph is in Miller at page 307 U.S. 178, second paragraph.

Why are you unable or unwilling to quote the actual Opinion of the Court?

You also have amply demonstrated that you are legally incompetent to read and understand the Syllabus written by the court reporter.

In the Syllabus, TWO holdings are identified, and they are numbered 1 and 2.

UNITED STATES v. MILLER ET AL.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS.

No. 696. Argued March 30, 1939.-Decided May 15, 1939.

The National Firearms Act, as applied to one indicted for transporting in interstate commerce a 12-gauge shotgun with a barrel less than 18 inches long, without having registered it and without having in his possession a stamp-affixed written order for it, as required by the Act, held:

1. Not unconstitutional as an invasion of the reserved powers of the States. Citing Sonzinsky v. United States, 300 U. S. 506, and Narcotic Act cases. P. 177.

2. Not violative of the Second Amendment of the Federal Constitution. P. 178.

The Court can not take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia; and therefore can not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

26 F. Supp. 1002, reversed.

APPEAL under the Criminal Appeals Act from a judgment sustaining a demurrer to an indictment for violation of the National Firearms Act.

Mr. Gordon Dean argued the cause, and Solicitor General Jackson, Assistant Attorney General McMahon, and Messrs. William W. Barron, Fred E. Strine, George F. Kneip, W. Marvin Smith, and Clinton R. Barry were on a brief, for the United States.

No appearance for appellees.

MR. JUSTICE MCREYNOLDS delivered the opinion of the Court.

The two numbered paragraphs, with page citations to the Opinion of the Court, are the court reporter's statement of holdings. The unnumbered paragraph, here highlighted in blue, with no page citation, is not holding.

The Opinion of the Court at page 178 reads:

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.

Miller Opinion, New York Times, Tuesday, May 16, 1939, page 15:

"Supreme Court Bars Sawed-Off Shotgun; Denies Constitution Gives Right to Carry This Weapon."

The decision did not solve any problems; criminals use sawed-off shotguns as readily today as they did fifty years ago. It alluded to, but did not define, the Second Amendment: does "well regulated" mean well governed or well trained? Who constitutes "the militia"? How does "the right of the people" in the Second Amendment differ from the "right of the people" in the First, Fourth, or any other? And if does differ, why?

McReynolds' approach reflects the elitist disdain the modern federal judiciary has shown for the Second Amendment, which they consider "obsolete" or "dead" — ignore it to the degree possible, gloss over any inconsistencies when necessary, then dismiss it with a wave of the hand. They wish it would go away. The questions posed by the Second Amendment, are, like firearms, abhorrent and of interest only to dullards, the lower classes, and criminals. We can only wonder what McReynolds would have written if a sawed-off shotgun had been used by an irate small businessman, protecting his meager gold stash from seizure by New Deal agents.

The true importance of the case lies in its basis for reference by the Supreme Court when the Second Amendment is finally argued directly of and for itself. Using the judicial protocol of stare decisis, the policy of standing by precedents and not disturbing "settled" points, the justices may utilize Miller, ambiguous as it is on the subject, as "proof" that the Second Amendment is a collective guarantee rather than an individual right. The idea, it might be argued, is that "consistency" of law, formed by basing current decisions on the foundations of prior decisions - - even questionable ones - - is more important than truth.

Another consideration regarding the case is that the appellees, Miller and Layton, were not even represented. Miller, in fact, had been murdered before the case was argued. The assault the government made against an individual's right to bear arms went without rebuttal, beyond Gutensohn's poorly written demurrer to the indictment. This will not be the circumstance in the inevitable future decision.

Even with the Second Amendment defenseless against attack, McReynolds, as noted, refused to bring forth a blanket decision covering all firearms. Nor did he actively dispute the people's right to bear arms as individuals, perhaps realizing he would be on uncertain ground after reading militia laws which dictated that the members, the "body of the people", supply their own arms. The result was a weak swat at the "gangster" element of the time:

"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."

This conclusion is debatable, as thirty thousand short-barrel shotguns were purchased by the U.S. government for the armed forces in World War I. 1 His inference about "the common defense" is also faulty, as shall be shown.

The historical sources used for the decision are of interest, but even more important are the sources not consulted. For example, McReynolds refers us to a chapter on the role of the militia in Adam Smith's Wealth of Nations, which was not even published until 1776 and can hardly be considered a reference manual for the Founding Fathers. The opinion and the appellant's self-contradictory brief continually point us to English common law, and prior decisions based on English common law, and even colonial militia laws that plainly direct that the people must provide their own arms. But no one bothered to consider the words of the very men who demanded the Bill of Rights of which the Second Amendment is a part! This is nothing short of incredible. Jefferson, Madison, Mason, and a host of other Founding Fathers were obvious in their feelings on the subject.

Noting the militia clauses of the Constitution, McReynolds writes the following in his opinion:

"With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

With "obvious purpose"? The Second Amendment specifies the guarantee of an individual right, and a brief review of the evolution of the Second Amendment in America establishes this. The duty of militia service is a natural result of that right, particularly in a republic fearful of standing armies, but it is inane to say the duty supersedes the right on which it is predicated.

As it applies to the Bill of Rights, the thought that later led to the Second Amendment was first found as article 13 of the Virginia Declaration of Rights, written by George Mason in 1776. As noted in The Roots of the Bill of Rights, "Of the 16 articles in the Virginia Declaration, nine state fundamental general principals of a free republic (of these perhaps the most consequential was the statement in Article 5 of the separation of powers as a rule of positive law--apparently the first such statement in an organic instrument). The remaining seven articles safeguard specific individual rights." 2

As a proof that the right is individual, not collective, consider the evolution of article 13. When approved on June 29, 1776, it read:

13. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies in time of peace should be avoided, as dangerous to liberty; and that in all cases, the military should be under strict subordinance to, and governed by, the civil power. Pennsylvania statesmen, using the Virginia Declaration as a guide, passed The Pennsylvania Declaration of Rights on September 28, 1776. Their Article XIII was even more specific regarding the individual's right to bear arms:

XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

In the intervening years between 1776 and 1787, independence was won and a proposed national constitution drafted. Upon presentation to the states for ratification, debate arose between the factions favoring the Constitution as presented (the Federalists) and those who either opposed ratification or who demanded a Bill of Rights as a guarantee of their individual liberties (the Antifederalists). In Pennsylvania, the Federalist majority was able to ratify the Constitution, but not without considerable dissent from the Antifederalists. To bring forth their argument to the public, the dissenters published their reasons for disagreement.

From "The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents, 1787," we find the following: " . . . Thus situated we entered on the examination of the proposed system of government, and found it to be such as we could not adopt, without, as we conceived, surrendering up your dearest rights. We offered our objections to the convention, and opposed those parts of the plan, which, in our opinion, would be injurious to you, in the best manner we were able; and closed our arguments by offering the following propositions to the convention . . ."

Of their propositions, the seventh clearly addressed the right to keep and bear arms as an individual right.

7. That the people have a right to bear arms for the defence of themselves and their own State or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers.

The importance of the amendments proposed by the Pennsylvania Convention minority is that they were used as a model for other states, including Virginia, which desired ratification, yet also wanted a Bill of Rights.

Virginia, with its wealth, population, and position of leadership in the Revolutionary period, stood as the pivotal state if the Constitution was to be adopted. Virginia's proposed federal Bill of Rights is momentous in that it represented the first specification of the document. Congress listened; every guarantee proposed by Virginia, except one, later found a place in the federal Bill of Rights. From the Virginia ratification document of June 27, 1788 comes the following affirmation that the right to bear arms should be an individual right:

"That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following: …

17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power."

Note that article 17 is essentially the same as article 13 from the Virginia Declaration of Rights, except for one important distinction: the phrase "That the people have a right to keep and bear arms" now leads the section! As with the Pennsylvania minority report, the Virginia proposal is distinct in specifying this individual right, though more succinctly than the Pennsylvania model. The Virginia statesmen were thrifty with words, but it is absurd to think they added the clause for any reason other than to express exactly what it says. Otherwise, article 13 would have served the purpose unchanged.

It is also notable that George Mason, who penned article 13, participated in the deliberations that produced article 17. One would think he would have objected forcefully if the boundaries of his intent had been violated. Far from it. It was during this convention Mr. Mason said "Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussian, & c., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers."3

Other states also amplified a more thorough meaning of their militia clauses upon ratification debate. New Hampshire, in their Bill of Rights dated 1783, noted in section XXIV that:

"A well regulated militia is the proper, natural, and sure defense of a state."

In their proposed amendments to the Constitution in 1788 they suggested:

Twelfth, Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.

In New York, the Constitution of 1777 read:

XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service.

At the 1788 New York Ratification Convention, Alexander Hamilton, the acknowledged leader of the Federalist movement, offered the following amendment to soothe the Antifederalists of his home state:

VII. That each state shall have to provide for organising arming and disciplining its militia, when no provision for that purpose shall have been made by Congress and until such provision shall have been made; and that the militia shall never be subjected to martial law but in time of war rebellion or insurrection.

The convention accepted some of his recommendations, but the New York proposed amendments on the subject began with:

"That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State;"

North Carolina, which refused to ratify any Constitution until a Bill of Rights was adopted, proclaimed in their Declaration of Rights a repetition of Virginia's article 17.

When presented to Congress in 1789, James Madison's original resolution, a compilation of the suggestions from the state conventions, read:

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person. 4

Upon arrival in the Senate, it had been altered to read:

ARTICLE THE FIFTH

A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.

On September 4, 1791, the Senate disagreed by a vote of 9 - 6 to a motion to add the following:

that standing armies, in time of peace, being dangerous to Liberty, should be avoided as far as the circumstances and protection of the community will admit; and that in all cases the military should be under strict subordination to, and governed by the civil Power. That no standing army or regular troops shall be raised in time of peace, without the consent of two thirds of the Members present in both Houses, and that no soldier shall be inlisted for any longer of term than the continuance of the war.

On the same day, the Senate agreed to amend Article 5 to read:

A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.

On September 9, it was changed again to:

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.

Also on September 9, the Senate refused to insert "for the common defence" after "to keep and bear arms," and the article was renumbered to its familiar number 2.

So much for Justice McReynolds' "common defense" excuse. The defeat of this motion distinctly places any "collective" interpretation into the realm of smoke and mirrors where it so rightfully belongs.

* * *

https://www.scribd.com/document/442305811/Aymette-v-The-State-21-Tenn-154-1840-RKBA

https://www.scribd.com/document/442305933/Sonzinsky-v-United-States-300-US-506-1937-RKBA

The Opinion of the Court at page 178 reads:

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.

Again, it demonstrates the reasoning of the Miller court -- only militia-type weapons are protected.

If the weapon did have some relationship to the preservation or efficiency of a well regulated militia, then the court had to consider if it was protected by 2A.

What?? The court never said, nor implied, that. You're just making shit up.

The ONLY 2A criteria set by the court was whether or not the weapon was suitable for use by a militia OR could contribute to the common defense.

"With obvious purpose to assure the continuation and render possible the effectiveness of such (militia) forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

Miller Opinion, New York Times, Tuesday, May 16, 1939, page 15:

The defeat of this motion distinctly places any "collective" interpretation into the realm of smoke and mirrors where it so rightfully belongs.

If the Senate wished to place any "collective" interpretation into the realm of smoke and mirrors, they would have simply written "The right of the people to keep and bear arms shall not be infringed". Right?

No mention of a well- regulated militia, no mention of a collective necessity to secure a free state.

But they didn't because that was never the purpose of the second amendment.

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."

This conclusion is debatable, as thirty thousand short-barrel shotguns were purchased by the U.S. government for the armed forces in World War I.

Apples and oranges.

Mr. Miller possessed a sawed-off, double-barreled Steven's shotgun. The Winchester Model 1897 trench gun used by the military had a 20" barrel with heat shield, held six rounds, and had a bayonet lug and sling swivels.

Aymette was a state case involving concealed carry. Not relevant to Miller.

Why don't you try reading Miller instead of just blowing it out your ass? Aymette is the case cited as authority by Miller at 307 U.S. 178.

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.

As you like sylabi so much, look at the syllabus description of the holding in Aymette which ws cited as the authority for the above paragraph from Miller:

AYMETTE vs. THE STATE.

1. The act of 1837–8, ch. 137, sec. 2, which prohibits any person from wearing any bowie knife, or Arkansas tooth-pick, or other knife or weapon in form, shape or size resembling a bowie knife or Arkansas tooth-pick under his clothes, or con cealed about his person, does not conflict with the 26th section of the first article of the bill of rights, securing to the free white citizens the right to keep and bear arms for their common defence.

2. The arms, the right to keep and bear which is secured by the constitution, are such as are usually employed in civilized warfare, and constitute the ordinary military equipment; the legislature have the power to prohibit the keeping or wearing weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare.

3. The right to keep and bear arms for the common defence, is a great political right. It respects the citizens on the one hand, and the rulers on the other; and although this right must be inviolably preserved, it does not follow that the legislature is prohibited ffrom passing laws regulating the manner in which these arms may be employed.

THAT is the authority for Miller, as claimed by Miller.

What?? The court never said, nor implied, that. You're just making shit up.

What the hell do you think they remanded the case to the District Court for?

THE INDICTMENT, DEMURRER, MEMO OPINION, AND ASSIGNMENT OF ERRORS ON APPEAL

INDICTMENT, SEPTEMBER 21, 1938

No. 3926

District Court United States, Western Dist. of Arkansas

THE UNITED STATES
vs.
Jack Miller [and] Frank Layton

INDICTMENT. 1 ct. Sec. 1132j, T 26, USC

A TRUE BILL.

{signed} Richard R. Hampton (?), Foreman.

Filed Sept. 21, A.D. 1938

Wm. S. Wellshear, Clerk.

By Truss Russell, Deputy.

{no signature} U.S. Attorney
United States of America,
Western District of Arkansas ss:
Ft. Smith Division

In the District Court of the United States, in and for the Western District aforesaid, at the June Term thereof, A.D. 1938.

The Grand Jurors of the United States, impaneled, sworn, and charged at the Term aforesaid, of the Court aforesaid, on their oath present, that Jack Miller and Frank Layton on the 18th day of April, in the year of our Lord nineteen hundred thirty-eight, in the Ft. Smith division of said district and within the jurisdiction of said Court, did unlawfully, knowingly, wilfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-guage Stevens Shotgun having a barrel less than 18 inches in length, bearing identification number 76230, said defendants, at the time of so transporting said firearm in interstate commerce as aforesaid, not having registered said firearms as required by Section 1132d of Title 26, United States Code (Act of June 26, 1934, c. 737, Sec. 4, 48 Stat. 1237), and not having in their possession a stamped-affixed written order for said firearm as provided by Section 1132c, Title 26, United States Code (June 26, 1934, c. 737, Sec. 4, 48 Stat. 1237) and the regulations issued under authority of the said Act of Congress known as the "National Firearms Act" approved June 26, 1934, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.

Clinton R. Barry, United States Attorney.

By: {signed} Duke Frederick
Assistant United States Attorney

= = = = = = = = = = = = = = = = = = = =

DEMURRER TO INDICTMENT, JANUARY 3, 1939

[No. 3926, filed January 3, 1939, Wm. S. Wellshear, Clerk, by J. A. Phillips, Deputy Clerk.]

IN THE DISTRICT COURT OF THE UNITED STATES
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

THE UNITED STATES, PLAINTIFF,
VS.
JACK MILLER AND FRANK LAYTON, DEFENDANTS.

DEMURRER TO INDICTMENT

Comes the defendants, Jack Miller and Frank Layton, and demur to the indictment, and for grounds thereof state:

1. That the indictment fails to state sufficient facts to constitute a crime under the laws and statutes of the United States.

2. That the alleged criminal act contained in the indictment as a violation of Title 26, Section 1132, United States Code, an Act of Congress known as the National Firearms Act, approved June 26th, 1934, and the provisions thereof, is not a revenue measure and is an attempt to usurp the police powers of the State and reserved to each of the States in the United States, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States.

3. That the Second Amendment to the Constitution of the United States provides: "A well regulated militia being necessary to the security of a free state, the right of people to keep and bear arms, shall not be infringed;" that the said "National Firearms Act" is in violation and contrary to said Second Amendment and particularly as charging a crime against these defendants under the allegations of the indictment, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States.

4. That the indictment herein charges the violation of Section 1132 (c) in which it is made unlawful to transfer a firearm which has previously been transferred on or after the 30th day of June, 1934, in addition to complying with subsection (c) , transfers therewith the stamp affixed order; that there is no charge in the said indictment that the said defendants made any transfer whatsoever of the double-barrel 12 guage shotgun having less than 18 inches in length, and said indictment, therefore, does not charge facts sufficient to constitute a crime under the laws and statutes of the United States.

5. That the indictment charges the defendants with "not having in their possession a stamp affixed written order for said firearms, as provided and required by Section 1132 (c), Title 26, United States Code, and the regulations issued under the authority of said Act of Congress known as the National Firearms Act, approved June 26th, 1934"; that said Section 1132 (c) does not make it a violation to merely fail to possess a stamp affixed written order for said firearms, and a failure to charge a transfer by or to the said defendants, fails to set forth facts sufficient to constitute a crime under the laws and statutes of the United States.

6. That any provision of the said National Firearms Act, approved June 26th, 1934, which requires a registration of the said firearm as required by Section 1132 (d) of Title 26 United States Code, and not having in their possession a stamp affixed order for said firearm as provided by Section 1132 (c) Title 26 United States Code, is in violation and contrary to the said Second Amendment to the Constitution of the United States, is unconstitutional and does not state facts sufficient to constitute a crime under the statutes of the United States and the indictment further does not state sufficient facts to constitute a crime under the laws and statutes of the United States in that there was a total failure to charge a transfer of said firearms by or to the said defendants.

{signed} Paul E. Gutensohn
Attorney for Defendants

= = = = = = = = = = = = = = = = = = = =

MEMO OPINION, JANUARY 3, 1939

[No. 3926, filed January 3, 1939, Wm. S. Wellshear, Clerk, by J.A. Phillips, Deputy Clerk.]

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

United States, Plaintiff,
v.
Jack Miller and Frank Layton, Defendants.

MEMO. OPINION

The defendants in this case are charged with unlawfully and feloniously transporting in interstate commerce from the town of Claremore, Oklahoma, to the town of Siloam Springs in the State of Arkansas, a double barrel twelve gauge shot gun having a barrel less than eighteen inches in length, and at the time of so transporting said fire arm in interstate commerce they did not have in their possession a stamp-affixed written order for said fire arm as required by Section 1132 c, Title 26 U. S. C. A., and the regulations issued under the authority of said Act of Congress known as the National Fire Arms Act.

The defendants in due time filed a demurrer challenging the sufficiency of the facts stated in the indictment to constitute a crime and further challenging the sections under which said indictment was returned as being in contravention of the Second Amendment to the Constitution of the United States.

The indictment is based upon the Act of June 26, 1934, C.757, Section 11, 48 Statute 1239. The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States providing, "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."

The demurrer is accordingly sustained.

This the 3rd day of January 1939.

{signed} Heartsill Ragon
United States District Judge.

= = = = = = = = = = = = = = = = = = = =

ASSIGNMENTS OF ERROR

[No. 3926, filed January 30, 1939, by Wm. S. Wellshear, Clerk.]

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE WESTERN DISTRICT OF ARKANSAS

UNITED STATES OF AMERICA, Plaintiff,
v.
JACK MILLER and FRANK LAYTON, Defendants

ASSIGNMENTS OF ERROR

Comes now the United States of America by Clinton R. Barry, United States Attorney for the Western District of Arkansas, and avers that in the record proceedings and judgment herein there is manifest error and against the just rights of the said plaintiff, in this, to wit:

1. That the court committed material error against the plaintiff in holding that Section 11 of the National Firearms Act of June 26, 1934, c. 757, 48 Stat. 1236, 1239, is invalid as violating the Second Amendment to the Constitution of the United States providing that "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."

2. That the court committed material error against the plaintiff in sustaining the demurrer of the defendants Jack Miller and Frank Layton to the indictment.

{signed} Clinton R. Barry

CLINTON R. BARRY
United States Attorney
Western District of Arkansas.

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."

This conclusion is debatable, as thirty thousand short-barrel shotguns were purchased by the U.S. government for the armed forces in World War I.

The Opinion of the Court at page 178 reads:

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.

In the absence of any argument or evidence, it is not debatable that the U.S. Supreme Court unanimously found it certainly could not take judicial notice that a sawed off shotgun was then, at that time, bearing some relationship to the preservation or efficiency of a well regulated militia. The Court did not say the sawed off shotgun did, or did not, bear some relationship to the preservation or efficiency of a well regulated militia. As the Court could not state that the sawed off did bear such relationship in the absence of evidence, it could not uphold the demurrer and remanded the case to the District Court for further proceedings.

By then Miller was dead.

To the Court's refusal to assume as fact, a point for which no argument or evidence was presented, it is irrelevant if thousands of such weapons were actually being used by the military.

https://cdn.loc.gov/service/ll/usrep/usrep521/usrep521898/usrep521898.pdf

Printz v. United States, 521 U.S. 898, 938 n.1 (1997)(Thomas, J., concurring)

Our most recent treatment of the Second Amendment occurred in United States v. Miller, 307 U. S. 174 (1939), in which we reversed the District Court's invalidation of the National Firearms Act, enacted in 1934. In Miller, we determined that the Second Amendment did not guarantee a citizen's right to possess a sawed-off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." Id., at 178. The Court did not, however, attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.

https://law.justia.com/cases/federal/appellate-courts/F2/131/916/1511728/

Cases v. United States, 131 F.2d 916 (1st Cir. 1942)

The Federal Firearms Act undoubtedly curtails to some extent the right of individuals to keep and bear arms but it does not follow from this as a necessary consequence that it is bad under the Second Amendment which reads "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."

The right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights in this respect the people may have depend upon local legislation; the only function of the Second Amendment being to prevent the federal government and the federal government only from infringing that right. *922 United States v. Cruikshank, 92 U.S. 542, 553, 23 L. Ed. 588; Presser v. Illinois, 116 U.S. 252, 265, 6 S. Ct. 580, 29 L. Ed. 615. But the Supreme Court in a dictum in Robertson v. Baldwin, 165 U.S. 275, 282, 17 S. Ct. 326, 41 L. Ed. 715, indicated that the limitation imposed upon the federal government by the Second Amendment was not absolute and this dictum received the sanction of the court in the recent case of United States v. Miller, 307 U.S. 174, 182, 59 S. Ct. 816, 83 L. Ed. 1206.

In the case last cited the Supreme Court, after discussing the history of militia organizations in the United States, upheld the validity under the Second Amendment of the National Firearms Act of June 26, 1934, 48 Stat. 1236, in so far as it imposed limitations upon the use of a shotgun having a barrel less than eighteen inches long. It stated the reason for its result on page 178 of the opinion in 307 U.S., on page 818 of 59 S.Ct., 83 L. Ed. 1206, as follows: "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."

Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia. However, we do not feel that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go. At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities, almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day, is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result. Considering the many variable factors bearing upon the question it seems to us impossible to formulate any general test by which to determine the limits imposed by the Second Amendment but that each case under it, like cases under the due process clause, must be decided on its own facts and the line between what is and what is not a valid federal restriction pricked out by decided cases falling on one side or the other of the line.

We therefore turn to the record in the case at bar. From it it appears that on or about August 27, 1941, the appellant received into his possession and carried away ten rounds of ammunition, and that on the evening of August 30 of the same year he went to Annadale's Beach Club on Isla Verde in the municipality of Carolina, Puerto Rico, equipped with a .38 caliber Colt type revolver of Spanish make which, when some one turned out the lights, he used, apparently not wholly without effect, upon another patron of the place who in some way seems to have incurred his displeasure. While the weapon may be capable of military use, or while at least *923 familiarity with it might be regarded as of value in training a person to use a comparable weapon of military type and caliber, still there is no evidence that the appellant was or ever had been a member of any military organization or that his use of the weapon under the circumstances disclosed was in preparation for a military career. In fact, the only inference possible is that the appellant at the time charged in the indictment was in possession of, transporting,[3] and using the firearm and ammunition purely and simply on a frolic of his own and without any thought or intention of contributing to the efficiency of the well regulated militia which the Second Amendment was designed to foster as necessary to the security of a free state. We are of the view that, as applied to the appellant, the Federal Firearms Act does not conflict with the Second Amendment to the Constitution of the United States.

The Opinion of the Court at page 178 reads:

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.

Again, it demonstrates the reasoning of the Miller court -- only militia-type weapons are protected.

https://www.lclark.edu/live/files/771

Nelson Lund, Heller and Second Amendment Precedent, 13 Lewis & Clark L. Rev. 335, 336-39 (2009)

[excerpt at 337-39, footnotes omitted]

Miller described the procedural posture of the case as follows:

An indictment in the District Court Western District Arkansas, charged that Jack Miller and Frank Layton [violated the National Firearms Act]. . . .

A duly interposed demurrer alleged: The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution—“A well regulated Militia, being necessary to the security of a free State, the right of people to keep and bear Arms, shall not be infringed.”

The District Court held that section eleven of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment.

The cause is here by direct appeal.

Besides the fact that the Supreme Court was reviewing a bare and unexplained judgment sustaining a demurrer, the criminal defendants failed to appear in the Supreme Court—as the Court was careful to report. Thus, neither the court below nor the criminal defendants offered the Supreme Court any argument in support of the challenged judgment, and the Justices heard arguments only from the government. After such a stunted adversarial process, and with no Supreme Court precedents to guide the Court’s interpretation, one would expect a narrow and even tentative decision. That is just what the Court delivered.

After quickly disposing of the federalism issue (which the trial court had not addressed), the Miller Court stated its conclusion about the Second Amendment as follows:

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.

This passage states the holding in the case. Note that the Court does not hold that short-barreled shotguns are outside the coverage of the Second Amendment. The Court says only that it has seen no evidence that these weapons have certain militia-related characteristics—which is no surprise given the procedural posture of the case—and that the Court could not take judicial notice of certain facts about the military utility of these weapons. After this statement, one would expect the case to be remanded to give the defendants an opportunity to offer the kind of evidence called for in the Court’s holding. Sure enough, Miller concludes as follows: “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.”

The legal test that the trial court would have been required to employ on remand is that there is a right to keep and bear a particular weapon only if, at a minimum, the weapon “has some reasonable relationship to the preservation or efficiency of a well regulated militia” which could be shown, for example, by evidence that the weapon is “part of the ordinary military equipment or that its use could contribute to the common defense.” Given the procedural posture of the case, the Supreme Court’s language could not possibly be read to mean that short-barreled shotguns are outside the protection of the Second Amendment, or that the provisions of the National Firearms Act regulating these weapons had been found to be constitutionally valid.

The implications of Miller would be very different if the Court had upheld a conviction for violating the statute rather than what it in fact did, namely to reverse the trial court’s unexplained decision to sustain a demurrer. If a conviction had been upheld, it would have meant that there is no Second Amendment bar to the statutory requirements that the defendants were charged with violating. Depending on how the Court had explained such a conclusion, it might also have meant that short-barreled shotguns are unprotected by Second Amendment protection. In fact, however, there is no basis for either of these conclusions in the Miller opinion.

What the hell do you think they remanded the case to the District Court for?

To determine whether or not a sawed-off shotgun was suitable for use by a militia.

it is irrelevant if thousands of such weapons were actually be being used by the military.

Sure. But they weren't.

Mr. Miller's Stevens 311 sawed-off shotgun:

WWI military trench gun -- Wichester M97

Again, it demonstrates the reasoning of the Miller court -- only militia-type weapons are protected.

Please quote the opinion where it says only militia-type weapons are protected.

Please quote the opinion where it says all militia-type weapons are protected.

- - - - - - - - - -

Clayton E. Cramer, For the Defense of Themselves and the State, The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms, Praeger Publishers, 1994, page 189:

In some of the most convoluted language the Court has used to justify a position, the majority decided:

"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."

The Court did not say that a short-barreled shotgun was unprotected—just that no evidence had been presented to demonstrate such a weapon was "any part of the ordinary military equipment" or that it could "contribute to the common defense."

- - - - - - - - - -

Brian L. Frye, The Peculiar Story of United States v. Miller, NYU Journal of Law and Liberty, Vol 3:48 at 50:

This essay concludes that Miller is coherent, but largely irrelevant to the contemporary debate over the meaning of the Second Amendment. Miller was a Second Amendment test case, teed up with a nominal defendant by a district judge sympathetic to New Deal gun control measures. But the Supreme Court issued a surprisingly narrow decision. Essentially, it held that the Second Amendment permits Congress to tax firearms used by criminals. While dicta suggest the Second Amendment guarantees an individual right to possess and use a weapon suitable for militia service, dicta are not precedent.7 In other words, Miller did not adopt a theory of the Second Amendment guarantee, because it did not need one.

- - - - - - - - - -

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=960812

Brannon P. Denning and Glenn H. Reynolds, Telling Miller's Tale: A Reply to David Yassky, 65 Law & Contemp. Probs. 113, 118 (Spring 2002).

The Miller Court said merely that it was presented with no evidence of, and could not take judicial notice of, a sawed-off shotgun's military utility.

It is true that "[t]he Court [in Miller] did not ... attempt to define, or otherwise construe, the substantive right protected by the Second Amendment."

… but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia.

That's NOT what the Miller court said. It limited it's ruling to the TYPE of weapon protected by the second amendment.

It NEVER said who may possess such a weapon or who may use such a weapon.

Again, it demonstrates the reasoning of the Miller court -- only militia-type weapons are protected.

Johnson, Kopel, Mocsary and O'Shea, Firearms Law and the Second Amendment, Regulation, Rights, and Policy, Wolters Kluwer Law & Business, New York, 2012, pages 365-66, NOTES & QUESTIONS:

5. How do you interpret the following passage?

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.

This passage is often stressed by persons who believe that the Second Amendment secures only a collective or state right to arms. How would you describe the parameters of such a right? Under this view, could the government prevent citizens from having firearms in their homes? Compare your response here to your answers to question 7 below.

Now consider the quoted passage in the context of the procedural posture of the case. The district court dismissed the indictment, writing nothing more than a conclusory assertion that the law violated the Second Amendment. So there were no findings about the suitability of Miller’s gun for militia purposes. The Supreme Court was unwilling to take judicial notice of the militia utility of Miller’s gun and remanded the case to the district court. If you were counsel for Miller on remand, would you view the Supreme Court’s decision as an invitation to introduce evidence about the militia utility of Miller’s gun? If you could prove that Miller’s gun was “part of the ordinary military equipment” or “could contribute to the common defense,” would Miller then have a right to possess it even if he were not a part of a state-organized militia? Of the militia as defined by Miller? These questions were not pressed on remand because Mr. Miller disappeared. Indeed, he had already gone missing before the Supreme Court heard his case. (He later turned up in Oklahoma, shot dead, evidently as revenge for testifying against fellow gang members in another case.) Miller was not even represented by counsel in the Supreme Court. Instead, the Solicitor General briefed and argued the case unopposed. Miller’s attorney filed no brief, but wrote the Court and told them to rely on the government’s brief. See Nelson Lund, Heller and Second Amendment Precedent, 13 Lewis & Clark L. Rev. 335, 336-39 (2009). Recent research suggests that Miller was a collusive prosecution, involving a U.S. Attorney, a federal district judge who had strongly supported federal gun control in his former role as a member of Congress, and a compliant defense attorney, working to setup a Supreme Court test case to affirm the National Firearms Act. See Brian L Frye, The Peculiar Story of United States v. Miller, 3 N.Y.U. J.L. & Liberty 48 (2008). Supposing that a later court accepted Frye’s account of the Miller litigation, should the court give less precedential value to Miller?

Sure. But they weren't.

It was irrelevant if they were or were not possessed or used by the military or militia or anyone else. No argument or evidence was presented to the Court. It could not uphold the demurrer which claims that there is no case even if everything alleged by the other side is true.

Please quote the opinion where it says only militia-type weapons are protected.

Please quote the opinion where it says militia-type and other weapons ar are protected.

"Please quote the opinion where it says all militia-type weapons are protected."

Please quote the opinion where it says some militia-type weapons are protected.

… but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia.

That's NOT what the Miller court said. It limited it's ruling to the TYPE of weapon protected by the second amendment.

It NEVER said who may possess such a weapon or who may use such a weapon.

The quote was from Cases v. United States, 131 F.2d 916 (1st Cir. 1942).

In context, it stated:

Apparently, then, under the Second Amendment, the federal government can limit the keeping and bearing of arms by a single individual as well as by a group of individuals, but it cannot prohibit the possession or use of any weapon which has any reasonable relationship to the preservation or efficiency of a well regulated militia. However, we do not feel that the Supreme Court in this case was attempting to formulate a general rule applicable to all cases. The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go. At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities, almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day, is in effect to hold that the limitation of the Second Amendment is absolute. Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result. Considering the many variable factors bearing upon the question it seems to us impossible to formulate any general test by which to determine the limits imposed by the Second Amendment but that each case under it, like cases under the due process clause, must be decided on its own facts and the line between what is and what is not a valid federal restriction pricked out by decided cases falling on one side or the other of the line.

This passage is often stressed by persons who believe that the Second Amendment secures only a collective or state right to arms.

Nope. Wrong.

That passage only refers to the TYPE of weapon protected by the second amendment -- that being those weapons used by a militia.

It says NOTHING about who uses it, who keeps it, who bears it, who stores it, who maintains it -- nothing.

Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result.

Miller never got into WHO may possess or use such weapons. Just the TYPE of weapon protected by the second amendment.

This is pure speculation by the author, meant to ridicule the ruling and scare the public.

Please quote the opinion where it says only militia-type weapons are protected.

Please quote the opinion where it says militia-type and other weapons ar are protected.

"Please quote the opinion where it says all militia-type weapons are protected."

Please quote the opinion where it says some militia-type weapons are protected.

The claim in Miller was that the National Firearms Act was unconstitutional. The National Firearms Act has previously been upheld as "not attended by an offensive regulation, and since it operates as a tax, it is within the national taxing power." Sonzinsky v United States, 300 U.S. 506 (1937)

Miller stated,

Considering Sonzinsky v. United States (1937), 300 U. S. 506, 300 U. S. 513, and what was ruled in sundry causes arising under the Harrison Narcotic Act² — United States v. Jin Fuey Moy (1916), 241 U.S. 394, United States v. Doremus (1919), 249 U.S. 86, 249 U.S. 94; Linder v. United States (1925), 268 U.S. 5; Alston v. United States (1927), 274 U.S. 289; Nigro v. United States (1928), 276 U.S. 332 — the objection that the Act usurps police power reserved to the States is plainly untenable.

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.

Miller approved of the prior finding that the National Firearms Act was not unconstitutional for not being a lawful revenue measure.

Robertson v. Baldwin, 652 U.S. 275, 282-82 (1897)

The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel prin­ciples of government, but simply to embody certain guaranties and immunities which we nad inherited from our English an­cestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the funda­mental law there was no intention of disregarding the excep­tions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (art. 1) does not permit the publication of libels, blas­phemous or indecent articles, or other publications injurious to public morals or private reputation, the right of the people to keep and bear arms (art. 2) is not infringed by laws pro­hibiting the carrying of concealed weapons, the provision that no person shall be twice put in jeopardy (art. 5) does not prevent a second trial, if upon the first trial the jury failed to agree, or if the verdict was set aside upon the defendant’s motion, United States v. Ball, 163 U. S. 662, 672, nor does the provision of the same article that no one shall be a witness against himself impair his obligation to testify, if a prosecu­tion against him be barred by the lapse of time, a pardon or by statutory enactment. Brown v. Walker, 161 U.S. 591, and cases cited. Nor does the provision that an accused person shall be confronted with the witnesses against him prevent the admission of dying declarations, or the depositions of witnesses who have died since the former trial.

The Miller Demurrer stated:

3. That the Second Amendment to the Constitution of the United States provides: "A well regulated militia being necessary to the security of a free state, the right of people to keep and bear arms, shall not be infringed;" that the said "National Firearms Act" is in violation and contrary to said Second Amendment and particularly as charging a crime against these defendants under the allegations of the indictment, is unconstitutional and therefore does not state facts sufficient to constitute a crime under the statutes of the United States.

There is just a bald assertion that the National Firearms Act is in violation and contrary to the 2nd Amendment.

With neither a brief or argument in support, neither Miller nor Miller could state that the National Firearms Act was unconstitutional. Miller said there was an absence of any evidence to show that the sawed off shotgun, at that time, had some reasonable relationship to the preservation or efficiency of a well regulated militia. As the stated reason for the 2nd Amendment is "A well regulated Militia, being necessary to the security of a free State," the absence of any relationship thereto removes whatever instrument from the reason for the Amendment. In the total absence of said relationship, the bald assertion of the Demurrer reduces to trivia. Not a scintilla of evidence was ever advanced that the weapon in question had any relationship to the stated purpose of the 2nd Amendment.

The Memo Opinion stated,

The indictment is based upon the Act of June 26, 1934, C.757, Section 11, 48 Statute 1239. The court is of the opinion that this section is invalid in that it violates the Second Amendment to the Constitution of the United States providing, "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."

The demurrer is accordingly sustained.

The District Court gives no reasoning for its opinion. Neither the Demurrer, nor the Memo Opinion, stated how or why Section 11 of the statute was repugnant to the Constitution. The Defense attorney wrote a letter

This was all a concocted case, a paper drill, with all parties working together to create a Supreme Court confirmation that the National Firearms Act was constitutional.

This passage is often stressed by persons who believe that the Second Amendment secures only a collective or state right to arms.

Nope. Wrong.

That passage only refers to the TYPE of weapon protected by the second amendment -- that being those weapons used by a militia.

It says NOTHING about who uses it, who keeps it, who bears it, who stores it, who maintains it -- nothing.

With your unerring eye for the important details, I'll bewt you got this from Johnson, Kopel, Mocsary and O'Shea.

Johnson, Kopel, Mocsary and O'Shea, Firearms Law and the Second Amendment, Regulation, Rights, and Policy, Wolters Kluwer Law & Business, New York, 2012, pages 365-66, NOTES & QUESTIONS:

5. How do you interpret the following passage?

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.

This passage is often stressed by persons who believe that the Second Amendment secures only a collective or state right to arms. How would you describe the parameters of such a right? Under this view, could the government prevent citizens from having firearms in their homes? Compare your response here to your answers to question 7 below.

Now consider the quoted passage in the context of the procedural posture of the case. The district court dismissed the indictment, writing nothing more than a conclusory assertion that the law violated the Second Amendment. So there were no findings about the suitability of Miller’s gun for militia purposes. The Supreme Court was unwilling to take judicial notice of the militia utility of Miller’s gun and remanded the case to the district court. If you were counsel for Miller on remand, would you view the Supreme Court’s decision as an invitation to introduce evidence about the militia utility of Miller’s gun? If you could prove that Miller’s gun was “part of the ordinary military equipment” or “could contribute to the common defense,” would Miller then have a right to possess it even if he were not a part of a state-organized militia? Of the militia as defined by Miller? These questions were not pressed on remand because Mr. Miller disappeared. Indeed, he had already gone missing before the Supreme Court heard his case. (He later turned up in Oklahoma, shot dead, evidently as revenge for testifying against fellow gang members in another case.) Miller was not even represented by counsel in the Supreme Court. Instead, the Solicitor General briefed and argued the case unopposed. Miller’s attorney filed no brief, but wrote the Court and told them to rely on the government’s brief. See Nelson Lund, Heller and Second Amendment Precedent, 13 Lewis & Clark L. Rev. 335, 336-39 (2009). Recent research suggests that Miller was a collusive prosecution, involving a U.S. Attorney, a federal district judge who had strongly supported federal gun control in his former role as a member of Congress, and a compliant defense attorney, working to setup a Supreme Court test case to affirm the National Firearms Act. See Brian L Frye, The Peculiar Story of United States v. Miller, 3 N.Y.U. J.L. & Liberty 48 (2008). Supposing that a later court accepted Frye’s account of the Miller litigation, should the court give less precedential value to Miller?

The claim in Miller was that the National Firearms Act was unconstitutional ...

… because Mr. Miller believed his weapon was protected by the second amendment.

"Miller approved of the prior finding that the National Firearms Act was not unconstitutional for not being a lawful revenue measure."

Even that's questionable since the "tax" of $200 in 1934 is equivalent to $3822 today. Seems more like an intent to discourage or eliminate transactions in these firearms rather than simply to tax them.

Recent research suggests that Miller was a collusive prosecution ...

A conspiracy! Of course. I bet Russia was involved, right?

With your unerring eye for the important details, I'll bewt you got this from Johnson, Kopel, Mocsary and O'Shea.

I did! I was citing your post #157.

Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result. Considering the many variable factors bearing upon the question it seems to us impossible to formulate any general test by which to determine the limits imposed by the Second Amendment but that each case under it, like cases under the due process clause, must be decided on its own facts and the line between what is and what is not a valid federal restriction pricked out by decided cases falling on one side or the other of the line.

Miller never got into WHO may possess or use such weapons. Just the TYPE of weapon protected by the second amendment.

This is pure speculation by the author, meant to ridicule the ruling and scare the public.

That was a quote from Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942). Circuit Judge Woodbury wrote the opinion for a unanimous Circuit Court panel of Magruder, Mahoney, and Woodbury, Circuit Judges, opining about Miller.

Recent research suggests that Miller was a collusive prosecution ...

A conspiracy! Of course. I bet Russia was involved, right?

There is nothing new or shocking about a Supreme Court case on such a record having been concocted, Scott v. Sandford is an excellent example.

The quote is from Johnson, Kopel, Mocsary and O'Shea, Firearms Law and the Second Amendment, Regulation, Rights, and Policy, Wolters Kluwer Law & Business, New York, 2012, pages 365-66.

The authors would be:

Nicholas J. Johnson
Professor of Law
Fordham University

https://www.fordham.edu/info/23149/nicholas_johnson

Professor of Legal Studies in Business, Franklin and Marshall College, 1988-93;

Of Counsel, Kirkpatrick and Lockhard (Harrisburg, Pennsylvania) 1990-93;

Vice President and Co-owner Westar Environmental Corporation, 1988-90;

Associate, Morgan, Lewis and Bockius, Philadelphia, Pennsylvania, 1985-88;

Principal subjects: Contracts, Environmental Law,Gun Control/Gun Rights.

David B. Kopel
Adjunct Professor of Law
University of Denver

https://en.wikipedia.org/wiki/Dave_Kopel

David B. "Dave" Kopel (born January 7, 1960) is an American author, attorney, gun rights advocate, and contributing editor to several publications.

He is currently research director of the Independence Institute in Denver, Colorado, associate policy analyst at the Cato Institute, adjunct professor of advanced constitutional law at Denver University, Sturm College of Law and contributes to the Volokh Conspiracy legal blog. Previously he was adjunct professor of law, New York University, and former assistant attorney general for Colorado.

Kopel is also a life member of the Academy of Criminal Justice Sciences, and, as of 2010, served on the board of directors of the Colorado Union of Taxpayers.

George A. Macsary
Visiting Assistant Professor of Law
University of Connecticut

https://www.uwyo.edu/law/directory/george-mocsary.html

George Mocsary joined the University of Wyoming in the July of 2019. Prior to his appointment at Wyoming, he served as an Assistant Professor of Law at the Southern Illinois University School of Law, and spent two years as a Visiting Assistant Professor at the University of Connecticut School of Law. He entered academia after having practiced corporate and bankruptcy law at Cravath, Swaine and Moore in New York. Before that, he clerked for the Honorable Harris L. Hartz of the U.S. Court of Appeals for the Tenth Circuit.

Professor Mocsary holds a J.D. from Fordham Law School where he graduated first in his class and summa cum laude. He also served as Notes and Articles Editor of the Fordham Law Review, and was the recipient of the Benjamin Finkel Prize for Excellence in Bankruptcy and Fordham Law Alumni Association Medal in Constitutional Law. Before going to law school, Professor Mocsary earned his M.B.A. from the University of Rochester Simon School of Business and ran a successful management consulting practice.

Professor Mocsary is a co-author of Firearms Law and the Second Amendment: Regulation, Rights, and Policy (2nd ed. 2017), the first casebook on its topic. He has also published in the George Washington Law Review, George Mason Law Review, Fordham Law Review, and other journals. His work has been cited by the Supreme Court of the United States.

Michael P. O'Shea
Associate Preofessor of Law
Oklahoma City University

https://www.yalelawjournal.org/forum/why-firearm-federalism-beats-firearm-localism

Michael P. O’Shea, Why Firearm Federalism Beats Firearm Localism, 123 Yale L.J. Online 359 (2014)

Michael P. O’Shea is a Professor of Law and Associate Director of the Center for the Study of State Constitutional Law and Government at Oklahoma City University. B.A. Harvard, 1995; M.A. University of Pittsburgh, 1998; J.D. Harvard, 2001. Professor O’Shea is a co-author of the first law school textbook on firearms law and the constitutional right to keep and bear arms, Nicholas J. Johnson, David B. Kopel, George A. Mocsary & Michael P. O’Shea, Firearms Law and the Second Amendment: Regulation, Rights, and Policy (2012).

The book is a legal casebook, over 1,000 pages long.

- - - - - - - - - -

Brian L. Frye, The Peculiar Story of United States v. Miller, NYU Journal of Law and Liberty, Vol 3:48 at 50:

This essay concludes that Miller is coherent, but largely irrelevant to the contemporary debate over the meaning of the Second Amendment. Miller was a Second Amendment test case, teed up with a nominal defendant by a district judge sympathetic to New Deal gun control measures. But the Supreme Court issued a surprisingly narrow decision. Essentially, it held that the Second Amendment permits Congress to tax firearms used by criminals. While dicta suggest the Second Amendment guarantees an individual right to possess and use a weapon suitable for militia service, dicta are not precedent.7 In other words, Miller did not adopt a theory of the Second Amendment guarantee, because it did not need one.

Brian L. Frye is an Associate, Sullivan & Cromwell LLP. J.D., New York University School of Law, 2005.

https://law.uky.edu/directory/brian-l-frye

Brian L. Frye

Spears-Gilbert Associate Professor of Law

Brian L. Frye joined the faculty of the College of Law in 2012. He teaches classes in civil procedure, intellectual property, copyright, and nonprofit organizations, as well as a seminar on law and popular culture. Previously, he was a Visiting Assistant Professor of Law at Hofstra University School of Law, and a litigation associate at Sullivan & Cromwell LLP. He clerked for Judge Andrew J. Kleinfeld of the United States Court of Appeals for the Ninth Circuit and Justice Richard B. Sanders of the Washington Supreme Court. He received a J.D. from the New York University School of Law in 2005.

- - - - - - - - - -

http://volokh.com/2010/02/27/united-states-v-miller/

Why United States v. Miller was so badly written

By David Kopel on February 27, 2010 4:00 pm
The Volokh Conspiracy

[excerpt]

All eight Justices (Douglas, then new to the Court, did not participate) have voted in conference to uphold the statute. The lower court opinion is a mere conclusory assertion. Miller’s attorney did not even brief or argue the case, but instead told the Court to rely on the Department of Justice brief. (We now know that the district court judge, the local U.S. Attorney, and, perhaps, the defense attorney, were colluding in order to bring the weakest possible case to the Supreme Court, in order to affirm the National Firearms Act.)

So imagine you’re Chief Justice Hughes. Given that you have to assign McReynolds a majority opinion from time to time, Miller is the perfect case. The Court is unanimous, meaning that McReynolds will not be burdened with responding to dissenting arguments. Indeed, since the case is uncontested, writing the majority opinion would be especially easy. McReynold’s product in Miller was consistent with his lazy and slapdash approach. Perhaps the other Justices, while recognizing that there was room for improvement in the opinion, decided not to press McReynolds for changes, lest McReynolds fail to get around to making any revisions, and thereby further delay the progress of the Court’s business.

All of the opinion-writing Justices in District of Columbia v. Heller took their work much more seriously than McReynolds apparently took his work in Miller, and so both the majority opinion and the two dissents directly and carefully addressed many of the important Second Amendment questions which McReynolds had conspicuously ignored.

This article was published on the legal blog site of Eugene Volokh.

https://en.wikipedia.org/wiki/Eugene_Volokh

Eugene Volokh born February 29, 1968) is a Ukrainian-American legal scholar known for his scholarship in American constitutional law and libertarianism, as well as his prominent legal blog "The Volokh Conspiracy". He is the Gary T. Schwartz Professor of Law at the UCLA School of Law, and is an academic affiliate at the law firm Mayer Brown.

https://en.wikipedia.org/wiki/Dave_Kopel

David B. "Dave" Kopel (born January 7, 1960) is an American author, attorney, gun rights advocate, and contributing editor to several publications.

He is currently research director of the Independence Institute in Denver, Colorado, associate policy analyst at the Cato Institute, adjunct professor of advanced constitutional law at Denver University, Sturm College of Law and contributes to the Volokh Conspiracy legal blog. Previously he was adjunct professor of law, New York University, and former assistant attorney general for Colorado.

Kopel is also a life member of the Academy of Criminal Justice Sciences, and, as of 2010, served on the board of directors of the Colorado Union of Taxpayers.

Recent research suggests that Miller was a collusive prosecution ...

A conspiracy! Of course. I bet Russia was involved, right?

A concocted case with such a record is not exactly a novel concept.

Dred Scott a concocted, sham case.

Scott v. Sandford, 60 U.S. 393, 397-98, Statement of the Case

The counsel then filed the following agreed statement of facts, viz:

[...]

Before the commencement of this suit, said Dr. Emerson sold and conveyed the plaintiff, said Harriet, Eliza, and Lizzie, to the defendant, as slaves, and the defendant has ever since claimed to hold them and each of them as slaves.

Walter Erlich, They Have No Rights, Dred Scott's Struggle for Freedom, Contributions in Legal Studies #9, Greenwood Press, 1979, page 75:

It is undoubtedly true that when the federal case was instituted, an agreed statement of facts averred that shortly before the commencement of the suit Scott and his family had been “sold & conveyed” to Sanford. But this statement was inaccurate and erroneous.

The evidence is unmistakable. In the first place, the agreed statement asserted that it was Dr. Emerson who had “sold & conveyed” Scott to Sanford; yet Emerson had died some ten years earlier. Even more con­clusive are the circumstances surrounding Scott’s eventual emancipation. On May 26, 1857, two and one-half months after the Supreme Court declared him still a slave, Scott was granted his freedom by Taylor Blow, to whom the slave in the meantime had been sold—not by Sanford, but by Dr. and Mrs. Chaffee. Sanford had died in New York only three weeks earlier, on May 5, 1857; but probate records of his estate in both New York and St. Louis indicate that Scott never was a part of that estate. Undoubt­edly many slaves were sold without a record being made of the sale; but for the executor or the administrator of an estate to make such a trans­action without recording it in proper probate records is highly unlikely.

Dred Scott was a concocted moot case with no adverse parties, where the slave sued a person who was not his owner, based on an agreed upon statement of (false) facts.

The real owner was Congressman Calvin Chaffee of Massachusetts. The case arose in Missouri as Scott v. Emerson. Mrs. Eliza Irene Sanford Emerson Chaffee was the wife of the former deceased owner (Mr. Emerson), and the sister of the falsely purported owner (Sanford). She married Congressman Chaffee. As a single woman, Mrs. Emerson owned Scott. When she married, under the laws of feme covert back in the day, Congressman Chaffee became the owner of Scott.

During the legal proceedings, the money earned by renting out Dred Scott was held by the sheriff. After the trial the wages were claimed by the Chaffees.

The Chaffees conveyed Scott to Taylor Blow, son of the original owner, and Taylor Blow manumitted Scott.

Jurisdiction was sought on a false claim of diversity of state citizenship. It should have failed as Scott was not a citizen, and Sanford, of New York, was not the owner. Despite an agreed set of (false) facts, at the time of the alleged purchase from Mr. Emerson, Mr. Emerson was a corpse.

One contention in the case was that Scott had become free when he traveled to a free state. Even being freed would not have made him a citizen of a state. He might have sued for freedom while in the free state (Lemmon v. the People or the English case The Slave Grace) but, as he did not, his status as a slave had not changed when he returned to Missouri.

And in SCOTUS, I'm not saying there was a conflict or interest or anything, but the famous dissent was written by Justice Benjamin Robbins Curtis, who sat and heard oral argument for Scott by his brother, George Tichnor Curtis.

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Scott v Sandford, Quitclaim and Claim of Scott’s Wages

Scott v. Sandford, 60 US 393 (1857) was decided March 6, 1857. In May 1857, Massachusetts Congressman Calvin Chaffee executed a quitclaim deed in favor of Taylor Blow in Missouri giving Blow ownership of Dred Scott and family. On May 26, 1857 Taylor Blow emancipated the Scotts.

26 Saint Louis Circuit Court Record 263¹
Tuesday May 26th 1857

Taylor Blow, who is personally known to the court, comes into open court, and acknowledges the execution by him of a Deed of Emancipation to his slaves, Dred Scott, aged about forty eight years, of full negro blood and color, and Harriet Scott wife of said Dred, aged thirty nine years, also of full negro blood & color, and Eliza Scott a daughter of said Dred & Harriet, aged nineteen years of full negro color, and Lizzy Scott, also a daughter of said Dred & Harriet, aged ten years likewise of full negro blood & color.

¹ 26 Saint Louis Circuit Record 263

The next day, Eliza Irene Sanford Emerson Chaffee’s attorney filed the motion to claim all of the wages earned by Scott, held by the Sheriff.

26 Saint Louis Circuit Court Record 267¹
Wednesday May 27th 1857
Dred Scott.
vs. )
Irene Emerson. )

On motion of defendants attorney it is ordered that the Sheriff of St. Louis County do render his account to the court of the wages that have come to his hands of the earnings of the above named plaintiff and that the said sheriff do pay to the defendant all such wages that now remain in his hands, excepting all commissions and expenses to which the said Sheriff may be legally entitled.

¹ 26 Saint Louis Circuit Record 267

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That was a quote from Cases v. United States ... Circuit Judge Woodbury wrote the opinion

Good. Now I know exactly who to call ignorant.