Drop the Musket and Assume the Position!

Historically, courts have been reluctant to address this issue. For instance, despite the fact the Supreme Court decides several First Amendment cases each term, it has not decided a Second Amendment case since 1939. In that case, United States v. Miller, the high court ruled that the Second Amendment does not guarantee citizens the right to keep and bear arms.

Your summation of US v Miller is incorrect and misleading. Miller decided that they did not have enough information to conclude whether the weapon in question, a shotgun with a barrel length under an amount specified by law, was protected under the 2nd Amendment. They concluded that there was no evidence before them indicating that such weapons had military utility; as Miller was not available at the time, no one had opportunity to present evidence that there was military utility for the weapon. The important points are:

1) The decision concerned whether the *weapon* was protected, not the citizen.

2) The criteria for whether the weapon was protected was spelled out as having military utility. Not hunting, not fishing... military use.

3) Neither Miller nor an advocate were present for the case; there was no opportunity to present evidence for the military utility of the weapon.

4) The SC appeal was made by the government; Miller had the charges successfully dismissed on challenge as violating the 2nd Amendment by all lower courts.

5) The SC did not *reverse*; they sent the case back to the lower court to gather evidence on the military utility of the weapon. The trial never continued (Miller was missing or dead). As such, Miller was never tried or convicted. Had he been tried, he would have had the opportunity to introduce evidence before the court that a sawed-off shotgun was a weapon with military (ie, militia) utility, based on WWI "trench brooms" and similar such usages.

I've always been a little curious why the other side likes to cite Miller. It's like they aren't looking at anything about the case other than the outcome. But then, that's typical of the left, isn't it?

Posted on 2002-12-11 12:46:10.0 by matthew@triggerfinger.org

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