TOPICS:
HenryTMensch
New York, NY
December 2004
MAR 24, 2005 04:30 PM
Guildenstern said:
HenryTMensch said:
In other words, the Second Amendment does not even apply to certain firearms in particular, absent a specific, technical showing that the firearm in question is related to militia use. The second amendment simply DOES NOT APPLY ("we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument."
. Therefore, there is no second amendment restriction to putting a tax on it, regulating it, or banning it. If the second amendment doesn't guarantee the right to keep and bear such an instrument, how can the second amendment bar banning it?
Riddle me that.
What you are missing, and you do seem to miss the a lot of the fin point in your ham-fisted treatment of the law, is that there is a barrel length and overall length of the firearm clause.
If I missed it, then the Circuit Courts missed it too:
United States v. Rybar, 103 F.3d 273 (3rd Cir. Ct. of Apps. 1996)
In fact, the Miller Court assigned no special importance to the character of the weapon itself, but instead demanded a reasonable relationship between its "possession or use" and militia-related activity.
United States v. Hager, 22 Fed. Appx. 130 (4th Cir. Ct. of Apps. 2001):
We previously have held that the Second Amendment does not create an absolute individual right to bear arms, but "only confers a collective right of keeping and bearing arms which must bear a 'reasonable relationship to the preservation or efficiency of a well regulated militia.'"
United States v. Metcalf, 2000 U.S. App. LEXIS 15752 (6th Cir. Ct. of Apps. 2000)
Metcalf steadfastly maintains in his third claim that the Second Amendment protects his right to keep an arsenal of destructive weapons and other firepower that is otherwise expressly prohibited by statute. This is simply not the law.
In [United States v. Miller, 307 U.S. 174, 83 L. Ed. 1206, 59 S. Ct. 816 (1939)] the Supreme Court did not reach the question of the extent to which a weapon which is "part of the ordinary military equipment" or whose "use could contribute to the common defense" may be regulated. In holding that the absence of evidence placing the weapon involved in the charges against Miller in one of these categories precluded the trial court from quashing the indictment on Second Amendment grounds, the Court did not hold the converse--that the Second Amendment is an absolute prohibition against all regulation of the manufacture, transfer and possession of any instrument capable of being used in military action.
United States v. Warin, 530 F.2d 103, 106 (6th Cir. 1976).
Quilici v. Morton Grove, 695 F.2d 261 (7th Cir. Ct. of Apps. 1982)
The second amendment provides 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." U.S. Const. amend. II. Construing this language according to its plain meaning, it seems clear that the right to bear arms is inextricably connected to the preservation of a militia. This is precisely the manner in which the Supreme Court interpreted the second amendment in United States v. Miller, 307 U.S. 174, 83 L. Ed. 1206, 59 S. Ct. 816 (1939), the only Supreme Court case specifically addressing that amendment's scope. There the Court held that the right to keep and bear arms extends only to those arms which are necessary to maintain a well regulated militia.
Under the controlling authority of Miller we conclude that the right to keep and bear handguns is not guaranteed by the second amendment.
United States v. Hale, 978 F.2d 1016 (8th Cir. Ct. of Apps. 1992)
The rule emerging from Miller is that, absent a showing that the possession of a certain weapon has "some reasonable relationship to the preservation or efficiency of a well-regulated militia," the Second Amendment does not guarantee the right to possess the weapon.
Since the Miller decision, no federal court has found any individual's possession of a military weapon to be "reasonably related to a well regulated militia."
Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. Ct. of Apps. 2002)
As a result of its phrasing of its holding in the negative, however, the Miller Court's opinion stands only for the proposition that the possession of certain weapons is not protected, and offers little guidance as to what rights the Second Amendment does protect.
The only post-Miller reference by the Supreme Court to the scope of the amendment occurred in Lewis v. United States,
in which the Court noted, in a footnote dismissing a Second Amendment challenge to a felon-in-possession conviction, that the federal gun control laws at issue did not "trench upon any constitutionally protected liberties," citing Miller in support of this observation. In that footnote, [the Supreme Court in] Lewis characterized the Miller holding as follows: "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. (quoting Miller, 307 U.S. at 178).
(emphasis added throughout)
All of these Circuit Courts, as well as the Supreme Court in Lewis, have characterized Miller in exactly the same way I have. i.e. Miller says that if you can't show a "reasonable relationship to the preservation or efficiency of a well-regulated militia" the second amendment does NOT APPLY to the firearm in question. If I'm ham-fisted, so is the bulk of the federal judiciary.
[Edited on Mar 24, 2005 by HenryTMensch]
HenryTMensch
New York, NY
December 2004
MAR 24, 2005 04:00 PM