Miller does no such thing. The Supremes handed the case back to the trial court, saying that they wouldn’t make decisions about Miller’s right to own a short-barrelled shotgun in the absence of evidence that the gun either did or did not serve the interests of the militia. That’s all.
As for your cases:
Warin - misreads Miller, court states that Miller requires that the defendant show that he personally (NOT his weapon) has some relationship with the militia. The misread here is so bad that I’d say the entire case is based on a flawed premise.
Stevens - one sentence devoted to the second amendment. The court cites Miller for the proposition that Amendment Number Two “applies only to the right of the State to maintain a militia and not to the individual’s right to bear arms.” That’s it. Problem is, Miller doesn’t say that.
Hickman v. Block is a modern, rather bizarre case involving a person suing everyone under the sun because his concealed-carry permit application was denied (by California, no surprise). Once again, the court misreads Miller, saying of its holding that: “the Court found that the right to keep and bear arms is meant solely to protect the right of the states to keep and maintain armed militia.” Wrong, wrong, wrong.
Love v. Peppersack also cites Miller for the proposition that the Second Amendment preserves a “collective right”. Show me where Miller uses the words “collective right”. Hell, show me where Miller uses the concept of “collective right”.
Your ignorance of the law is practically glowing, Max. Let’s take these one at a time. First, what the Supreme Court held in Miller
Bullshit. Complete and utter cattle excrement. Read the fucking case.
The Court reversed the district court’s ruling that Miller could not be prosecuted under the National Firearms Act because it violated the Second Amendment. The Court unambiguously held:
In other words, a gun must be suitable for militia use to receive any Second Amendment protection, precisely as I said above. The Court did not decide whether Miller’s sawed-off shotgun was such a weapon because that’s apparently a fact question outside of the Supreme Court’s appellate jurisdiction. Nevertheless, the Court indisputably established exactly what I said above: if it ain’t fit for militia use, it ain’t protected by the Second Amendment.
It ought to be bloody well obvious to anyone with more than three functioning brain cells that the Court reached that holding because it was giving effect to the “well-regulated militia” clause of the amendment. But just anyone is so afflicted, I’ll quote the paragraph of the opinion that explicitly states that the militia clause substantively restricts the right to bear arms:
Now let’s move to your criticism of the circuit courts. You argue that the courts misread Miller. You say they cite it for the proposition that the Second Amendment confers only a collective right, when in fact Miller is silent on the collective vs. individual rights controversy.
So. Fucking. What?
It would not matter one bit if the courts of appeals cited Green Eggs and Ham in holding as they did. It would not matter if they read it in a bowl of alphabet soup. It would not matter if they cited nothing at all in support of the holding that the Second Amendment confers only a collective right.
They held it. And that makes it the law.
Oh sure, you disagree, you think the courts fucked it up, you think it was really intended to be an individual right. That’s fine with me. But do not, even for a moment, pretend that your opinion is the law. It is not.
Um, perhaps I’m missing something here. When have I waxed on about the law?
For the record, you’re correct: I could care less what the law says about my inalienable rights. (Key word there, of course, is “inalienable.”) I’ll speak my mind, practice my religion, and bear my arms – without any regard for the “law.”
So am I an anarchists? Certainly not. As is expected of any upstanding and responsible citizen, I am law-abiding when it comes to the privileges granted me (e.g. speed limits). In fact, I am probably law-abiding 99% of the time. It’s just those (few) laws that directly limit my inalienable rights that I choose to ignore. I do it out of duty.
Abiding by laws that limit inalienable rights, or are otherwise unConstitutional, is treasonous in my book.
Sorry, my error. I should have remembered you’re the one who doesn’t care about the law. Be sure and inform the FBI and ATF of that position if you have the time, 'kay?
I’m gonna start off with a brief editorial, citing a few examples if I may:
That should do for a representative sample. Anyway: minty, you’ve been nothing but insulting, condescending, and arrogant from page one in this thread. No one apart from yourself has posted anything remotely on a par with the above in this thread. I realize that being in the Pit, a person can expect to get away with all kinds of crap. But if you want to make your point heard, you might want to pretend to be a civil human being while making it.
I’ve read it. Many, many times. I’ve read commentaries, analyses, law review articles, editorials, you name it, on the decision. Get over yourself.
Look at the language again. Your “in other words” guts the actual words. Saying “in the absence of evidence, we can’t say that it’s protected” is not the same thing as saying, “there must be evidence, or it’s not protected.”
It most certainly does matter if they cite precedent for proposition A when in fact that precedent does not support A but B. Or do you suggest we throw stare decisis out the window?
Sadly, until they are corrected, this is true.
I never did anything of the sort. Don’t put words in my mouth.
I’m just a trifle confused here. I read many complaints about how minty green is being rude and condescending when he posts his research on 2nd Amendment law, and yet Crafter_Man goes on and on about how he doesn’t give a shit about the law at all when it comes to his guns. I would have thought that all of the people here who think that the law supports their right to keep and bear arms would be jumping down his throat. How outrageous does a gun-rights activist have to be before you stand up and say,“This nutcase is exactly what is holding us back, and just standing back and mumbling that it isn’t our opinion to ourselves just isn’t good enough anymore!”
Yeah, I know. Crafter_Man has a right to his opinions. So does minty green. Why in the hell are you arguing with the one would follow the law, probably even if it ruled in your favor, instead of the one who is giving you one hell of a black eye?
I refuse to believe that. There are many people here who are law-abiding, intelligent and believe that the have a right to keep arms. They are willing to work through the system.
Bite me. The name calling started when Tedster stupidly asserted that “any damn fool” knows the Second Amendment was intended to allow citizens to defend themselves from criminals. I am not a damn fool, Tedster was 100% wrong, and I reacted accordingly. Then Crafter_Man chimed in with his bullshit assertion that the English language didn’t mean the same back then as it does now. When I corrected him–and I really did look at a couple dictionaries before posting that response–he repeated it in an extremely condescending and willfully ignorant manner. So I called him for the idiot he was being. Basically, I stand by every insult I’ve posted here, plus the recommendation that if someone is delusional enough to go tramping around the fields playing pretend soldier, that person is in need of psychiatric help. That shit’s whacked out, man.
WTF? The Court required evidence that the gun was of a type suitable for militia use to support the trial court’s ruling that it was protected by the Second Amendment. There must be such evidence or it will not be protected. Where’s the disconnect?
No, that’s your position. But the circuit court cases are NOT contrary to Miller, because Miller is silent on the collective versus individual rights problem. It is equally consistent with either position. But it also undeniably gives substantive weight to the militia clause, which is also what the subsequent circuit court decisions have done. Yes, they went beyond Miller, even though they are building off of it. That in no conceivable way violates stare decisis.
Great. As long as you recognize what the law actually is, then we are in complete agreement.
I recognize that the circuits are in conflict with the Emerson decision, and thank God for that; maybe now the Supremes will finally tell us what the Second really means. And I have an idea about which way they’ll lean…
I’ll “work with the system” as long as it’s constitutional. But if it’s not, then all bets are off.
Czarcasm, you seem to be implying that I’m an out-of-control renegade with no respect for the law. As stated above, I conduct my day-to-day life in a normal, lawful, and rather boring manner. But no one has an obligation to follow unconstitutional laws. Not me, not you, not anyone! (Thomas Jefferson and I are in complete agreement on this topic, in case you’re wondering.)
Rosa Parks refused to give up her bus seat to a white person in 1955. By refusing to do so, she broke the (gasp!) law. So would you have chastised her for breaking the law, Czarcasm? I suspect so.
Now let’s pretend you were living in 1776 Boston. The redcoats are going door-to-door confiscating weapons. Would you have given them your weapons, Czarcasm? After all, it was the law. I suspect you would have dutifully handed them over. “Here’s my Brown Bess rifle, sire.”
Would have you fought the British? I would guess not. Because rebelling against the Crown was unlawful.
In conflict with dicta? That’s not usually a good reason to grant cert. The petition, however, is still pending.
And here is the Solicitor General’s opposition, filed last Monday. This is what they have to say on Emerson’s Second Amendment defense (emphasis added):
Translation: “The law is what I say it is. And I reserve the right to kill everyone who attempts to enforce a contrary interpretation.”
Truly, one of the great days in American history was when Rosa Parks pulled that .45 out of her purse and shot that bus driver through the forehead. Just think, without an unfettered right to bear arms, the civil rights movement might never have succeeded!
Sorry folks, I’ve been away since I posted here last. It looks like I’ve missed nothing but a bunch of infuriating rancor anyway. No big loss. I do, however, have one final thing to say, though I doubt anyone’s listening.
Just assuming for the moment, minty’s correct and the U.S. Constitution acknowledges only a collective right to arms, and then only when used to overthrow a government run amok, there remains an individual right to gun ownership, for any legitimate purpose; the regulation of which devolves upon the several states.
Here’s the pertinent amendment from the Constitution of the State of Ohio:
Many state constitutions have similar wording; some are even more explicit regarding the use of arms for personal security. And as you can see, as a resident of the State of Ohio, “people” may own arms for “security” purposes.
Did I say anything to the contrary? Like I told you two pages ago:
Keep in mind, however, that federal law trumps state law. If federal law says you can’t have a particular weapon, it won’t matter one bit that your state constitution says you can.
One can, of course, bear a firearm without ever drawing it, let alone firing it, but what’s intellectual honesty when there’s room for some polemic?
I believe Crafter-Man’s point was that it would be legitimate civil disobedience for him to carry a firearm on his person in the face of (in his perception) an unjust anti-gun law just as it was legitimate civil disobedience for Rosa Parks, et al. to do what they did.
Sorry again folks. I guess the above isn’t the last thing I have to say here. Further reflection has lead me to a couple other items I can’t seem to let go of.
Okay, smartass, granting your (or whomever’s you’ve paraphrased from) conclusion again for the moment, I’ve posted a list of firearms I possess over in another thread at one time. You tell me which of those have no military use. Please provide a single example of an “arm,” any arm, that has no military value.
And this, from your own cite, seems to refute your basic assertion that the U.S. Appeals Courts have consistently stated the 2nd amendment grants only a collective right. I think you’ve tripped over your own obfuscation, minty.
Right. And as I said, this still leaves me the right to own arms without prior restrtictions on purpose. Or at least it does by your contention that federal law is mute on private ownership.
Also, you’ve made the flawed assertion that the Bill of Rights actually grants rights to, I guess, individuals, as well as groups. This is a complete and utter misunderstanding of the purpose of that document, and in fact, the entire framework on which duly constituted laws rest. The government of the United States, and the documents upon which it relies for the authority to operate, does not grant rights to the citizens. You know this very well. Again, you misrepresent the situation. I find you method of argument in this thread to be disingenuous at best; at worst, you are simply lying.
pldennison, civil disobedience requires that the actor openly and publicly break the law and accept the legal consequences of his or her actions. See, e.g., Thoreau, Gandhi, and King. End result: Crafter_Man goes to jail. I’m okay with that, but I doubt he is.
Uncle Beer, whether a firearm is suitable for militia use is a fact question for either the trial court or the jury (Miller is unclear on who makes that determination). I am neither. But the thing is, according to the Supreme Court, the gun owner have to prove that the gun is suitable for militia use, or the Second Amendment will have no effect. Gotta love that burden of proof.
As for the circuit split, the question is not whether the circuits “disagree” on the individual vs. collective rights issue. The question is whether their holdings are in conflict. Because the Fifth Circuit in Emerson only addressed the individual/collective controversy in dicta–again, see Judge Parker’s excellent concurring opinion in that case–there is no conflict in the holdings of the various circuits. The Supreme Court might take the case, but I doubt it. If they’re interested in the question, they’ll almost certainly wait until a case in which the outcome actually depends on whether the Second Am. is a collective or individual right.
