interesting article on Miller V United States

[bossy22]

http://www.nyujll.org/articles/3-1/2_Frye.pdf

[MissMarple]

1. Looks interesting and....long. To sum up ....right to bear, can regulate, a lot of wiggle room.

Is that about it? Thanks for the post.

[bossy22]

2. sort of

it focuses on how Miller V United States- the last supreme court ruling on the 2A (before heller) was pretty much an awkward decision at best. It studies the events leading up to the decision and the decision itself. It also mentions how the collective rights nor the individual rights movement can use the case as a building block- since it is fundementally defecient in its definition of the 2A

[MissMarple]

3. So, either the collective rights side or the individual rights side could use it to...

counter the other side? Well, that's meaningful. This whole 2nd amendment thing makes my eyes cross. I think it has alway been a puzzlement. Perhaps that is the way it is supposed to work. That must drive the original intent people nuts.

[bossy22]

4. yeah

it was such an ambiguiously written decision that it is almost realistically useless as precedent- only except in a case which mimics miller to its entirety

[SteveM]

5. Keep in mind Miller was dead and his lawyer was a no-show at SCOTUS (nt)

[jody]

7. The article said Miller was not killed until after SCOTUS heard the case on March 30, 1939.

On March 30, 1939, seven justices of the Supreme Court heard oral argument in United States v. Miller. Chief Justice Hughes was ill,134 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.135 Two days later, Gutensohn finally received four copies of the government’s brief.136

The decision came quickly. On May 15, 1939, Justice James Clark McReynolds “drawled from the bench: ‘We construe the amendment as having relation to military service and we are unable to say that a sawed-off shotgun has any relation to the militia.’”137 The unanimous vote was 8-0, as Justice Douglas was recused.

F. POSTSCRIPT
In the meantime, Miller resurfaced. On April 3, 1939, Miller, Robert Drake “Major” Taylor, and an unidentified accomplice robbed the Route 66 Club, a Miami, Oklahoma dive.141 Armed with shotguns, they stole about $80, superficially wounding two bystanders in the process.142 Apparently, it was an inside job. Earl “Woodenfoot” Clanton, the uncle of notorious bank robbers Herman and Ed “Newt” Clanton, owned the bar.143 Taylor was a former associate of Newt Clanton’s, 144 and a peripheral member of the O’Malley Gang.145

#At about 9 a.m. on April 3, two or three men in a car picked up Miller at his home in Ketchum, Oklahoma.146 The next day, around noon, a farmhand named Fisher discovered Miller’s bullet ridden corpse on the bank of the “nearly dry” Little Spencer Creek, nine miles southwest of Chelsea, Oklahoma.147 Miller was shot four times with a .38, twice in the chest, once under the left arm, and once through the left arm. The .45 automatic next to him had been fired three times.148 On April 6, someone found Miller’s torched 1934 sedan off a dirt road in the Verdigris River bottoms, about four miles southeast of Nowata.149 It was stripped and still smoldering. A farmer said he saw it burning shortly before noon on April 3.150

[gorfle]

10. It's not hard.

3. So, either the collective rights side or the individual rights side could use it to...

counter the other side? Well, that's meaningful. This whole 2nd amendment thing makes my eyes cross. I think it has alway been a puzzlement. Perhaps that is the way it is supposed to work. That must drive the original intent people nuts.

It's really not hard to understand if you read some of the contemporary documents around the time of the forming of our nation, such as the Federalist Papers.

Our founders strove hard to make a new, representative government that would uphold liberty for the governed. But they feared that they might get it wrong, and, despite their efforts, a tyranny might once again take root and oppress The People. To prevent this, it was their intent that the central, Federal government have no standing army. Instead, the States were to have militias, made up of citizens of the states and led by officers from those states. The logic was no one state would collude to oppress another, nor could the Federal government get all the States to collude for any other immoral cause. The setup was, ultimately, an insurance against tyranny by depriving the Federal government the means to enforce one through force of arms. The militias were intended to either eliminate or at least counter Federal military power.

In 1903, with the passage of the Dick Act, the State militias were federalized, forming the National Guard. This was done ostensibly because the States had no uniform standard for maintaining their militias, and many had degenerated into little more than social clubs. This made it difficult for the Federal government to wield military force even in legitimate acts of war. Unfortunately, this had the side effect of turning the State militias from acting as a counterbalance to Federal military power to instead acting as an adjunct to it. From this point on, our National Guard has become a reserve to our Federal military forces, and no longer protects The People as the founders envisioned.

The second amendment 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 amendment indicates that well regulated militias are necessary to the security of a free State, and goes on to enumerate the right of the people to keep and bear arms and that that right shall not be infringed.

Clearly, the militias of our founders' era no longer exist. But the founders' vision and their fear of tyranny is as valid today as it ever was. Nothing is permanent. No construct of man can be. To believe that we have reached the pinnacle of civilization and representative government that will forevermore be beholden to the will of the governed may turn out to be folly, and this was the fear of our founders and why they intended for The People, through the militias, to retain the ability to resist oppression, by force of arms. Even if the militias of old no longer exist, the reasoning for having them still does. Thus the ability to resist oppression through the right to keep and bear arms must be retained by The People.

Fortunately, the Heller decision has gone a long way to supporting this view and codifying it in law.

[jody]

6. The last paragraph sums up an interesting history, see below.

But what does Miller tell us about the meaning of the Second Amendment? Maybe nothing. Some believe precedent cannot bind the Constitution of a sovereign people.236 Others believe the original meaning of a constitutional provision always trumps precedent.237 Still others believe in an instrumental Constitution, to which precedent supplies only the contingent value of stability.238 Nevertheless, faint-hearted originalists 239 and incrementalists 240 alike might find Miller useful, or even appealing. After all, it anticipates the status quo: federal, state, and local governments may reasonably regulate firearms, but may not prohibit them altogether. In other words, maybe McReynolds got it right, at least this once.

[bossy22]

8. an interesting paragraph also

"As the First Circuit recognized three years later in Cases
v. United States, “the rule of the Miller case . . . would seem to be
already outdated . . . because of the well known fact that in the socalled
‘Commando Units’ some sort of military use seems to have
been found for almost any modern lethal weapon,” including shortbarreled
shotguns"

[jody]

9. Agree, I've worked with such units and they are free to choose whatever arms they need. n/t