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Posted: 10/18/2001 6:52:33 AM EDT
[b]Maybe Emerson is a windfall[/b] [url]http://www.calnra.org/miller_refuted.html[/url] 17 October, 2001 - I've received a number of emails from folks saying that the Emerson case did not refute the 1939 Supreme Court case of U.S. v. Miller as I stated in my Emerson analysis of 16 October. A number of you said the Miller case wasn't wrong, just interpreted wrong in follow on cases. In some respects it has been interpreted incorrectly, but that's what lawyers are supposed to do. They take the most flimsy of evidence and wrap it in toilet paper to make it look like a Christmas gift. If a case is so ambiguous that it is repeatedly used as an example in which to deny civil rights, the case is bogus in its argument by the government, the defendant's attorney and the Supreme Court Justices who judged the case. I believe U.S. v. Miller was such a case. The court made a ruling that for the last 60 years has confused, befuddled, and muddied the Second Amendment rights issue. The facts are, the case was lousy and the the attorney in the lower court arguing on behalf of Miller should have had his head examined when he decided the Second Amendment was a "militia" case. Miller's attorney(s) framed their argument that if they proved that the U.S. military used the firearm, then he (Miller) would not be guilty of a federal firearms charge because as a citizen from which the "militia" is derived, he is allowed under the Second Amendment to own weapons used by the military. Here's what the Justices said in the Miller case: 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 Justices in the Miller case didn't bother to do their homework. They were sleeping on the job and took the easy road and their ruling has caused nothing but headaches for Second Amendment rights since. They just said there is no evidence presented and they went back to sleep. Great job!! The judges ruling on Emerson could have easily taken the route that the Supreme Court did some sixty years earlier. They could have simply ruled that Emerson's Second Amendment rights were not violated for the very same reason they stated in their ruling and ignore the meaning of the Second Amendment. Instead, they did their homework and took a courageous stand by going well above the call of duty by providing a definition of the Second Amendment that will be used in future court cases for decades to come. They didn't have to do it. But they did and I salute them! They may have very well set the stage for challenging not only existing laws, but the poor souls who end up being prosecuted for owning certain firearms.
Link Posted: 10/18/2001 6:53:11 AM EDT
- cont - The judges ruling on the Emerson case refuted the Miller case in its entirety by saying very clearly that NO AMERICAN is required to be part of an organized militia to own firearms or prove that a firearm is used by any militia, organized or otherwise to justify firearms ownership. That's why the Emerson case refutes Miller in its entirety. The Justices in the Miller case expected Miller's attorney to prove that his weapon was used by the organized militia. It was not proven by no fault of Miller or his attorney. Miller just kicked the bucket a couple of years prior to his case reaching the Supreme Court. Why bother? As such, America was left with a poorly written interpretation of the Second Amendment. One I wish would just go away.
Link Posted: 10/18/2001 8:43:00 AM EDT
I respectfully disagree. [i]Emerson[/i] does NOT refute [i]Miller[/i], it merely points out that [i]Miller[/i] has been misused as precedent for decades. The relevant pasages are:
We conclude that Miller does not support the government's collective rights or sophisticated collective rights approach to the Second Amendment. Indeed, to the extent that Miller sheds light on the matter it cuts against the government's position. Nor does the government cite any other authority binding on this panel which mandates acceptance of its position in this respect. However, we do not proceed on the assumption that Miller actually accepted an individual rights, as opposed to a collective or sophisticated collective rights, interpretation of the Second Amendment. Thus, Miller itself does not resolve that issue. We turn, therefore, to an analysis of history and wording of the Second Amendment for guidance. In undertaking this analysis, we are mindful that almost all of our sister circuits have rejected any individual rights view of the Second Amendment. However, it respectfully appears to us that all or almost all of these opinions seem to have done so either on the erroneous assumption that Miller resolved that issue or without sufficient articulated examination of the history and text of the Second Amendment.
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and
We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, [red]consistent with Miller[/red], that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons and are [red]not of the general kind or type excluded by Miller[/red]. However, because of our holding that section 922(g)(8), as applied to Emerson, does not infringe his individual rights under the Second Amendment we will not now further elaborate as to the exact scope of all Second Amendment rights.
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Link Posted: 10/18/2001 8:48:02 AM EDT
You'll note that the 5th Circuit adroitly dodged the question of whether fully-automatic and selective fire weapons which are now "usually employed in civilized warfare, and that constitute [red]the ordinary military equipment[/red] are now protected under the Second Amendment. That's why they declined to "further elaborate as to the exact scope of all Second Amendment rights", I'm sure.
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