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Posted: 6/16/2001 2:44:31 AM EST
I was reading the US v. Miller case as I occasionally do, and came across a reference to the case Presser v. Illinois. This is a Supreme Court case in which Presser and 400 men marched in Chicago in 1886. He was arrested for violating a State law that prevents armed parades without consent of the Governor. The SC affirmed the Illinois SC decisiom that the convition should stand. Generally this case is quotes as being in the negative for gun rights, however as I actually read it there was a statement that the Supreme Court made that basically said states CAN'T restrict firearm ownership! Read it below. [b]It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.[/b]
Link Posted: 6/16/2001 6:15:10 AM EST
[Last Edit: 6/16/2001 6:12:58 AM EST by shaggy]
First off, I haven't read Presser, but by looking at the 1886 date, I think I can answer this one without going that far. Certain rights enumerated in the BoR are applicable to the states because they have been held incorporated through the 14th Amendment. Its a process known as [i]selective incorporation[/i]. That is, only certain rights are applicable to the states; others aren't. Not that the ones that aren't can/will never be, but the Supreme Court will only do it one by one, as each issue is presented to them. This process of incorporation developed in the in the early 20th century after Presser. I can't remember the name of the case offhand, but Justice Black argued for total incorporation (that is, ALL rights in the BoR would be applicable to the states) while Justice Cardozo and the majority argued for selective incorporation. Unfortunately Black lost. Since then, the 2nd Amendment has never been held incorporated, so the states are free to regulate and prohibit firearms as they see fit.
Link Posted: 6/16/2001 6:47:11 AM EST
It is interesting to note that the 'other' side likes to quote from this case, but it contains pro individual right to firearm ownership. Is there another case that 'overides' this claim made by the SCOTUS?
Link Posted: 6/16/2001 7:48:06 AM EST
It sounds as though that statement is simply dicta. None of these old cases are very clear. "the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, [b]so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.[/b]" That almost sounds as though the only reason people have a right to arms is to be a resource for the gov. This sounds more like a collective right than an individual right. Shaggy is correct, the 2d has not yet been incorporated as to apply to the states.
Link Posted: 6/16/2001 8:42:21 AM EST
This position is entirely consistent with the Miller decision [b]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. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.[/b] As you can see the court viewed the 2nd Amendment to mean that private ownership of firearms was protected only to the extent of the preservation of the Militia. Miller did make clear WHO the Militia was which I think is also important. The most important error the court made is to fail to realize that ANY firearm has some Military significance. I mean, how many single shot pistols -Junk Guns ;) - did our gov't make during WWII to distributed to the people in France?? Most today would state that a single shot pistol would be useless; however, in a guerilla type war such an instrument would be invaluable.
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