[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.

- 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.

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:and

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.