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Edited on Sun Jun-29-08 01:50 AM by happyslug
The reason Miller did not appear is by the time of the Supreme Court Case he was dead, killed in shoot out with other criminals (Miller was NOT an upstanding citizen).
The Second problem was the nature of the Appeal. Miller had been arrested for having an illegal sawed off shotgun. At his arraignment the Trial Judge ruled the National Firearms Act violated the Second Amendment and given that situation even if the Prosecutors could PROVE everything they would still lose do to the Second Amendment. It is from that decision the Federal Government Appealed.
Notice, the Judge had to assume the Government would PROVE everything at trial. On Appeal that remained the rule of law on appeal, the Justices had to accept as true all of the facts alleged by the Government. Given this rule of law, The Justices was restricted as the what they could do. The Justices basically ruled that it was an issue of fact reserved to a Jury to decide if a Sawed off Shotgun was a "Militia" Weapon, NOT an issue of law up to the Judge to decide. The Court remanded the Case to the Trial Judge to hold a Trial where one of the issue would be was the weapon a "Militia" weapon (No trial was ever held, Miller was long dead and buried even before the US Supreme Court Decision).
As to Heller, I do NOT know which is worse, the Majority decision or the Dissent. I disagree with both. Both ignores the history of the American Militia during the French and Indian War (1754-1763) and the American Revolution (1775-1783). Pennsylvania was the only Colony prior to 1754 that did NOT have a Militia. When the French and Indian war broke out the Pennsylvania was on the front line, but the Quakers, who controlled the Colony, refused to from a Militia. Ben Franklin, then told the frontiersmen to from their own Associations to protect themselves. In the late 1750s after the Quakers lost control of Pennsylvania, the state formed it Militia based on these pre-existing Associations. This was the first problem the Second Amendment was designed to address, preservation of the ability to form their own militia if the state and Federal Government failed to do so.
The second problem came up during the Revolution itself, the need to ease supply. During the Revolution the US Militia used what ever they had, but the number one weapon was the .75 inch Brown Bess (or copies of it). When the French started to supply the US Army, the US Army standardized on the Weapon the French provided, the .69 inch weapon (This is the weapon mentioned in the 1792 Militia Act, through the term used is the number of lead bullets one can get from a pound of lead, NOT the actual caliber measurement).
When the Second was written, Congress did NOT want to interfere with with any issue of supply, thus the Militia Act of 1792 was written that people could form their own militia units IF THE STATE AND FEDERAL GOVERNMENT FAILED TO FORM THEM. Now the act mention only Free White Males, but by law that was NOT the limit of who served in Militia units. For Example from the Middle Ages till the late 1800s, by traditional law, every group of 20 men had a washer woman attached to that Group. Such Washer Women are NOT mentioned in the Militia Act of 1792, for Congress saw no need to Mentioned them (and Congress only mentioned them in the 1880s when Congress Outlawed Washer Woman, a law still on the books for any appeal of that Statute would mean the Common law rule would come into play and every 20 men in the US Army would be entitled to a washer woman). The Group of 20 was generally called a "Platoon" (Modern Platoons are larger, but pre-WWI Platoons averaged 20 men). Each Platoon had one Sargent and one washer woman (Who tended to be married to each other).
I go into the Concept of Washer Woman to show the Militia Act was NOT intended to be how units were to be formed. That was left up to the States. The Militia Act was to direct how each unit was to be armed and to make Militia Units as uniform as possible within the US. Section 1 of the Act only mention three weapons, a "Hanger" (A Sword carried by any Company Commander), a musket and a rifle. Pistols are mentioned further down in the Act when the Act Addresses Calvary, and then only as to horse mounted Calvary. The Musket and Rifle were the two weapons used in Infantry Regiments. Musket were to be of the type used by the US Army at that time, the Rifles could be any caliber (There was NO standard US Army Rifle at the time and would not be any till 1803, the first Standard US Army Rifles would be used on the Lewis and Clark Expedition of 1803-1804).
Today the Infantry Regiment is almost forgotten. During WWII most regiments were broken up into three Independent Battalions (and then joined back together as a Regimental Combat Team). In 1964 these three Battalions were joined together into a Brigade. At the time of the Revolution Regiments were formed into Brigades, but with the growth of the number of troops in Infantry Companies, Battalions and Regiments starting with WWI, Brigades and Regiments came to be about the same size and thus the terms are often interchangeable today. Most of the growth of these units reflect the introduction of new weapons into the previous all rifle regiments of pre-WWI (These include Machine Guns, Mortars, Anti-tank weapons, Anti-Aircraft Weapons etc). What this means is these new weapons are weapons in a modern Infantry unit and as such Militia weapons protected by the Second Amendment.
Notice Pistols are NOT mentioned (Except for the describing of Calvary). Now the "hanger" was replaced by the officer Pistol by the Civil War (and then rarely used do to the increase number of snipers who looked for such weapons when they try to kill the other sides officers). Thus under the Militia Act of 1792 these two purposes are the only true Military propose of a Pistol. Under the concept that a Pistol is the modern Equivalent of the "Hanger" pistols are "Militia Weapons" but only as a symbol of command. The Calvary pistol was to be used when the Cavalryman could NOT use another weapon DO TO BEING ON HORSEBACK. The Modern Equivalent of this is a modern soldier who do to the weapon he is operating, can NOT carry a Rifle, but needs a weapon of self-defense do to the nature of his primary weapon (The Classic case is the Modern Machine Gunner who do to the Nature of the Machine Gun may need a weapon to protect himself if attacked from a directions the Machine gun is NOT pointed, another example is a Pilot whose primary duty is to fly a plane, but if shot down can only carry a pistol).
This is why the Majority did NOT rely on the Militia Act of 1792, for it clearly shows Pistols can be restricted do to limited military usability compared to Rifles. In fact under the above the ban on Assault Weapons is clearly unconstitutional for it bans a clearly military usable weapon (The modern Equivalent of the 1792 Musket) but you can ban handguns on the grounds that assault rifles are clearly more useful militarily. Instead the Majority went with an argument many liberals have argued for years when it comes to the Death Penalty, that if a CLEAR majority wants or oppose something that is the law. The vast Majority of American jurisdiction ban the execution of Children, so the Court ruled it was Cruel and Unusual Punishment to put people to death for crimes they committed when under 18, the same rationale is used by the Majority here, the vast majority of US Jurisdiction permit the use of Pistols, thus the use of Pistols are protected by the Second Amendment. The carly part is Scalia OPPOSED the ban on the Death Penalty for crimes committed when one is under 18, but then uses a similar "popular" position when it comes to the Pistols and the Second Amendment. As a whole a bad decision and rationale by the Majority.
As to the dissent, they are as bad. They cite Washington complaint about the "Useless Militia" but then ignored the context of that position (Militia is good for defensive action, harassment, denying the enemy needed supplies, and doing needed field work, but lousy at offensive action, which Washington wanted to do and his lieutenants quickly learn NOT to do against a superior Enemy). The Dissent then ignores the existing law (The modern version of the Militia Act of 1792) which calls all citizens members of the Militia (Organized Militia if a member of the National Guard, Unorganized is NOT a Member) and the Militia Act of 1792 (Not even to mentioned that the term "Free White Male" as used in the Militia Act of 1792, had mean ALL males no matter their race since the passage of the Civil War Amendments to the Constitution). The Dissent wants the Second to apply ONLY to the National Guard, so Ben Franklin and Pennsylvania's history of the Associations is ignored for it clearly show the term Militia meant MORE than whatever the State of Federal Government have in the National Guard. I have less problem with the Dissent, but they reliance on the National Guard being the Militia is clearly without historical background (as clearly showed by Scalia in his Opinion). In fact Scalia seems to ATTACK the Dissent more then he supports his own side in his Majority opinion (Do more to the weakness of Scalia expansion of the Second to include Pistols while permitting the Government to ban other weapons, weapons of clearly greater Military usability). The Dissent is wrong, but so is the Majority. The Second protects Military Usable Weapons of a type used in Infantry Battalions (and I would include light Artillery), but safe Storage of such weapons is still a requirement (Safe Storage to make sure it does not go "boom" NOT that is would NOT be stolen, thus the ammunition must be stored in a place where it can NOT go off accidentally, even while you keep the Cannon in the Front Drive way).
One last comment: Atomic Weapons sometime comes up in discussion of the Second Amendment. It is NOT relevant for two reasons. The First is while the Government can NOT ban a Militia Weapon, the Government has NO obligation to sell such weapons. Given that only the US Government presently makes Atomic Bombs, the US Government can ban itself from selling them to anyone else.
The Second argument is the stronger Argument. While the Second prohibits the Government from making a simple ban on atomic weapons, the Government can require that the Weapon be stored is such a way to prevent harm to others (and if the Government does NOT, people can sue the holder of such weapons for the harm such radiation did to them, a right the Government can NOT even stop if the weapon is one held by the US Government itself).
In the case of a Cannon, Tank or Plane, storage and safety is simple, with out ammo all a cannon or tank is, is a piece of steel (Planes tend to be Aluminum but that all a plane is without Fuel or weapons). Thus a Cannon, tank or plane can be stored anywhere, even in your front yard.
On the other hand ammunition must be stored in a way to make sure no one can get hurt. Modern Small arms Ammunition will go off in a hot fire, but the bullets that are thus "Fired" will rarely have enough power behind them to penetrate any box they are in let alone anything else (In Extreme fire this is NOT as true, but in most fires ammunition is NOT a problem). Cannon Shells are a different matter, they can knock down a house, thus a higher level of care can be required of them (And even more for the Fuses, which are even quicker to go off and do damage). Such ammunition must be stored safely and the Government can require reasonable storage of such ammunition even if the effect will be a ban on holding such ammunition. Notice the issue is NOT possession but Safety.
This rule comes even more into play if we look into the storage of Atomic Weapons. The Government can require that such weapons be stored so that the radiation from the Warhead being kept in storage does NOT hurt anyone else (and if you have the money for such storage you have the money to lobby congress for an exception to any ban on ownership, the lobby effort would be cheap compared to the construction for the building to contain the Radiation).
Thus my point, if someone wants an Atomic Bomb and has the money to build what is needed to store such a weapon, he has more than enough money to lobby Congress for a exception to any law banning ownership (unlike the protection for Cannon Ammunition, which would be cheaper then lobbying Congress). Thus my point, if the issue of Atomic Bombs come up, it is a moot point. If you have money to buy and store an Atomic Bomb, you have enough money to lobby congress for an exemption to any ban on such ownership. Thus Atomic Bombs are a straw man in any argument about the Second, if someone wants one (for what reason I do not know) he better have several million dollars to spend. If someone has that much money to waste on a Weapon of very limited military usability (It can destroy things, NOT take things or hold things) he will get it no matter what laws we pass. If he does NOT have that much money he will NOT get one.
A third argument would be the Military usability of Atomic Weapons, As I pointed out above, you can NOT hold something with an Atomic Bomb, you can NOT take something with an atomic bomb. An Atomic bomb is good for one thing, to destroy something. Given that the Militia's main role is to protect the Country an Atomic Bomb is of questionable value. Atomic bombs have had a questionable value since WWII, only two have been used, and those two was to destroy two cities NOT to take and hold those cities, nor to prevent them from falling into enemy hands.
Thus do to the fact the Government can require reasonable storage safety of any weapon even under the Second Amendment and such storage requirements for an atomic weapon is expensive (and the fact if not done the owner of the weapon can be sued for any harm such storage causes) no one will want an Atomic bomb (even if you run across someone who somehow justifies ownership of the weapon in question). Thus the Atomic Bomb is a straw man argument that can be ignored do the above.
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