More Media Gun Lies
This article about the NRA opposing the assault weapons ban contains this quote:
The NRA’s unyielding opposition to laws regulating firearms is based on the oft-heard claim that such laws violate the Second Amendment. This claim has absolutely no legal basis, however. The U.S. Supreme Court addressed the meaning of the Second Amendment 65 years ago in United States vs. Miller (1939). In that case, the court held that the “obvious purpose” of the amendment was to “assure the continuation and render possible the effectiveness of” the state militia. Since that time, nearly 200 appellate courts have considered Second Amendment challenges to gun laws. Not one of those challenges has been successful. Nonetheless, the NRA relentlessly argues that gun ownership is an individual constitutional “right.”
Obvious purpose? Go to the text of US v. Miller and you get:
With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made.
Miller also states:
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.
And the United States Code tells us that:
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are –
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia
And the misleading assertion that 200 cases have challenged gun laws have not been successful may be on the surface true. But many of those cases have stated that there is an individual right to arms. Such as, US v. Emerson. Even the Emerson case concludes that Miller is unclear.
Despite what Juliet Leftwich thinks, we the people are the militia and we can own military weapons.
March 8th, 2004 at 3:30 pm
Not to argue with your broader point, but your citation to 10 USC 311 doesn’t really add anything to your claims about the meaning of the 2nd Amendment. How can a statutory definition of “militia” bear on its use in the Constitution? If you think it has some weight, did we change the meaning of the 2nd Amendment (i.e. amend the Constiutution) by amending 10 USC 311 in the 1950’s and in 1993?
March 8th, 2004 at 3:35 pm
The point is:
assuming there are two schools of thought on the second: individual vs. collective rights (for a long review, go here http://www.guncite.com/journals/reycrit.html)
Even if you buy the collective rights argument (which requires creation science, i.e., developing your conclusion and working back to get the results you want) that the right applies to the militia, then it is important to know who the militia is.
March 8th, 2004 at 4:29 pm
Agreed that it is important to define “militia” to understand the 2nd Amendment. There is a decent amount of historical scholarship that supports the view offered in 10 USC 311. The statute itself, though, doesn’t add anything to attempts to define “militia” as used in the Constitution.
March 9th, 2004 at 3:33 pm
It is also important to note that Miller’s lawyer never got to argue his case before the SCOTUS, and that the US military has in fact used short barrelled shotguns in specialized applications.
SCOTUS ruled twice during the 1990’s, in 4th Amendment cases, that “the right of the people” applies consistantly to individuals across the Bill of Rights.