Gun Control & RKBA

jimmy the one said:

You iterate the gun lobby song and dance to wiggle around the 1939 Miller decision, which was clear at the time in the vernacular of the day, the intention of 2ndA being for a well regulated militia not an individual right.

Miller sure doesn't say that explicitly nor does it even suggest that conclusion. Miller is all about "the instrument" not the man.

The Court's opinion was simply that because the the type of weapon at issue was not shown to be useful in war, it was not eligible for Second Amendment protection, not any decision hinging on whether private citizens possess a general right to arms under the 2nd Amendment. Miller speaks to the former and is silent on the latter.

Miller and Layton are inconsequential, their status under the Constitution was of no interest to the Court. The question before the Court was only whether Section II of the National Firearms Act was invalid as violative of the Second Amendment, thus the District Court erred in sustaining the demurrer of the appellees to the indictment.

Aymette answered that question for the Miller Court; it explained to the Court the criteria for determining if an arm is beyond the regulatory reach of government and that criteria was focused on one thing, the arm's usefulness in battle. The Court heard no evidence to that end, that a sawed-off shotgun was useful in war or the common defense, thus the Court reversed the District court's decision and remanded.

Your entire position is an imaginative over-reading.

jimmy the one said:

Not really, and your tap dance does not impress. It was a statement that, since Jack Miller was not part of a wrm, he could not claim 2ndA rkba.

Where is that statement made? When the Court references the §8 militia clauses and says, "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. It must be interpreted and applied with that end in view", that is a statement hearkening Aymette's explanation of the object of the Tennessee RKBA provisions:

Aymette v. State, 21 Tenn. (2 Hump.) 154 (1840) said:

"As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution."

The collective object, the overall intent of this provision, (and the Miller court feels, the 2nd Amendment), is the perpetuation of the general militia principle and that can not exist or be fulfilled, without the means to achieve it, the individual right to keep and bear arms.

From this language, it is easy to see why the Miller Court was guided by Aymette on the question of how a sawed-off shotgun should be treated. It is also important to note that the very same passage absolutely and undoubtedly endorses an individual right, rather than a state power.

Again, the people acting in a body, for their common defence is the [collective] object for which the (already existing and unquestioned) individual right to keep and bear arms is secured.

Every man has the right to keep arms of the type usually employed in civilized warfare, that constitute the ordinary military equipment. If the citizen has these arms in his hands he is able to immediately bear them, to either defend the civil authorities when called in time of need --OR-- to bear arms on concert with other citizens, to repel any encroachments upon his and his neighbors rights by those in authority.

Your position / argument that the collective object overrides or negates the individual right means to achieve the object, demonstrates willingness to accept a disconnect in philosophy and of logic and a great misunderstanding of the general (not select) militia principle.

It requires us to just conveniently ignore thousands of years of political thought (going back to Plato and Aristotle) and history, dismissing the foundational, basic principles of a Republic, which has, as Presser reminds us, a basic, unalterable tenet:

Presser v. Illinois, 116 U.S. 252 (1886):

"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, . . . "

It is ridiculous to argue the "right" to keep and bear arms is possessed only by those citizens enrolled in the militia . . . Nothing an enrolled militia member does while a militia member, from initially arming himself or then bearing the arm, is an exercise of any right. Those actions are entirely undertaken in obedience of law, a fulfillment of an obligation or duty, not an exercise of, or reliance on, a right or any claim of immunity from government power.

You are arguing nonsense.

Aymette continues on an important point:

"The legislature, therefore, have a right to prohibit the wearing, or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defence. The right to keep and bear arms for the common defence is a great political right. It respects the citizens on the one hand and the rulers on the other. And although this right must be inviolably preserved, yet, it does not follow that the legislature is prohibited altogether from passing laws regulating the manner in which these arms may be employed."

This is where the doctrine of "dangerous and unusual" comes from . . . Note that the particular point in law really means that only arms that are both dangerous AND not usual in civilized warfare is the criteria to allow government to argue for a power to restrict possession and use by private citizens, not that "dangerousness" or an arm being called unusual is something the government can begin it's arguments with -- see "assault weapons".


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