Thanks!
"Firearms may be privately owned, but again
Second-Amendment-applicable only in the context of militia service,
remembering that, in the colonial and early federal eras (when the old
militia system was still in operation), the government in fact often
relied on citizens who were militia-eligible to supply their own weapons
(regardless of whether actual weapons ownership was common or scarce)."
Could you please clarify what "only in the context of militia
service" means?
Does it mean, as the government primarily argued in U.S. v. Miller
that
"... the right secured by that Amendment to the people to keep and
bear arms is not one which may be utilized for private purposes but only
one which exists where the arms are borne in the militia or some other
military organization provided for by law and intended for the
protection of the state. ..."
You have indicated that the government's fall-back position in
Miller (the one the Court actually went with) is a mistake.
"... While some courts have said that the right to bear arms
includes the right of the individual to have them for the protection of
his person and property as well as the right of the people to bear arms
collectively (People v. Brown, 53 Mich. 537; State v. Duke, 42 Tex.
455), the cases are unanimous in holding that the term "arms" as used in
constitutional provisions refers only to those weapons which are
ordinarily used for military or public defense purposes and does not
relate to those weapons which are commonly used by criminals. Thus in
Aymette v. State, supra, it was said (p. 158): ..."
Note that the Court cited this same page in Aymette (p. 158) in
their holding, indicating that what they were doing was accepting the
government's fall-back position, which you consider to be a mistake.
"... 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, 2 Humphreys (Tenn.)
154, 158. ..."
Why didn't the Supreme Court accept the government's primary
argument and rule that Jack Miller, who was not serving in any lawfully
organized militia, had no standing to raise a Second Amendment case, if
that was correct?
Why did the Supreme Court accept the government's fall-back argument
and remand the case back to the trial court to hear evidence on the
question of whether or not "...this weapon is any part of the ordinary
military equipment or that its use could contribute to the common
defense...", if that was a not correct?
