I don't agree with this line of analysis regarding Miller (fallback position etc.). As the court said in its decision, Miller's action (carrying a sawed-off shotgun across state lines) was not protected under the Second Amendment because there was no evidence that his action "has some reasonable relationship to the preservation or efficiency of a well regulated militia." The Supreme Court did agree with the government's arguments, as per the Miller decision. I critique the argument you cite here (arising from the Emerson case) in an article I published in the St. John's Law Review, vol. 77, No. 1, Winter 2003, pp. 1-27. Bob Spitzer
Robert J. Spitzer, Ph.D. Distinguished Service Professor Political Science Department SUNY Cortland Box 2000 Cortland, NY 13045 voice: 607-753-4106 FAX: 607-753-5760 [EMAIL PROTECTED] <http://www.cortland.edu/polsci/home.html> -----Original Message----- From: Peter Boucher [mailto:[EMAIL PROTECTED] Sent: Friday, October 17, 2003 1:02 PM To: [EMAIL PROTECTED] Subject: Re: reinsert eyeballs 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?
