Much of the confusion arising from the Miller case seems to stem from not tracing the possible chains of alleged authority for the elements of the charge against Miller. Let's trace them backwards, but take advantage of some more recent legal doctrine to provide some hindsight. I will not here cast them into rigorous statements in the propositional calculus, but reduce them to ordinary, legalistic English, and omit cites at this point, since most of the precedents are probably well-known to this group.
1 - Miller was charged with a federal felony.
2 - The felony was based on possession of an "illegal" item.
3 - Private possession of an "illegal" item was considered "illegal" because it interfered with interstate commerce.
4 - A private action interfering with interstate commerce was considered to be a part of state regulation that interfered with interstate commerce(?)
5 - Making state interference with interstate commerce "illegal" was based on the pre-emptive power of congressional regulation of interstate commerce if state regulation conflicted with it, and the doctrine that such interference could be forbidden even if there was not congressional regulation enacted or enforced, the execution of which was being interfered with.
6 - The item was considered "illegal" because a $200 "transfer tax" had not been paid on it, making it a kind of "contraband".
7 - The authority to treat an item as "illegal" because a tax on it had not been paid was considered an implied power of the taxing power, even no such implied power had been asserted by Congress until the mid-19th century, and it was in conflict with the Doctrine of '98 (Jefferson).
8 - The authority to treat transport or possession of an "illegal" item a crime was considered an implied power of the power to regulate interstate commerce, even though no such implied power had been asserted by Congress until 1884, and it was in conflict with the Doctrine of '98 (Jefferson).
9 - It was then the established practice of the government to refuse to accept payment of the "transfer tax" on certain items, in this case, sawed-off shotguns, so that there was no way a violator could cure the violation by complying with the tax requirement, and attempting to pay would require disclosure of the violation, and subsequent arrest and prosecution.
10 - There was no remedy at law to compel acceptance of the tax, or to provide standing for someone to challenge the statute on constitutional grounds without having been personally injured or prosecuted under it.
But ...
11 - It is a longstanding principle that the exercise of a constitutional right is not subject to taxation or regulation in a way that imposes an "undue" burden on the exercise.
Given these links in the chains, what was the question that the SC justices had to decide? What they really did was focus on whether the item in question was taxable within the factual context of that case.
Now, if there is an organized entity, like a government or eleemosynary entity, that is tax-exempt, all of its purchases and activities may be treated as tax-exempt. However, if an activity is tax-exempt that can be done by private parties, and an item used for such activity may be taxable or tax-exempt depending not on who is using it, but how and for what it is being used, then the court must examine what kinds of activities make an item tax-exempt, even when done by private individuals not part of an organized tax-exempt activity.
To make the issue more clear, consider camouflage clothing. Can it be either taxable or tax-exempt, depending on how it is used? Yes. obviously, if the party using it is an official, tax-exemption can be presumed, but if a private individual, we must examine the way it is used, or the purpose for which it is used. It could be argued that camos are tax-exempt if used for militia training or operations, and taxable if used for recreation, such as hunting.
But suppose it is used for both purposes or activities, by the same individuals, at different times. How much tax-exempt usage is needed to make the purchase of the item entirely, or even partially, tax-exempt? Do we try to estimate the proportion of each kind of activity, and reduce the tax on the item in proportion to the proportion of use that is tax-exempt? Or do we adopt a threshold, and say if it exceeds that threshold, it is entirely tax-exempt? That would seem to be the most practical alternative, but where do we draw the line before the burden on the exercise of the right becomes "undue"?
The fundamental problem with militia, as an activity (and the term in Latin means an activity -- defense activity, which can be performed by lone individuals as well as by groups -- not an armed body), is that it can use almost any item under some scenarios. If we made everything tax-exempt that could ever be used for militia, the government couldn't tax anything.
This is where we get to the Court trying to find a connection to militia, not necessarily organized militia, but unorganized or individual as well. It didn't want to make it impossible to collect excise taxes on everything, so it sought a connection between militia and sawed-off shotguns.
Basically, they were looking for someone to provide evidence of militia use of sawed-off shotguns, which public policy at that point imagined could only be used for criminal purposes. All that was needed was to cite such use for sentry duty and trench warfare.
So any argument based on Miller must solve the problem above outlined, but should also examine the logical or nomological gaps between some of the chain links enumerated above.
-- Jon
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