----- Original Message ----- From: "David T. Hardy" <[EMAIL PROTECTED]> To: <[EMAIL PROTECTED]> Sent: Sunday, October 19, 2003 8:16 AM Subject: [inbox] Re: Silveira and Roy Lucas
> I wonder if a better approach would be to treat Miller as just being > somewhat underinclusive, as might be expected with a case briefed > only by one side. That is, it emphasized what leaps into mind on a And even then, the government's brief picked highly atypical decisions. Much of the reasoning of Miller comes out of Aymette--a very atypical 19th century case--and even on this, Aymette recognized that the right was individual. The recent 9th Circuit decision on Silveira makes the same mistake--citing Aymette as a precedent, but failing to recognize that Aymette found that the right was individual (even if for a collective purpose), and that only military style weapons were protected. > facial skim of the Amendment ... collective defense, militia. That is > a big aspect, but the historical research of the last 20 years > indicates there was also a personal protection aspect, one emphasized > by Amar's 14th amendment research. So it's not a question of > rejecting Miller or accepting it, but rather of creating > "Miller-plus" standards. Agreed. One of the errors of Miller was to focus on militia purposes, and ignore the English tradition of a right to self-defense. Of course, if the objective of Miller was to uphold the federal law to show subservience to the Roosevelt Administration (to stop any more discussion of court-packing), then this wasn't a mistake, so much as a calculated effort to stay on FDR's good side.
