David Hardy wrote:
[Clayton:]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.
I like to class cases of that type as a hybrid... individual right, but only for militia arms. Not really militia purpose, but a militia arm. (I guess we could use the broadest definition of militia and say owning a militia arm is a militia purpose by definition, but that really means militia purpose is redundant. The core question is the type of arm.
(Thought just popped into head: why is type of arm relevant? If practice in shooting = sufficient nexus to militia, why isn't shooting anything sufficient? Shooting skills are largely interchangable. And almost anything, including brass knucks and arkansas toothpicks, have been used in war and may be in the future. The core idea of the hybrid cases is that the court can allow outlawing of certain weapons while not countenancing outlawing of them all. Well, the law is not logic but experience, I suppose. Which can cover a multitude of judicial sins.)
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.
Yup. Might be worthwhile going back to the gov't briefs. They almost certainly would have ignored that issue, but I'm wondering about the relationship between authorities cited in brief and those cited in opinion. Did the opinion's author do additional research on his own, and is there any pattern to what he found? Or did he just look up the gov't's authorities?
Always wondered why the opinion didn't go off on the fact that the NFA is an excise tax, not a prohibition. Today there would be a big problem with that approach, in that the law on taxing or charging for permits for exercise of a right is rather developed, and would likely rule out what was then a 100% excise tax (the $200 was chosen because that was the going rate for a new Thompson subgun). But in 1939?
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.
Could have been -- altho that any such mention would probably have had McReynolds as dissenter rather than opinion author! From what I understand he *loathed* FDR with a passion, refusing even to attend any function where FDR would be present. --
