Wednesday, February 11, 2009

Miller Musings

Reader Gene, in the comments to this post:

an argument could be made that the 2nd amendment specificly protects arms most suitable for the militia.

And then reader Bob S.:
Most people miss that the Supreme Court said nearly the exact same thing in the Miller Decision.
They upheld Miller's conviction because, according to them, "in the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than 18 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"
So any instrument that has some reasonable relationship should be protected. I think shoulder launched missiles might fit that category, but I won't push for them (yet)

Yep, that's more or less the meat of it. The Miller decision mainly mentioned the militia suitability of certain arms, though the definition of "militia" was also touched on: "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."
Hey, the "in common use at the time" phrasing! Which only shows, once again, that the antis don't have a leg to stand on when calling for the banning of certain arms. As far as I remember the SC didn't say anything about the "militia" mentioned in the 2A being any kind of government-sanctioned body such as the National Guard, and neither did they say anything about the 2A only protecting a "collective" right to arms as the antis would have one believe. (And again, how are you going to have a "collective" without individuals? And does the 1A only protect the free speech rights of newspapers and other media organizations as opposed to, say, lone bloggers or just individuals?) So you could say the antis are again relying on disinformation and the ignorance of the people to advance and implant their own twisted interpretation of the Miller decision in the collective consciousness. Once again, as the old saying goes, "gun control cannot survive without an accompanything sea of disinformation." (I do wonder how the court arrived at the conclusion that Miller's shotgun wasn't a militia-suitable weapon, though. I can't help but think it'd be a dandy little thing to have in the trenches, or in CQB.)
But then there's that whole "dangerous and unusual weapons" loophole Scalia left the antis. It's going to be interesting to see how future courts reconcile that with the "in common use" test, as well as the Constitutional debates and writings of approved commentators, because as we all know the Founders more or less unequivocally supported a well-armed citizenry. And then there's the question, yet again, of what is to be done with all the guns in public hands now that the antis would support banning as "dangerous and unusual."
Oh, and for the record, Bob? I'd support shoulder-launched missiles too, if only because such an interpretation would make the antis keel over and die from a massive stroke.