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D.C. Circuit Upholds Individual Right to Bear Arms | 94 comments (94 topical)

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I'll take a look (5.00 / 1) (#1)
by Deconstructionist on Fri Mar 09, 2007 at 06:54:25 PM EST
  I'm curious as to how the court reconciled that holding with United States v. Miller, 307 U.S. 174, 178 (1939), in which the supreme court   held that the Second Amendment confers a collective right to keep and bear arms which must have a "reasonable relationship to the preservation or efficiency of a well-regulated militia."

 I've always thought that was bad opinion and courts have mostly avoided confronting both the plain language and historical context of the 2nd, which I agree requires a very tortured parsing to deny an individual right.

  On the other hand. I'd like to see (but won't) a modern amendment which would place strict and definable limits on the right to bear arms which i thinnk are needed in moder society.

Well i just scanned (none / 0) (#4)
by Deconstructionist on Fri Mar 09, 2007 at 07:09:00 PM EST
  (its a long opinion)

 But, it seems the circuit court is essentially saying that the "militia" as of 1798 meant "all able bodied men" (although it was actually all...enrolled for service) so the rest of Miller,  basically holding the government had power to regulate arms unrelated to military purpose,  does not apply. It seems to me the court is essentially explaining away an obvious divergence with the reasoning and express holding of Miller.

   It's pretty bold for a circuit court, even by subterfuge, to "overrule"  SC precedent-- even an old and dubious one. The majority must think the SC is ready to revisit the issue.

[ Parent ]

that should be 1789 (none / 0) (#5)
by Deconstructionist on Fri Mar 09, 2007 at 07:11:48 PM EST
  It's also worth noting that's just a panel opinion and rehearing en banc will no doubt be requested.

[ Parent ]
And that is the point (none / 0) (#70)
by MPhilip on Sat Mar 10, 2007 at 05:17:51 PM EST
It is what you say Decon:  A court with an agenda. Which is why I find Karen Henderson's dissent so persuasive. She hits the issue square on. No policy, no "I love a right any right," no I hate guns or love guns. No silly word twisting. She said it so simply: the law is what it is until SCOTUS says it ain't, and by the way Miller was correctly decided.

[ Parent ]
Miller (none / 0) (#81)
by ravenshrike on Sun Mar 11, 2007 at 12:47:24 PM EST
Actually, Miller wasn't DECIDED at all. Miller was REMANDED back to the lower courts with the note that unless a short shotgun could be found as a weapon useful to the militia, nothing changed. Given that, one can assume that had such evidence been presented(which it could have) then the lower courts original decision would have been wrong. However, Miller was dead and his co-defendant plea-bargained, so the issue never went to trial.

[ Parent ]
Actually (none / 0) (#85)
by Deconstructionist on Sun Mar 11, 2007 at 01:38:52 PM EST
  The LAW was decided. Remands are for the lower court to apply the legal holding to the facts found.

  I think most-- from all sides of the issue-- can find fault w/ Miller for a multitude3 of reasons  but that does not mean it is  not still precedent and that it holding until modified by the Supreme Court reamins law.

  Certainly, at the Supreme Court level, it can be oveeruled. In lower courts, judges are expected to apply precedent even if they disagree with them. that's why the DC court of Appeals panel went to such lengths to distinguish Miller and claim it was not acting contrary to its holding.

  I suspect, the judges knew exactly what they were doing and think if this or a similar case from another circuit reaches the SC that the current SC will likely do what it has the power to do and  expressly overrule Miller rather than relying on an attempt to reconcile.

[ Parent ]

concur overall and also (none / 0) (#9)
by scribe on Fri Mar 09, 2007 at 08:07:53 PM EST
with the analysis of Miller.  IIRC, in Miller the issue was regulation of machineguns under the 1934 Act, and IIFRC, Miller didn't show up in the Supreme Court, leaving only the Gov't to be heard.

[ Parent ]
Miller, Emerson, Concealed Carry, etc. (none / 0) (#66)
by John B Brown on Sat Mar 10, 2007 at 05:00:58 PM EST
http://jurist.law.pitt.edu/guns/emerson.htm is one link for those in need of some historical and philosophical parsing. It is also more recent than the uncontested, irrelevant Miller non-decision.
The essence of Miller is described thusly:
"Jack Miller was charged with moving a sawed-off shotgun in interstate commerce in violation of the
National Firearms Act of 1934. Among other things, Miller had not registered the firearm, as required by the Act. The court below dismissed the charge, accepting Miller's argument that the Act violated the Second Amendment." He didn't show up, even through counsel, at the Supreme Court; apparently he got back his shotgun so he didn't care anymore.
So, no "machine guns" involved, and the current crop of distortions to McReynolds absurdity as a defence for disarming citizens is due for some drastic change.
The right to carry a concealed arm is explicit in the constitution, as amended, needing only some rational expression in law for uniform application of that right. National expression will NOT remove some imagined "right" of states to infringe. We are, first of all, people under the constitution and carry all the rights and protections that affords.
For those concerned about armed "neighbors", arm yourselves. We live in a one time only world. You get one pass only. All it takes to end yours is one uncontrolled berserker and one millisecond. It's your personal duty to control your particular berserker. The argument that CCL holders exert a "halo" is a bogus point. Personal existence, and it's fragility, is the point the founders make.
Get serious, folks; you only have one life. If you must give it to a criminal make sure it is while you act for you or your family's protection.

[ Parent ]

D.C. Circuit Upholds Individual Right to Bear Arms | 94 comments (94 topical)

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