Gun Control & RKBA

jimmy the one wrote:
1939 Supreme Court certainly did endorse a collective/militia interpretation of 2ndA.

Did the Court rule that Miller had no right to possess a shotgun with a barrel length over 18 inches?

The decision was arrived at because the Court heard no evidence (and didn't go looking on its own) that a shotgun with a barrel length under 18 inches had militarily usefulness ("it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense&quot .

As the Cases court recognized, that our army used trench guns was common knowledge, that nearly every gun had military usefulness . . . if those facts of the Miller case were to be heard, the ruling would be different.

Miller said NOTHING regarding Miller and Layton's militia attachment, the case was about the function and usefulness of the gun and nothing else. That's why the Miller "test" that the Cases court decried, would demand that nearly all gun control laws would be struck down and regular citizens without having any attachment to any government military / militia organization would be protected in owning mortars, machine guns etc . . .

That is a correct interpretation of Miller (which is why the Cases court was compelled to ignore and dismiss SCOTUS and invent the "militia right" interpretation in the federal courts).

jimmy the one wrote:
It was a unanimous decision, while heller split 5-4 with liberal dissent & a rightwing majority.

So you think a unanimous decision (to reverse and remand) where the Justices only hear the government's arguments carries more weight than a split decision where both parties and numerous amici fully briefed the Court and both parties argued their positions before the Court? Really?

jimmy the one wrote:
I'll ask you to read again the 1939 supreme court endorsement:
-- The Constitution, as originally adopted, granted to the Congress power -- To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
-- With obvious purpose to assure the continuation and render possible the effectiveness of such {militia} forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

You have misconstructed Miller's simple statement about the object of the 2nd Amendment and misapplied it to constrain the right to keep and bear arms (which is a separate thing, existing without reference to or any dependence upon the 2nd Amendment).

The Miller court directs us to interpret "the declaration and guarantee" with the object of the Amendment in mind; the Court doesn't tell us to apply the object to the right. One really can't discuss / dissect Miller without referring to its primer, Aymette v State, where the Miller Court drew its reasoning from for how to treat Miller's sawed-off shotgun.

jimmy the one wrote:
The 1939 Miller decision was 8-0 unanimous; if they had thought it an individual rkba disconnected from militia you'd think at least one justice would've piped up 'whoa fellow justices, look how we wrote that paragraph, future generations will think we gave 2nd amendment the militia interpretation'. Yet not one did, they all thought it correct as written.

Well, I think they assumed that Miller would be read continuing Cruikshank and Presser through it and that when they wrote "With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view." people would not substitute "With obvious purpose to assure the continuation and render possible the effectiveness of government forces, the right to keep and bear arms were granted. The rights therein given must be interpreted and restricted with that end in view."

jimmy the one wrote:

Surf Fishing Guru wrote:
Armed self defense in public by citizens who were excluded from serving in the militia is what the "it" is in those excerpts and is what the 2nd Amendment protects.

Though vague & ambiguous, even if so your remark comports with the militia centric view (presuming your use of 'excluded' does not imply a total 2ndA disconnect from militia as per scalia). People could own guns & use them for self defense outside of militia, that's militia centric.

I was talking about the specific circumstances of the two citizens on whose behalf Cruikshank was being heard. Two former slaves, then citizens, armed for self defense from the KKK, in public. People who (if there was a state militia active in Louisiana in 1873) would have been excluded from joining. That was what mt statement was about. Whatever vagueness and ambiguousness you found in it, is only due to your lack of knowledge of the facts of Cruikshank.

And it can't be "militia centric", there was no militia for anyone, White or Black, to join in Louisiana thus there was no militia conditioning to apply to the Freeman's "right of bearing arms for lawful purpose" (self defense, in public) . . . Which the Court said is a right not granted by the Constitution and thus not in any manner dependent upon the Constitution for its existence.

jimmy the one wrote:
Note also that by this time the dichotomy between individual & militia interpretations of course existed.

In the south with the sole purpose of keeping Blacks disarmed. New citizens could be denied their right to arms if the right to arms could be linked to militia service. Since Blacks were barred from serving, they could be disarmed. Congratulations on at least widening the net of people you want to disarm . . . Of course back then White people didn't suffer the same rights denial as Blacks.

jimmy the one wrote:
US v. Cruikshank.. in 1876 the Court ruled that {2ndA} served only to protect the states against the federal govt.

No, Cruikshank ruled that there was no federal relief for rights abuses perpetrated by private citizens.

jimmy the one wrote:Because the states in 1787 were worried that a too-powerful federal government might trample their rights, the Court said, the Second Amendment was added to the Constitution guaranteeing their right to maintain militias.

What a bald fabrication. Please quote where the Cruikshank Court said that.

jimmy the one wrote:
One of the critical holdings within the Cruikshank case was affirmed a decade later in Presser v. Illinois. This case stemmed from the arrest of a man named Herman Presser, who had organized military-style drills to train his own private militia of German-American workers, with the aim of fighting back against the armed security forces often hired by industrial employers. The state argued that this sort of private militia was dangerous and illegal; Presser argued that it was protected by {2ndA}. The Court ruled that the {2ndA} only restricted the federal govt; it was not a prohibition against state action and therefore Illinois could regulate private militia. The {2ndA} the Court ruled, did not give Herman Presser the right to run his own private army.

Correct, there are no "militia rights" for anyone, citizen or state to be found or claimed in the 2nd Amendment.

You fail to recognize th if your theory were correct, Illinois would have also claimed the protection of the 2nd Amendment in Presser . . . After all, just 10 years prior (according to your biased source) the Cruikshank Court said the 2nd only protects state militia interests. Surely something along those lines would have been stated by the Court . . .

To go even further, Illinois could have claimed the 2nd Amendment's protections to question the Supreme Court's hearing of Presser; the 2nd being a barrier to federal interference in state militia affairs. Surely the 2nd would repel any federal court from sticking its nose into internal state affairs.

Can you explain why no state ever claimed this supposed protection the 2nd Amendment affords them? Though all the cases that decided state / federal conflicts in militia control, not one state raised the 2nd Amendment to repel federal interference. Again and again the Court found federal power preempted state interests and not one decision mentioned the 2nd Amendment as speaking to any aspect of militia law, organization, training or control.

The "militia right" is a fantasy that exists only as a counter argument to those who claim an individual right to arms. No notice of it exists in discussions outside dismissing the right of the people to keep and bear arms. It has no presence in the legal history of militias, where one would expect the claimed action to have some effect . . . No, its only presence is as sophistry in debates such as this.