30 October 2021

That's Not Quite Right

The Second Amendment didn't protect your right to own a gun until 2008.

The idea that it only protected the militia's right to guns originates in 1939 with the Miller v US ruling. 

Prior to Miller, the Supreme Court ruled that the 2nd's meaning was self evident and its meaning was the same as what is known today in Constitutional Scholarship as the "standard model".

So, really, the 2nd Amendment didn't protect an individual right to own a firearm from 1939 to 2008.  Sixty-nine years out of 230.

7 comments:

  1. The 2nd Amendment never protected the individual right to own a firearm, and does not do so now.
    Nor was it intended to do so.
    The 38 signers of the US Constitution never possessed the raw power to add to nor detract from natural law, and they knew that.

    The right existed long before it was set to paper, and would continue to exist as a right even if the 2nd amendment were repealed tomorrow by unanimous vote.

    The 2nd Amendment merely codifies that reality, and what is true about it is that for sixty-nine years, SCOTUS chose to pretend otherwise, just as most of the congress and many states and cities do, to the present day.

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    1. Is English a second language for you?

      You don't seem to understand basic concepts expressed in English.

      Or are you really this dense and ignorant?

      I will explain just in case anyone buys into your lack of understanding.

      The Bill of Rights was most certainly a protection of the rights mentioned there. Protecting them from incursions by the Federal Gubmint. An excellent case can be made that the 14th Amendment bars the states from intruding on these rights as well.

      That the rights were considered by all of the founders as pre-existing doesn't change what the BoR was supposed to be doing.

      There are literally books written on the topic, and it is very clear you've never read them.

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    2. So you when you wrote this "The Second Amendment didn't protect your right to own a gun until 2008." you're saying you didn't mean that, because it really did protect that all along? I'm trying to understand you, but it sounds like you've just contradicted yourself.

      And I'd sincerely like to know how it protects any such thing, in, say NYFC, Chicongo, or Washington D.C., just for three examples.

      Pardon me for noticing that thereabouts, it appears that it "protects" the individual's rights to own a firearm about as well as a COVID shot protects one from that virus.

      "Tells the government it shouldn't...________.": Okay, I'll sign off on that.
      Government isn't listening.
      Might as well say "Wishes on a star that bad people wouldn't be mean."
      But "protects"? I think that's laying it on a bit thick.
      Edward G. Robinson in the Ten Commandments asking "Where's your god now, Moses?" comes to mind.

      What the BoR set out to do is one thing.
      What is has accomplished is quite another.
      Pick any of the amendments therein, (except maybe the 3rd), and there doesn't seem to be a lot of protection going on. Intent isn't accomplishment, however laudable the former may be.

      And I can't be the first one to notice, or have expressed to you, the idea that the government being charged with protecting the people from the government seems an awful lot like the fox guarding the henhouse.

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  2. From what I have read about the Miller case, it hinged on whether the sawn-off shotgun in question qualified for protection under the Second Amendment, not whether the defendant qualified for protection as a member of the militia or not.

    The decision reads (in part):

    In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen 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. Certainly 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. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.
    cf. https://caselaw.findlaw.com/us-supreme-court/307/174.html

    I forget the legal term (OK, I looked for it, but unsuccessfully), but as I understand it, judges are considered ignorant (as in, not aware) of anything not presented as evidence in the case before them. This is why lawyers footnote and cross-reference everything, apparently.

    In Miller, the court asserted that they were unaware (as in, no evidence was presented) that the firearm in question had a military/militia use, therefore they couldn't conclude that it was protected by the Second Amendment, therefore the defense argument failed.

    Essentially, the Miller case did NOT find that the Second Amendment only protected the right of militia members to own firearms. Rather, the finding was that only firearms of particular use to the militia were protected by the Second Amendment.

    ,l

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    1. I explain in my later post...

      Miller didn't actually SAY that only the militia was protected. But that was what the anti-gun side SAYS it said.

      I gather that if Miller's lawyer had been paid and if Miller had been available; when they bumped it back down evidence of WW1 use of sawed off shotguns could easily have been presented and brought into judicial notice.

      Alas...

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    2. Oh, I get that point.

      The fables that the left have told about Miller would fill more than one book.

      I was actually glad for the opportunity to research it. I didn't know, for starters, that the whole "referral to the Supreme Court" was so dubious, and several of the sources I read stated categorically that the whole thing was a charade to establish the NFA's legitimacy.

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    3. Something I found interesting reading the ruling was how they specifically mentioned the sawed off gun crossed state lines and therefore NFA applied. It makes me wonder if a case could be made that if you never take your NFA item out of the state where you made it, then just state laws apply.

      Which wouldn't help me in Florida, our NFA laws says illegal unless registered with the Feds.

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