AWB and U.S. vs Miller?

I'm curious , has anyone used the 1938 Miller case to stop the AW ban in court? From my reading of it only weapons suitable for military use are protected by the 2nd. While I don't agree that it should be that limited it is what they said.

They said his sawed off shotgun was not protected because it was not a military weapon. Now they say just the opposite, that if it is suitable for mmilitary use its ok to ban them. This is a full 180 degree from what the court said.

Myself I believe that any weapon has a military value.


Michael

I've always thought that Miller was amongst the most poorly-reasoned cases on the 2A ever written. First, there is absolutely zero historical, legislative, precedential, or other support for the Court's determination that a weapon had to have some relationship to militia use to be covered by the protection of the 2A. That holding is simply and unequivocally wrong. Second, if that were the correct rule, then the defendant in that case should have prevailed, because a sawed-off shotgun has greater military utility than a long-barrelled birding gun, due to its ease of carry and functionality in CQB.

In other words, I think the Court was collectively stoned when they ruled in Miller. They certainly were not logical.

Moreover, (and this is where your point is dead on), if the 2A actually were to be interpreted as the Miller Court held, then it would protect the possession and carrying of a full-auto, night-vision-equipped, M4 carbine with grenade launcher attached, while (arguably, at least) not protecting my single shot .22 short rifle, because of its lacking any real military utility.

The thing is, however, that the Miller Court, without ruling directly on the issue, quite apparently assumed (incorrectly, as established by Heller) that the 2A protected only a "collective" RKBA for militia purposes--in which case its central holding would be logical (though no less incorrect).

In any event, much like Cruikshank on the question of incorporation of the 2A vis-a-vis the states through the 14A, Miller most likely is destined for the dustheaps of history for the very reason that you raise: If taken at face value, when read in conjunction with Heller, it means that the individual has a protected right to keep and bear only weapons with military utility, but not purely "sporting" arms.

That, of course, is an absurd result, which is why Miller likely will not survive intact the next time the same issue comes directly before SCOTUS.

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Originally Posted by XDFender

That, of course, is an absurd result, which is why Miller likely will not survive intact the next time the same issue comes directly before SCOTUS.

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I agree that the thinking was wrong headed on the courts part. The court was meerly trying to justify a bad law with poor reasoning and no real basis in law.

While that may be true isn't it still the law of the land until it is changed? Does ignoring it mean it didn't happen?

Michael

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Originally Posted by mlr1m

I agree that the thinking was wrong headed on the courts part. The court was meerly trying to justify a bad law with poor reasoning and no real basis in law.

While that may be true isn't it still the law of the land until it is changed? Does ignoring it mean it didn't happen?

Michael

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It stands as controlling precedent until SCOTUS overturns it--which will not (cannot) happen until the issue is directly before the Court again. Nonetheless, SCOTUS often has previously given pretty clear indications of their position on old cases when those old cases are for all intents and purposes no longer good law--as they did in Heller by questioning the continuing validity of the Cruikshank holding on the 2A/14A--essentially telling the world, "although this issue is not before us now, if and when it is before us, it will be overturned."

IIRC Miller is basically a joke. As I understand it Miller actually died before the case was heard so the argument was pretty much one sided. If Miller had been alive and paying an attorney all they would have had to do it point out how effective a sawed off shotgun is in trench warfare and it would have gone the other way.

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Originally Posted by mcp1810

IIRC Miller is basically a joke. As I understand it Miller actually died before the case was heard so the argument was pretty much one sided. If Miller had been alive and paying an attorney all they would have had to do it point out how effective a sawed off shotgun is in trench warfare and it would have gone the other way.

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Which is exactly why Miller is such a completely illogical ruling. Silly, really...

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Originally Posted by XDFender

Which is exactly why Miller is such a completely illogical ruling. Silly, really...

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I agree, but untill it is overruled or revisited isn't it still the law of the land? Doesn't the original ruling make any AWB illegal?

Michael

Indeed, and even the argument that their ruling was justified on, that a sawed-off shotgun was not a weapon for a militia and therefore wasn't really protected under 2A, was incorrect as well. At the time, short barrel shotguns were indeed used by troops. I don't think the court knew that, or maybe they didn't want to know. Who knows. An oddball case.

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Originally Posted by mlr1m

I agree, but untill it is overruled or revisited isn't it still the law of the land? Doesn't the original ruling make any AWB illegal?

Michael

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Well, as I understand it, Heller sort of created a new "standard," in that weapons "in common use" should be covered under the 2A. I believe the weapons that the AWB would attempt to ban would certainly be in wide use in this country. However, law, court cases, and the Constitution have never stopped the government before.

So technically no, the Federal government should not be able to do that. Your state probably still can, though, even if you have a RKBA clause in your state constitution (not every state does, sadly enough).

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Originally Posted by mlr1m

I agree, but untill it is overruled or revisited isn't it still the law of the land? Doesn't the original ruling make any AWB illegal?

Michael

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Now of course here is where it gets interesting......
What they were banning were semi-automatic rifles that bear a very close resemblence to selective fire military rifles. The argument could be made that without the selective fire capability they are not appropriate for military use and thus are not covered by 2A!