Reply #71: US v. Miller provides historical background on the second amendment

[hansberrym]

Consider the preamble, as it is sometimes called, to the Second Amendment and note the parallels to the preamble a contemporary militia act that was cited in US v. Miller:

The General Assembly of Virginia, October, 1785 (12 Hening’s Statutes c. 1, p. 9 et seq.), declared: ‘The defense and safety of the commonwealth depend upon having its citizens properly armed and taught the knowledge of military duty.’


Preamble (for lack of a better word) to Second Amendment:
”A well regulated militia, being necessary to the security of a free state,...”


Note that the phrase "A well regulated militia" has the same meaning as "citizens properly armed and taught the knowledge of military duty", and the phrase "security of a free state" has the same meaning as "the defense and safety of the commonwealth". Furthermore the statement A "is necessary" to B, is the same as B "depends" on A.


Note also how the Supreme Court in Miller defined the militia:
"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. The Militia which the States were expected to maintain and train is set in contrast with Troops which they <307 U.S. 174, 179> were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia- civilians primarily, soldiers on occasion.

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. Blackstone’s Commentaries, Vol. 2, Ch. 13, p. 409 points out ‘that king Alfred first settled a national militia in this kingdom’ and traces the subsequent development and use of such forces."


And how the Miller court used the words "to keep and bear arms" to mean possession or use of arms in the actual holding:
"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."

And:

"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.”

And:


"The General Assembly of Virginia, October, 1785...It further provided for organization and control of the Militia and directed that ‘All free male persons between the ages of eighteen and fifty years,’ with certain exceptions, ‘shall be inrolled or formed into companies.’ ‘There shall be a private muster of every company once in two months.’ Also that ‘Every officer and soldier shall appear at his respective muster-field on the day appointed, by eleven o’clock in the forenoon, armed, equipped, and accoutred, as follows: ... every non-commissioned officer and private with a good, clean musket carrying an ounce ball, and three feet eight inches long in the barrel, with a good bayonet and iron ramrod well fitted thereto, a cartridge box properly made, to contain and secure twenty cartridges fitted to his musket, a good knapsack and canteen, and moreover, each non-commissioned officer and private shall have at every muster one pound of good <307 U.S. 174, 182> powder, and four pounds of lead, including twenty blind cartridges; and each serjeant shall have a pair of moulds fit to cast balls for their respective companies, to be purchased by the commanding officer out of the monies arising on delinquencies. Provided, That the militia of the counties westward of the Blue Ridge, and the counties below adjoining thereto, shall not be obliged to be armed with muskets, but may have good rifles with proper accoutrements, in lieu thereof. And every of the said officers, non-commissioned officers, and privates, shall constantly keep the aforesaid arms, accoutrements, and ammunition, ready to be produced whenever called for by his commanding officer. If any private shall make it appear to the satisfaction of the court hereafter to be appointed for trying delinquencies under this act that he is so poor that he cannot purchase the arms herein required, such court shall cause them to be purchased out of the money arising from delinquents."


The Collective Rights advocates reject everything the Supreme Court said about the meaning of the words/terms of the second amendment, and cling to a perverted interpretation of the Court's holding(cited earlier). That holding explains the Supreme Court's rationale for reversing a lower court decision which had overturned, on second amendment grounds, Mr. Miller's earlier conviction for illegally possessing a sawed-off shotgun. The Collective Rights advocates claim to be faithful to the Supreme Court precedent in Miller, yet they substitute their own definitions for the actuall definitions and usage given by the Supreme Court.

Furthermore, every Collective Rights opinion has been decided on the basis of standing, yet the collective rights advocates ignore that the Supreme Court in Miller remanded the Miller case for further proceedings. It is difficult to imagine that the Supreme Court would remand a case for further proceeding if Mr. Miller did not have standing to bring a second amendment defense, or that the Supreme Court would waste the lower court's time determining whether the possession or use of a PARTICULAR weapon had a reasonable relationship to the preservation of a well regulated militia, had it actually been the case that Mr Miller had NO right to keep and bear ANY type of weapon.