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Reply #71: No the WEAPON must have a reasonable relationship to the preservation of a militia. [View All]

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Statistical Donating Member (1000+ posts) Send PM | Profile | Ignore Mon Jun-15-09 01:16 PM
Response to Reply #63
71. No the WEAPON must have a reasonable relationship to the preservation of a militia.
Anything beyond that is your reading.

Miller claims the 2nd protected HIM from the law regulating the WEAPON.

The courts could have ruled the:
2nd is limited by person (not Miller because he is not in a militia)
2nd is limited by weapons (not sawed off shotgun because it is not used by a militia)
2nd is limited by persons & weapons (neither Miller nor the shotgun).

They chose a ruling based on the weapon.

Despite a failed shoe size analogy the courts were within the power to provide clarification.

The 1968 GCA strictly regulated sawed off shotguns, but also regulated weapons useful to a militia such as machine guns.

The narrow ruling clearly indicates that the weapon have a 'a reasonable relationship to the preservation or efficiency of a well regulated militia'.

However the unanswered question would involve a machine gun. A machine gun doesn't meet the criteria of the ruling.

Familiarization with and practical experience with a machine gun does have a 'a reasonable relationship to the preservation or efficiency of a well regulated militia'. Would Miller be authorized to own a machine gun despite the 1968 GCA (and now the 1986 ban)?

The court left that question unanswered. Why?
If all weapons can be regulated or banned by the govt for all persons not connected to militia service why not say so?

The court was unwilling to make such a decision.
Likely because nothing in the opinion indicates a strong link between militia service and firearms as you suggest.

Three rules of thought prior to Heller:
#1) Only states have a right to own form militias and that have complete control over firearms. Even members of militias have no individual right.
#2) Members of militia are the only ones who have a protected right to own firearm.
#3) Citizens have a protected right to own firearms because that leads to a capable militia.

#1 has been totally discredited.
None of the dissenting judges even went there.

Stevens opinion in Heller is more along the lines of #2. An individual right exists but it is connected to service in a militia.
The majority in Heller is more along the lines of #3.

Miller is a really bad case because it is so narrow we really don't know definitively how the court felt on the larger issue.
If the court felt there was no individual right it makes little sense to rule as they did. Instead their logic (saying a specific weapon is not protected) leans towards #3.

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