The history of the Miller case is probably the reason that the decision is so widely misunderstood. In their appeal, the US Attorneys made the following statement:
“The Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its infringement by Congress.”
I have always considered the Second Amendment as an individual right rather than a collective guarantee. I think there are several statements I can make regarding Miller. The decision found that it was illegal to own a sawed-off shotgun. It did not find anything else.
When the Court issued the decision, the New York Times found it so important that it buried the story on page 15, under the headline “Supreme Court Bars Sawed-Off Shotgun; Denies Constitution Gives Right to Carry This Weapon.”
How does the “right of the people” in the 2nd Amendment differ from that right in the 1st, 4th, and 10th? And if you hold that it does differ, why does it differ? Liberal activist judges, along with most liberals, affect an effete disdain for the 2nd, which I find interesting; I think they wish it would go away. A number of them have used Miller in stare decesis decisions, by utilizing the decision as settled law advocating for a collective right, not an individual one.
I find it strange that a case where there was no representation of the appellees would be used as a basis for “settled law.” Miller was dead; his accomplice had pleaded guilty, and there was no logical reason to drag this case up to the Supreme Court!
That will not happen in any appeal from the DC Circuit, you can expect! But how can a case for stare decesis be made in a case that should never have been accepted or heard? Essentially, the Government, aided and abetted by the McReynolds Court, mounted an unrebutted attack on the individual’s right to keep and bear arms. But even McReynolds did not render a decision covering all firearms. He DID state that there was no reasonable relationship between a short-barreled shotgun and a militia weapon, which illogically flies in the face of the fact that the US Government purchased, and armed its soldiers with, THIRTY THOUSAND such weapons for the Trench Warfare of WWI!
And why, if the right should be concluded to be a collective one, did McReynolds contradict himself by stating, “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.”
With obvious purpose? It is with obvious purpose and reasoning that I conclude the right to be an individual one.
NOTE: All Citations above are from US v. MILLER, 307 U.S. 174 (1939)
