It Does Not Mean What You Think It Means

Paul Helmke has been busy reading “all the words in the Second Amendment, not just the ones we like”. Unfortunately for them, I’ve been reading all the Miller decision, not just the parts that the Bradys like. You know, like this part:

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 [p179] 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.

Emphasis mine. I think the Bradys are very much misreading the Miller opinion. Jack Miller was dead by the time the case was heard, and it was only the government’s position that the court entertained. The court was presented no evidence that the firearm in question was in common military use at the time. The Miller test, therefore, was on the firearm in question, not on the status of the individual. By the Miller test, it would seem to me that an M16 would qualify as protected by the second amendment. Considering that, the Bradys shouldn’t be so enthusiastic about touting Miller. If the court adopts that test, I may be able to get M16s rather than AR-15s, which would make me rather pleased, but probably not Paul Helmke.

UPDATE: Ian Argent has more over on his blog.

12 Responses to “It Does Not Mean What You Think It Means”

  1. Ian Argent says:

    Damn skippy. By that reasoning, GCA’86 is quite dead (and possibly large chunks of NFA’34 too – wheee).

    Or they could have just let him have the damn pistol :) Let’s hear it for over-reach

  2. dwlawson says:

    Is it just me or shouldn’t the Miller case have been rendered moot by the death of Miller?

    If so, isn’t it true that the court has no business even hearing the case?

  3. Ian Argent says:

    IIRC, and it’s been a while since I looked – Miller wasn’t “officially” dead when the case was decided. OTOH, since he wasn’t represented at court, that should have been a problem as well

    That having been said, given the court at the time, I think we were lucky to have gotten off with “we think that a sawed-off is not a militia weapon, but we’re going to hand it back down to the lower juristiction to decide that”.

    Remember, this is essentially the same court that said that growing corn on your own land and not selling it is participating in interstate commerce…

  4. Sebastian says:

    I think it should have been. The Miller case is very unusual. I think I recall someone, maybe it was Dave Hardy, had a history of how this case came before The Court.

  5. Ian Argent says:

    I want to say I saw it on an article on the SSRN – some PDF document, anyway…

  6. DJMoore says:

    Here’s two good papers on Miller:

    Frye: “The Peculiar Story of United States v. Miller

    Reynolds, Denning: “Telling Miller’s Tale

    [Aargh, no comment preview! Crosses fingers and hopes the links come through….]

  7. Ian Argent says:

    Thanks – it was “The Peculiar Story of United States v. Miller”.

    Fun stuff in there too, about the decision. Very much in the immortal words of Inigo Montoya “You keep on citing that case – it does not mean what you think it means”.

    I think that the gollums’ continual citing of “Miller” is going to bit them in the ass, HARD.

    I am going to blog on this more at length

    Another interesting tidbit from the article:
    Congress explicitly disclaimed any intention to include “pistols and revolvers and sporting arms” because “there is justification for permitting the citizen to keep a pistol or revolver for his own protection without any restriction.”

  8. Ian Argent says:

    And my post is now up on my own blog.

    (One of these days I need to figure out trackbacks – except I think Sebastian disabled them here)

  9. anon says:

    If you REALLY REALLY read Miller, you’ll see that the decision rested on the fact that _no evidence was presented_ that the short barrel shotgun was useful to the militia, NOT that such evidence was wrong or didn’t exist! If you read between the lines, the decision makes it pretty clear that if such evidence had been presented, the decision would have necessarily have gone the other way. So, rather ironically, since short barrel shotguns had, at the time, recently (WWI) proven very useful for clearing trenches, the weapon in question passes the Miller test. Even now, the US military is sill buying 14″ barrel shotguns for cave and building clearing.

  10. Ian Argent says:

    “Miller” also does not deny that the has the ability to tax to destruction NFA weaponry – so the effect of presenting evidence wouldn’t have mattered…

    Soemthing that I disagree with – if you tax to destruction, you have “infringed” upon the individual right, but what do I know, hey?

  11. Tom says:

    Speaking of taxing, isn’t there a quote to the effect “The power to tax is the power to destroy.” Don’t know who said it, but it is used to justify not taxing churches and other charitable organizations.

    Also, I wonder if any amici are documenting that short barrelled shotguns are useful to the militia, since the US military is still buying short-barelled (14″) shotguns for cave and building clearing.

  12. Ian Argent says:

    There weren’t any for “Miller” – and there won’t be any for “Heller”; since that’s not the question at hand.