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U.S. Miller question
This just popped into my head. Miller won in the trial court.
The government filed for cert., Supreme Court accepted. Miller's attorney never formally appeared in the Supreme Court, did not show for oral argument. He also didn't brief it, and in fact sent a telegram asking the Court to consider the case submitted on the government's brief.
Where's the case or controversy here?
I suppose there must be some doctrine that allows the case to proceed. Otherwise defendant who wins in the trial court need only refuse to appear on appeal, and the higher courts would be powerless to review the decision in his favor.
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Also hadn't Miller died b4 the SC heard the case?
Tiochfaidh ar la!
Sorry, but I grew up in an area where "justice" was, shall we say, available to the highest bidder - not necessarily in cash, sometimes just on the basis of "you scratch my back...".
As such, I recognize all of the symptoms of "the fix was in": the speedy appeal, the other attorney "convinced" to not show up, and to recommend the oppositions brief(?!!!), and the rapid resolution at 9-zip.
The SCOTUS, then as now, puts on their pants one leg at a time, and were convinced by other than legal influences to approve of the gov't actions. The opinion depended on giving the introductory clause inordinate weight, and the convenient fiction -translation: lie- (unopposed by non-existant counsel) that a short-barreled shotgun had no military use.
They could not have gotten away with any of that in a neutral courtroom with halfway decent counsel. All of the required conditions were set well before the case was heard.
The fix was in.
Miller was wrong on so many levels, Miller had died before the hearing at USSC, then the case was decided on stipulations that can be found nowhere in the constitution and those stipulations were based on error of the military utility of a short-barreled shotgun.
They pretended not to know that short-barreled shotguns were used as "trench guns" in The Great War", and then proclaimed since they had no military utility they were not protected by the Second Amendment. Wrong on both counts, but they achieved the political outcome that was desired by the political machine of the day.
They also pretended to not know what "....shall not be infringed." means. Nothing in the constitution says only military weapons are protected by the amendment, though they are, along with all other arms capable of being kept and borne by the individual.
Miller was never about law. It was about getting the result they wanted and screw honesty, integrity, and the nation.
Bud nailed it in just four words. Had I read them first, I might not have commented. "The fix was in."
"In the absense of evidence" that a short barreled shotgun is in use by the militia, the law reguarding the 1934 firearms act was upheld. If evidence is presented, does this mean that any militia grade weapon is specifically protected by the 2nd amendment?
Is this a legal trivia or is this an avenue someone should try to exploit? I know of an attorney that would like to try if there is a chance.
Gene, You are correct. Of course, if the fix is in, that doesn't matter. As I have commented before, here and elsewhere, arms which are man-portable (can be borne as per the 2nd) and are suitable for use in the militia's Article 1 Section 8 missions (for a proxy see what our government employees use - e.g. what the Army and the police carry) should be protected. Again, as noted above, government employees (in this case judges) aren't necessarily going to do the right thing. The Militia Act of 1792 is a pretty clear signal of original public meaning, and it required all able bodied males 17-45 to be armed with military pattern weapons (rifles, muskets, pistols, swords, etc. at the time) and enrolled in the militia. Compare that to today, when only a select number of trusted employees of the government are found suitable to use (not necessarily possess) modern combat arms. And please don't bring up the very limited number of NFA weapons in the country, few while they do exist, their numbers are limited and the stock is no longer increasing (FOPA).
Miller should be viewed as little more than an historical anomoly. No case in that procedural posture would get a certiorari grant today, and if for some reason it did get to the SCOTUS, at most it would be remanded for further evidentiary proceedings based on whatever general principles the Court articulated.
Unfortunately, since the Heller majority declined the opportunity to disavow Miller and instead spun its holding into supporting a "common use" gloss on the type of arms protected by the Second Amendment, Miller (or its new and "improved" reincarnation) is apparently with us for the long haul.
Miller was a fix from the very beginning...
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=981831
The Peculiar Story of United States vs. Miller
The one error in Miller was the view that the only purpose of the Second Amendment was to preserve the militia. Frankly, this view is actually correct, but saying so means that people immediately (and erroneously) conclude that there’s no right to private possession of firearms. There is...it’s just protected by the ninth amendment...that’s all.
Anyways, having taken such a view (whether right or wrong) the rest of the decision makes perfect sense and is actually a straightforward, sensible decision.
The government stated that the weapon was not a weapon of the militia. The court included excerpts from three militia acts that defined the type of weapon that a militiaman was supposed to be armed with. In all three cases the acts called for long guns.
So when the court said “in the absence of any evidence…” it meant that it couldn’t find any in the law. There is absolutely no argument that Miller could have made that would have won the appeal.
Oh, and the trench gun of WW1 was 21 inches long...Its introduction to the court wouldn’t have made any difference.
Graystar, if you read Heller, you will see that one of the militia acts cited therein required pistols.
Isn't David's point that SCOTUS can't simply ignore a case because the other side (who won at the lower court) decides not to show up.
What would prevent that being used against our side? Say the McDonald case in Chicago loses in the 7th Circuit Court of Appeals and they appeal to SCOTUS, who grants cert. Can Chicago dodge the possibility of losing by failing to show up at SCOTUS? I would hope not.
SCOTUS would have to rely soley on petitioner's briefs.
This is probably a bad example because SCOTUS is unlikely to get anything useful out of Mayor Daley's stained briefs anyway.
21 inches is a short-barreled shotgun. The Mossberg Cruiser 12 ga. is 20 inches. it is a short barreled shotgun. It's length is for the exact circumstance of the trench gun CQB.
"If evidence is presented, does this mean that any militia grade weapon is specifically protected by the 2nd amendment?"
That's what Wayne Fincher said in his "silver bullet" document. He's currently doing time. Head over to war on guns if you're unfamiliar, David just had a recent post, or you can search.
I'm not a lawyer, but I've been followng the Keep and Bear arms debate with great interest for some 40 years. The way I read Miller is that the court was saying that 2A only protects the right of the people to arm themselves with weapons, and that a weapon must be shown to have some type of military/police utility to be protected.
Therefore, in my opinion, the sporting use criteria used in several laws and regulations is blatently unconstitutional.
Straightarrow - Every reference I can find is that the trench shotguns used had 18-20" barrels, which means they do NOT qualify as short-barreled shotguns under the NFA. Which doesn't change that many common military firearms WERE and ARE unConstitutionally restricted under the NFA.
The SC should have shut the review down when no defense appeared. Finding for the Govt was unethical on their part. But what's new. I haven't found an ethical judge in my nearly 6 decades of life.
Our entire legal system may be the "best in the world" but it's still fouled up. Stare decisis and other garbage should be replaced. As is done in science, EVERYTHING should be evaluated over and over. If a decision is wrong, it needs to be outed regardless of the outcome. If the govt screwed up, the govt needs to come clean and pay up.
Tiochfaidh ar la!