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Old January 20, 2013, 02:43 PM   #1
raimius
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Miller v. "Assault weapons bans"

I was wondering if some of the better legal minds could comment on this. Would the Miller decision be useful in legal arguments against a ban on "military style" firearms and accessories? It would seem to me that something like an AR-15 would be protected under the Miller decision (in conjunction with Heller), as they are particularly "suitable" for militia use. After all, the DoD standard issue rifle is the closest thing to the AR-15, NFA rules not withstanding.

There were definitely some issues with the Miller case, but would those pose more of a risk than using the few good parts of the decision in our favor?
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Old January 20, 2013, 02:47 PM   #2
Romeo 33 Delta
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I'm with you on this one. From my understanding of Miller, Chief Justice McReynolds made it clear that the "arms" mentioned in the 2nd Amendment were those which had a MILITARY/MILITIA UTILITY. That certainly applies to the AR and AK platforms as well as FALs, H-K/"G" clones, M1As, mini-14s/30s and a host of others.

Maybe someone with standing can sue NY for "infringement" ... that wold be a hoot!
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Old January 20, 2013, 03:39 PM   #3
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I rather doubt it.

In writing his decision in Heller, Scalia was very vague on the intentions of Miller. Fact is, Justice Scalia reworded what that decision said, and from that rewording, we get the "in common use" phrase.

But because of that rewording, we can use the Heller decision to invalidate bans on the most commonly used platform in the US, today.

Trying to Use the actual Miller wording and meaning, would open the doors to Full Auto. That is something the Court will simply not do at this time, if ever.
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Old January 20, 2013, 06:44 PM   #4
maestro pistolero
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From the Heller Decision, majority opinion:
Quote:
We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolu-tionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.”
Quote:
"Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra."
I happen believe this is actually quite a twisty leap in logic for a purported originalist, but that's the decision we are left with. Now, if the court at least adheres faithfully to that standard, I believe AR15s and pistols with standard capacity magazines (and anything that shares identical performance characteristics with them) ought to be on safe ground.
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Old January 20, 2013, 07:03 PM   #5
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Quote:
I rather doubt it.

In writing his decision in Heller, Scalia was very vague on the intentions of Miller. Fact is, Justice Scalia reworded what that decision said, and from that rewording, we get the "in common use" phrase.

But because of that rewording, we can use the Heller decision to invalidate bans on the most commonly used platform in the US, today.

Trying to Use the actual Miller wording and meaning, would open the doors to Full Auto. That is something the Court will simply not do at this time, if ever.
Some estimates indicate that there are in the neighborhood of 3.7 million AR type rifles in the US or about 1% of all guns in the US. I wonder if that qualifies for common use.
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Old January 20, 2013, 07:18 PM   #6
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Did you include all the AR's in use by the various law enforcement departments?

Not to get too specific here, but when you say AR's are only about 1% (and I question that number, both the total and the percentage), you are lumping rifles in with shotguns and handguns. Level the playing field... Of the total number of rifles estimated in the US, how does this change the percentage?
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Old January 20, 2013, 08:59 PM   #7
raimius
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So, basically, using Miller might be a lackluster argument because the Heller decision turned the interpretation of arms protected by the 2nd from militarily useful (in a not quite logical way) to "in common use?"

Either way, I think an argument can be made. It just seemed, to my non-attorney brain, that the Miller wording could make a pretty compelling argument.
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Old January 20, 2013, 09:28 PM   #8
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Bottom line is whether or not there are 5 possible votes, or 5 definite *no* votes in the supreme court. Remember in Heller there were 4 "not an individual right" votes and if there had been 5 we wouldn't be having this conversation.

1 more antigun vote and the next thing the SC takes up will just weasel-word into supporting whatever ban is put in front of them, irrespective of Heller, Miller, or that curious old piece of paper.
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Old January 21, 2013, 12:12 AM   #9
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Don't forget the second part "a well regulated militia". This militia is regulated and defined by the individual states. This is Nation Guard and other state military units. In many ways, your gun rights are tied to the state you live in. Pro-gun states may see the armed citezen as a resource to be called upon if need. Anti-gun states might see them as a threat to be controlled. In any case, the Supreme Court has ruled that an indivavidual has a constitutional right to bear arms; they just haven't said what arms. The last ruling they made only covered pistols for self defence. I wouldn't want to place a bet on what the next ruling might be.
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Old January 21, 2013, 12:27 AM   #10
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2nd amendment rights are not tied to the state you live in. No constitutional right is different from state to state. Could you imagine "if this search had taken place in Missouri the police would've needed a warrant but since it was in Kansas they didn't."

"Well regulated" in 18th century parlance meant well trained and disciplined. the militia is not subject to only state regulation. Article I section 8 gives congress some explicit authority over the militia.
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Old January 21, 2013, 12:33 AM   #11
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Don't dwell to much on the militia part. In the current SCOTUS reading, the RTKBA in the 2nd is an individual right, not tied to, or dependent on, a militia. That means the militia phrase is parenthetical... sort of like "oh by the way..."

The best way to explain it is an essay written by I don't remember that I read some time ago... If the Bill of Rights had an amendment that said
"A well educated electorate being necessary to the functioning of the state, the peoples right to keep and read books shall not be infringed"... This would mean that owning, purchasing, bartering, reading, and collecting books is an individual right for all citizens. Not just those eligible to vote, or those who do vote. Being part of the electorate or participating in elections is not tied in any way to the right to books. I have always liked this analogy by the way... and I wish I could remember who came up with it. It has served me well over the years when arguing with the self righteous ignoramuses.
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Old January 21, 2013, 01:55 AM   #12
maestro pistolero
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Quote:
No constitutional right is different from state to state
Not strictly true. Not every right in the bill of rights has been incorporated since the 14th amendment was thrown under the bus. The right to a grand jury trial immediately comes to mind.

Quote:
In any case, the Supreme Court has ruled that an indivavidual has a constitutional right to bear arms; they just haven't said what arms.
They actually did. They said the type of arms that are in common use for lawful purposes at the time. In another passage, anything that constitutes a bearable arm is what is protected.

From Heller:
Quote:
Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modernforms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
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Old January 21, 2013, 11:48 AM   #13
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The court doesn't interpret constitutional rights differently depending on what state you're in. Since the right to indictment by a grand jury hasn't been incorporated such a right does not exist against the states.

Rights that have been incorporated aren't different from state to state.
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Old January 21, 2013, 12:02 PM   #14
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AL -
Quote:
Trying to Use the actual Miller wording and meaning, would open the doors to Full Auto. That is something the Court will simply not do at this time, if ever.
I do agree that what you say here is literally correct and yet if the SCOTUS was doing its constitutional duty they would almost certainly have to allow full auto. If the constitution is not honored in its essence by the courts, then what is left? It means that any right that is not favored by the political apparatus is able to be suppressed, even partially and maybe one day wholly denied.

"We the People" were meant to be the ultimate defenders of freedom.. Somewhere along the way people got too comfortable, a pretty human fault but one that's proving to be very expensive. Despite the hazards of freedom what would life be without the freedoms... If we are to maintain freedom for future generations we must do better at passing the ideals that guard freedom to the next generation. One day we need a SCOTUS with the courage to follow the Bill of Rights, hazards or not.
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Old January 21, 2013, 12:39 PM   #15
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Quote:
Some estimates indicate that there are in the neighborhood of 3.7 million AR type rifles in the US or about 1% of all guns in the US. I wonder if that qualifies for common use.
I think those estimates are off a bit.

http://www.slate.com/blogs/crime/201...n_america.html

Regardless with there being only 110,000,000 rifles and the huge number of types 3% would make a huge percentage. Probably the most popular single type. Like a Ford F series truck.
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Old January 21, 2013, 01:35 PM   #16
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I'm no expert, but the vast majority of rifles I see out at any range I've been to are AR or AK platforms. I have a hard time believing that they only hold 3% of the market share. Especially after the last month and a half.
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Old January 21, 2013, 02:09 PM   #17
maestro pistolero
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I am not a big full auto/select fire enthusiast. Even in actual military use, it serves a narrow purpose, i.e. area denial and the like, that can be often be met with semi-automatic fire.

But, if a state like, say, Montana or Texas, under the authority of the 2A, were to officially activate their state militia, they could authorize citizens to have nearly anything the state wished to approve.

There is much doubt with regard to individuals comprising an unorganized militia being so armed (and such legal challenges have utterly failed), but the right of a state to so arm its militia to fight against tyranny is beyond dispute.

This is the only legitimate circumvention of the NFA of which I am aware. It remains an option of individual states should the need arise.
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