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Old March 18, 2009, 01:20 PM   #13
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Join Date: December 13, 2005
Posts: 2,530
The conclusory statement in Stevens should prompt a reader to examine whether the citation to Miller was accurate.

We turn now to the consideration of whether Congress has the
power to prohibit the possession of a firearm by a convicted felon.
Since the Second Amendment right "to keep and bear Arms" applies
only to the right of the State to maintain a militia and not to the
individual's right to bear arms, there can be no serious claim to
any express constitutional right of an individual to possess a
firearm. United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816,
83 L.Ed. 1206. Stevens asserts, however, that Congress is without
constitutional power to deny him this privilege. We hold that
Congress has this authority under the commerce clause.

The court in Miller actually wrote.

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158.

The decision in Miller was not that the 2d Am. only applied to the right of a state, but that the case should be remanded for lack of evidence necessary to resoive the question before the court, namely whether Miller's short barrelled shotgun was part of ordinary equipment or could contribute to the common defense. The court in Miller could not have held that the 2d Am. is a right of the state, since it remanded the case of an individual defendant for evidence rather than merely holding that the right didn't apply to individuals.

Tenngent does make a valid point in seeing the implicit constitutional tradition in Miller as relating the right to possess to "some reasonable relationship to the preservation or efficiency" of the Militia, since that is the test they suggest. This does not equate to coupling the right to service in the militia, but it isn't as straightforward as Scalia's and Gura's grammatical analysis.
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