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To: neverdem
"The U.S. Supreme Court has ruled only once in this century on questions of law arising from the Second Amendment. In United States v. Miller, heard in 1939, the court restricted its opinion to the narrow issue of whether, under the National Firearms Act of 1934, a sawed-off shotgun could be considered a proper weapon of the militia. The court opined: “[W]e 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.” In a recent pamphlet on the Second Amendment, the NRA said of the Miller decision: “The High Court was unaware of the fact that some 30,000 shotguns, including a great number of ‘sawed-off’ shotguns, were purchased by the U.S. Government for use in World War I as ‘trench guns’.…”

The Supreme Court absolutely did not say that and Mitchell should never have used that statement in that way in this essay.

The Supreme Court said, "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."

They said this because Miller never argued a case at the appellate level. The apeals court in Arkansas never asked for any argument from Miller, they agreed with his brief and ruled that the National Firearms Act was unconstitutional on its face. There was no evidence submitted to the court in Arkansas for the Supreme Court to consider. It was a summary judgement.

The Supreme Court did not render an opinion at all in this case. What they ruled was: "We are unable to accept the conclusion of the court below and the challenged judgment must be reversed. The cause will be remanded for further proceedings.

Reversed and remanded."

Remanded means that the case was sent back to the lower court to for another hearing.

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=307&invol=174

12 posted on 12/29/2006 3:34:58 PM PST by sig226 (See my profile for the democrat culture of corruption list.)
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To: sig226
sig226 said: The Supreme Court did not render an opinion at all in this case. What they ruled was: "We are unable to accept the conclusion of the court below and the challenged judgment must be reversed. The cause will be remanded for further proceedings. Reversed and remanded."
Remanded means that the case was sent back to the lower court for another hearing.

The Supreme Court did not render an opinion regarding the usefulness of a short-barreled shotgun, but deciding matters of fact is not a function of an appeals court. The Supreme Court most certainly DID render a binding opinion regarding the law. As a matter of law, the Supreme Court decided that the lower court could not dismiss an indictment for violating the NFA 34 without considering that some arms may not be protected by the Second Amendment. [Note that I disagree with the Miller Court.]

"Reversed", however, means that the decision of the lower court does not stand. The lower court was most certainly NOT entitled to just repeat its prior decision. Rather, the Supreme Court pointed out that a decision regarding the protection of the Second Amendment in Miller's case depended upon the usefulness of a short-barreled shotgun to a militia. There was no expectation that the lower court consider Miller's membership in a militia.

The Supreme Court agreed with one of the prosecution's arguments, that the possession of only some arms are protected, but the Court disagreed with the prosecution's other argument that only militia members are protected.

14 posted on 12/29/2006 5:12:05 PM PST by William Tell (RKBA for California (rkba.members.sonic.net) - Volunteer by contacting Dave at rkba@sonic.net)
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To: sig226; wardaddy; Joe Brower; Cannoneer No. 4; Criminal Number 18F; Dan from Michigan; Eaker; ...
sig226, thanks for the Findlaw link for UNITED STATES v. MILLER, 307 U.S. 174 (1939).[bookmarked]

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17 posted on 12/29/2006 5:27:32 PM PST by neverdem (May you be in heaven a half hour before the devil knows that you're dead.)
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To: sig226
"and ruled that the National Firearms Act was unconstitutional on its face."

That is correct, though they did not provide any details as to why they thought it was. The U.S. Supreme Court, on the other hand, seemed to focus their attention on weapons with "some reasonable relationship to the preservation or efficiency of a well regulated militia".

“The High Court was unaware of the fact that some 30,000 shotguns, including a great number of ‘sawed-off’ shotguns, were purchased by the U.S. Government for use in World War I as ‘trench guns’.…”

Unaware? Perhaps.

But even if they were aware, they'd hardly compare Miller's "less than 18 inch sawed-off" double-barreled shotgun to the Winchester Model 1897 shotgun with a 20" barrel, bayonet lug, barrel handguard and sling swivels as used in WWI.

23 posted on 12/30/2006 5:13:46 AM PST by robertpaulsen
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