Judges are not immune to reality or common sense (well......) so let's try to examine a possible reversal of Miller.
If being a member of a "reserve militia" is universal, as in Presser, then it is in fact universal without exception. Does it allow convicted child molesters to posses weapons so they can kidnap more children? Does it allow Al Quida members to camp outside my front door on a public street with a loaded 20mm mini-gun pointed at my bedroom? Does it allow visiting wives to bring pistols to their inmate husbands at a state prison?
It goes further. If all are members of a militia, then what was to stop a 2000 member ultra-liberal anarchist militia, called "Gore's Gator Garrison" from marching on Tallahassee or Washington to upset the 2000 Florida vote?
What would stop them? JimRob's Rebel Rifle Regiment?
Understand, I am very pro-gun. Have been a CCW holder / NRA Life Member since three days after I returned from second tour in RVN.
Unfortunately, as a conservative lawyer, I do see some problems with assuming we have an absolute constitutional guarantee to keep and bear arms. If the 2d amendment didn't have that "militia" clause, it would be much simpler.
The other amendments do not have such a qualification. The 1st Ammendment doesn't "open criticism of government is essential to proper operation of a Republic, therefore the right to free speech shall not be infringed." If it did, I could certainly criticize my local city commissioners, but what about my comments about the idiotic choices of the judges on "American Idol?"
As you can see, absolutist positions can be a very slippery slope.
You have that 'problem', not me. -- A militia of the people is necessary to the security of a free state; thus, -- no infringements on arms; -- IE; no unreasonable regulations.
I realize that Presser v. Illinois, 1886, held that we are all members of a "reserve militia" and therefore the several states should not interfere with gun ownership. But "Miller" SCOTUS, 1939 held that there is no constitutional right to own a sawed-off shotgun.
SCOTUS 'rulings' cannot change the Constitution. You should know that as a lawyer.
You can go several ways is reviewing Miller. Did the Court so decide because a sawed-off shotgun is not a weapon commonly used by an armed army/militia? (If so, then lots of guys walking point in RVN might disagree!) Was their thinking that Miller was not a member of a "well regulated militia," therefore he had no constitutional right to posses that weapon, and perhaps any other?
One of my jobs as a lawyer/Investigative Reporter was to have viewers look beyond the instant case and see the practical applications of a law or decision.
One of your jobs as a lawyer is to support & defend the Constitution as written. -- The practical application of Miller permits infringements. -- As a conservative lawyer, you see some problems with assuming we have an "absolute" constitutional guarantee to keep and bear arms. --- I see some problems with that assumption. -- No right is absolute.
Judges are not immune to reality or common sense (well......) so let's try to examine a possible reversal of Miller. If being a member of a "reserve militia" is universal, as in Presser, then it is in fact universal without exception.
False premise on your part. Being a member of a "reserve militia" is ~not~ universal, as you claim Presser established.
Does it allow convicted child molesters to posses weapons so they can kidnap more children?
No, that's hyperbole.
Does it allow Al Quida members to camp outside my front door on a public street with a loaded 20mm mini-gun pointed at my bedroom? Does it allow visiting wives to bring pistols to their inmate husbands at a state prison?
More hype.
It goes further. If all are members of a militia, then what was to stop a 2000 member ultra-liberal anarchist militia, called "Gore's Gator Garrison" from marching on Tallahassee or Washington to upset the 2000 Florida vote?
Being laughed off the street? Get real.
What would stop them? JimRob's Rebel Rifle Regiment?
JR once posted:
"___ Yes, I support the Second Amendment. And I make no bones about its purpose or to whom it applies. It was not put in place so Bill and Hillary Clinton could go duck hunting with a shotgun or so Barbara Steisand could carry a derringer in her purse to stave off overzealous fans. It's there because the founders wanted to ensure that we the people (ie, individuals) should remain armed to defend ourselves from a government gone bad. As far as I'm concerned, we should be allowed to park fully operational Sherman tanks in our garages and commute via fighter planes (if we wish). Now, personal nukes capable of taking out large cities.... hmmmm.... I don't know if I want to trust some of the crazier antiwar libs with those.
1,219 posted on 04/17/2003 5:04 PM PDT by Jim Robinson
Understand, I am very pro-gun. Have been a CCW holder / NRA Life Member since three days after I returned from second tour in RVN. Unfortunately, as a conservative lawyer, I do see some problems with assuming we have an absolute constitutional guarantee to keep and bear arms. If the 2d amendment didn't have that "militia" clause, it would be much simpler.
That militia clause 'reasoning' has been a cloak to hide behind for anti-gun statists since day one of the Republic.
The other amendments do not have such a qualification.
In Nunn v Georgia [1846], the court kept the introductory clause to the Second Amendment firmly in view:
"-- Our Constitution assigns as a reason why this right shall not be interfered with, or in any manner abridged, that the free enjoyment of it will prepare and qualify a well-regulated militia, which are necessary to the security of a free State."(252) Thus:
If a well-regulated militia is necessary to the security of the State of Georgia and of the United States, is it competent for the General Assembly to take away this security, by disarming the people? What advantage would it be to tie up the hands of the national legislature, if it were in the power of the States to destroy this bulwark of defence?
In solemnly affirming that a well-regulated militia is necessary to the security of a free State, and that, in order to train properly that militia, the unlimited right of the people to keep and bear arms shall not be impaired, are not the sovereign people of the State committed by this pledge to preserve this right inviolate?...
The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void --"
The 1st Ammendment doesn't "open criticism of government is essential to proper operation of a Republic, therefore the right to free speech shall not be infringed." If it did, I could certainly criticize my local city commissioners, but what about my comments about the idiotic choices of the judges on "American Idol?"
As you can see, absolutist positions can be a very slippery slope.
As we all can see, your use of hyperbole in defense of the militia clause is a "very [amusingly] slippery slope indeed"..