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To: El Gato
"And it is from the Syllabus, not the actual decision, it has no force of law whatsoever."

The quote was contained in the opinion of Mr. Justice McReynolds in US v Miller.

"BTW, that cite is to a *state* court case."

Yes. And the Tennessee constitution at the time read, "that the free white men of this state have a right to keep and bear arms for their common defence."

Interesting that the Miller court would only cite one case, Aymette v Tennessee, and that case concerned a collective right. The state court concluded:

"If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them is not, therefore, secured by the constitution."

"The legislature, therefore, have a right to prohibit the wearing or keeping weapons dangerous to the peace and safety of the citizens, and which are not usual in civilized warfare, or would not contribute to the common defence."

729 posted on 03/25/2007 6:51:10 AM PDT by robertpaulsen
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To: robertpaulsen
Interesting that the Miller court would only cite one case, Aymette v Tennessee, and that case concerned a collective right.

It's not surprising, since only the government was represented, and the court relied on the government's brief (well a tiny part of it), and even they could find no support for the notion that the Second Amendment itself protects only a collective right. However Aymette does not concern a "collective right" either. It concerns the scope of the right protected by the Tennessee constitution, that is to keeping and bearing arms "for the common defense", not "in the common defense".

As your quote indicates the Tennessee Constitution protects a right to keep and bear arms "for the common defense", No such limitation is stated in the Second Amendment.

The weapon in Ayemette was a Bowie Knife, which was considered not to be appropriate for use "in the common defense". (wrongly IMHO, in view of use of one or more at the Alamo by Bowie himself)

Applying the test of a state constitution, which as you've pointed out many times may be different than that of the federal Constitution, to the federal Constitutional provision is hardly appropriate, given that the "common defense" is not only not present in the Second Amendment, but the same "for the common defense" language was explicitly rejected, by the Senate, during the proceedings in Congress when the Bill of Rights was drafted. So to interpret the second amendment as implying a phrase or meaning that was explicitly rejected seems quite a feat of "interpretation".

730 posted on 03/25/2007 4:41:54 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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To: robertpaulsen
The quote was contained in the opinion of Mr. Justice McReynolds in US v Miller.

My bad, it was, but it was still out of context. There was Many people read the syllabus to say that a short barreled shotgun has no relationship, while the Court said "In the absence of any evidence". Big difference, especially when one considers that Miller was not represented, and was killed before the "further proceedings" could be held. (His co-defendant (in the original indictment) pleaded guilty and got probation. What do you suppose a violation of the NFA will get you today?

731 posted on 03/25/2007 8:32:37 PM PDT by El Gato ("The Second Amendment is the RESET button of the United States Constitution." -- Doug McKay)
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