Sangamon
County Rifle Association
Right Reason on Second Amendment Rights
Springfield, Illinois
Right Reason on Second Amendment Rights
Springfield, Illinois
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Sangamon
County Rifle Association
Right Reason on Second Amendment Rights Springfield, Illinois |
|
 The "Miller" Decision
by Jim Butler,
President, SCRA
February 2008 GunNews U.S. v. Miller. 307 U.S. 174 (1939) The Bill of Rights, which include the first ten amendments to the Constitution of the United States, was adopted to provide basic legal protection and individual rights for all Americans. One of them, the Second Amendment has been under attack for over seventy years. The Second Amendment states: A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. The case continually cited by "gun control" advocates as the Supreme Courts definitive ruling against the individual's right to keep and bear arms in U.S. v. Miller 307 U.S. 174 (1939). While such a decision was sought by the Justice Department, which was the only party presenting an argument in the case, the Court decided only that the National Firearms Act of 1934 was constitutional absent the presentation of evidence to the contrary. Because no evidence or argument was presented except by the Justice Department, the Court was not made aware that some 30,000 short-barreled shotguns were used as "trench guns" during World War I, nor could it have known that similar guns would be used in World War II and Vietnam. Specifically the court said "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. Anybody remember the defunct Clinton 1994 "Assault Weapons" ban? The major flaw in the process which led to the U.S. v Miller decision was the fact that the defendants -- Miller and Layton -- did not appear and were not represented by counsel before the Supreme Court. A lower federal court had released them from custody and they had disappeared; indeed, Miller had died. The U.S. government in its appeal to the Supreme Court in this case said: "The Second Amendment does not confer upon the people the right to keep and bear arms, it is one of the provisions of the Constitution which, recognizing the prior existence of a certain right, declares that it shall not be infringed by Congress. Thus the right to keep and bear arms is not a right granted by the Constitution and therefore is not dependent upon that instrument for its source. . " The U.S. v Miller case is frequently although erroneously, cited as the definitive ruling that the right to keep and bear arms is a "collective" right, protecting the organized state militia -- now the National Guard -- rather than the individual right to possess arms. But that was not the issue in the U.S. v. Miller case, and no such ruling was made; moreover, the word "collective" is not used at all any place in the opinion. As I See it Index Return to SCRA Home Page |