Quote:
Originally Posted by W.J. Wilczek
The Second Amendment does not grant any rights. United States v. Cruikshank, 92 U.S. 542, 553 (1875).
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That is absolutely correct and I am puzzled as to why you think that statement of fact supports your anti-individual right position in any way.
Quote:
Originally Posted by W.J. Wilczek
Furthermore, there is nothing in the Second Amendment that would bar the regulation of the possession, transportation and sale of firearms. United States v. Miller, 307 U.S. 174 (1939).
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There was only one sliver of NFA-'34 under inspection in
Miller and since no appearance was made on behalf of Miller and Layton the Court only heard the US Attorney's argument that the registration / tax requirement for the transfer of a shotgun having a barrel less than 18 inches long was not a violation of the 2nd Amendment.
The
Miller decision was not a endorsement of NFA-'34 in it's entirety and it did
not hold what you claim.
Quote:
Originally Posted by W.J. Wilczek
The original intent of the framers of the Constitution in the adoption of the Second Amendment was to guarantee the right to bear arms to the states for purpose of the maintenance of state militias; it was not a grant to individuals.
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There was never any "state's right" action in the 2nd Amendment. The theory is a legal mirage created in the lower federal court system in 1942; its only ambit of influence seems to be to defeat the claims of individual citizens of a 2nd Amendment injury in the courts of the USA.
This supposed immunity that the 2nd "guarantees the states" is a legal nullity in its claimed operation; SCOTUS has ruled for 188 years that such an immunity from federal preemption does not exist.
Quote:
Originally Posted by W.J. Wilczek
If the Second Amendment was ever a limitation, it was on the intrusion of the federal government on states’ rights at a time when there was no standing army or organized reserve, and had nothing to do with the private ownership and use of guns, the regulation of which, as made clear by the Supreme Court’s decision in Miller, under both state and federal law (viz. National Firearms Act of 1934) is not prohibited by the provisions of the Second Amendment.
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A proper reading of Miller is found in a 1st Circuit decision coming only 3-1/2 years after Miller, it is
Cases v. U.S, 131 F.2d 916 (1st Cir. 1942).
A proper and honest reading of
Miller was so frightening the
Cases court had to dismiss it and ignore it. (paragraph breaks added)
"At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called 'Commando Units' some sort of military use seems to have been found for almost any modern lethal weapon.
In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus.
But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities,-- almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,-- is in effect to hold that the limitation of the Second Amendment is absolute.
Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result"
Absolutely no aspect of any "state's right" is presented there; the
restricted entity is Congress, the
protected entity are "private persons not present or prospective members of any military unit and the
protected property is the type of weapon that could be said to, "bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day."
WOW!
It is no wonder that the
Cases court opined that
Miller formulated no rule!
The reason this had to be done was that by then, it was a "well known fact" or as the
Miller court said, "within judicial notice," that pretty much every single modern gun has military usefulness!
The shotgun that the
Miller court said, "has no reasonable relationship, . . ." could now be argued to be an arm beyond the reach of the NFA '34 and nearly all guns would be protected and nearly all federal gun control laws would be struck down.
This is the true and proper explanation of what
Miller means and a fine explanation also on the action and extent of the protection secured by the 2nd Amendment for the individual, private citizen and is private arms!
If you disagree please explain why . . .