Letters to the Editor
Xanthro
Published Letters: 522 Editor's Choice: 47
-
Case Law
[Read the article: Repeal the Second Amendment]
[Read more letters about this article: Here]Xanthro, the Emerson case IS binding in the 5th Circuit: Texas, Louisiana, and Mississippi.
---------------------------
It's a local decision, non binding for law as a whole, which you know, so stop playing games.
============================
It WAS appealed to the Supreme Court, which declined to take the case.
----------------------------
Since it was not heard it has no precedence and cannot be cited as a Supreme Court decision.
============================
"You assert that "many" other decisions supposedly adopt this novel reading of the 2A, but can't name even one; and while you repeatedly accuse me of misquoting Miller, you won't say how."
First, in terms of nomenclature, that it's an individual right is called the standard model. Even such anti-gun legal scholars as Lawrence Tribe who once advocated your position now concludes that it's an individual right. See, Tribe, American Constitutional Law, Vol. 1, pp. 901-902 (2000).
I've pointed out numerous times in detail how you are misquoting Miller, for the sake of completeness, I'll repeat it here.
Miller speaks to the instrument, that is the firearm, and not to bears the firearm.
"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."
Miller continues to State:
"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."
Miller also speaks directly to the issue of Article I Section 10.
"The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress"
===================================
"Does Miller not hold that the right to possess guns must have a 'reasonable relationship to the preservation or efficiency of a well regulated militia?'
-----------------------------------
No, Miller speaks as to the instrument, the error you keep repeating is that it speaks to an individual. Someone can't claim 2A protection for carrying throwing stars or a concealed weapon because such arms bear no reasonable relationship to a militia.
It's also why people can't own nuclear weapons, line mines, and bombs, because such arms do not bear a relationship to a militia.
I happen to agree with what Miller concluded, what is in error is your extrapolation Miller codifies an State right.
=============================
"Did the court not look to state law to determine if Mr. Miller's sawed-off shotgun had any such relationship to his state's militia?"
------------------------------
No, Miller was charged under Title 26, or the National Firearms Act of 1934 and Federal Law.
The Court ruled it was the "absence of evidence" that such an instrument had military uses.
===============================
"Did I just imagine these things, just as Bush-Cheney imagined WMD's in Iraq or an operational relationship between Saddam and Osama (who bin-Forgotten)?"
-------------------------------
Yes, you are no in the realm of fantasy previously only occupied by the likes of Bush-Cheney.
===================================
"The good news, I guess, is that you now realize the foolishness of your "troops versus militia" argument, and admit that "Miller" is the law of the land."
--------------------------------------
It's obvious you've never actually read Miller or the language of Article I Section 10 would be familiar, since Miller itself includes the reasoning.
Since you admit that Miller is the law of the land, this means you accept that Article I Section 10 is in affect and 2A protection can only be an individual right.
You should actually read case law before arguing it, rather than repeating argument pulled from websites.
==========================================
Hopefully you can also admit, as the 5th Circuit noted in Emerson, that all of the other federal appeals courts that have considered the matter (i.e., nine or ten out of twelve) disagree with the 5th Circuit, and that that is the law of the land within those circuits. Xanthro? Buehler?
---------------------------------------
Are you really that naive of how case law and precedence works? Other Circuit Courts do not have the opportunity to examine cases from other jurisdictions. That authority belongs to the Supreme Court. The other jurisdictions are silent on the matter as a course of law. They never considered the merits of Emerson.
Now, seriously, go and read something original and familiarize yourself with the cases in question before replying, because it's apparent you are only copying and pasting from the works of others.