I wrote the author
Jess,
Your statement,
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The Supreme Court's 1939 opinion, upholding a federal law requiring registration of sawed-off shotguns, found that the amendment didn't guarantee "the right to keep and bear such an instrument," because it had no "reasonable relationship to the preservation or efficiency of a well-regulated militia."
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is patently false.
What the Court said (and this is after a lower Federal Court ruled in favor of Miller), was that it had no "judicial notice" that a short-barreled shotgun was part of the armaments of a militia.
http://usgovinfo.about.com/library/bills/blusvmiller.htm
Quote:
"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."
Funny, though, as you must know because you did tons of research, when US v Miller was argued at the Supreme Court, Mr. Miller had no representation. Miller was dead, and his partner, Mr. Layton had copped a plea. The only attorneys arguing that day were government attorneys. I suppose it was not up to them to inform the court that short-barreled shotguns were used extensively in WWI, nor would they predict that they would be used in WWII, Korea, Vietnam, and currently in Iraq and law enforcement. One would think that worldly attorneys and Justices would know about arms of WWI. And if they did, they were derelict in their duties, wouldn't you agree?
Quote:
"Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense."
And yet, it was. All they had to do was call in an Army armorer to give testimony. The Justices were too lazy and the government attorneys didn't want to lose a case.
No, Jess, the court didn't decide anything in US v Miller. What it did was to remand... hence the final words of the decision...
"The cause will be remanded for further proceedings.
Reversed and remanded."
It wanted the lower court to figure out if the weapon was used in warfare.
What? Why would they think that a weapon had to be used in warfare to be protected under the 2A? In fact, if it was settled that the 2A was a collective right, why did the Court hear US v Miller? It could have said, "The 2A applies only to States. Miller is not a State, therefore he has no standing." They could have done that, but they didn't.
Here is what they did say,
Quote:
"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."
Is it that difficult for you to do some basic research, Jess?
Lastly, you end with, "Robert Post, a constitutional-law professor at Yale Law School, said the new memorandum disregarded legal scholarship that conflicted with the administration's gun-rights views."
Perhaps Dr. Post would like to consult with fellow Yalie Ahkil Amar, who has a different view. And what of famed liberal constitutional scholar, Lawrence Tribe? His latest textbook on the subject reversed his long-held "collective rights" theory.
Go back and do your homework, Jess. And donate a week's pay to
www.jpfo.org
Rick
Phx, Az
