Malice
Member
Can you give me a specific example of how anyone uses Miller to justify banning military weapons?
Bush Lawyers TargetGun Control's Legal Rationale
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Brett Bellmore
Member
Personally, I'd rather have a President who didn't feel driven to pretend in public that our enemies were in the right. 
(Giving him the benefit of the doubt that he doesn't REALLY think they're in the right.) That's the "bully pulpit" being used against us, by our own supposed ally.... It hurts us from a public relations standpoint.
And his thinking that he needs to suck up to gun controllers that way is only *this* far, from actually giving them what they want, instead of just empty rhetoric, if something like Columbine happens again at the wrong moment. The fact that he's already rhetorically on their side makes it that much easier for him to match deed to word if the moment seems to recomend it; It won't involve a public flip-flop.
(Giving him the benefit of the doubt that he doesn't REALLY think they're in the right.) That's the "bully pulpit" being used against us, by our own supposed ally.... It hurts us from a public relations standpoint.And his thinking that he needs to suck up to gun controllers that way is only *this* far, from actually giving them what they want, instead of just empty rhetoric, if something like Columbine happens again at the wrong moment. The fact that he's already rhetorically on their side makes it that much easier for him to match deed to word if the moment seems to recomend it; It won't involve a public flip-flop.
carebear
Member
Malice,
I don't think anyone does. What often happens is that Miller is interpreted incorrectly by anti's to say that the Second Amendment does not state an individual right but rather a collective one.
It really does neither. The two implications, had Miller been able to move "forward," as opposed to merely 6 feet down, <heh> would have been
1) that sawed off shotguns were "weapons suitable for use by the Militia" and thus they and all other military derived weapons were explicitly the "arms" mentioned in the Second. Thus the "assault weapons ban" would be unConstitutional. And,
2) that, according to the definition of "militia" used by the Justices, all males (females too under the 14th) capable of bearing arms in defense are the militia. Thus the "collective" ARE the "individuals." It would make arguments on which the Amendment really refers to, moot.
I don't think anyone does. What often happens is that Miller is interpreted incorrectly by anti's to say that the Second Amendment does not state an individual right but rather a collective one.
It really does neither. The two implications, had Miller been able to move "forward," as opposed to merely 6 feet down, <heh> would have been
1) that sawed off shotguns were "weapons suitable for use by the Militia" and thus they and all other military derived weapons were explicitly the "arms" mentioned in the Second. Thus the "assault weapons ban" would be unConstitutional. And,
2) that, according to the definition of "militia" used by the Justices, all males (females too under the 14th) capable of bearing arms in defense are the militia. Thus the "collective" ARE the "individuals." It would make arguments on which the Amendment really refers to, moot.
Owen
Moderator Emeritus
hmm. Why haven't the anti-gunners gone after the legal definition of militia? Not only does it reinforce a broad definition of the 2A, it is also justification for the draft. Having a draft is just calling up the militia.
It seems like it would be a fairly easy slam-dunk for them.
It seems like it would be a fairly easy slam-dunk for them.
carebear
Member
If they start pulling up older U.S. Code then they lose their "moral issue" high ground and turn it into a street fight on original intent, which they cannot win.
Better (for them) to let the issue lie at the "militia means National Guard" level.
To bring up history is to lose a significant portion of the electorate's interest, for either side.
Better (for them) to let the issue lie at the "militia means National Guard" level.
To bring up history is to lose a significant portion of the electorate's interest, for either side.
Owen
Moderator Emeritus
Yeah, but they could sell it as "Let's make sure there isn't another draft! Let's chop out the part of the US Code that says everybody can be called!!" Then the oliphonts would go along to prove to the youngin's that they really don't want a draft, and to prove the point, get rid of the draft legislation to look like good guys.
Then a few years later the donkeys can say "OMG, look what happened! It looks like not everyone is the militia!" It's not like dems are the only ones that don't dig into unintended consequences.
Then a few years later the donkeys can say "OMG, look what happened! It looks like not everyone is the militia!" It's not like dems are the only ones that don't dig into unintended consequences.
carebear
Member
Owen,
I was poking around google and i can't seem to find the actual legal basis for conscription. There's plenty about the Acts themselves but none actually providing the Constitutional or Common Law statuatory justification. I can't find the "Whereas's".
Is it really Title 10?
I was poking around google and i can't seem to find the actual legal basis for conscription. There's plenty about the Acts themselves but none actually providing the Constitutional or Common Law statuatory justification. I can't find the "Whereas's".
Is it really Title 10?
Owen
Moderator Emeritus
I'm no lawyer, but it seems that the legal definition of who can be called up for militia duty is exactly what enables the government to call them. If the militia is only 12 year old girls, it would seem that only 12 year old girls could be drafted.
OK, Article 1, Section 8
The Congress shall have the power ....
- To raise and support Armies but no Appropriation of Money to that Use shall be for a longer Term than Two years
-To make rules ...land and naval forces
-to provide for the calling forth of the militia
-To provide for the organizing, ... the Militia...
-To make all Laws ... execution of the foregoing Powers
The law that establishes who the militia includes is the law that tells the Military who they can draft.
OK, Article 1, Section 8
The Congress shall have the power ....
- To raise and support Armies but no Appropriation of Money to that Use shall be for a longer Term than Two years
-To make rules ...land and naval forces
-to provide for the calling forth of the militia
-To provide for the organizing, ... the Militia...
-To make all Laws ... execution of the foregoing Powers
The law that establishes who the militia includes is the law that tells the Military who they can draft.
Owen
Moderator Emeritus
Wow, I just googled "Legal Basis of Conscription" and didn't find much except for foreign governments.
carebear
Member
Exactly. There's typically a legal chain of statute authorizing government actions. Whereas this, therefore that... But I don't see it in any of the Selective Service Acts.
I'm not proposing there isn't any (woulda been lawsuits up the wazoo), but it is surprising it isn't right out there.
I'm not proposing there isn't any (woulda been lawsuits up the wazoo), but it is surprising it isn't right out there.
Brett Bellmore
Member
"It really does neither. The two implications, had Miller been able to move "forward," as opposed to merely 6 feet down, <heh> would have been "
You have to consider the context, the time frame this case was decided in; It came after "the switch in time that saved nine", the moment when the Supreme court decided to give up on enforcing constitutional limits on federal power, for fear that FDR would do something ugly if they kept crossing him.
At that point, the fix was in, NOTHING the feds wanted to do was going to be declared unconstitutional. IMO, we're actually lucky Miller was a no-show, as it gave the Court an out to uphold the law while establishing as little in the way of damaging precidents as possible. Because they WERE going to uphold that law, come Hell or high water. An effective defense of Miller would simply have prompted the Court to write an opinion that addressed and rejected all arguments for an individual right.
At least, that's the impression I get from the history books.
You have to consider the context, the time frame this case was decided in; It came after "the switch in time that saved nine", the moment when the Supreme court decided to give up on enforcing constitutional limits on federal power, for fear that FDR would do something ugly if they kept crossing him.
At that point, the fix was in, NOTHING the feds wanted to do was going to be declared unconstitutional. IMO, we're actually lucky Miller was a no-show, as it gave the Court an out to uphold the law while establishing as little in the way of damaging precidents as possible. Because they WERE going to uphold that law, come Hell or high water. An effective defense of Miller would simply have prompted the Court to write an opinion that addressed and rejected all arguments for an individual right.
At least, that's the impression I get from the history books.
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