Silveira v. Lockyer bashers, please read...

[Gray Peterson]

In the summary of their brief, the government put forth the idea that Second Amendment was a collective right, and that it did not protect the possession of arms that were "peculiarly adaptable to use by criminals." The Supreme Court bought this line, and so, researched the type of weapons called for by various militia acts.

My frustration level with you Graystar has gone way up since you started commenting. But I will keep this on the high road.

What part of "Miller's lawyer was not there to demonstrate to the court" do you not understand?

The court ruled that it was not demonstrated to them that a short barreled shotgun was related to the efficacy of a well regulated militia (meaning well equipped). THough 20 inches was a standard length, it was by no means the only length, because they were modified on the battle field on site.

Again, the court ruled that it had not been demonstrated to them. If Miller's lawyer had shown up, the anti-gun movement would have died a crib death.

 

[Graystar]

What part of "Miller's lawyer was not there to demonstrate to the court" do you not understand?

What part of "That means absolutely nothing!" do you not understand??

The court ruled that it was not demonstrated to them that a short barreled shotgun was related to the efficacy of a well regulated militia (meaning well equipped).

NO NO NO! NOT EVEN CLOSE!!

First of all, the only actual ruling is "Reserved" and "Remanded." That is the only ruling. Anything else is the opinion of the court.

Your frustration level is no where near as high as mine is with people that take a single line of a Supreme Court decision and start making all sorts of unfounded assumptions that not only have no basis in the opinion, but have no basis in procedural law.

THE SUPREME COURT DOES NOT REMAND CASES FOR MORE EVIDENCE!!! NO APPEALS COURT DOES! IT GOES AGAINST THE VERY PURPOSE AND PROCEDURES OF AN APPEALS COURT!! PLEASE LEARN HOW THE LEGAL SYSTEM WORKS!!!

I'm sorry for losing it, but like I said, I'm completely frustrated in my attempts to clear up this erroneous concept that the court sent the case back for more evidence. They did no such thing.

The statement they made about a lack of evidence was, in fact, a reflection of the fact that the court could find nothing in the legal history of the United States to support the idea that a sawed-off shotgun was a weapon of the militia. That is why they included the excerpts from various militia acts in their decision. To show that there is evidence that militia men were expect to carry long guns.

Maybe one day someone here will actually read ALL of Miller.

 

[Shamaya]

Reeheheheheeealy!

"Graystay" said:

And, as I said before, since the trench gun of WW1 had a 20" barrel, there simply was no evidence in existence to support the idea that a short shotgun was a weapon of the militia.

The facts about the longtime historical use of short-barreled shotguns for formal military and informal militia use date back to the invention of the blunderbuss.

The evidence Miller would have presented if he'd had proper counsel and if he had been alive to fight his case has now been prepared. The publication draft is complete and will be printed soon -- thanks to those who've supported the Silveira case.

In this publication will be pictures and historical accounts of short-barreled shotguns being used for military purposes before Plymouth Rock and ever since.

If this statement is representative of your level of knowledge on the subject matter, I reckon I'll spare myself reading the rest of your opinions.

Meanwhile, here's a couple of pictures for ya.

National Archives:
http://www.cr.nps.gov/museum/exhibits/revwar/image_gal/morrimg/blunderbuss.html
Libraray of Congress (scroll down, or search for the word "Blunderbuss":
http://www.loc.gov/exhibits/lewisandclark/preview.html

 

[tyme]

Graystar, please research the usefulness and status of arguments made by a court "in dicta." Then research what it means to be within "judicial notice."

Doesn't the Silveira brief cite some cases indicating that by current judicial standards, holding the SC arguments in the Miller case without Miller being present/represented would be unacceptable?

[blockquote](Graystar)And they argue this, in spite of the ridiculously clear fact that one doesn’t need the 14th amendment to get the federal government to protect one’s rights.[/blockquote]
I'm lost. In one breath you complain that you don't want the BoR completely incorporated because you're a states-rights advocate. Fine. In the next you're complaining that the Feds can enforce the BoR when states are violating them. What exactly do you think incorporation does? It is practically assumed as a matter of conlaw that without incorporation of a right into the 14th, there IS NO WAY for the fed.gov to prevent violations of that right. That's what the "... has the power to enforce this ... through appropriate legislation" does. It gives fed.gov authority to do something about rights violations. Otherwise they don't. If you have a different theory, just saying "blah blah you all are wrong" won't get you anywhere. Explain where you think fed.gov gets the ability to deal with rights violations. The privileges and Immunities clause? The implied power to deal with rebellion and insurrection?

[blockquote]The 14th Amendment is not needed to apply the Bill of Rights to the states.[/blockquote]
Okay. With this, you're probably annoying me almost as much as you're annoying Lonnie. Explain how you read "Congress shall make no law ... abridging the freedom of speech, or of the press..." to mean that States and cities/towns can't censor speech either. Generations of constitutional law scholars would love to hear from you if you can.

Your opinion that the 2nd amendment is only meant to allow citizens to protect their land from seizure under eminent domain is seriously wanting. I don't see a clause in it mentioning either land or government usurpation of it, and if you spend a few moments researching 2nd amendment issues you'd find that the 2nd amendment actually does protect my right to own any firearm I damn well please, to lawfully protect myself or just to piss off gun-phobic or statist government agents. Legislative history is not binding, so you can rant about King George's influence on the 2nd Amendment all you want. Unless you can make some reference to King George appear on the Bill of Rights (and all the copies sent to the States to be ratified), your argument is DOA.

And you don't think Cruikshank should be overturned? Oh my. You must have checked into Hotel California. I don't see a way out of this mess for you. After arguing that opinions don't mean anything and that the "held" or "reversed" command is all that matters, you go on to say that a certain infamous decision, one holding that there's no recourse if states let kkk members do whatever they want to keep blacks from voting, should remain good law, citable by lower courts? My God, that (kind of thought) is what this country went through a civil war to resolve! And you want this pox of a decision to stay around because it has a few shreds of good reasoning in it, even though those threads didn't really have anything to do with the justices' reasoning?

 

[Jim March]

I'm sorry for losing it, but like I said, I'm completely frustrated in my attempts to clear up this erroneous concept that the court sent the case back for more evidence. They did no such thing.

Graystar, you're the one that doesn't understand.

That IS exactly what the USSC did.

Miller's attorney filed a demurr. That means they argued that yes, Mr. Miller performed the act the cops say he performed (owning a short shotgun) but since it wasn't illegal on 2AM grounds, the case should be chucked out.

The trial judge agreed.

If this isn't clear yet: a demurr is often used as a "crapshoot opening move" by the defense. It doesn't usually work, but it doesn't hurt anything if you lose. It's a low-probability BUT zero-risk shot. Miller's attorney took it

The USSC overturned the demurr. Fine. But that doesn't mean Miller was now magically deprived of the rest of the trial. On the contrary, he lost an opening salvo - now, at trial, the gov't would have to prove his shotgun was not a "militia weapon" under the Aymette-derived "weapon of civilized warfare" test.

Given what happened in WW1, they'd have failed.

The US attorneys at the USSC avoided mention of the WW1 usage of a Miller-type weapon, and they avoided like the plague all mention of what ELSE the NFA does - ban a whole slew of guns that were indeed Aymette-standard weapons. Had Miller had a lawyer present, both ommissions could have been pointed out.

However, Miller *should* have still had his day in court. 'Cept he was dead by then.



Now, as to Reinhardt's decision in Silveira, I have an extensive deconstruction online here:

http://www.americanminutemen.org/reinhardt.htm

Worth a look if you haven't already.

 

[Graystar]

The facts about the longtime historical use of short-barreled shotguns for formal military and informal militia use date back to the invention of the blunderbuss.

But there is NO evidence that such a weapon was ever a required armament of militiamen. Just because such a weapon might have been used, simply isn't enough. It is not enough to simply be a weapon. Otherwise, the Court would not have implemented their length test.

 

[Gray Peterson]

I emailed Gary Gorski about the issues that Graystar raised, and this is his email sthat I've recieved on the issue:

Email 1:

Without wasting much time trying educate Graystar on what has taken me 12 years of appellate practice to learn – all cases are remanded back to the lower court when they go up on appeal. In Silveira, the Supreme Court will decide the core “legal†issue (i.e. individual right and applicability to the states), and “remand†the case back to the District Court where there will then be a trial on the “factual†issues before the lower court judge and jury, applying the law of the Second Amendment as defined by of the Supreme Court in the Silveira opinion; which in all likelihood will be that the State of California (i.e. Lockyer) will have to prove that 1) there is a compelling state interest in the gun law, and 2) that it is narrowly tailored to meet that interest.

Thanks for your support Lonnie, and good luck on trying to educate a close-minded pessimist.

Gary W. Gorski
Attorney at Law
http://www.gwgorski.com/
916.965.6800
916.965.6801 fax
Semper Liber
(Always Free)
http://www.constitution.org/cs_found.htm

Email 2:

In the lower court, Miller plead guilty, and the Judge made him withdraw his plea, appointed an attorney free of charge, and made that attorney raise a second amendment defense, and Miller won in the lower court, the US appealed

Just to clarify everything.

 

[Graystar]

Graystar, please research the usefulness and status of arguments made by a court "in dicta."

The Court's decision was based directly on the length of the barrel of the weapon, as it relates to a militia's effectiveness. Therefore, judicial notice of acts that specify the length of barrels for weapons to be carried by militiamen is most certainly not dicta.

Doesn't the Silveira brief cite some cases indicating that by current judicial standards, holding the SC arguments in the Miller case without Miller being present/represented would be unacceptable?

I think that's a tricky issue. If you lost a case and you think the court made an error, is it fair that you have to live with that error because the other party died? I don't think it is. Errors in law should be corrected.

But it doesn't matter. Even if Miller had responded, there is nothing he could have done to change the outcome because the evidence he needed didn't exist.

I'm lost. In one breath you complain that you don't want the BoR completely incorporated because you're a states-rights advocate.

I never said any such thing.

In the next you're complaining that the Feds can enforce the BoR when states are violating them.

The Bill Of Rights are NOT our rights. The Bill of Rights is a list of restrictions placed upon government in respects to certain rights. These restrictions would exist even if the Bill of Rights didn't. Also, just as the listing of certain rights does not mean that we have no others, the listing of certain restrictions doesn't mean that there aren't other restrictions as well. This is where the break down in understanding occurs for most people.

Our rights are undefined, and broad. As such, restrictions upon those rights are also undefined and broad. To say that the only restrictions that exist are the ones in the Bill Of Rights is the same as saying the only rights that exist are the ones listed in the Bill of Rights. Both statements are incorrect. However, if we have rights that are not listed in the Bill of Rights, and since there are restrictions upon those rights that are not listed in the Bill of Rights, how then, does applying the Bill of Rights to the states protect these undefined rights from undefined restrictions? It doesn't. In fact, the concept of "applying the Bill of Rights to the states" is nonsensical.

We have rights because we exist. No person, and no government can violate those rights. This is a defining tenet of our form of government. Restrictions upon infringements of our rights have always existed. There is no need to “apply†what, by definition, is part of the nature of the system.

The entire penal and civil code of your state is there to protect your rights. That is the states' job. When they fail to do their job, THEN the federal government steps in and makes them do their job. That is exactly what happened in Alabama.

Your opinion that the 2nd amendment is only meant to allow citizens to protect their land from seizure under eminent domain is seriously wanting.

And here is another problem. People don’t read. I outlined three separate rights that I believe exist…what the 2nd doesn’t protect, the others do. Did you not see that?

Your interpretation of Cruikshank is incorrect. Cruikshank says that you can’t take the kkk members themselves to federal court. The correct process is to take the state to federal court, and have the federal court force the state to perform their duty. That is what happened in Alabama. That is NOT what happened in Cruikshank, hence the decision. It’s not my fault that the lawyers didn’t understand the relationship between the states and the federal government.

Unfortunately, I haven't been able to find any information on what happened to Cruikshank after the Supreme Court decision. The feds should have simply thanked the Supreme Court for straightening out their error, and then promptly taken the state of Louisiana to court to get an order forcing them to prosecute Cruikshank and the others.

 

[Shamaya]

Oh, Brother.

Graystar said:

But there is NO evidence that such a weapon was ever a required armament of militiamen. Just because such a weapon might have been used, simply isn't enough. It is not enough to simply be a weapon. Otherwise, the Court would not have implemented their length test.

Do you actually believe what you are saying? Or are you simply trying to waste time here?

Your "required armament of militiamen" threshold to determine applicability of the Second Amendment to a particular weapon is irrelevant -- to the truth about the Second Amendment, and to a re-evaluation of Milller once it's proven that such a weapon is helpful for the common defense.

The Miller court's reference to length was based on the federal law being challenged -- in this case, a barrel of less than 18 inches.

Even a scoundrel like Justice James McReynolds, who wrote the Miller opinion, could see that a weapon's value to the common defense would mean said weapon is protected by the Second Amendment. McReynolds cited Aymette in the Miller decision, as follows:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less that 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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that is use could contribute to the common defense. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.

And as I told you before, the evidence that wasn't presented in 1939 has been prepared now and will be presented either in Silveira or the first 2A case that goes up.

Fortunately, the wise people who've prepared the Silveira Petition and the brief are not bound by the absurd notion that the only option left to patriots is to milk Miller. McReynolds was a professional obfuscator -- perhaps why you adhere to his inanities rather than wipe the floor with them as is required.

Listen very closely: The fact that a firearm is not a required firearm of any militia does not negate its being protected by the Second Amendment. Nor is a First Amendment implement protected only because it's a required item to run a "free press." Arms are arms. The right to keep and bear them shall not be infringed. If you disagree with that, go join Sarah Brady's group.

 

[Graystar]

all cases are remanded back to the lower court when they go up on appeal.

Please correct me if I'm wrong, but I don't think that final judgements, that are affirmed by an appeals court, are remanded. They are simply affirmed. In any case, I have no idea what you sent him because I don't see anything in his answer that addresses any issue I raised.

 

[Graystar]

Listen very closely: The fact that a firearm is not a required firearm of any militia does not negate its being protected by the Second Amendment. Nor is a First Amendment implement protected only because it's a required item to run a "free press." Arms are arms. The right to keep and bear them shall not be infringed. If you disagree with that, go join Sarah Brady's group.

But a free press is only free is so far as it is used for free expression. The printing of lies has never been protected. In the same way, our right to possess weapons to defend ourselves cannot possibly extend to the possession of weapons to commit crimes. This is why you don't have the right to falsely yell "Fire!" in a theater. This is why you don't have the right to carry a sawed-off shotgun.

But then again, you probably believe that you DO have the right to falsely yell fire in a crowded theater...do you?

I don't need to join Sarah's bunch...you're giving her all the help she needs.

 

[Geech]

That analogy flat out makes no sense, Graystar, and it's the very same analogy that is frequently used by gungrabbers. The act of yelling fire in a crowded theater is illegal because it is so dangerous that it's almost intentionally injuring someone. Gun control in any form doesn't work with that analogy because shooting the guns at people is what's dangerous. Most people who own guns won't commit crimes with them, even if the shotgun has a barrel shorter than 18 inches. The mere existance of that weapon isn't dangerous.

 

[Shamaya]

I figured as much.

But a free press is only free is so far as it is used for free expression. The printing of lies has never been protected. In the same way, our right to possess weapons to defend ourselves cannot possibly extend to the possession of weapons to commit crimes. This is why you don't have the right to falsely yell "Fire!" in a theater. This is why you don't have the right to carry a sawed-off shotgun.

The printing of lies has ALWAYS been protected -- and lies are printed every single day. (See: NY Times, CNN.com, Washington Post, etc. etc. etc. etc. etc.] People can contest any lie they please if it crosses over their rights, certainly. But there's no prior restraint against the action of printing lies.

Our right to possess weapons to defend ourselves does indeed extend to the possession of weapons to commit crimes. Any among us is free to go commit a crime today, with any firearm we own. Or with a knife, or a club, etc. It sounds, to me, like you are saying that any weapon with which we could commit a crime should be able to be at least restricted by government if not overtly banned. Do you support the Charles Manson Fork Ban? If it only saves one baby...

You're a Prior Restraintist -- one who wants government to restrain our rights "for the common good", an abhorrent socialist concept that I flatly and exuberantly defy. Shorty shotguns aren't banned because they are crime guns; I could be a more effective criminal with my .45 and a few extra mags, believe me. Shorties are banned because the political climate allowed for that particular step to be taken against liberty.

And, yes, I do absolutely have a right to yell "FIRE!" in a crowded theater. I can do so any time I please, and I have a right to do it, too. And with my right to do so comes my right to pay the consequences if there isn't actually a fire. I don't see government putting duct tape over people's mouths before they enter theaters. But they do much worse when it comes to gun bans; a gun ban applied to your silly "fire in a crowded theater" mental cupcake would be like government banning theaters to keep people from yelling "FIRE!" when there's no fire.

This is at least the second time you've parroted one of Brady's ridiculous, long-debunked fantasies. I guess their brainwashing tactics are working.

 

[Telperion]

Graystar, your analogy makes no sense. How is the mere possession of a short-barrelled shotgun exactly the "possession of weapons to commit a crime"? What crime, what wrong, would I commit, and why would it then be innocuous to possess a shotgun with an 18" barrel?

If you insist, I still retain the right to yell "fire" in a crowded theater, but I face the legal consequences if there is no fire.

 

[Graystar]

(sigh) It's going to be a very very long time before we get to enjoy our right to possess firearm for personal defense.

 

[dustind]

GrayStar: The press can lie, but if the lie violates another persons rights it is a crime(libel, slander). The same goes for yelling fire or discharging firearms. If yelling fire violates someone’s rights (property owner looses business, someone is trampled, etc) and there is no fire you are responsible. The same with discharging a firearm, you have the right to do it, but we have noise ordinances and obviously hitting someone with a bullet violates their rights.

You can do whatever you want so long as it does not harm anyone else, at least in theory. You can go to jail for exercising rights recognized by the BOR if it harms someone else.

 

[madmike]

"In the same way, our right to possess weapons to defend ourselves cannot possibly extend to the possession of weapons to commit crimes. This is why you don't have the right to falsely yell "Fire!" in a theater. This is why you don't have the right to carry a sawed-off shotgun."

Interesting. What weapons "Cannot be used to commit crimes"? List, please? A mind with intent is the only offensive weapon. All else are accessories.

"But there is NO evidence that such a weapon was ever a required armament of militiamen."

BWUAAAAAAAhahahahaahaa!

You've never seen a WWI trench shotgun? Winchester Model 1897, IIRC. 13" barrel.

Short barreled shotguns are STANDARD ISSUE for military police, security forces, shore patrol, etc. Just as they are for police. Barrels have varied from 13" to 20." Military police ARE a function of any military, including a militia--firebase security, POW security, etc.

As Angel correctly observes, banning a weapon because it might be used in crime is legally analogous to duct-taping mouths of theater patrons in case they yell "Fire!", handcuffing martial artists in case they attempt to hijack a plane, banning electric guitars and amps in case someone disturbs the peace, and amputating unlicensed penises in case they are used in rape.

"(sigh) It's going to be a very very long time before we get to enjoy our right to possess firearm for personal defense."

I have no idea what you mean by this statement. It appears to be self-serving and obfuscating. I will only comment that, by intent or incompetence, you are an enemy of such right.

 

[Jim March]

Graystar is a consistent opponent of the 14th Amendment. Damned if I know what's going on in his head, but I've given up as of this thread - I pointed out that because what the Miller court overturned was a demurr, they damned well WERE bouncing it back for a full trial where evidence re: the shotgun could have been introduced.

He's either got a MAJOR grade bug up his butt regarding the Feds, or he's a full-on racist. I have no clue which, nor do I care.

 

[alan]

Jim March wrote, in part:

They (the USSC one assumes), can't dodge it forever.

While you might be right Jim, would you like to bet on that assumption? Nothing serious, just a nominal amount, say half a buck.

 

[tyme]

Graystar,

I never said judicial notice was dicta. You seemed to think dicta were totally unimportant. They are not. They are important to the court's decision, they are important to lower courts which have to figure out how to follow the decision, and they are useful in other related cases. Courts tend to carefully consider cites from other decisions (from the same court or from courts whose decisions are binding upon the court), because it means they either have to develop a strong rationale to overturn the reasoning, or they have to concur. If they do whatever they want, the perception is that the court is fickle and public confidence in the institution declines.

The whole thing with judicial notice is just silly. You're not paying attention. Read Angel Shamaya's posts. Again.

[blockquote]The Cruikshank decision is one that most clearly describes the relationship between the federal government, the states, and our rights. To reverse the reasoning in these cases is to elevate the federal powers to a point where state governments practically have no reason to exist.[/blockquote]
So if this doesn't mean you're a states rights' advocate, what does it mean? You understand what right is at issue, correct? ... the right to vote. If that isn't protected by the 14th, nothing is.

Yes, just about everyone here understands that the BoR is not a grant of rights, and that the 9th amendment exists. But that has nothing to do with the issue of who enforces rights if they are violated.
[blockquote] And here is another problem. People don’t read. I outlined three separate rights that I believe exist…what the 2nd doesn’t protect, the others do. Did you not see that?[/blockquote]
Most people read just fine. You're the one who seems to read comments about King George and land rights into the 2nd Amendment. They aren't there. The 2nd amendment protects the right to keep and bear arms. It doesn't specify any mandatory purpose -- you don't see "the right of the people to keep and bear arms to protect their land or right to due process," do you? The 9th amendment protects your right to self defense, and has some other text relating to the militia, which as I'm sure you know is pretty much every able-bodied adult. The right to throw off an opporessive government may fall under the 2nd amendment, or it may be under the 9th amendment (or even 10th if states want to get involved), or may not be "protected" at all, since it violates certain principles for an entity, even one originally constructed to obey the will of the people (except for when it must respect rights), to allow itself to be destroyed. If it has gotten to the point where it violates rights, what good is it's guarantee of a right to revolt?

 

[Graystar]

You've never seen a WWI trench shotgun? Winchester Model 1897, IIRC. 13" barrel.

I have looked for varying specs for the Winchester in the past. It always comes up as having a 20" barrel. If you have documentation that states that the weapon was manufactured in other lengths I would certainly be interested in seeing that.

Short barreled shotguns are STANDARD ISSUE

And here is where you are missing the one of the most important guiding concepts that was used by the Miller court. The question is not of what the government issues...but of what the government required a militiaman to bring to the fight. And according to the Court's research, the government required militiamen to bring long guns to the fight. Therefore, the right to keep and bear arms doesn't cover the possession of short guns. That is what their opinion is saying.

 

[Graystar]

Graystar is a consistent opponent of the 14th Amendment.

I'm sorry that the 14th Amendment doesn't mean what you want it to mean. And clinging onto a bad interpretation will get you nowhere.

 

[Graystar]

[dicta] They are important to the court's decision.

No, that is wrong. That is completely wrong. The legal meaning of the word dicta is the exact opposite.

Dictum:
A view expressed by a judge in an opinion on a point not necessarily arising from or involved in a case or necessary for determining the rights of the parties involved.
Merriam-Webster's Dictionary of Law

By it’s nature, dicta is unnecessary to make a determination. The cites from various militia acts that are included in Miller are fundamental to the decision, because they provide the basis for the court to lean one way, rather than the other. If the court really was unable to find any evidence or judicial notice at all relating to this issue, then they probably would have affirmed the lower court’s ruling. But they *did* find some law that speaks to the issue. They found that the government requires you to show up with a long gun. It is this fact that tipped the Miller decision to reversal. And there is nothing Miller could have done to negate the process that the court chose to follow.

 

[Graystar]

The Cruikshank decision is one that most clearly describes the relationship between the federal government, the states, and our rights. To reverse the reasoning in these cases is to elevate the federal powers to a point where state governments practically have no reason to exist.

So if this doesn't mean you're a states rights' advocate, what does it mean? You understand what right is at issue, correct? ... the right to vote. If that isn't protected by the 14th, nothing is.

In Cruikshank, the federal prosecutors just plain ol’ screwed up. How would you like to be arrested for stealing without ever being told what you were supposed to have stolen? That’s exactly what the prosecutors did. Cruikshank is more about stupid government lawyers not knowing what the hell they are doing, than anything else.

I am not for states’ rights because I do not believe that states have rights. State governments, like the federal government, are governments of delegate powers. They can only do what they are allowed to do, and no more. Rights, by their nature, are unbound. I can exercise my freedom of expression and religion as much as I want as long as I don’t violate anyone else’s rights. State governments have no such liberties.

If I’m for anything, it is the recognition of the delineation of state powers and federal powers, and of the proper procedures for addressing abuses of power by the state. Cruikshank demonstrates the wrong way to address abuses by the state. The recent Ten Commandments case in Alabama demonstrates the proper way to address alleged abuses of state power.

 

[Brian Dale]

NO!!!

Graystar, you wrote:

The question is not of what the government issues...but of what the government required a militiaman to bring to the fight. And according to the Court's research, the government required militiamen to bring long guns to the fight. Therefore, the right to keep and bear arms doesn't cover the possession of short guns. That is what their opinion is saying.

It says no such thing. The 2d Amendment does not protect only those weapons that are required for use in the common defense. It covers all weapons that are acceptable for use in the common defense. The government's original requirements for weapons that men were required to provide for themselves were minimum requirements, and those who did not show up with them at muster were to be fined, IIRC.

The Court wrote that it had not been shown that a short-barreled shotgun was appropriate for use in a military situation. Failure to show that something is true is not proof that the thing is not true. They sent the case back down, not because

[t]hey found that the government requires you to show up with a long gun,

but because Miller's counsel had not shown that a SBS was appropriate for militia/military use. In effect, "we can find for your client because you haven't shown that his weapon is appropriate for militia/military use." Centuries of defensive weapons show that it was, of course, but if the argument doesn't come into the courtroom, it can't be the basis of a ruling.