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TexasTransplant
Bird Dog
Reged: 01/23/08
Posts: 332
Loc: TX, US, Earth, Sol, Milky Way
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Re: Supreme court thinks the federal firarms machine gun act may be unconstitutional.
06/29/08 07:49 PM
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It's like a word problem in math. You have to pick out the parts that matter to the point you are making. I don't think the Supremes are saying that Miller or the machine gun act may be unconstitutional. Rather, it seems that they're saying that a reading of Miller that would render the machine gun act unconstitutional would be an improper reading of the decision. See emphasis below.
We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)).
They appear to be saying that the proper reading of Miller is that it proscribes the use of weapons that might not have a legitimate purpose in defense of home or person. If anything, this probably does more to legitimize "sawed off" shotguns than anything else. It's hard to argue against a short shotgun down the hallway as serving a legitimate defense purpose. In fact, a shotgun probably does better than a machine gun.
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