Dear Sir:
Having read your monograph at <http://tinyurl.com/39hfm8>, I wish to
take issue with one of your linchpin assertions: that the Miller case
"concluded the Second Amendment doesn’t protect short-barreled
shotguns because they aren’t related to the militia... A short-
barreled shotgun is a weapon, but it isn’t a militia weapon, and the
Second Amendment only protects militia weapons."
You base this assertion on the following extract:
“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. 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.”
I maintain you are reading into this extract a statement that is not
logically there.
There is a world of difference between the concepts "absence of
evidence tending to show," "we cannot say that it does," and "not
within judicial notice that this weapon is...," and any implication
that anyone has ruled that "we CAN say that there IS evidence showing
that this weapon is NOT."
What McReynolds is writing is simply this, and no more: since no
evidence was ever heard by Ragon, it was premature of him to grant
the demurrer on Second Amendment grounds, because there was still
evidence to be heard at his level that was relevant to the question
of unconstitutionality. Not only was there no evidence heard, but
the facts to be determined were "not within judicial notice" (not
common knowledge, not settled by precedent, and not personally known
to the Justices).
This is why these observations lead directly into the language which
is, in fact, the ONLY actual holding in this case:
"We are unable to accept the conclusion of the court below and the
challenged judgement must be reversed. The cause will be remanded
for further proceedings."
The Justices did not rule that sawed-off shotguns were protected by
the Second Amendment. They also did not rule that sawed-off shotguns
were NOT protected by the Second Amendment. All they ruled was that
Ragon's successor had to proceed to hear the original case in order
to examine evidence on this assertion one way or the other. (Since
any competent attorney could easily have pointed to thee use of the
sawed-off shotgun -- the "trench broom" -- in World War I, this would
have presented a serious challenge to the NFA. However, with Miller
dead, the case was never heard.)
Also, in light of your opening assertion that "Miller remains the
only Supreme Court opinion construing the Second Amendment," you
might be interested in reviewing "Supreme Court Gun Cases" by Kopel,
Halbrook, and Korwin, which identifies nearly 100 Supreme Court
decisions with a bearing on this issue, many of them issued well
before Miller.
On another aspect of your paper, I wish to express my great
appreciation for the time you spent documenting the timeline of
Miller's life and career, and especially on the exact circumstances
of his demise and the identity of his murderer, which are all welcome
additions to my archives.
--
Escape the Rat Race for Peace, Quiet, and Miles of Desert Beauty
Take a Sanity Break at The Bunkhouse at Liberty Haven Ranch
http://libertyhavenranch.com
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