There was no evidence in Miller that the firearm was "sawed-off." The indictment simply refers to a shotgun with a barrel less than 18 inches in length. Short-barrel shotguns were common before the NFA and could be purchased at hardware stores. NOTE: common. I had, at the time of the 1968 amnesty, my grandfather's "Auto-Burglar" (H&R ?) with a barrel length of, IIRC, 10 inches. I traded it to the Sheriff's Department for something I wanted more. ************************************************** Professor Joseph Olson, J.D., LL.M. o- 651-523-2142 Hamline University School of Law (MS-D2037) f- 651-523-2236 St. Paul, MN 55113-1235 c- 612-865-7956 [email protected]
>>> "Raymond Kessler" <[email protected]> 06/05/09 2:10 PM >>> The military in WWI used, and today still uses, short-barreled shotguns, but they were not sawed-off. I’m not sure if this makes a difference for 2nd Amend theory, but it’s a fact. Ray From:[email protected] [mailto:[email protected]] On Behalf Of Jon Roland Sent: Friday, June 05, 2009 7:44 AM To: C. D. Tavares Cc: Firearmsregprof Subject: Re: Volokh: California Court of Appeal Upholds Ban C. D. Tavares wrote: No, what [the Supreme Court in Miller] ruled was that because they had no evidence that a sawed-off shotgun contributed to the preservation and efficacy of the militia, it was the job of the subsidiary judge to stop throwing the case out of court on first principles, and proceed to hold an actual trial at which such evidence could be presented and weighed. That trial was never held, because Miller had since died. The Miller decision never actually declared ANY identifiable firearm as unprotected. More should be said about the underlying issues in the case. It was about enforcement of a tax statute, which made it a crime to possess an item on which a tax had not been paid (and conveniently the government would refuse to accept payment of the tax if tendered). That in itself was unconstitutional, but that issue was not raised by appellant. The Court said, in effect, that if the item had some connection to militia it was tax-exempt, as were all such items under the original Militia Act of 1792 ( http://www.constitution.org/mil/mil_act_1792.htm ) (amended in 1795): ... every citizen so enrolled, and providing himself with the arms, ammunition and accoutrements, required as aforesaid, shall hold the same exempted from all suits, distresses, executions or sales, for debt or for the payment of taxes. The problem for the Court is that almost anything can be "accoutrements" used for militia. If it recognized anything that could be used in militia, nothing would be taxable. So it had to establish a standard to distinguish things that were mainly used for militia from things that might be so used but were mainly used for other purposes. In fact, sawed-off shotguns were used by military and militia, mainly for sentry duty. -- Jon -------------------------------------------------------------------Constitution Society 2900 W Anderson Ln C-200-322, Austin, TX 78757512/299-5001 www.constitution.org ( http://www.constitution.org/ ) jon.rol...@constitution.org-------------------------------------------------------------------
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