From: [p p roctor] at [sam.neosoft.com] (Peter H. Proctor)
Newsgroups: alt.politics.usa.constitution,alt.politics.usa.republican,talk.politics.misc,alt.politics.clinton,alt.president.clinton,talk.politics.guns
Subject: Re: Well-regulated, what it meant
Date: Fri, 21 Jun 1996 15:13:21

In article <4qci8n$[1 cr] at [nadine.teleport.com]> [s--lt--n] at [teleport.com] (Stilt Man) writes:
>I am not familiar with any lower court case which has ever made this
>interpretation of Miller.  I am, however, familiar with several Court of
>Appeals decisions from various circuits that interpret Miller in precisely
>the opposite way (i.e. if you ain't a member of a well regulated militia,
>the Second Amendment doesn't apply to you), and that every one of these
>which was appealed was denied review by the Supreme Court, thus indicating
>that the lower courts did indeed properly interpret the Supreme Court's
>ruling in Miller.

        I suggest that you reread "Miller".  It is really a pretty short case 
and the language is pretty unambiguous.    Because the Supremes have refused 
to grant cert,  the lower courts have been able to make some ( er ) 
imaginative interprtations of it.   Don't mean it doesn't say what it says:  
I.e.:

1) We are all members of "the militia".

2)  Weapons with military utility are protected.

>>      E.g.,   the Army used to issue Generals tiny Colt 25 cal automatic 
>>pistols for carry when a larger gun would have been inappropriate.    Towed 
>>Howitzers also have some militia Uses.

>I would be _extremely_ interested in even _one_ case cite which would support
>the idea that a howitzer is protected by the Second Amendment for anyone simply
>because a militia could use it.  Every lower court decision I am familiar with
>interprets Miller to mean that the Second Amendment protects only those weapons
>that a militia _is_ using (i.e. it "at this time has some reasonable
>relationship to the preservation or efficiency of a well regulated militia"),
>not one that a militia might _potentially_ use. 

That is simply not what Miller says.   Damn, I've gone thru this before,  but 
here we go again:

    Miller gets busted by the Feds for interstate transport of a 
short-barreled shotgun.    In federal court his attorney pleads that short 
barreled shot guns have military uses ( ie., are potential militia weapons ) 
and thus have second amendment protection.

       Rather than getting expert testimony that short-barreled shotguns have 
military utility,  the judge "takes judicial notice".    I.e.,  it is 
something everybody knows, like 1+1=2,  so expert opinion is not necessary.    
 The judge also agrees that weapons with military utility are protected.  Case 
dismissed and Miller is set free.

        The Federal Attorney appeals the case and it eventually gets to the 
supreme court.     The supremes agree with the trial judge that weapons with 
military utility are protected, whether in active use by an organized militia 
or not.   BTW,  Miller was _NOT_ a member of any such militia.    The supremes 
are quite clear in "Miller" that you do not have to be. 

        However,  (here is where people get confused)  the supremes also say 
that in the trial transcripts there is no expert testimony that short-barreled 
shotguns have such utility.    A silly little legal formality, but there it 
is.  (BTW, I know about such stuff, since I act as a forensics expert all 
the time.)  Case is remanded back to the lower court for such testimony.      
This with the implication that if such testimony is provided, the weapon is 
protected.

       Meanwhile,  Miller has died/disappeared.   The feds drop the case and 
it is never retried.

    Go ahead, read "Miller" and show me that this is not exactly what it 
says...   Betcha can't.

  If you can cite a counterexample, then by all means do so.  If not, don't 
suggest to me that you know the decision better than the courts do.

     True,  some courts have chosen to deliberately misread "Miller".   
Generally,  as with your quote above,  by taking stuff out of context and not 
applying the whole decision.     Perhaps they did not really read it,  since 
everybody "knows" what it says. 

      Normally, such a situation --- which happens regularly-- would have been 
corrected by the supreme court.  But for some reason,  they have continued to 
deny cert.    Wonder why ?   Perhaps the supremes took "Miller" expecting to 
overturn the lower court decision.    Having done their research on the 
history and original meaning of the second amendment,  they  then could not 
except in a rather indirect way.

Piece

Peter H. Proctor, PhD, MD