Friday, September 16, 2005

Am reading things online, currently discussion of the Roberts hearings. Both Senator Feinstein and Judge Roberts get US v Miller wrong on the meaning of the second amendment. Feinstein says Miller said there is only a collective right. That's wrong, and Roberts corrects her. But then Roberts gets it wrong.

I know the Miller case side-stepped that issue. An argument was made back in 1939 that this provides only a collective right. And the court didn't address that. They said, instead, that the firearm at issue there -- I think it was a sawed-off shotgun -- is not the type of weapon protected under the militia aspect of the Second Amendment.

That's not what Miller said. Miller said that the court below had failed to hold an evidentiary hearing on that issue, and remanded for such a hearing, at which point the case went away. Miller may be the best example out there where a case name is used to stand for a principle that is not supported once one actually reads the case.
What Miller did do, something Roberts calls a hybrid right, is find some connection between the militia clause and the right to bear arms clause. That's nowhere in the text of the amendment, so it would seem to be the kind of judicial activism some people complain about.

But that Roberts is aware of Emerson and the split between the circuits is a good thing.
Ok, he goes on to clarify a bit: [no, that's the blogger, not Roberts.]
Miller, after all, reverses and remands in order that evidence be taken on the sawed-off shotgun.

If anybody's wondering, a sawed-off shotgun is a traditional militia weapon. During revolutionary times, the functional equivalent of a sawed-off shotgun was called a blunderbus. These sorts of weapons are known as alley-sweepers or scatterguns. They were used by the military in jungle warfare against the Huk insurgents in the Phillipines. Had the hearing been held, there's no reason to think the gun in question wouldn't have been covered by the second amendment.

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