In article <_r6dnTuEDbYDNmvcRVn-qQ@comcast.com>, The Sandman
<rdsandman@comcast.net> wrote:

David W. Barnes wrote:

In article <4L-dnebsW96vo2jcRVn-uQ@comcast.com>, The Sandman
<rdsandman@comcast.net> wrote:

David W. Barnes wrote:

In article <1106573774.159094.42570@z14g2000cwz.googlegroups.com>, Two
Bears <TWOBrs@aol.com> wrote:

David W Barnes wrote:
What the Court said was, in essence, "you don't have the right to bear
arms unless that particular arm has some reasonable relationship to the
preservation or efficiency of a well-regulated militia."


reply:
If that be the case, then what would the Miller SCotUS have said if
Miller's firearm had been a BAR?

You MORON. The type of weapon wasn't the issue.

You MORON, if the unregistered weapon had been a .38 revolver, the world
would never have heard of Miller or Layton.

So?

The fact that it was a 1934
NFA weapon was exactly the issue. The lower court quashed the
indictment due to what it considered to be a violation of the Second
Amendment. Read the intro to the case which is the only reason the USSC
got involved. You are supposedly a lawyer. Look at the demurrer.

<Yawn> It is at times like these I really appreciate my legal training.
You two haven't even got the issue down yet.

Care to explain to us poor poopies just what the issue was and show
where Miller states it?

I've done it repeatedly.

Two Bears wrote:

Tell it to David W Barnes, Steve.

Tell what, snipper? It's all gone!

He seems confused. Nothing in his
post about "possession or use"

So? I'VE dealt with it, and you have nothing to say about it?

Alas, though, you will be happy to know it is the time to ONCE

request that we discuss that other little snippet from US v Miller,
that is:

"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. Aymette v. State of Tennessee, 2
Humph., Tenn., 154, 158." ....US v Miller 1939

THIS weapon, hmmmm, what WEAPON was the one that started this
whole thing?.... Oh, yes. MILLER'S GUN!

Well, since Miller and Layton weren't IN the NG, and would NEVER
be "expected to appear bearing arms supplied by themselves" when
"called for service" as they were NOT GOING TO BE CALLED FORTH
for the common defense, being bootleggers and all, MILLER's
fabricated-for-concealment weapon wasn't any part of the
ordinary military equipment, but was of the type used by
ruffians and desperadoes for criminal acts.

Look at the context of those phrases, particularly the
background of Aymette, which is why they cited it right there!:

STATE vs. WORKMAN, 35 W.Va. 367 (1891)
http://www.saneguns.org/sources/cases/state_v_workman.html

Supposing this [the US Constitution's Second Amendment] to be a
restriction upon legislation by the several states, as well as
by the congress (a question upon which authorities differ) we
may still conclude that by law to regulate a conceded right is
not necessarily to infringe the same. Thus, a prohibition
against passing any law abridging the freedom of speech or of
the press, would scarcely be so construed as to prohibit all
statutes defining and punishing slander or criminal libel; and
the inhibitation against passing any law restricting the free
exercise of religion would not prevent the passage of an act
prohibiting immorality when practiced as a religious tenet. Late
Corporation, etc., v. U. S., 136 U. S. 2, 49, 67, (10 Sup. Ct.
Rep. 792).

The second amendment of our federal constitution should be
construed with reference to the provisions of the common law
upon this subject as they then existed, and in consonance with
the reason and spirit of the amendment itself, as defined in
what may be called its "preamble." As early as the second year
of Edward III., a statute was passed prohibiting all persons,
whatever their condition, "to go or ride armed by night or by
day." And so also at common law the "going around with unusual
and dangerous weapons to the terror of the people" was a
criminal offence. Bish. Crim. St. section 784; State v. Huntley,
3 Ired. 418; State v. Roten, 86 N. C. 701.

The keeping and bearing of arms, therefore, which at the date of
the amendment was intended to be protected as a popular right,
was not such as the common law condemned, but was such a keeping
and bearing as the public liberty and its preservation commended
as lawful, and worthy of protection. So, also, in regard to the
kind of arms referred to in the amendment, it must be held to
refer to the weapons of warfare to be used by the militia, such
as swords, guns, rifles, and muskets--arms to be used in
defending the State and civil liberty--and not to pistols,
bowie-knives, brass knuckles, billies, and such other weapons as
are usually employed in brawls, street-fights, duels, and
affrays, and are only habitually carried by bullies,
blackguards, and desperadoes to the terror of the community and
the injury of the State. Bish. Crim. St. section 792.

Judge Green in Aymette v. State, 2 Humphreys 154 (Tenn.1840):

As the object for which the right to keep and bear arms is
secured is of general and public nature, to be exercised by the
people in a body, for their common defence, so the arms the
right to keep which is secured are such as are usually employed
in civilized warfare, and that constitute the ordinary military
equipment. If the citizens have these arms in their hands, they
are prepared in the best possible manner to repel any
encroachments upon their rights by those in authority. They need
not, for such a purpose, the use of those weapons which are
usually employed in private broils, and which are efficient only
in the hands of the robber and the assassin. These weapons would
be useless in war. They could not be employed advantageously in
the common defence of the citizens. The right to keep and bear
them is not, therefore, secured by the constitution.

A thousand inventions for inflicting death may be imagined which
might come under the appellation of an "arm," in the figurative
use of that term, and which could by no possibility be rendered
effectual in war, or in the least degree aid in the common
defence. Would it not be absurd to contend that a
constitutional provision securing to the citizens the means of
their common defence should be construed to extend to such
weapons, although they manifestly would not contribute to that
end, merely because, in the hands of an assassin, they might
take away life?

The legislature, therefore, have a right to prohibit the wearing
or keeping weapons dangerous to the peace and safety of the
citizens, and which are not usual in civilized warfare, or would
not contribute to the common defence.

To hold that the legislature could pass no law upon this subject
by which to preserve the prepare and protect our citizens from
the terror which a wanton and unusual exhibition of arms might
produce, or their lives from being endangered by desperadoes
with concealed arms, would be to pervert a great political right
to the worst of purposes, and to make it a social evil of
infinitely a greater extent to society than would result from
abandoning the right itself.

Suppose it were to suit the whim of a set of ruffians to enter
the theatre in the midst of the performance, with drawn swords,
guns, and fixed bayonets, or to enter the church in the same
manner, during service, to the terror of the audience, and this
were to become habitual; can it be that it would be beyond the
power of the legislature to pass laws to remedy such an evil?
Surely not. If the use of arms in this way cannot be
prohibited, it is in the power of fifty armed ruffians to break
up the churches, and all other public assemblages, where they
might lawfully come, and there would be no remedy. But we are
perfectly satisfied that a remedy might be applied...

The citizens have the unqualified right to keep the weapon, it
being of the character before described as being intended by
this provision. But the right to bear arms is not of that
unqualified character. The citizens may bear them for the common
defence; but it does not follow that they may be borne by an
individual, merely to terrify the people or for purposes of
private assassination. And, as the manner in which they are worn
and circumstances under which they are carried indicate to every
man the purpose of the wearer, the legislature may prohibit such
manner of wearing as would never be resorted to by persons
engaged in the common defence.

....and the employment of intellectual dishonesty by the Miller

in its citing of Aymette.

Why? Look at the relevant cite above; it sure seems relevant to
me!

AND the employment of the term "keep and
bear" while obviously talking about "possession and use".....and a

other things.

There sure seems a connection there to me!

keep/possesion, bear/use.

Too bad you can't NAME and prove the relevance of "a few other
things"! But you forgot ALL the REST!:

If that be the case, then what would the Miller SCotUS have said if
Miller's firearm had been a BAR?

Why, the very same thing! It isn't the generic nature of the
CLASS of weapons that matters, but the OWNER'S POSSESSION OR USE
of HIS weapon! As Miller himself was NOT in the National Guard,
NO weapon HE owned would have any reasonable relationship to the
preservation or efficiency of a well regulated militia.

It had NOTHING to do with whether ANY trench-broom COULD have
military utility; as later courts ruled, ANY modern weapon
could. The question was ALWAYS whether THE PARTICULAR weapon AND
ITS particular owner had that relationship with the militia;
Miller and his shotgun DIDN'T! End of story. Except that EVERY
Circuit has come to the same conclusion and ruled the same way
in EVERY case (Emerson disagreed in dicta, but the ruling still
concluded that the law in question was NOT unconstitutional for
regulating and restricting weapons ownership and use).

As a later court stated, the pistol found with Miller, clearly a
weapon with military utility, would have been equally NOT
protected by the 2nd Amen. It's not the nature of the generic
weapon class, but whether the SINGLE weapon in question was
related to militia preservation; Miller's wasn't.

UNITED STATES v. HALE.
No. 91-3830. United States Court of Appeals, Eighth Circuit.
Decided Oct. 20, 1992.

Considering this history, we cannot conclude that the Second
Amendment protects the individual possession of military
weapons.

In Miller, the Court simply recognized this historical
residue. The rule emerging from Miller is that, absent a showing
that the possession of a certain weapon has "some reasonable
relationship to the preservation or efficiency of a
well-regulated militia," the Second Amendment does not guarantee
the right to possess the weapon.

This court has on at least three occasions, citing and
relying on Miller, denied challenges to the constitutionality of
arms control legislation, because there was no evidence of a
reasonable relationship to the maintenance of a militia.

It is not sufficient to prove that the weapon in question
was susceptible to military use. Indeed, as recognized in Cases,
most any lethal weapon has a potential military use. Rather, the
claimant of Second Amendment protection must prove that his or
her possession of the weapon was reasonably related to a well
regulated militia. Where such a claimant presented no evidence
either that he was a member of a military organization or that
his use of the weapon was "in preparation for a military
career", the Second Amendment did not protect the possession of
the weapon."

Since the Miller decision, no federal court has found any
individual's possession of a military weapon to be "reasonably
related to a well regulated militia." "Technical" membership in
a state militia (e.g., membership in an "unorganized" state
militia) or membership in a non-governmental military
organization is not sufficient to satisfy the "reasonable
relationship" test. Oakes, 564 F.2d at 387. Membership in a
hypothetical or "sedentary" militia is likewise insufficient.
See Warin, 530 F.2d 103.

Applying these principles to the present case, we conclude that
Hale's possession of the weapons in question was not reasonably
related to the preservation of a well regulated militia. The
allegation by Hale that these weapons are susceptible to
military use is insufficient to establish such a relationship.
Hale introduced no evidence and made no claim of even the most
tenuous relationship between his possession of the weapons and
the preservation of a well regulated militia.

I read your posts, Krulick.

That isn't possible... Haven't you read the flat assertion by
your pals that NOBODY READS my posts any more!

Guffaw!
"I read your posts, you magnificent *****"! LOL!

Two Bears