Very much in the immortal words of Inigo Montoya "You keep on citing that
case - it does not mean what you think it means".
I was reminded recently of “The
Peculiar Story of United States v. Miller” in the comments there, and re-read
I think that the gollums' continual citing of
Miller is going to bit them in
the ass, HARD.
Review the following from "The Peculiar Story...":
McReynolds assumed the Second Amendment guarantees the right to keep and bear
arms in order to ensure an effective militia exists. “With obvious purpose to
assure the continuation and render possible the effectiveness of such forces the
declaration and guarantee of the Second Amendment were made. It must be
interpreted and applied with that end in view.”In other words, the Militia
Clause empowers Congress to regulate the militia, and the Second Amendment
ensures it is armed. Accordingly, McReynolds devoted most of Miller to analyzing
the composition of the militia and the duties of militia service. After
consulting “the debates in the Convention, the history and legislation of
Colonies and States, and the writings of approved commentators,” he concluded
the militia consists of “all males physically capable of acting in concert for
the common defense.” Essentially, everyone subject to conscription. “And
further, that ordinarily when called for service these men were expected to
appear bearing arms supplied by themselves and of the kind in common use at the
time.” Like the Cooley treatise on which he relied, McReynolds assumed the
militia “cannot exist unless the people are trained to bearing arms.” A
militiaman may own a firearm because he must know how to use one.
McReynolds also adopted the government’s argument the Second Amendment didn’t
create a right, but guaranteed a preconstitutional common law right. “The Second
Amendment does not confer upon the people the right to keep and bear arms; it is
one of the provisions of the Constitution which, recognizing the prior existence
of a certain right, declares that it shall not be infringed by Congress.”
So Miller is not the shining example of the "collective rights"
argument after all...
In fact, a literal reading of the theory in Miller would tend to
indicate that the weapons "suited for milita use" are especially
Which leads me to the following question: If I'm registered for Selective
Service (which I am), why can't I own a "militia" weapon? Like, sor example, a
full-auto M16, or even the 3-round-burst M16A2 or later...
Miller has some rather objectionable rulings in it as well - "At a
minimum, it held the Second Amendment permits Congress to tax firearms used by
criminals." - which would IMHO fly in the face of "shall not infringe". But it
certainly accepts the "individual rights" interpretation of the 2nd Amendment