Re: US Constitution query

[jericson@xxxxxxxxxx]

The case in question is Miller V. US.

In it, an indigent moonshiner was charged with possession of an
unregistered short barrelled shotgun. (Would have been legal, had he
paid the $200 to register his $10 shotgun.)

The district court threw out the case, saying that the National
Firearms Act of 1934 was blatantly unconstitutional, as it was a
defacto prohibition of the peoples right to keep and bear arms. (The
argument of the government was that it was not a gun control measure
at, but merely for tax revenue generation. This, in fact, is what all
the hoopla is about - it ain't the fact that you have a sawed off
shotgun, or machine gun - it's the fact you haven't paid Uncle Sam his
$200 that gets you killed or tossed in the slammer for 25 years.)

Anyway, the district said that high a tax was an attempt to restrict
ownership. The federal government appealed it to the Supreme Court,
whihc heard the argument. However, the defendant was not present (or
even heard from again, nobody knows whatever happened to him after the
district court case), and the lawyer for the defense never bothered to
show up. (Apparently taking it for granted that the USC would just
toss it out, and in any event, didn't feel like spending the time or
money defending a pro bono case.)

The USC heard the one argument, said shotguns were on no military use
(even thought the US military stocked and issued them), and found for
the feds. Had the defense attorney appeared it is highly likely that
there would currently be either  a)little to no federal gun laws or b)
a repeal of the 2nd.

And that was the last case heard by the USC on the issue. (Not the
last brought on 2nd amendment issues, but they have never heard any of
those cases.) This may change in the near future, as there have been
two divergent rulings given on the Violence Against Women Protection
Act (or something along those lines - whichever federal law it was
that said you couldn't have a firearm if you had a protection order
taken out against you by a girlfriend/wife/ex-wife/whatever - even if
you never had a chance to tell your side of the story.) Anyway, as it
stands right now, the law is different depending on what district you
reside in - so it is likely that some decision will be made in the
next few years.

In other words, it really behooves you to pay Uncle Sam his $200.

> > A while back - mid-political barney- a list member
> > made a comment that the part of the constitution that
> > specifically said 'Blah blah organised militia blah
> > blah' had never actually been legally interpreted. Do
>
> Correct.  The United States has three independent branches of
> government: the Executive, the Legislative and the Judicial.  These
> branches are interconnected but independent, and the Constitution
itself
> is framed in such a manner as to perpetually keep the three branches
> clawing at each other's throats.  (Every time I hear someone gripe
about
> how inefficient and incompetent the US Gov't is, I have to suppress
a
> smile.  That's a sign the Constitution is working exactly as
intended.)
>
> It is the Judiciary's job to determine what the Constitution means;
the
> Legislature's job to pass laws that are within Constitutional
limits;
> and the Executive's job to execute those laws.  Thus, it doesn't
matter
> a tinker's damn what the President or Congress say the Constitution
> means (whether in the 2nd Amendment or any other part): the only
> opinions which possess any weight are those of the courts, and the
only
> definitive authority is the Supreme Court.
>
> The United States Supreme Court has not heard a 2nd Amendment case
since
> 1939, and that case was very limited in scope.  Someone was being
> prosecuted for possessing a sawed-off shotgun and challenged the law
on
> Constitutional grounds.  The Supreme Court decided that the purpose
of
> the militia was a military one, and thus, weapons which possessed no
> military value received no Constitutional protection.  That was the
> limit of their decision, however; they did not examine the issue in
> greater depth.
>
> Many people on both sides of the debate will claim the existence of
> Supreme Court precedents to back them up.  Unfortunately, it just
ain't
> so--the Supreme Court has mentioned the Second Amendment a few times
in
> passing since 1939, but only once this century has the Supreme Court
> ever heard a case directly involving the Second Amendment.
>
> > that for me (off-list if required) if possible. I'd
> > like a little legal background on any specific court
> > cases that have tried to overthrow that part of the
> > constitution and if I understand the comment
>
> No court in the land can overthrow any part of the Constitution.
The
> Constitution is inviolate by the government; the only agency which
is
> capable of overthrowing the Constitution is the people themselves.
>
> Well, that's how it works in theory, at least.  In practice, the US
> Gov't has a shameful history of walking all over the Constitution
> whenever the people take their eyes off the government for even an
> instant.
>
> > correctly, there haven't been any?
>
> Not since 1939, and that case was very narrowly-focused.  It
resolved
> the matter before the Court, but gave very little insight into the
> broader issues of the Second Amendment.
>
> ... If anyone on the list has the specific name of the '39 SCOTUS
> decision, please feel free to jump in and correct me.  I can't think
of
> it for the life of me right now.
>
>
>
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