The House passed HR 4332 April 10 by a 292-130 vote after substituting the text of Volkmer's bill for the provisions of the Judiciary Committee measure. (Vote 69, p. 22-H)

The Judiciary bill was never directly considered by the House. Instead, members voted 286-136 April 10 to adopt the Volkmer substitute. (Vote 68, p. 22-H)

286-136 was the recorded vote for the Volkmer substitute, NOT the Hughes Amendment.

The Hughes Amendment amended the Volkmer substitute text, not the existing main bill text, by a COMMITTEE vote.

Then the Committee voted to rise. A COMMITTEE motion to rise is a motion to rise up and report a bill to the House for passage or rejection.

MOTION TO RISE

https://www.govinfo.gov/content/pkg/GPO-HPRACTICE-115/pdf/GPO-HPRACTICE-115.pdf

HOUSE PRACTICE

A Guide to the Rules, Precedents, and Procedures of the House

Charles W. Johnson
John V. Sullivan
Thomas J. Wickham, Jr.

The Motion to Rise

With one exception in the Committee of the Whole, a motion to amend a bill has precedence over a motion to rise and report it to the House. 4 Hinds §§ 4752-4758. However, the motion to amend yields to the simple motion that the Committee rise. 4 Hinds § 4770. Under clause 2(d) of rule XXI, the motion to rise and report, if offered by the Majority Leader (or designee), takes precedence over an amendment after a general appropriation bill has been completely read for amendment. Manual § 1040. In the 109th Congress, the House adopted a resolution creating a point of order against a motion to rise and report an appropriation bill that exceeded an applicable allocation of new budget authority under section 302(b) of the Congressional Budget Act of 1974. Such a point of order has been carried forward in subsequent Congresses by separate order contained in the opening-day rules package. Manual § 1044b.

For precedence as between particular forms of amendment, see § 21, infra.

The Hughes text was incorporated into the Volkmer substitute text. The vote on the Volkmer substitute text approved the Volkmer substitute with the Hughes text incorporated, and was a vote of the HOUSE.

That was not before the Court in Miller and could not have been decided by Miller. The Court does not decide issues not presented.

I didn't ask the court. I asked you, coward.

Answer: They would have thrown out the case since machine guns are suitable for use by a well- regulated militia and protected by the second amendment. Which makes the Heller definition an invented joke.

Both the Volkmer substitute and the Hughes Amendment were added to HR 4332 and passed in a recorded vote.

Voice vote on Hughes Amendment to the Volkmer substitute on video at 8m:26s

No. That was a voice vote on the Hughes Amendment. The vote on the Volkmer substitute was a recorded vote.

That was not before the Court in Miller and could not have been decided by Miller. The Court does not decide issues not presented.

I didn't ask the court. I asked you, coward.

You asked, I answered. You just don't like the answer. Here is what you asked:

Had Miller transported a machine gun across state lines, would that have been protected by the second amendment (per the Miller court)?

The Miller court held that transporting an unregistered shotgun in interstate commerce for non-militia purposes enjoyed no 2A protection. If you imagine that it decided some other issue, that is your personal problem. Heller stated, "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessby by law-abiding citizens for lawful purposes, such as short-barreled shotguns."

What Miller noted about machine guns was:

Act of June 26, 1934, c. 757, 48 Stat. 1236-1240, 26 U.S.C. § 1132.

"That for the purposes of this Act --"

"(a) The term 'firearm' means a shotgun or rifle having a barrel of less than eighteen inches in length, or any other weapon, except a pistol or revolver, from which a shot is discharged by an explosive if such weapon is capable of being concealed on the person, or a machine gun, and includes a muffler or silencer for any firearm whether or not such firearm is included within the foregoing definition [The Act of April 10, 1936, c. 169, 49 Stat. 1192 added the words], but does not include any rifle which is within the foregoing provisions solely by reason of the length of its barrel if the caliber of such rifle is .22 or smaller and if its barrel is sixteen inches or more in length."

"Sec. 3. (a) There shall be levied, collected, and paid upon firearms transferred in the continental United States a tax at the rate of $200 for each firearm, such tax to be paid by the transferor, and to be represented by appropriate stamps to be provided by the Commissioner, with the approval of the Secretary, and the stamps herein provided shall be affixed to the order for such firearm, hereinafter provided for. The tax imposed by this section shall be in addition to any import duty imposed on such firearm."

"Sec. 4. (a) It shall be unlawful for any person to transfer a firearm except in pursuance of a written order from the person seeking to obtain such article, on an application form issued in blank in duplicate for that purpose by the Commissioner. Such order shall identify the applicant by such means of identification as may be prescribed by regulations under this Act: Provided, That, if the applicant is an individual, such identification shall include fingerprints and a photograph thereof."

"(c) Every person so transferring a firearm shall set forth in each copy of such order the manufacturer's number or other mark identifying such firearm, and shall forward a copy of such order to the Commissioner. The original thereof, with stamps affixed, shall be returned to the applicant."

"(d) No person shall transfer a firearm which has previously been transferred on or after the effective date of this Act, unless such person, in addition to complying with subsection (c), transfers therewith the stamp-affixed order provided for in this section for each such prior transfer, in compliance with such regulations as may be prescribed under this Act for proof of payment of all taxes on such firearms."

"Sec. 5. (a) Within sixty days after the effective date of this Act every person possessing a firearm shall register, with the collector of the district in which he resides, the number or other mark identifying such firearm, together with his name, address, place where such firearm is usually kept, and place of business or employment, and, if such person is other than a natural person, the name and home address of an executive officer thereof: Provided, That no person shall be required to register under this section with respect to any firearm acquired after the effective date of, and in conformity with the provisions of, this Act."

"Sec. 6. It shall be unlawful for any person to receive or possess any firearm which has at any time been transferred in violation of section 3 or 4 of this Act."

"Sec. 11. It shall be unlawful for any person who is required to register as provided in section 5 hereof and who shall not have so registered, or any other person who has not in his possession a stamp-affixed order as provided in section 4 hereof, to ship, carry, or deliver any firearm in interstate commerce."

"Sec. 12. The Commissioner, with the approval of the Secretary, shall prescribe such rules and regulations as may be necessary for carrying the provisions of this Act into effect."

"Sec. 14. Any person who violates or fails to comply with any of the requirements of this Act shall, upon conviction, be fined not more than $2,000 or be imprisoned for not more than five years, or both, in the discretion of the court."

"Sec. 16. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of the Act, and the application of such provision to other persons or circumstances, shall not be affected thereby."

"Sec. 18. This Act may be cited as the 'National Firearms Act.'"

Had the Miller firearm been a machine gun, it would have fallen within the 1934 Act and it would have been seized for the multiple violations of the Act.

Answer: They would have thrown out the case since machine guns are suitable for use by a well- regulated militia and protected by the second amendment. Which makes the Heller definition an invented joke.

The Heller court found no conflict with Miller in stating that "M-16 rifles and the like — may be banned...." No joke. I understand you prefer your imaginary bullshit better.

Heller supercedes Miller where there is any conflict of holdings.

In dicta, Miller opined that "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." A machine gun in not the type of weapon in common use at this time.

This embed is queued up to start at 8:12.

Rep. Charlie Rangel can be seen and heard stating

QUOTE

The question is heard. The question is on the adoption of the Hughes Amendment to the Volkmer Substitute.

CLOSE QUOTE

Technically it was the Hughes amendment to the amendment to the amendment offered as a substitute for the commit­tee amendment in the nature of a substitute.

The Hughes Amendment amended the Volkmer Substitute. Your imaginary bullshit does not change the video or the Congressional Record.

The Hughes Amendment text was added to the Volkmer Substitute text before the amended Volkmer Substitute text was approved and replaced the text in the main bill.

The Hughes amendment to an amendment to an amendment to the Volkmer amendment in the nature of a substitute was approved in committee to become part of the Volkmer Substitute.

The Volkmer Substitute, as amended, including the text of the Hughes amendment to the amendment to the amendment was voted on in committee to replace the Hughes-Rodino Bill, the main bill. Then the Bill, now with the text of the Volkmer Substitute (as amended) was approved by the House and signed into law.

Voice vote on Hughes Amendment to the Volkmer substitute on video at 8m:26s

No. That was a voice vote on the Hughes Amendment. The vote on the Volkmer substitute was a recorded vote.

At 8m:26s comes the vote on the Volkmer Substitute as amended. It was just amended by the Hughes Amendment, and included the text of the Hughes Amendment.

The House only took one vote, and that was on the Volker Substitute as amended. The other votes were committee votes. When sitting as a committee of the whole, only 100 members need be present. The committee as a whole cannot vote approval of any legislation. They vote that a Bill is, or is not, reported to the House.

Under Fire: The NRA and the Battle for Gun Control

By Osha Gray Davidson

At 75:

But the smile on Volkmer’s face disappeared as Rangel, instead of recognizing McCollum, gave the nod to William Hughes.

"Mr. Chairman," called out Hughes, "I offer an amendment to the amendment to the amendment offered as a substitute for the committee amendment in the nature of a substitute."

At 76:

Hughes’s amendment would ban machine guns. These weapons, which fire a stream of bullets as long as the trigger is kept depressed, had been strictly regulated since 1934, but Hughes’s bill would fully outlaw the manufacture and sale of these automatic firearms— although those who already owned machine guns would be allowed to keep them.

At 77:

Hughes was moving that the committee end its session so that he could then ask the Rules Committee to allow more time for debate. But Hughes’s attempt failed, His motion was soundly defeated, 124 to 298.

At precisely 11:30, Rangel announced that time had run out for debating Hughes’s amendment—which, of course, had not been de­bated at all. Hughes rose to request unanimous consent that debate time be extended another five minutes. Sensenbrenner once again objected and this time Hughes sat down, defeated. A vote on his amendment to ban machine guns was called. What happened next would be a point of contention—and contempt—for years to come.

Charles Rangel, still sitting as chairman of the Committee of the Whole, called for a voice vote on Hughes’s amendment. All those in favor of the amendment called out “Aye"; those opposed yelled "No”

Rangel declared that Hughes’s ban on machine guns had passed.

At 78:

Volkmer fumed, but there was nothing he could do.

Immediately, Rangel turned to the larger question of McClure-Volkmer. The question before the House was, Should the Hughes-Rodino bill be replaced by Volkmer’s bill? A voice vote was called. The ayes and nays were shouted out and Rangel announced that the noes had it. The McClure-Volkmer bill had been defeated.

This time Volkmer jumped to his feet and, in a voice that could not be ignored, demanded a recorded vote. He needn’t have worried. Rangel had no intention of ignoring him and risking the undying enmity of a majority of the House for using a trick to defeat the legislation as a whole. The recorded vote was taken.

Harold Volkmer inserted his plastic identification card into an elec­tronic console, about the size of a cigar box, which was mounted to the chair back in front of him. He waited for the computer, located across Independence Avenue in the Rayburn House Office Building, to send a "ready" signal: a blue light illuminated on the console. When the light came on, Volkmer didn’t hesitate. He jabbed the yea button, which lit up green, to signal that his vote was locked in. Volkmer looked up at one of the four electronic tally boards mounted above and behind the Speaker’s rostrum. A green yea light blinked on next to his name.

As the minutes went by, Volkmer watched with growing satisfac­tion as more and more green lights flashed on. He figured that the green lights outnumbered the red nay ones by at least two to one.

Finally, the vote was announced. The U.S. House of Representa­tives had voted to toss out the Hughes-Rodino bill and replace it with the McClure-Volkmer bill. The vote was 292 in favor of the move, 130 against it. Harold Volkmer and the National Rifle Association had, at long last, won their battle.

The Miller court held that transporting an unregistered shotgun in interstate commerce for non-militia purposes enjoyed no 2A protection.

Where did you get "for non-militia purposes"? You're just making shit up.

The court didn't even get that far. They couldn't say it was a weapon suitable for use by a militia. They remanded back to the lower court to get that resolved before they would even hear the case.

Heller stated, "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessby by law-abiding citizens for lawful purposes, such as short-barreled shotguns."

Sure. That's the way THEY read it. That's why they're wrong.

Miller said no such thing. It said the Second Amendment does not protect those weapons not suitable for use by a militia.

HAD THE MILLER COURT SAID that the Second Amendment does not protect those weapons not typically possessby by law-abiding citizens for lawful purposes, such as short-barreled shotguns. they would have ruled against Mr. Miller right there and then."

Had the Miller firearm been a machine gun, it would have fallen within the 1934 Act and it would have been seized for the multiple violations of the Act.

Correct. It violated the Act.

But the issue before the USSC was did the Act violate the second amendment, and I say the Miller court would have ruled -- based on their statements in the actual case -- that a machine gun IS protected by the second amendment since a machine gun is suitable for use by a well-regulated militia.

The Heller court found no conflict with Miller in stating that "M-16 rifles and the like — may be banned...."

I know what Heller said. And I say they're wrong.

If the federal government can ban "M-16 rifles and the like", states will not have the ability form a citizen's militia -- the protection of which the second amendment guaranteed and the whole reason for the second amendment.

A machine gun in not the type of weapon in common use at this time.

The National Firearms Act of 1934 saw to that, didn't it?

Offer any gun owner the choice between a single-shot AR-15 and a full-auto AR-15 and they'll take the full-auto every time. So don't give me your "not in common use" bullshit.

that a machine gun IS protected by the second amendment since a machine gun is suitable for use by a well-regulated militia.

Excellent point misterwhite.

The question is heard. The question is on the adoption of the Hughes Amendment to the Volkmer Substitute.

I see. And what was the recorded vote of that adoption?

Excellent point misterwhite.

Thank you.

Had Mr. Miller been transporting a machine gun instead of a sawed-off shotgun, the U.S. Supreme Court would have ruled the recently passed National Firearms Act of 1934 unconstitutional.

Now, since the second amendment only applied to the federal government, states were free to regulate (not ban) machine guns according to their state constitution. They could rule, for example, that machine guns had to be registered and stored at a state armory or private gun range. Or not.

The point being -- there were other ways of addressing the problem rather than a federal ban.

Where did you get "for non-militia purposes"? You're just making shit up.

As you have apparently never bothered to read Miller, all further stupid comments about it will be ignored.

[Miller Syllabus] "The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon."

[Miller Opinion of the Court at 178] "In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. "

[Lewis v. United States, 445 US 55, 65-6 (1980)]

These legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller, 307 U. S. 174, 178 (1939) (the Second Amendment guarantees no right to keep and bear a firearm that does not have "some reasonable relationship to the preservation or efficiency of a well regulated militia"); United States v.Three Winchester 30-30 Caliber Lever Action Carbines, 504 F. 2d 1288,1290, n. 5 (CA7 1974); United States v. Johnson, 497 F. 2d 548 (CA41974); Cody v. United States, 460 F. 2d 34 (CA8), cert. denied, 409 U. S.1010 (1972) (the latter three cases holding, respectively, that § 1202 (a) (1),§ 922 (g), and § 922 (a) (6) do not violate the Second Amendment).

that a machine gun IS protected by the second amendment since a machine gun is suitable for use by a well-regulated militia.

Excellent point misterwhite.

The logic is ass backwards.

That a weapon must bear some relationship to a well-regulated militia in order to enjoy 2A protection, does not infer that ALL weapons that do have some relationship to a well-regulated militia enjoy 2A protection.

For example, an AK-47 or an RPG launcher.

I see. And what was the recorded vote of that adoption?

Who gives a shit and why?

I see. And what was the recorded vote of that adoption?
Who gives a shit and why?

Well, if you recall about 100 posts ago I said the Hughes Amendment was passed by voice vote. All you've done since then was tell me I was wrong.

Here you now have a chance to prove it and you slither away.

That's why.

Where did you get "for non-militia purposes"? You're just making shit up.
As you have apparently never bothered to read Miller

The Miller court was ruling on the type of weapon protected by the second amendment. They described the type of weapon as that suitable for use by a militia.

They NEVER limited the use of those weapons to "militia purposes". Just the opposite. They expected militia members to bring the same weapons used for "non-militia purposes".

That a weapon must bear some relationship to a well-regulated militia in order to enjoy 2A protection, does not infer that ALL weapons that do have some relationship to a well-regulated militia enjoy 2A protection.

Two words for you: Bull. Shit.

ALL weapons that have some relationship to a well-regulated militia enjoy 2A protection. How else to maintain a well-regulated state militia?

Now, it is up to the militia of each state how those weapons will be stored. I would imaging most would be stored in the state armory, with personal weapons taken home.

Heller stated, "We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by by law-abiding citizens for lawful purposes, such as short-barreled shotguns."

Then why didn't the Miller court issue a ruling based on that? Pretty cut and dried, right?

I'll tell you why. Because that's NOT what the Miller court said.

The Miller court said the second amendment protects arms suitable for use by a militia and we're not sure that a sawed-off shotgun fits that category.

Well, if you recall about 100 posts ago I said the Hughes Amendment was passed by voice vote. All you've done since then was tell me I was wrong.

You said all manner of ridiculous shit. So what?

The Firearms Owners Protection Act (FOPA) was passed by the Senate on May 19, 1986. The Bill that passed into law was the Senate bill, S.49.

No part of the FOPA passed into law other than as part of Senate Bill 49 which was passed on May 19, 1986.

The Hughes Amendment passed in Committee in the House by a voice vote as an amendment to an amendment to an amendment to the Volkmer Amendment which was in the nature of a substitute for the text of the Hughes-Rodino Bill in the House. Who gives a flying shit about a committee vote in the House?

By voice vote in Committee, ruled the Ayes had it, the Hughes Amendment became part of the text of the Volkmer Amendment which was in the nature of a substitute for the text of the Hughes-Rodino Bill in the House.

The House Hughes-Rodino Bill, H.R.4332, before or after the Hughes amendment to the amendment to the amendment to the Volkmer Amendment in the nature of a substitute, was never adopted as law.

In April 10, 1986, the House incorporated HR. 4332 into Senate bill S.49 as an amendment.

The Senate Bill, S.49 became the law known as the Firearms Owners' Protection Act of 1986.

On May 19, 1986, the Senate voted its approval of S.49, as amended, and President Reagan signed it into law the same day.

S.49 - Firearms Owners' Protection Act

99th Congress (1985-1986)

If it's not a law, stop bitching and just go out and buy yourself a brand new machine gun.

ALL weapons that have some relationship to a well-regulated militia enjoy 2A protection.

Heller at 626:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).

Heller at 627-28:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Black's Law Dictionary, 6 Ed.

Arms. Anything that a man wears for his defense, or takes in his hands as a weapon.

The "right to keep and bear arms" existed in the colonies, was brought forth into the states before the union, and was protected by the 2nd Amendment. The right which existed in the colonies came from the English common law. The Framers saw no need to explain to themselves what that right to keep and bear arms was.

http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp

Blackstone's Commentaries on the Laws of England

Book the First - Chapter the First: Of the Absolute Rights of Individuals

5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

Heller at 593-95:

By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred. See G. Sharp, Tracts, Concerning the Ancient and Only True Legal Means of National Defence, by a Free Militia 17–18, 27 (3d ed. 1782); 2 J. de Lolme, The Rise and Progress of the English Constitution 886–887 (1784) (A. Stephens ed. 1838); W. Blizard, Desultory Reflections on Police 59–60 (1785). Thus, the right secured in 1689 as a result of the Stuarts’ abuses was by the time of the founding understood to be an individual right protecting against both public and private violence.

And, of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writings of Samuel Adams 299 (H. Cushing ed. 1968). They understood the right to enable individuals to defend themselves. As the most important early American edition of Blackstone’s Commentaries (by the law professor and former Antifederalist St. George Tucker) made clear in the notes to the description of the arms right, Americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent an injury.” 1 Blackstone’s Commentaries 145–146, n. 42 (1803) (hereinafter Tucker’s Blackstone). See also W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833).

There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms. Of course the right was not unlimited, just as the First Amendment’s right of free speech was not, see, e.g., United States v. Williams, 553 U. S. ___ (2008). Thus, we do not read the Second Amendment to protect the right of citizens to carry arms for any sort of confrontation, just as we do not read the First Amendment to protect the right of citizens to speak for any purpose. Before turning to limitations upon the individual right, however, we must determine whether the prefatory clause of the Second Amendment comports with our interpretation of the operative clause.

Heller at 626-28:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

The Miller court was ruling on the type of weapon protected by the second amendment. They described the type of weapon as that suitable for use by a militia.

They NEVER limited the use of those weapons to "militia purposes". Just the opposite. They expected militia members to bring the same weapons used for "non-militia purposes".

misterwhite, victim of dictum.

Heller at 625:

Miller was briefly mentioned in our decision in Lewis v. United States, 445 U. S. 55 (1980), an appeal from a conviction for being a felon in possession of a firearm. The challenge was based on the contention that the prior felony conviction had been unconstitutional. No Second Amendment claim was raised or briefed by any party. In the course of rejecting the asserted challenge, the Court commented gratuitously, in a footnote, that “[t]hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller . . . (the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’).” Id., at 65–66, n. 8. The footnote then cites several Court of Appeals cases to the same effect. It is inconceivable that we would rest our interpretation of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not argued.

Heller at 625:

Miller was briefly mentioned in our decision in Lewis v. United States, 445 U. S. 55 (1980), an appeal from a conviction for being a felon in possession of a firearm. The challenge was based on the contention that the prior felony conviction had been unconstitutional. No Second Amendment claim was raised or briefed by any party. In the course of rejecting the asserted challenge, the Court commented gratuitously, in a footnote, that “[t]hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller . . . (the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’).” Id., at 65–66, n. 8. The footnote then cites several Court of Appeals cases to the same effect. It is inconceivable that we would rest our interpretation of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not argued.

misterwhite, victim of dictum.

I'm mailing him a sympathy card as I type this.

The Hughes Amendment passed in Committee in the House by a voice vote

Finally. Thank you.

For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues.

There have never been any federal laws against concealed carry, so there were never any Second Amendment challenges.

States have always been free to regulate firearms under their respective state constitutions.

"Indeed, it may be true that no amount of small arms could be useful against modern- day bombers and tanks."

Which is why the second amendment protects ALL arms -- including bombers and tanks -- suitable for use by a state militia. The second amendment was written to protect state militias from federal infringement.

Individual arms for personal use were protected by state constitutions. Who in their right mind would look to the federal government to protect such an important right?

It is inconceivable that we would rest our interpretation of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not argued.

I would hope not.

Yes, it's true that United States v. Miller was mentioned in Footnote #8 in Lewis v. United States -- a 1980 case involving a firearm possessed by a felon.

Why would the Heller court even mention this case, much less consider it?

Probably because if they looked at the Miller case directly -- not footnoted dictum -- they would see that the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’.

The Hughes Amendment passed in Committee in the House by a voice vote

Finally. Thank you.

You're welcome. To avoid your future confusion, the Hughes Amendment passed in Committee as an amendment to an amendment to an amendent to the Volkmer Amendment in the nature of a replacement text to the text of H.R. 4332, the Hughes-Rodino Bill. However, H.R. 4332 was not signed into law. Senate Bill S.49 was signed into law. Just to be clear.

Individual arms for personal use were protected by state constitutions. Who in their right mind would look to the federal government to protect such an important right?

The Framers of the Second Amendment.

There have never been any federal laws against concealed carry, so there were never any Second Amendment challenges.

There were loads of State laws prohibiting concealed carry, as early as an 1820 Kentucky concealed carry law that was the subject of litigation in Bliss v. Commonwealth.

Bliss v. Commonwealth of Kentucky

12 Littell 90 Ky. 1822

This was an indictment founded on the act of the legislature of this state, "to prevent persons in this commonwealth from wearing concealed arms."

The act provides, that any person in this commonwealth, who shall hereafter wear a pocket pistol, dirk, large knife, or sword in a cane, concealed as a weapon, unless when travelling on a journey, shall be fined in any sum not less than one hundred dollars; which may be recovered in any court having jurisdiction of like sums, by action of debt, or on presentment of a grand jury.

The indictment, in the words of the act, charges Bliss with having worn concealed as a weapon, a sword in a cane.

Bliss was found guilty of the charge, and a fine of one hundred dollars assessed by the jury, and judgment was thereon rendered by the court. To reverse that judgment, Bliss appealed to this court.

In argument the judgment was assailed by the counsel of Bliss, exclusively on the ground of the act, on which the indictment is founded, being in conflict with the twenty third section of the tenth article of the constitution of this state.

That section provides, "that the right of the citizens to bear arms in defence of themselves and the state, shall not be questioned."

The provision contained in this section, perhaps, is as well calculated to secure to the citizens the right to bear arms in defence of themselves and the state, as any that could have been adopted by the makers of the constitution. If the right be assailed, immaterial through what medium, whether by an act of the legislature or in any other form, it is equally opposed to the comprehensive import of the section. The legislature is no where expressly mentioned in the section; but the language employed is general, without containing any expression restricting its import to any particular department of government; and in the twenty eighth section of the same article of the constitution, it is expressly declared, "that every thing in that article is excepted out of the general powers of government, and shall forever remain inviolate; and that all laws contrary thereto, or contrary to the constitution, shall be void."

It was not, however, contended by the attorney for the commonwealth, that it would be competent for the legislature, by the enactment of any law, to prevent the citizens from bearing arms either in defence of themselves or the state; but a distinction was taken between a law prohibiting the exercise of the right, and a law merely regulating the manner of exercising that right; and whilst the former was admitted to be incompatible with the constitution, it was insisted, that the latter is not so, and under that distinction, and by assigning the act in question a place in the latter description of laws, its consistency with the constitution was attempted to be maintained.

3. That the provisions of the act in question do not import an entire destruction of the right of the citizens to bear arms in defence of themselves and the state, will not be controverted by the court; for though the citizens are forbid wearing weapons concealed in the manner described in the act, they may, nevertheless, bear arms in any other admissible form. But to be in conflict with the constitution, it is not essential that the act should contain a prohibition against bearing arms in every possible form--it is the right to bear arms in defence of the citizens and the state, that is secured by the constitution, and whatever restrains the full and complete exercise of that right, though not an entire destruction of it, is forbidden by the explicit language of the constitution.

If, therefore, the act in question imposes any restraint on the right, immaterial what appellation may be given to the act, whether it be an act regulating the manner of bearing arms or any other, the consequence, in reference to the constitution, is precisely the same, and its collision with that instrument equally obvious.

And can there be entertained a reasonable doubt but the provisions of the act import a restraint on the right of the citizens to bear arms? The court apprehends not. The right existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizens to bear arms. Diminish that liberty, therefore, and you necessarily restrain the right; and [Volume 5, Page 213] such is the diminution and restraint, which the act in question most indisputably imports, by prohibiting the citizens wearing weapons in a manner which was lawful to wear them when the constitution was adopted. In truth, the right of the citizens to bear arms, has been as directly assailed by the provisions of the act, as though they were forbid carrying guns on their shoulders, swords in scabbards, or when in conflict with an enemy, were not allowed the use of bayonets; and if the act be consistent with the constitution, it cannot be incompatible with that instrument for the legislature, by successive enactments, to entirely cut off the exercise of the right of the citizens to bear arms. For, in principle, there is no difference between a law prohibiting the wearing concealed arms, and a law forbidding the wearing such as are exposed; and if the former be unconstitutional, the latter must be so likewise.

We may possibly be told, that though a law of either description, may be enacted consistently with the constitution, it would be incompatible with that instrument to enact laws of both descriptions. But if either, when alone, be consistent with the constitution, which, it may be asked, would be incompatible with that instrument, if both were enacted?

The law first enacted would not be; for, as the argument supposes either may be enacted consistent with the constitution, that which is first enacted must, at the time of enactment, be consistent with the constitution; and if then consistent, it cannot become otherwise, by any subsequent act of the legislature. It must, therefore, be the latter act, which the argument infers would be incompatible with the constitution.

But suppose the order of enactment were reversed, and instead of being the first, that which was first, had been the last; the argument, to be consistent, should, nevertheless, insist on the last enactment being in conflict with the constitution. So, that the absurd consequence would thence follow, of making the same act of the legislature, either consistent with the constitution, or not so, according as it may precede or follow some other enactment of a different import. Besides, by insisting on the previous act producing any effect on the latter, the argument implies that the previous one operates as a partial restraint on the right of the citizens to bear arms, and proceeds on the notion, that by prohibiting the exercise of the residue of right, not affected by the first act, the latter act comes in collision with the constitution. But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution.

4. Hence, we infer, that the act upon which the indictment against Bliss is founded, is in conflict with the constitution; and if so, the result is obvious—the result is what the constitution has declared it shall be, that the act is void.

And if to be incompatible with the constitution makes void the act, we must have been correct, throughout the examination of this case, in treating the question of compatibility, as one proper to be decided by the court. For it is emphatically the duty of the court to decide what the law is; and how is the law to be decided, unless it be known and how can it be known without ascertaining, from a comparison with the constitution, whether there exist such an incompatibility between the acts of the legislature and the constitution, as to make void the acts?

A blind enforcement of every act of the legislature, might relieve the court from the trouble and responsibility of deciding on the consistency of the legislative acts with the constitution; but the court would not be thereby released from its obligations to obey the mandates of the constitution, and maintain the paramount authority of that instrument; and those obligations must cease to be acknowledged, or the court become insensible to the impressions of moral sentiment, before the provisions of any act of the legislature, which in the opinion of the court, conflict with the constitution, can be enforced.

Whether or not an act of the legislature conflicts with the constitution, is, at all times, a question of great delicacy, and deserves the most mature and deliberate consideration of the court. But though a question of delicacy, yet as it is a judicial one, the court would be unworthy its station, were it to shrink from deciding it, whenever in the course of judicial examination, a decision becomes material to the right in contest. The court should never, on slight implication or vague conjecture, pronounce the legislature to have transcended its authority in the enactment of law; but when a clear and strong conviction is entertained, that an act of the legislature is incompatible with the constitution, there is no alternative for the court to pursue, but to declare that conviction, and pronounce the act inoperative and void. And such is the conviction entertained by a majority of the court, (Judge Mills dissenting,) in relation to the act in question.

Note well that it is the duty of the judicial branch to decide whether a law is constitutional when such decision become material to the rught in contest.

Now, before you get all warm and fuzzy about that law being overturned as repugnant to the Kentucky constitution, the People of the Great State of Kentucky saw fit to amend their constitution and in 1850 the Kentucky constitution Bill of Rights provided:

Sec. 25 That the rights of the citizens to bear arms in defence of themselves and the State shall not be questioned; but the general assembly may pass laws to prevent persons from carrying concealed arms.

Ain't that an aw shit moment.

Yes, it's true that United States v. Miller was mentioned in Footnote #8 in Lewis v. United States -- a 1980 case involving a firearm possessed by a felon.

Why would the Heller court even mention this case, much less consider it?

Probably because if they looked at the Miller case directly -- not footnoted dictum -- they would see that the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’.

Lewis in 1980 quoted from Miller.

Lewis was fully argued before SCOTUS.

At 445 U.S. 56:

Andrew W. Wood argued the cause for petitioner. With him on the briefs was Neal P. Rutledge.

Andrew J. Levander argued the cause pro hac vice for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Frey, Jerome M. Feit, and Joel M. Gershowitz

It was Miller that was not fully argued before the Supreme Court. A dictum from Miller is no less a dictum because it is described as such by the Supreme Court in a footnote of a subsequent opinion.

While the appearance of attorneys and argument for both sides in Lewis is clearly documented, in Miller it is clearly documented that there was "No appearance for appellees." 307 U.S. 175

As we also know, Miller's corpse did not appear for argument or the reading of the Opinion.

- - - - - - - - - - - - - - - - - - - -

Clayton E. Cramer, For the Defense of Themselves and the State, The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms, Praeger Publishers, 1994, page 189:

In some of the most convoluted language the Court has used to justify a position, the majority decided:

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. 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."

The Court did not say that a short-barreled shotgun was unprotected—just that no evidence had been presented to demonstrate such a weapon was "any part of the ordinary military equipment" or that it could "contribute to the common defense."

- - - - - - - - - - - - - - - - - - - -

Brian L. Frye, The Peculiar Story of United States v. Miller, NYU Journal of Law and Liberty, Vol 3:48 at 50:

This essay concludes that Miller is coherent, but largely irrelevant to the contemporary debate over the meaning of the Second Amendment. Miller was a Second Amendment test case, teed up with a nominal defendant by a district judge sympathetic to New Deal gun control measures. But the Supreme Court issued a surprisingly narrow decision. Essentially, it held that the Second Amendment permits Congress to tax firearms used by criminals. While dicta suggest the Second Amendment guarantees an individual right to possess and use a weapon suitable for militia service, dicta are not precedent.7 In other words, Miller did not adopt a theory of the Second Amendment guarantee, because it did not need one.

At 57:

On March 30, 1939, seven justices of the Supreme Court heard oral argument in United States v. Miller. Chief Justice Hughes was ill, and the newly appointed Justice Douglas was not confirmed until April 4. Gordon Dean represented the United States and no one represented Miller or Layton. Two days later, Gutensohn finally received four copies of the government’s brief.

Gutensohn was attorney for Miller.

- - - - - - - - - - - - - - - - - - - -

Heller at 626-28:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service—M–16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

It was Miller that was not fully argued before the Supreme Court.

The Miller court held they cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore could not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

And they reversed a lower court decision that said it did.

Hardly dictum.

The Court did not say that a short-barreled shotgun was unprotected—just that no evidence had been presented to demonstrate such a weapon was "any part of the ordinary military equipment" or that it could "contribute to the common defense."

Correct. So what are we to deduce from that statement by the U.S. Supreme Court?

The Miller court held they cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore could not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

And they reversed a lower court decision that said it did.

Hardly dictum.

You are full of crap and don't know what you are talking about.

Quote your imaginary holding from Miller, do not provide your nonsense variation of the dictum therein and call it a holding. The Opinion of the Court in Miller begins at 307 U.S. 175, and the relevant paragraph is in Miller at page 307 U.S. 178, second paragraph.

Try reading Miller and the case cited therein, Aymette. Digest the holding in Aymette which is cited as authority by Miller.

The Court did not say that a short-barreled shotgun was unprotected—just that no evidence had been presented to demonstrate such a weapon was "any part of the ordinary military equipment" or that it could "contribute to the common defense."

Correct. So what are we to deduce from that statement by the U.S. Supreme Court?

We are to deduce that Miller filed a demurrer, filed no brief, and made no appearance in the court, personally or through attorney. A demurrer is an assertion, made without disputing the facts, that the opponent's pleading is insufficient as a matter of law.

We are to deduce that the Court, in the absolute and complete absence of any evidence presented which could even tend to show that the weapon had any reasonable relationship to the preservation or efficiency of a well regulated militia, could not make believe there was such evidence. The Court did not find that such evidence did not exist, just that none had been presented. Lacking evidence upon which to form an opinion, the Court went on to relate the matter upon which it could not form an opinion. Because no relevant evidence whatever had been presented, the Court could not say that the weapon was any part of the ordinary military equipment or that its use could contribute to the common defense. That is what the Court could not say, due to a complete absence of evidence. The Court then cited as authority, Aymette v State, 2 Humphrey's (Tenn.) 154, 158.

Quote your imaginary holding from Miller

The Miller court held:

2. (The National Firearms Act) Not violative of the Second Amendment of the Federal Constitution. P. 178.

AND

The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

MEANING that if a weapon has today any reasonable relation to the preservation or efficiency of a well regulated militia, the Second Amendment DOES guarantee to the citizen the right to keep and bear such a weapon.

We are to deduce that the Court, in the absolute and complete absence of any evidence presented which could even tend to show that the weapon had any reasonable relationship to the preservation or efficiency of a well regulated militia

Ah. So their decision was to be based on whether or not the weapon had any reasonable relationship to the preservation or efficiency of a well regulated militia.

I agree and that's the only point I was making. Because Heller ignored that important point.

We are to deduce that the Court, in the absolute and complete absence of any evidence presented which could even tend to show that the weapon had any reasonable relationship to the preservation or efficiency of a well regulated militia

Ah. So their decision was to be based on whether or not the weapon had any reasonable relationship to the preservation or efficiency of a well regulated militia.

You evidently have a reading comprehension problem.

If the weapon had not relationship to the preservation or efficiency of a well regulated militia, 2A did not apply. If the weapon did have some relationship to the preservation or efficiency of a well regulated militia, then the court had to consider if it was protected by 2A. The court overruled an unexplained grant of a demurrer and remanded the case to the District Court. Further proceedings did not occur because Miller disappeared.

Quote your imaginary holding from Miller

The Miller court held:

2. (The National Firearms Act) Not violative of the Second Amendment of the Federal Constitution. P. 178.

AND

The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

THAT is not even part of the Opinion in Miller. It is from page 307 U.S. 174. In my #131 I led you by the nose to the precise page and paragraph of the Opinion of the Court to which you are obviously very reluctant to quote, rather preferring to misrepresent and misread the court reporter's syllabus.

Quote your imaginary holding from Miller, do not provide your nonsense variation of the dictum therein and call it a holding. The Opinion of the Court in Miller begins at 307 U.S. 175, and the relevant paragraph is in Miller at page 307 U.S. 178, second paragraph.

Why are you unable or unwilling to quote the actual Opinion of the Court?

You also have amply demonstrated that you are legally incompetent to read and understand the Syllabus written by the court reporter.

In the Syllabus, TWO holdings are identified, and they are numbered 1 and 2.

UNITED STATES v. MILLER ET AL.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS.

No. 696. Argued March 30, 1939.-Decided May 15, 1939.

The National Firearms Act, as applied to one indicted for transporting in interstate commerce a 12-gauge shotgun with a barrel less than 18 inches long, without having registered it and without having in his possession a stamp-affixed written order for it, as required by the Act, held:

1. Not unconstitutional as an invasion of the reserved powers of the States. Citing Sonzinsky v. United States, 300 U. S. 506, and Narcotic Act cases. P. 177.

2. Not violative of the Second Amendment of the Federal Constitution. P. 178.

The Court can not take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia; and therefore can not say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

26 F. Supp. 1002, reversed.

APPEAL under the Criminal Appeals Act from a judgment sustaining a demurrer to an indictment for violation of the National Firearms Act.

Mr. Gordon Dean argued the cause, and Solicitor General Jackson, Assistant Attorney General McMahon, and Messrs. William W. Barron, Fred E. Strine, George F. Kneip, W. Marvin Smith, and Clinton R. Barry were on a brief, for the United States.

No appearance for appellees.

MR. JUSTICE MCREYNOLDS delivered the opinion of the Court.

The two numbered paragraphs, with page citations to the Opinion of the Court, are the court reporter's statement of holdings. The unnumbered paragraph, here highlighted in blue, with no page citation, is not holding.

The Opinion of the Court at page 178 reads:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. 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, 2 Humphreys (Tenn.) 154, 158.

Miller Opinion, New York Times, Tuesday, May 16, 1939, page 15:

"Supreme Court Bars Sawed-Off Shotgun; Denies Constitution Gives Right to Carry This Weapon."

The decision did not solve any problems; criminals use sawed-off shotguns as readily today as they did fifty years ago. It alluded to, but did not define, the Second Amendment: does "well regulated" mean well governed or well trained? Who constitutes "the militia"? How does "the right of the people" in the Second Amendment differ from the "right of the people" in the First, Fourth, or any other? And if does differ, why?

McReynolds' approach reflects the elitist disdain the modern federal judiciary has shown for the Second Amendment, which they consider "obsolete" or "dead" — ignore it to the degree possible, gloss over any inconsistencies when necessary, then dismiss it with a wave of the hand. They wish it would go away. The questions posed by the Second Amendment, are, like firearms, abhorrent and of interest only to dullards, the lower classes, and criminals. We can only wonder what McReynolds would have written if a sawed-off shotgun had been used by an irate small businessman, protecting his meager gold stash from seizure by New Deal agents.

The true importance of the case lies in its basis for reference by the Supreme Court when the Second Amendment is finally argued directly of and for itself. Using the judicial protocol of stare decisis, the policy of standing by precedents and not disturbing "settled" points, the justices may utilize Miller, ambiguous as it is on the subject, as "proof" that the Second Amendment is a collective guarantee rather than an individual right. The idea, it might be argued, is that "consistency" of law, formed by basing current decisions on the foundations of prior decisions - - even questionable ones - - is more important than truth.

Another consideration regarding the case is that the appellees, Miller and Layton, were not even represented. Miller, in fact, had been murdered before the case was argued. The assault the government made against an individual's right to bear arms went without rebuttal, beyond Gutensohn's poorly written demurrer to the indictment. This will not be the circumstance in the inevitable future decision.

Even with the Second Amendment defenseless against attack, McReynolds, as noted, refused to bring forth a blanket decision covering all firearms. Nor did he actively dispute the people's right to bear arms as individuals, perhaps realizing he would be on uncertain ground after reading militia laws which dictated that the members, the "body of the people", supply their own arms. The result was a weak swat at the "gangster" element of the time:

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.

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."

This conclusion is debatable, as thirty thousand short-barrel shotguns were purchased by the U.S. government for the armed forces in World War I. 1 His inference about "the common defense" is also faulty, as shall be shown.

The historical sources used for the decision are of interest, but even more important are the sources not consulted. For example, McReynolds refers us to a chapter on the role of the militia in Adam Smith's Wealth of Nations, which was not even published until 1776 and can hardly be considered a reference manual for the Founding Fathers. The opinion and the appellant's self-contradictory brief continually point us to English common law, and prior decisions based on English common law, and even colonial militia laws that plainly direct that the people must provide their own arms. But no one bothered to consider the words of the very men who demanded the Bill of Rights of which the Second Amendment is a part! This is nothing short of incredible. Jefferson, Madison, Mason, and a host of other Founding Fathers were obvious in their feelings on the subject.

Noting the militia clauses of the Constitution, McReynolds writes the following in his opinion:

"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."

With "obvious purpose"? The Second Amendment specifies the guarantee of an individual right, and a brief review of the evolution of the Second Amendment in America establishes this. The duty of militia service is a natural result of that right, particularly in a republic fearful of standing armies, but it is inane to say the duty supersedes the right on which it is predicated.

As it applies to the Bill of Rights, the thought that later led to the Second Amendment was first found as article 13 of the Virginia Declaration of Rights, written by George Mason in 1776. As noted in The Roots of the Bill of Rights, "Of the 16 articles in the Virginia Declaration, nine state fundamental general principals of a free republic (of these perhaps the most consequential was the statement in Article 5 of the separation of powers as a rule of positive law--apparently the first such statement in an organic instrument). The remaining seven articles safeguard specific individual rights." 2

As a proof that the right is individual, not collective, consider the evolution of article 13. When approved on June 29, 1776, it read:

13. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies in time of peace should be avoided, as dangerous to liberty; and that in all cases, the military should be under strict subordinance to, and governed by, the civil power. Pennsylvania statesmen, using the Virginia Declaration as a guide, passed The Pennsylvania Declaration of Rights on September 28, 1776. Their Article XIII was even more specific regarding the individual's right to bear arms:

XIII. That the people have a right to bear arms for the defence of themselves and the state; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; And that the military should be kept under strict subordination to, and governed by, the civil power.

In the intervening years between 1776 and 1787, independence was won and a proposed national constitution drafted. Upon presentation to the states for ratification, debate arose between the factions favoring the Constitution as presented (the Federalists) and those who either opposed ratification or who demanded a Bill of Rights as a guarantee of their individual liberties (the Antifederalists). In Pennsylvania, the Federalist majority was able to ratify the Constitution, but not without considerable dissent from the Antifederalists. To bring forth their argument to the public, the dissenters published their reasons for disagreement.

From "The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to their Constituents, 1787," we find the following: " . . . Thus situated we entered on the examination of the proposed system of government, and found it to be such as we could not adopt, without, as we conceived, surrendering up your dearest rights. We offered our objections to the convention, and opposed those parts of the plan, which, in our opinion, would be injurious to you, in the best manner we were able; and closed our arguments by offering the following propositions to the convention . . ."

Of their propositions, the seventh clearly addressed the right to keep and bear arms as an individual right.

7. That the people have a right to bear arms for the defence of themselves and their own State or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers.

The importance of the amendments proposed by the Pennsylvania Convention minority is that they were used as a model for other states, including Virginia, which desired ratification, yet also wanted a Bill of Rights.

Virginia, with its wealth, population, and position of leadership in the Revolutionary period, stood as the pivotal state if the Constitution was to be adopted. Virginia's proposed federal Bill of Rights is momentous in that it represented the first specification of the document. Congress listened; every guarantee proposed by Virginia, except one, later found a place in the federal Bill of Rights. From the Virginia ratification document of June 27, 1788 comes the following affirmation that the right to bear arms should be an individual right:

"That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following: …

17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power."

Note that article 17 is essentially the same as article 13 from the Virginia Declaration of Rights, except for one important distinction: the phrase "That the people have a right to keep and bear arms" now leads the section! As with the Pennsylvania minority report, the Virginia proposal is distinct in specifying this individual right, though more succinctly than the Pennsylvania model. The Virginia statesmen were thrifty with words, but it is absurd to think they added the clause for any reason other than to express exactly what it says. Otherwise, article 13 would have served the purpose unchanged.

It is also notable that George Mason, who penned article 13, participated in the deliberations that produced article 17. One would think he would have objected forcefully if the boundaries of his intent had been violated. Far from it. It was during this convention Mr. Mason said "Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussian, & c., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers."3

Other states also amplified a more thorough meaning of their militia clauses upon ratification debate. New Hampshire, in their Bill of Rights dated 1783, noted in section XXIV that:

"A well regulated militia is the proper, natural, and sure defense of a state."

In their proposed amendments to the Constitution in 1788 they suggested:

Twelfth, Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.

In New York, the Constitution of 1777 read:

XL. And whereas it is of the utmost importance to the safety of every State that it should always be in a condition of defence; and it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it; this convention therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that the militia of this State, at all times hereafter, as well in peace as in war, shall be armed and disciplined, and in readiness for service.

At the 1788 New York Ratification Convention, Alexander Hamilton, the acknowledged leader of the Federalist movement, offered the following amendment to soothe the Antifederalists of his home state:

VII. That each state shall have to provide for organising arming and disciplining its militia, when no provision for that purpose shall have been made by Congress and until such provision shall have been made; and that the militia shall never be subjected to martial law but in time of war rebellion or insurrection.

The convention accepted some of his recommendations, but the New York proposed amendments on the subject began with:

"That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State;"

North Carolina, which refused to ratify any Constitution until a Bill of Rights was adopted, proclaimed in their Declaration of Rights a repetition of Virginia's article 17.

When presented to Congress in 1789, James Madison's original resolution, a compilation of the suggestions from the state conventions, read:

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person. 4

Upon arrival in the Senate, it had been altered to read:

ARTICLE THE FIFTH

A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.

On September 4, 1791, the Senate disagreed by a vote of 9 - 6 to a motion to add the following:

that standing armies, in time of peace, being dangerous to Liberty, should be avoided as far as the circumstances and protection of the community will admit; and that in all cases the military should be under strict subordination to, and governed by the civil Power. That no standing army or regular troops shall be raised in time of peace, without the consent of two thirds of the Members present in both Houses, and that no soldier shall be inlisted for any longer of term than the continuance of the war.

On the same day, the Senate agreed to amend Article 5 to read:

A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.

On September 9, it was changed again to:

A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Also on September 9, the Senate refused to insert "for the common defence" after "to keep and bear arms," and the article was renumbered to its familiar number 2.

So much for Justice McReynolds' "common defense" excuse. The defeat of this motion distinctly places any "collective" interpretation into the realm of smoke and mirrors where it so rightfully belongs.

* * *

https://www.scribd.com/document/442305811/Aymette-v-The-State-21-Tenn-154-1840-RKBA

https://www.scribd.com/document/442305933/Sonzinsky-v-United-States-300-US-506-1937-RKBA

The Opinion of the Court at page 178 reads:

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. 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.

Again, it demonstrates the reasoning of the Miller court -- only militia-type weapons are protected.

If the weapon did have some relationship to the preservation or efficiency of a well regulated militia, then the court had to consider if it was protected by 2A.

What?? The court never said, nor implied, that. You're just making shit up.

The ONLY 2A criteria set by the court was whether or not the weapon was suitable for use by a militia OR could contribute to the common defense.

"With obvious purpose to assure the continuation and render possible the effectiveness of such (militia) forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view."

Miller Opinion, New York Times, Tuesday, May 16, 1939, page 15: