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Heller Descision Excerpt

Flintlock

Flintlock

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Liko81 wrote:
Flintlock wrote:
Fascinating... Amendment II says to keep and bear arms.. Not to keep and bear common arms...
Click to expand...

The Supreme Court's only real restriction as to their opinions is stare decisis. Simply, there must be compelling reason to overturn a decision; they have only reversed themselves when logic does not offer any other choice but to do so.

Miller has long held that the test of a "protected" weapon is one that has accepted military purpose, and is of a type in common use by civilians.
Click to expand...
I accept your analysis of Stare Decisis being prevalent in our SCOTUS decisions, but my interpretation is a bit different. Miller was a completely flawed case and was admittedly so during the Heller testimony. Sawed-off shotguns were used during the trench warfare battles of WWI and therefore have a military application. That is not to mention the numerous short barreled shotguns used in every military campaign since, including the current Iraq engagement.

Miller may be one of the most poorly written decisions in history and shouldn't be considered prescedent when the case wasn't even argued to it's finality..
 
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OmSigDAVID

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Flintlock wrote:
Liko81 wrote:
Flintlock wrote:
Fascinating... Amendment II says to keep and bear arms.. Not to keep and bear common arms...
Click to expand...

The Supreme Court's only real restriction as to their opinions is stare decisis. Simply, there must be compelling reason to overturn a decision; they have only reversed themselves when logic does not offer any other choice but to do so.

Miller has long held that the test of a "protected" weapon is one that has accepted military purpose, and is of a type in common use by civilians.
Click to expand...
I accept your analysis of Stare Decisis being prevalent in our SCOTUS decisions, but my interpretation is a bit different. Miller was a completely flawed case and was admittedly so during the Heller testimony. Sawed-off shotguns were used during the trench warfare battles of WWI and therefore have a military application. That is not to mention the numerous short barreled shotguns used in every military campaign since, including the current Iraq engagement.

Miller may be one of the most poorly written decisions in history and shouldn't be considered prescedent when the case wasn't even argued to it's finality..
Click to expand...

The point of the USSC in Miller, was that no evidence had been taken in the trial court to prove that in its mutilated condiction,that instrumentwas still useful to a militia. The 2A does not protecta right to possess useless junk; it defends our natural right to possess WEAPONS.

The case was sent back down for more evidence to be taken, inasmuch as the trial court judge was in error in taking judicial notice that the sawn off shotgun was a weapon. That point shud have been proven by expert testimony. Defendants defauted in appearance; were never seen again.

David
 
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OmSigDAVID

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HungSquirrel wrote:
OmSigDAVID wrote:
Remember: the reason that Miller 's sawn off shotgun did not receive 2nd Amendment protection in 1939 was that it had not been proven by expert testimony in the trial court that such a mutilated"instrument" was useful to a militia. The 2A protects possession of WEAPONS -- not junk.

David
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Considering local militias are supposed to exist to both defend against foreign invaders and against tyranny, I feel sawn-off shotguns are in fact useful to a militia whose home territory has been occupied. It's a hell of a lot easier to conceal a sawn-off weapon from JBTs than it is to conceal a full-length rifle.

Of course, this is an extreme scenario.
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In HELLER, the USSC mentions that:

"It may be objected[/b] that if weapons that are most useful

in military service—M-16 rifles[/b] and the like—may be banned, [/b]

then the Second Amendment right is completely detached [/b]

from the prefatory clause. But as we have said,[/b]

the conception of the militia at the time of the Second[/b]

Amendment’s ratification was the body of all citizens

capable of military service[/b], who would bring the sorts of

lawful weapons that they possessed at home to militia duty[/b].

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."

[emphasis added by David]

David[/b]


[/b]
 
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