(06-23-2016, 01:34 AM)Bob Butler 54 Wrote:(06-22-2016, 07:00 PM)Mikebert Wrote: 2008 is not recent? I was refering to this portion of Heller.
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not 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. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.
For example, based on that statement above I would say the 2nd Amendment does not necessarily given one the right to own a nuke (Justin 77 argued that the 2nd Amendment guaranteed the right to bear any military weapon, even a nuke). Not all law-abiding people will continue on to the future to be law-abiding. People can (and do) go beserk. When they do so with a revolver they may kill a dozens, with a nuke it could be tens of thousands. All I was saying is there must be some line between owning a handgun (Heller) or shotgun (Miller) that is guaranteed by the 2nd Amendment and a personal nuke, which I should hope is not.
The hoped for line is whether the weapon is crew served or not. In revolutionary times, individuals owned and carried muskets, but the cannon were owned by the community. This is considered a decent pretext for drawing a line. If a weapon is crew served, there is no protection.
Legally and in many cases practically it's a decent line. Alas, it doesn't cover suitcase nukes. Also, as computers and precision guidance makes more and more dangerous weapons single soldier light weight single operator ready to use, what might be a fine litmus test today could become an ugly precedent not too many decades down the road.
Miller's litmus test is thus important. Is the weapon carried by common infantrymen? If so, it is protected by the 2nd. In the 1930s, sawed off shotguns and assault rifles (specifically the Thompson submachine gun) were not used by the military. They were gangster weapons, not military weapons. Thus they were banned. Alas, by World War II the Thompson was commonly used by the military. In Vietnam, soldiers clearing out tunnel complexes were using sawed off shotguns. By the Miller litmus test, that flipped these weapons from subject to ban to protected.
That's what you have to watch about Miller. The litmus test is not that the weapon is too deadly. It is that the weapon has no military use, has nothing to do with the maintenance of a well regulated militia. Thus, under the Collective Rights / Jim Crow interpretation of the 2nd, the government could restrict possession of the weapon. While modern gun prohibition advocates misquote Miller as saying it establishes that specific weapons can be banned, they don't quote to criteria established that determines which weapons can be banned.
Gun rights advocates also quote Miller, but with an entirely different spin. From their point of view, Miller establishes that common infantry weapons are specifically protected. Today, that means assault rifles. This is clearly not what the gun prohibitions favor. If the question weren't values locked to death I might favor rewriting the 2nd such that a true right to own and carry weapons for self defense clearly and plainly exists, but limitations on things like rate of fire and magazine size are allowed. Alas, reasonable compromise doesn't seem to be on the table.
You really can't trust the main stream media's spin on the case. Reading the actual Miller decision is recommended.
I understand this. I was getting at is the possibly that the Miller ruling could be modified or replaced by some future court, should a case involving use of something like a Stinger missile come to them. The 2nd Amendment clearly refers to the militia, which was NOT as many believe something put together by the rebels to fight the Revolutionary War. It was effectively the colonial army since British regulars were not usually stationed in the colonies during peacetime. Defense against Indians was provided by the colonies themselves through the colonial militia, which was necessarily a reserve-type organization because of cost. These consisted of citizen soldiers (like our reserves), but the leaders often had some professional training. It is true that as the frontier expanded westward the bulk of the American population no longer faced a real threat from Indians and so funding for the militia was often lacking, a big bone of contention between colonist near the borders versus those in the interior, who controlled the purse strings. Nevertheless, the militias were the "American army" during colonial times.
Once we got a standing army (something the founders wished to avoid) the militia became superfluous. The straightforward meaning of the 2nd Amendment no longer was relevant. One can interpret it to mean an individual right to self defense, but it does not explicitly say that. One can interpret it to refer to non-crew-served weapons, but it does not say that either. The interpretation that it applies to army weapons follows naturally from the fact that the militia had traditionally been the Army when the amendment was conceived).
Since this is no longer the case the interpretation given by Miller makes no more sense that the earlier ones from the 19th century. It means what the Court says it means. And that caveat they added to Heller says they haven't decided this issue for more powerful weapons and will rule on it if they have to (but aren't going to now). Or if you got your wish, the issue would be handled politically by replacing the 2nd Amendment with one that makes sense in a world where there is a standing army. But that is probably not going to happen in my lifetime and so the Court will have to decide should someone choose to challenge the automatic weapon regulations or perhaps try with a more powerful weapon.