Month: December 2007

Paul Helmke has been busy reading “all the words in the Second Amendment, not just the ones we like”. Unfortunately for them, I’ve been reading all the Miller decision, not just the parts that the Bradys like. You know, like this part:

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.

The Militia which the States were expected to maintain and train is set in contrast with Troops which they [p179] were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia — civilians primarily, soldiers on occasion.

The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline.” 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.

Emphasis mine. I think the Bradys are very much misreading the Miller opinion. Jack Miller was dead by the time the case was heard, and it was only the government’s position that the court entertained. The court was presented no evidence that the firearm in question was in common military use at the time. The Miller test, therefore, was on the firearm in question, not on the status of the individual. By the Miller test, it would seem to me that an M16 would qualify as protected by the second amendment. Considering that, the Bradys shouldn’t be so enthusiastic about touting Miller. If the court adopts that test, I may be able to get M16s rather than AR-15s, which would make me rather pleased, but probably not Paul Helmke.

UPDATE: Ian Argent has more over on his blog.

Dave Hardy responds to an op-ed by Professor Ed Chemerinsky, which claims the second amendment is surely a collective right, in the Contra Costa Times.

Whatever staffer over at The Brady Campaign who is responsible for their blog is going to have to be careful not to get carpel tunnel syndrome from blogging out so much crap as of late. Their latest steamer repeats the old tired explanation of why the Parker decision was wrong and out of touch with the purpose of the second amendment:

If the Second Amendment is read naturally, in the order it is written, then its militia purpose explains “the right of the people to keep and bear Arms,” not the other way around. A “well regulated Militia” is the Amendment’s aim, not merely some side benefit of arms owned for “private purposes.”

The Brady’s are arguing here that the introductory clause, where the founders explain a purpose of recognizing the people’s right to keep and bear arms, renders the operative clause, “the right of the people to keep and bear arms shall not be infringed” without meaning, since there’s no longer a “well-regulated militia”.

It’s not the first time an argument like this has been made before The Court. In the case of Eldred v. Ashcroft, which challenged the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998, the attorneys representing Eldred tried to argue similarly the the copyright power, which is granted Congress in Article I Section 8:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

Was limited only to those purposes which promoted the progress of science and the useful arts, and since the 1998 Copyright Act extended the copyright period well beyond death, it could not possibly be construed to do such a thing, since dead people seldom produce useful art. Here’s what The Court said about that argument:

The CTEA’s extension of existing copyrights categori-cally fails to “promote the Progress of Science,” petitioners argue, because it does not stimulate the creation of new works but merely adds value to works already created. As petitioners point out, we have described the Copyright Clause as “both a grant of power and a limitation,” Graham v. John Deere Co. of Kansas City, 383 U. S. 1, 5 (1966), and have said that “[t]he primary objective of copyright” is “[t]o promote the Progress of Science,” Feist, 499 U. S., at 349. The “constitutional command,” we have recognized, is that Congress, to the extent it enacts copyright laws at all, create a “system” that “promote[s] the Progress of Science.” Graham, 383 U. S., at 6.

We have also stressed, however, that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause’s objectives.

The Court in Eldred felt that the preambular clause in the copyright power served as no meaningful limit on that power.  If The Court is unwilling to find a preambular clause as being a limit on a power of Congress, what makes them so confident they would be willing to go so far as to believe a preambular clause would render part of the Bill of Rights completely meaningless?