I have a bone to pick with the article and the conclusions that SCOTUS drew from US v Miller when deciding the cited Heller and McDonald cases (not that either the Federalist Society or SCOTUS cares what I think).
The relevant language from the Miller decision is this:
"Rule: In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than 18 inches in length has some reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not guarantee the right to keep and bear such an instrument."
Note the opening phrase "In the absence of any evidence...."
The members of the court well knew that short barreled shotguns had been used by the Continental Army in the Revolutionary War, and by both sides in the Civil War. But SCOTUS is not supposed to rule on cases based on their personal knowledge. They are supposed to rule based on the Constitution, the law, and evidence presented to the court.
By the time SCOTUS ruled in Miller, one of the defendants was dead, the other was on the run, again, their lawyer had not been paid and furthermore, didn't bother showing up for the later court sessions. So who would have presented the "evidence tending to show that possession or use of a shotgun having a barrel of less than 18 inches in length has some reasonable relationship to the preservation or efficiency of a well-regulated militia"? Certainly the Government could have, but why would they present evidence cutting the ground from under their case and/or their brand new shiny NFA! So the hundred plus years of history of military use of short barreled shotguns was never presented to the court as evidence, the court could not use it in their decision, and the abortion known as US v Miller became "settled law" based on an incomplete version of the relevant facts.
I have a bone to pick with the article and the conclusions that SCOTUS drew from US v Miller when deciding the cited Heller and McDonald cases (not that either the Federalist Society or SCOTUS cares what I think).
ReplyDeleteThe relevant language from the Miller decision is this:
"Rule: In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than 18 inches in length has some reasonable relationship to the preservation or efficiency of a well-regulated militia, the Second Amendment does not guarantee the right to keep and bear such an instrument."
Note the opening phrase "In the absence of any evidence...."
The members of the court well knew that short barreled shotguns had been used by the Continental Army in the Revolutionary War, and by both sides in the Civil War. But SCOTUS is not supposed to rule on cases based on their personal knowledge. They are supposed to rule based on the Constitution, the law, and evidence presented to the court.
By the time SCOTUS ruled in Miller, one of the defendants was dead, the other was on the run, again, their lawyer had not been paid and furthermore, didn't bother showing up for the later court sessions. So who would have presented the "evidence tending to show that possession or use of a shotgun having a barrel of less than 18 inches in length has some reasonable relationship to the preservation or efficiency of a well-regulated militia"? Certainly the Government could have, but why would they present evidence cutting the ground from under their case and/or their brand new shiny NFA! So the hundred plus years of history of military use of short barreled shotguns was never presented to the court as evidence, the court could not use it in their decision, and the abortion known as US v Miller became "settled law" based on an incomplete version of the relevant facts.