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The only Supreme Court decision to focus explicitly on the Second Amendment was United States v. Miller. [132] In that case, two men were accused of illegally transporting a weapon from one state to another in violation of the 1934 Firearms Act. In overruling the District Court's opinion that the law violated the Second Amendment, Justice McReynolds, writing for a unanimous Court, stated:
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. [133] The Court referred to several sources when it defined the militia as "all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' " [134] Inexplicably, some individual rights advocates trumpet Miller as support for their position. [135] One could claim that the definition of militia set forth by the Court and its subsequent discussion of the history of the militia demonstrates that the right to bear arms does not belong to the state. It is, however, disingenuous to claim that Miller supports anything more than the notion that a well-regulated militia, comprised of individuals, is the focus of the amendment.
In the only two subsequent Supreme Court decisions that cite Miller in the Second Amendment context, the individual rights theory was dismissed. In Konigsberg v. State Bar, [136] Justice Harlan eviscerated any absolutist claim that the Second Amendment protects against gun control laws. Rejecting the contention that the First Amendment bars libel, slander, and misrepresentation claims because of its absolutist language, he wrote, "In this connection also [Page 511] compare the equally unqualified command of the second amendment: 'the right of the people to keep and bear arms shall not be infringed.' And see United States v. Miller (cite omitted)." [137] In United States v. Lewis, [138] the Court went even further. Justice Blackmun writing for the Court about a law prohibiting a felon from possessing a firearm stated:
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, (cite omitted) (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.') [139] Many federal courts of appeal, some of which were also cited in Lewis, have used far stronger language in holding that the Second Amendment does not afford an individual the right to bear arms and have cited Miller to support their holdings. [140] Not one has ruled to the contrary.
The only other tenable claim that may be made is that Miller protects an individual from laws restricting weapons, like assault weapons, that appear to have a "reasonable relationship to the preservation or efficiency of a well- regulated militia." According to one recent article analyzing the Second Amendment in a completely different context, "The [Miller] ruling appeared to be stuck to the physical surfaces of the particular gun in the case." [141] A case like Quilici v. Village of Morton Grove, [142] in which the Seventh Circuit affirmed a local handgun ban, maintaining that "the right to keep and bear handguns is not guaranteed by the second amendment" [143] because they have no relationship to a militia, says nothing about whether military-type weapons would or should be afforded that protection. One could claim that a military-[Page 512] type weapon would pass the test. Yet no federal court has ever interpreted Miller to apply only to the type of weapon rather than the individual's connection to a well-regulated militia. [144]
United States v. Warin [145] in the Sixth Circuit and United States v. Oakes [146] in the Tenth Circuit both dealt directly with the issue of militia-related weapons. Both were challenges to 26 U.S.C. § 5861(d), requiring registration of all machine guns--weapons that undoubtedly could be used in a militia as "weapons of war." Both plaintiffs also claimed that they were state militia members by virtue of the fact that they were "able bodied males." [147] In Warin, the court held "that there is no evidence that a submachine gun in the hands of an individual 'sedentary militia' member would have any, much less a 'reasonable relationship to the preservation or efficiency of a well regulated militia.' " [148] In Oakes, the court wrote: "To apply the amendment so as to guarantee appellant's right to keep an unregistered firearm which has not been shown to have any connection to the militia, merely because he is technically a member of the Kansas militia, would be unjustifiable in terms of either logic or policy." [149] The Supreme Court declined to grant certiorari to hear the appeals.
In Farmer v. Higgins, [150] a challenge to the Firearm Owners Protection Act of 1986, [151] which prohibits the transfer or possession of machine guns, was mounted in the Eleventh Circuit. At issue was a grandfather clause in the Act, which, overall, was far more draconian then the one challenged in Oakes and Warin. The court held that the Act prohibited private possession of machine guns not lawfully possessed prior to the enactment of the law. Although the court did not specifically address the Second Amendment, it did so indirectly in declaring say it considered "Farmer's remaining arguments ... to be without merit." [152] Here too, the Supreme Court denied certiorari. Finally, California's Roberti-Roos Assault Weapon Control Act was [Page 513] challenged in the Eastern District of California on a number of grounds in Fresno Rifle and Pistol Club v. Van De Kamp. [153] The court affirmed the constitutionality of the statute, citing many of the cases discussed above. The court also rejected a privacy challenge, holding that possession of a weapon and one's right to self-defense were not privacy interests. [154] The Ninth Circuit affirmed without addressing the validity of the broad Second Amendment challenge. [155] Rather, citing Presser v. Illinois and United States v. Cruikshank, the court held that the Second Amendment does not apply to the states and consequently that the Second Amendment does not serve to protect individuals against any such state law. [156]
Justice William O. Douglas summarized it well: "A powerful lobby dins into the ears of our citizenry that these gun purchases are constitutional rights protected by the Second Amendment," but the Second Amendment was simply "designed to keep alive the militia." [157]
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