At 08:10 PM 1/9/2004, Greg Broiles <gbroiles@parrhesia.com> wrote:

Did you actually read the opinion, or just read some screwball summary of it?

Obviously not well enough. Thanks for straightening me out.

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In Cases v. United States, 131 F.2d 916 (1st Cir. 1942) the Supreme Court [...]

Nope. That opinion was written, as the citation indicated, by the Court of Appeals for the First Circuit, not the Supreme Court.

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unbelievably held that U.S. v. Miller, 307 U.S. 174 (1939) had not intended "to formulate a general rule" regarding which arms were protected by the Second Amendment and therefore many types of arms were not protected.

While I do think that the 2nd Amendment does, in fact, protect an individual right to keep and bear arms, I think that the 1st Circuit's reasoning re _Miller_ in _Cases_ is actually quite reasonable. The opinion points out that interpreting _Miller_ so that it says the 2nd Amendment means that Congress can regulate firearms, but only ineffective or useless ones, is nonsensical. While I don't think the Ninth Circuit reads _Miller_ in a reasonable fashion, I don't think the "only useless weapons may be regulated" is an especially rational interpretation of it, either.

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A plain reading of Miller meant only weapons with non-military application could be regulated by Congress and that could not be right because it challenged the 'right' of government to have a force monopoly. So the Court's reasoning was that the Founders could not have meant for the federal government to have any effective deterrent to its tyranny from the citizenry. Even after absorbing the opinion, I cannot fathom how convoluted a reading of the historical record those on bench needed in order to arrive at their conclusion. Pretzel logic indeed!

Yes, that is an unreasonable conclusion to reach. It is also unreasonable to conclude that the 2nd Amendment means that no regulation of weapons is constitutionally permissible.

Its hard to square the Founder's purpose of providing the common citizen, through a militia (which a National Guard), with an effective physical deterrent to governmental tyranny with many restrictions on the type of weapons a citizen in good standing may keep and bear. Though allowing the guy next door to own a nuke or a F-15 may be going too far, its not unreasonable for any of us to keep and bear any arm that our police forces (including S.W.A.T. teams) field.

Even the 1st Amendment - which contains the words "shall make no law" - is interpreted to allow some regulation of speech. (e.g., shouting theater in a crowded fire, etc.)

Only if there is no fire. When a government comes to a bad end there is indeed a fire in the theater.