On Oct 12, 2014, at 12:31 PM, Lodewijk andré de la porte <l@odewijk.nl> wrote:This is absurdly far from cryptography, but ... the following is a summary of the article on the subject in Wikipedia - http://en.wikipedia.org/wiki/United_States_v._Miller.Ah, but that wasn't the question. A judge must always give precedence to constitutional laws. How could a judge explain the second amendment such that machine guns could be illegal?
I suspect that ruling should be exceedingly controversial and dangerous.
Private ownership of machine guns has been regulated in the US since 1934, when the National Firearms Act was passed in response to the Valentine's Day Massacre, an infamous gang killing. The NFA required registration of fully automatic weapons and some others, like short-barrelled rifles. Registration, and every subsequent transfer, required payment of a $200 fee - a very large sum in those days.The controlling decision is US v. Miller, decided by the Supreme Court in 1939. It's a bizarre case. Miller was a bank robber arrested while transporting a short-barrelled shotgun across state lines. Miller testified against his partners, and later disappeared, presenting no defense to an appeal to the Supreme Court. (In fact, Miller was found murdered before the decision was rendered.) The US government appeal was based, among other things, on the interpretation of the reference to "a well-ordered militia" to say that the protected rights are to arms actually used by militias. Miller was transporting a short-barrelled shotgun - a weapon the government claimed was never used by any known militia. (This claim was actually false, but because no one appeared for the defense, no one disputed it.)
The Supreme Court, however, found other reasons to find that the NFA was likely constitutional, and remanded the case to the district court for further proceedings. But with Miller dead, those further proceedings never occurred. The Supreme Court never actually considered the whole issue of whether a short-barrelled shotgun was, in fact, ever used by a militia; nor whether that matter anyway; never came up.
The case, which forms the basis for limiting access to some kinds of weapons, has barely been cited since. In effect, even though there never really was such a decision, the Court has seen Miller as standing for the rule that weapons not used by militias may be regulated or banned. In a 1997 case, Justice Thomas - that far-left liberal - wrote in a concurring opinion to Printz v. US that "In Miller, we determined that the Second Amendment did not guarantee a citizen's right to possess a sawed off shotgun because that weapon had not been shown to be "ordinary military equipment" that could "contribute to the common defense." In 2008, in a the very important decision invalidating most of the District of Columbia's gun control regulations (District of Columbia v Heller), the opinion included the statement that "Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons. It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment."
So for better or worse, the Supreme Court standard now is that the protected arms are those that are useful to, and used by, militias - whatever we take that word to mean; it had a specific meaning in the 18th century that's no longer of any relevance. Whatever the *actual* facts, sawed-off shotguns - and apparently fully-automatic weapons - are among the things that can be banned as "not the right sort of weapons".
The law is not a simple or pretty thing. It evolves in sometimes arbitrary ways - note the angst over rulings that treat corporations as people, which all trace back to a side comment in a footnote in a decision in a case about something else, which somehow has frozen into a major principle. (Well, the "somehow" is quite clear: The courts are big on an idea call stare decisis, which basically means "let sleeping dogs lie": Unless there is a really, really good reason, the strong bias is to leave decisions and interpretations that people have come to rely on alone, avoiding major disruption, whatever their basis.)
The Second Amendment's bizarre language has been a problem pretty much since it was written, and while there have been changes in interpretation over the years - and there has definitely been a strong trend in recent years for scholars and judges of all political persuasions to see it as a stronger protector of an individualized right than was the case in the past - things like Miller have grown up around it and have also, for now, become settled law.