SCOTUS and the 2nd Amendment

There has been a plethora of commentary across the Internet, recently, in reference the the Supreme Court's decision to judge the question (essentially) as to whether the 2nd Amendment acknowledges (not 'grants') the right of the individual to possess a firearm.

As Jim Shepherd says in "The Shooting Wire" (not a permanent link):

The last "significant" ruling on the Second Amendment came in 1939 when the court ruled a sawed-off shotgun was not a weapon that would be used in the militia.

This incident is so frequently cited, I think it might be pertinent to describe the circumstances under which that decision was reached.

U.S. vs MILLER

In The United States vs Miller et al, the District Court of the United States for the Western District of Arkansas found:

Appeal from the District Court of the United States for the Western District of Arkansas. [307 U.S. 174, 175] Mr. Gordon Dean, of Washington, D.C., for the United States.

No appearance for appellees.

Mr. Justice McREYNOLDS delivered the opinion of the Court.

An indictment in the District Court Western District Arkansas, charged that Jack Miller and Frank Layton 'did unlawfully, knowingly, wilfully, and feloniously transport in interstate commerce from the town of Claremore in the State of Oklahoma to the town of Siloam Springs in the State of Arkansas a certain firearm, to-wit, a double barrel 12-gauge Stevens shotgun having a barrel less than 18 inches in length, bearing identification number 76230, said defendants, at the time of so transporting said firearm in interstate commerce as aforesaid, not having registered said firearm as required by Section 1132d of Title 26, United States Code, 26 U.S.C.A. 1132d (Act of June 26, 1934, c. 757, Sec. 5, 48 Stat. 1237), and not having in their possession a stamp-affixed written order for said firearm as provided by Section 1132c, Title 26, United States Code, 26 U.S.C.A. 1132c (June 26, 1934, c. 757, Sec. 4, 48 Stat. 1237) and the regulations issued under authority of the said Act of Congress known as the 'National Firearms Act' approved June 26, 1934, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the United States.' 1 [307 U.S. 174, 176] A duly interposed demurrer alleged: The National Firearms Act is not a revenue measure but an attempt to usurp police power reserved to the States, and is therefore unconstitutional. Also, it offends the inhibition of the Second Amendment to the Constitution, U.S.C.A.-'A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.' [307 U.S. 174, 177] The District Court held that section 11 of the Act violates the Second Amendment. It accordingly sustained the demurrer and quashed the indictment.

Note the italicized comment at the beginning of the document:

No appearance for appellees.

Remember this, because it is important.

Here's the story behind the story:

Miller and Layton were 'moonshiners' (unlicensed distillers of untaxed spiritous liquors) whom the Bureau of Alcohol, Tobacco and Firearms (ATF) had been determined to catch and imprison because of their primary business ... making and selling Moonshine.

In 1938, Federal Agents ("Revenuers", or locally "revenoors") received word that they were distilling whiskey at a certain location, and raided the place. When they arrived, the Revenoors found a working / workable still, but no people were there and no direct evidence that Miller and Layton were involved was found.

However, the Revenoors found a sawed-off shotgun in a pickup, traced to Miller (or Layton), and in their frustration they brought charges against both parties for possession of an illegal weapon.

Specifically, they were charged with transporting a sawed-off shotgun ... not simple possession.

Note that Miller and Layton were not 'pillars of the community'. They (or at least Miller) were bank robbers, and probably guilty of other crimes.

Eventually, both Miller and Layton were charged in District court for the 'crime' of transporting a sawed-off shotgun.

Miller died (was murdered) before the trial started. Layton pleaded guilty, and disappeared.

When the trial was convened, Layton conveniently disappeared. He later re-appeared, and was imprisoned for the charges.

It's significant that neither defendant was present at the trial.

But the Federal attorneys were present.

They made the charge that the firearms was subject to taxation (in the same sense that a machine gun was/is subject), and that a sawed-off shotgun was not a firearm suitable to "the militia".

This argument completely ignored the "Trench Guns" (sawed off shotguns) which were commonly used by the U.S. Army in WWI. However, since there was no Defendant present, and no defending attorney, no contradicting argument was presented. Therefore, the judge (McReynolds) had no choice but to find for the plaintiff .. the United States of America ... which established their argument as a precedent for all future judgments concerning the Second Amendment.

This single uncontroversial (unopposed) argument has thus become the single precedent for ALL subsequent trials which consider the Second Amendment as a defense.

Historically, it has been a boon to district and federal courts, because it did establish a precedent by which any court can deny a citizen (honest or otherwise) the right to own a firearm ... under any circumstances which may freely be ignored by the courts as long as this precedence may be applied.

Essentially, the cited authority:

... said defendants, at the time of so transporting said firearm in interstate commerce as aforesaid, not having registered said firearm as required by Section 1132d of Title 26, United States Code, 26 U.S.C.A. 1132d (Act of June 26, 1934, c. 757, Sec. 5, 48 Stat. 1237), and not having in their possession a stamp-affixed written order for said firearm as provided by Section 1132c, Title 26, United States Code, 26 U.S.C.A. 1132c (June 26, 1934, c. 757, Sec. 4, 48 Stat. 1237) and the regulations issued under authority of the said Act of Congress known as the 'National Firearms Act' approved June 26, 1934

... which MAY be interpreted as a simple 'taxation' offense, becomes in and of itself a felonious act which MAY be prosecuted civilly, and the consequences to the offender NOT being adjudicated as 'relieved' by the simple act of paying the tax plus a fine. Rather, imprisonment and confiscations have been the punishment for this act, and any act judged to be 'similar'.

...

(Here is another reference to the legal documents pertaining to US vs MILLER)

...

US vs EMERSON:
A husband who is accused by his wife of 'threatening' can be deprived of firearms ownership based upon the unsubstantiated testimony (of his spouse) that he has made violent threats.

1999: see US vs Emerson from UMKC Law School:

Defendant Timothy Joe Emerson ("Emerson") moves to dismiss the Indictment against him, claiming that the statute he is prosecuted under, 18 U.S.C. § 922(g)(8), is an unconstitutional exercise of congressional power under the Second Amendment to the United States Constitution. For the reasons stated below, the Court GRANTS Emerson's Motion to Dismiss.

BACKGROUND

On August 28, 1998, Emerson's wife, Sacha, filed a petition for divorce and application for a temporary restraining order in the 119th District Court of Tom Green County, Texas. The petition stated no factual basis for relief other than the necessary recitals required under the Texas Family Code regarding domicile, service of process, dates of marriage and separation, and the "insupportability" of the marriage. The application for a temporary restraining order--essentially a form order frequently used in Texas divorce procedure--sought to enjoin Emerson from engaging in various financial transactions to maintain the financial status quo and from making threatening communications or actual attacks upon his wife during the pendency of the divorce proceedings.

On September 4, 1998, the Honorable John E. Sutton held a hearing on Mrs. Emerson's application for a temporary restraining order. Mrs. Emerson was represented by an attorney at that hearing, and Mr. Emerson appeared pro se. Mrs. Emerson testified about her economic situation, her needs in the way of temporary spousal support and child support, and her desires regarding temporary conservatorship of their minor child.

During the hearing, Mrs. Emerson alleged that her husband threatened over the telephone to kill the man with whom Mrs. Emerson had been having an adulterous affair. However, no evidence was adduced concerning any acts of violence or threatened violence by Mr. Emerson against any member of his family, and the district court made no findings to that effect. Furthermore, the court did not admonish Mr. Emerson that if he granted the temporary restraining order, Mr. Emerson would be subject to federal criminal prosecution merely for possessing a firearm while being subject to the order. [ED: emphasis Added]

ANALYSIS

As stated above, Emerson was indicted for possession of a firearm while being under a restraining order, in violation of 18 U.S.C. § 922(g)(8) ("the Act"). This statute states that:

(g) It shall be unlawful for any person--
(8) who is subject to a court order that--

(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury . . . .

The ultimate decision is that the charged spouse is not permitted to possess a firearm, or to buy or to borrow a firearm.

In the end, Emerson lost his appeal. Thus it is that (essentially) a man seeking to buy a firearm must attest to the fact that he is under no restraining order from his spouse. A finding that this testament is untrue is not only grounds for denying the right to purchase a firearm; possession of a firearm is illegal when a man is found to have had a restraining order issued, even on on the sole testimony of his spouse.
(Further citations available from www.law.umkc, and jurist.law.pitt.edu)

This ruling is different from US vs MILLER in that (a) it has been incorporated into the forms which anyone must complete and sign before buying a firearm; and (b) it establishes a precedence for confiscating firearms which were legally obtained; and (c) may be activated solely by registration of a restraining order created by a spouse ... with no substantiating evidence, documentation or testimony. In other words, it may be based on hearsay.

Summary:
In today's litigious society, deprivation of 2nd Amendment rights may be based on bad case law, or on hearsay. The justification may be valid, but there is no legal standard by which the justification may be measured.

Were SCOTUS (The Supreme Court of the United States) to certify today that the 2nd Amendment specifically refers to an 'individual right', there is still no basis under which we may assume that these precedents will be overthrown.


CONCLUSION:
You are SO screwed!