From ca-firearms-request Tue Dec 28 01:51:55 1993 Return-Path: ca-firearms-request@shell.portal.com Received: from localhost (daemon@localhost) by jobe.shell.portal.com (8.6.4/8.6.4) id BAA14868; Tue, 28 Dec 1993 01:51:49 -0800 Errors-to: ca-firearms-request@shell.portal.com Sender: ca-firearms-request@shell.portal.com Precedence: bulk Received: from localhost (chan@localhost) by jobe.shell.portal.com (8.6.4/8.6.4) id BAA14863; Tue, 28 Dec 1993 01:51:46 -0800 Date: Tue, 28 Dec 1993 01:51:46 -0800 From: Jeff Chan Message-Id: <199312280951.BAA14863@jobe.shell.portal.com> To: ca-firearms, firearms-politics@ns1.rutgers.edu Subject: Re: Letters, SF Chronicle Status: R [I just faxed my reply to the Comicle, attached below; somebody let me know if it makes it; last time it took them till Saturday -- Jeff C.] ----- >Date: Mon, 27 Dec 1993 17:19:04 -0800 >From: edward@etch-eshop.Berkeley.EDU (Jay Edward Sparks) >To: ba-firearms@shell.portal.com >Subject: Letters, SF Chronicle > >The following appeared in the Letters to the Editor section of the >_San Francisco Chronicle_ on Saturday, Dec. 25th. >Reproduced without permission. I did try to call Hastings >but it's closed for the holidays. >My guess is his forte is criminal law... > >********************************** >Editor-- Mr. James Williams (Letters, Dec. 21), asserts that the >U.S. Supreme Court has frequently upheld an unrestricted right of >individual citizens to keep and bear arms under the Second Amendment. >This is completely untrue. > The most recent time that the S.C. considered the issue thoroughly >was 1939. In U.S. v. Miller, the high court upheld a federal law making >criminal the shipment in interstate commerce of a sawed-off shotgun. > The court said that law was valid because there was no reason to >believe that a sawed-off shotgun had "some reasonable relationship >to the preservation or eficiency of a well-regulated militia," which >it held was the goal of the Second Amendment. In 1980, the court >indicated that it stood by this interpretation of the Second Amendment; >it has not spoken on the issue directly since then. > Furthermore, in earlier cases, the S.C. made clear that the 2nd >only concerns the ability of the U.S. Congress to regulate guns. >According to the court, the amendment has absolutely no effect upon >the power of state legislatures to pass strong gun control legislation. > Keeping and bearing a firearm is not, as Mr. Willliams claims, "a >fundamental right (that) cannot be infringed any more than your right >to a fair trial." > As far a the S.C. is concerned, the 2nd does not significantly limit >the ability of Congress or state legislatures to pass even stringent >regulations on the sale, possession and use of firearms. > > (signed) Prof. David J. Levine > Hastings College of the Law > San Francisco ----- [Here's mine:] Jeff Chan xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxx Editor San Francisco Chronicle Fax: (415) 512-8196 December 27, 1993 Editor: Professor Levine in his December 25th letter correctly states that the 1939 case U.S. v Miller was the last time the Supreme Court addressed the Second Amendment directly. He even correctly quotes Justice McReynolds opinion that Miller's sawed-off shotgun did not bear "some reasonable relationship to the preservation or efficiency of a well-regulated militia." What Prof. Levine fails to mention is that the text surrounding the quote makes it clear that since Miller made no appearance on appeal, the Court was presented no evidence that the type of gun in question was in common military use, in which case it would be protected by the Second Amendment. In fact, shotguns were in common use by the military in World War I and continue to be stocked today. The full quote is: 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 had 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. The Supreme Court confirmed in Miller that the Second Amendment protects the arming of the militia. It goes on to state precisely who the militia are: [...] the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. Taken in full context, the Supreme Court ruled in Miller that the Second Amendment recognizes a broad individual right to own military-type arms. Perhaps Prof. Levine would be more honest to call for a repeal of the Second Amendment, as is being done every session now in Congress, rather than resorting to quoting decisions out of context. Sincerely, [signature] Jeff Chan References: United States v Miller, 307 U.S. 174 (1939) Stephen P. Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right, LibertyTree Press, San Francisco/Oakland