http://volokh.blogspot.com/2002_06_16_volokh_archive.html#85183253 [Eugene Volokh, 11:58 AM] MISTAKE ABOUT THE SUPREME COURT AND THE SECOND AMENDMENT: According to an otherwise fairly balanced cnsnews.com article, In refusing to hear the cases [United States v. Emerson and United States v. Haney, which involved Second Amendment challenges to various statutes], the Supreme Court cited as precedent the 1939 ruling in the United States vs. Miller case that said the Second Amendment protects only those rights that have "some reasonable relationship to the preservation of efficiency of a well-regulated militia." This is simply not so. In refusing to hear these cases, the Court cited absolutely nothing . As with virtually all of the remaining thousands of cases that it refuses to hear (over 98% of all the cases that it's asked to hear), the Court issued a one-line order: "The petition for writ of certiorari is denied." Whenever you petition the Supreme Court to review a lower court case, the Court has unlimited discretion to deny the petition (except in some very narrow and unusual classes of cases). It doesn't need to decide the merits of the case; it can just say that it isn't interested in hearing it. See, e.g., Riggs v. California, 525 U.S. 1114 (1999) (Stevens, J., statement respecting the denial of certiorari) ("The denial of this petition for certiorari, as always, does not constitute a ruling on the merits."). In particular, the Court usually refuses to rehear cases unless there is (1) a "split" among lower courts on the subject, which means that lower courts have reached different results on the question, and (2) resolving the split would make a difference to the result in this case. As to the Second Amendment, there's now (with the Fifth Circuit's decision in Emerson) a split as to whether the Amendment secures an individual right. But there's no split on the more specific question of whether the right extends to automatic weapons (Haney) and to people who are under domestic restraining orders (Emerson ), so resolving the broader issue would not change the results in these particular cases. It thus makes sense that the Court would refuse to hear the case. The article was also incomplete (though not as flatly wrong) in another way: It quoted part of the holding of Miller, but not another part that sheds light on it -- that "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense." That would make a significant difference -- "protects only those rights that have 'some reasonable relationship to the preservation of efficiency of a well-regulated militia'" isn't quite the same as "protects only those rights that have 'some reasonable relationship to the preservation of efficiency of a well-regulated militia,' [which consists of] all males physically capable of acting in concert for the common defense." As I argue elsewhere, there's much more to the Second Amendment debate than just the Miller case. But even if an article (and again I should mention that it is generally a relatively balanced piece) focuses on the denial of certiorari and on Miller, it seems to me that it should at least be accurate and fairly complete in its discussion of those two items.