[In response to About.com coverage of the U.S. Supreme Court 
refusing to hear the Emerson and Haney cases:

  http://usgovinfo.about.com/library/weekly/aa061002a.htm

]


Date: Thu, 13 Jun 2002 12:47:49 -0700
From: Jeff Chan 
To: Robert Longley, about.com, U.S. Government Info - Resources guide
Subject: Re: High Court Opts Out of Gun Rights Debate


Hello Mr. Longley,
Thanks for your coverage of the Federal Government for about.com
and in particular for fairly even-handed coverage of the Second
Amendment.

I'd like to point out that the Miller decision more clearly
upholds an individual rights meaning than most people seem
to be giving it credit for.  In your article "High Court Opts
Out of Gun Rights Debate" you write:

  In its 1939 decision in the case of  U.S. v. Miller,
  the Supreme Court ruled that the Second Amendment
  applied only to rights having "some reasonable
  relationship to the preservation of efficiency of
  a well regulated militia."

While that's true as far as it goes it may not be the
whole truth.  The problem is that to the lay person
mentioning "the militia" implies only a collective right.
Contrast this with the text of Miller in which Justice
McReynolds writes for court:

    http://rkba.org/judicial/miller-aultice/Miller.html

  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.
  "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.

Note "supplied by themselves" means individual ownership, not
government-issue, taking delivery at an armory, etc.

The particular question in Miller was whether ownership of his
short-barreled shotgun was thus protected as a militia arm.
However Miller fled trial and thus presented no defense.
So no one was in court to answer this question, resulting
in no "judicial notice", i.e. no one told the court one way
or the other.  McReynolds continues:

  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 has 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.   Aymette v. State, 2 Humphreys (Tenn.) 154, 158.

In the remainder of the Miller holding McReynolds clearly and
repeatedly states that individuals were expected to own
guns, and that guns with a militia purpose are protected
by the Second Amendment.  He does this by including a summary
of several state militia laws contemporary with the Bill of
Rights.  Those laws clearly support individual ownership.

So the Supreme Court in Miller argues that individual ownership
of arms appropriate to militia use is protected by the Second
Amendment.  Miller was not a member of any organized militia, 
yet the court took the case, finding that the right is individual.  
If it was not an individual right the Court could have refused
the case simply on the grounds that Miller was not a militia 
member.

I hope you will consider including the whole truth that the
Court in Miller explicitly and repeatedly invokes an
individual right to arms.

Sincerely,

Jeff Chan