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Purple K
02-22-2012, 1:26 PM
With the Heller (2009) and McDonald (2010) wins as Notices of Supplemental Authority, could old cases like Miller (1939), Kasler (2000), Silveira (2002), etc. be re-opened/appealed?

HowardW56
02-22-2012, 1:30 PM
I don't think so, but I'm not sure that they would be considered good law in any new cases...

emcon5
02-22-2012, 1:33 PM
Well Miller has been dead for ~70 years, so I am guessing standing would be hard to some by.

Purple K
02-22-2012, 1:36 PM
Well Miller has been dead for ~70 years, so I am guessing standing would be hard to some by.

Could standing be held postumously via a descendent?

Untamed1972
02-22-2012, 1:37 PM
I think they get appealed by filing new cases with new plaintiffs and then citing Heller, McD, etc as the new precedent with which the new case must be viewed thru and why the old precedent no longer applies.

Librarian
02-22-2012, 2:21 PM
I think they get appealed by filing new cases with new plaintiffs and then citing Heller, McD, etc as the new precedent with which the new case must be viewed thru and why the old precedent no longer applies.

That's more like what would happen.

All those folks in DC who may have been convicted and punished under the law Heller invalidated still have criminal records and are not eligible for reparations. If someone were actually still in jail for such violation, I think a lawyer might try to get them out, were that to be the only charge.

mdimeo
02-22-2012, 2:26 PM
With the Heller (2009) and McDonald (2010) wins as Notices of Supplemental Authority, could old cases like Miller (1939), Kasler (2000), Silveira (2002), etc. be re-opened/appealed?

Miller is still good law. Heller twisted it a bit - protected arms are those in common use *by civilians*. No SBS's for you.

ClarenceBoddicker
02-22-2012, 3:17 PM
Miller is the most important 2A SCOTUS case & one of the largest losses of 2A Liberty. Only the NFA, GCA & Brady is worse. Miller is hugely important to the future of the 2A, if civilians are to able own future modern effective weapons like DE (http://en.wikipedia.org/wiki/Directed-energy_weapon) type stuff, that is if America even lasts long enough. Once nano/smart (http://en.wikipedia.org/wiki/Future_Force_Warrior) soft body armor becomes prevalent & inexpensive, projectile weapons like firearms (not powerful rail guns (http://en.wikipedia.org/wiki/Railgun)) will become obsolescent, except for non armored targets.

Could you imagine the Minutemen standing up to the Red Coats armed with swords, spears, bows & arrows and maybe a few "illegal" crossbows, because firearms and non-sporting weapons like crossbows were illegal for citizens/colonials to own? Can you see Minutemen who had never held or shot a rifle in their life, being able to pick up one up from a dead Red Coat & be able to shoot it? If they could figure out how to load & fire it, do you think they could even hit anything? Picture a new Continental Army trying to use catapults & Trebuchets (http://en.wikipedia.org/wiki/Trebuchet) against Red Coat cannon, because citizens/colonials were barred from owning cannons, gunpowder etc.? Following the NRA's plan, that will be what any resistance to a future tyrannical Fed government or advanced occupier like China will look like.

The whole point of a Militia (http://en.wikipedia.org/wiki/Militia_(United_States)) is that the common person can be quickly turned into a defensive army & be ready and able to use effective modern military weapons without having to be supplied weapons and lengthy training, as they are already self trained to use the weapons they own. In 1939 a short barrel shotgun was very suitable for use by the Militia. The US Military was using shotguns then & are still using them now. Don't believe the propaganda about what a Militia really is. It has not changed, other than to include women & African American's (not sure if that is the current PC term, I don't mean to offend anyone). See USC 10 Sec 311. Most civilian gun owners would be members of the unorganized Militia, thus legally (Save for Miller, the Feds & the NRA) be allowed to posses all modern military weapons. It's that simple & not hard to understand why Miller is so very important.

The NRA does a criminal disservice to Members and American gun owners by supporting Fed anti Militia & anti gun laws & SCOTUS rulings like the: '34 NFA, '38 FFA, '39 Miller, '58 MSA, '68 GCA, '76 ITAR/USML, '86 FOPA/Hughes 922o, '86 LEOPA, '90 CCA/GFSZ/Unsoeld 922R, etc etc. Their "middle" of the road & appeasement approach to gun rights has & will cost American civilians the right to own future modern effective weapons. Try buying a powerful laser today, like the preban laser that John Norrell used to make into a rifle. Unlike the view point of the NRA, the 2A has nothing at all to do with "sporting" or hunting deer. It's all about US civilians being able to own modern military weapons (Yes that means those evil Machine Guns they hate so much) to protect the country & themselves from any and all forms of attack. Don't worry Bubba, a future laser or plasma rifle will be able to kill a deer, much better than & further away than your .270 or .30-06, just that you will not be able to own one because of the NRA's "sporting" position.

Librarian
02-22-2012, 3:42 PM
Miller is still good law. Heller twisted it a bit - protected arms are those in common use *by civilians*. No SBS's for you.

Miller was never 'good' law, (terrible opinion writing) and relying on it and any cases citing it for the proposition that there is a necessary connection to a militia for ownership/possession/use of firearms is completely foreclosed by Heller.

As to weapons, We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.Heller, at 52, emphasis added.

press1280
02-23-2012, 1:36 AM
Notice Miller is being used right now to support some of the current carry cases, as Miller was caught transporting a SBS across state lines by highway. The weapon was what he was convicted of, not the transporting/carrying across state lines.

Purple K
02-23-2012, 9:39 AM
The 9th Circuit's ruling in Silveira that the 2A is not an individual Right is easily refutable now just as the State Court ruling in Kasler concerning no RKBA in California's Constitution.

Crom
02-23-2012, 10:02 AM
Heller & McDonald changed everything. McDonald is a demarcation point. Many of the previous cases core holdings have been gutted.

Side note: If you read Silveria (http://scholar.google.com/scholar_case?case=13948185712203065755) there is a fascinating information in the "discussion section" about how the tide was beginning to turn in our favor. Most interesting to me was the information regarding the DOJ memo about the 5 Cir. ruling in Emerson.


Second, the current leadership of the United States Department of Justice recently reversed the decades-old position of the government on the Second Amendment, and adopted the view of the Fifth Circuit. Now, for the first time, the United States government contends that the Second Amendment establishes an individual right to possess arms.[14] The Solicitor General has advised the Supreme Court that "[t]he current position of the United States ... is that the Second Amendment more broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions...." Opposition to Petition for Certiorari in United States v. Emerson (http://scholar.google.com/scholar_case?case=14262752073118297274&hl=en&as_sdt=2,5), No. 01-8780, at 19 n. 3. In doing so, the Solicitor General transmitted to the Court a memorandum from Attorney General John Ashcroft to all United States Attorneys adopting the Fifth Circuit's view and emphasizing that the Emerson court "undertook a scholarly and comprehensive review of the pertinent legal materials ...," although the Attorney General was as vague as the Fifth Circuit with respect both to the types of weapons that he believes to be protected by the Second Amendment, and the basis for making such determinations. Id., app. A. The reversal of position by the Justice Department has caused some turmoil in the lower courts, and has led to a number of challenges to federal statutes relating to weapons sales, transport, and possession, including a heavy volume in the district courts of this circuit

To answer the OP's question... New cases will be filed with new plaintiffs. Modern Second Amendment law is in it's infancy.

fiddletown
02-23-2012, 10:16 AM
...could old cases like Miller (1939), Kasler (2000), Silveira (2002), etc. be re-opened/appealed?Basically, no. There comes a point, after time limits have passed for taking further action, at which a case becomes final. What we want now is new precedent, based on new cases, to supersede the old.

mdimeo
02-23-2012, 10:29 AM
Miller was never 'good' law, (terrible opinion writing) and


Certainly.

relying on it and any cases citing it for the proposition that there is a necessary connection to a militia for ownership/possession/use of firearms is completely foreclosed by Heller.

Also true. But in a way, Heller is worse. A fair reading of miller would say that a burst-fire, short barreled, M4 rifle is a protected arm.

The Heller decision pretended that Miller said only arms in ordinary use by regular citizens were protected.

Bhobbs
02-23-2012, 10:45 AM
Certainly.



Also true. But in a way, Heller is worse. A fair reading of miller would say that a burst-fire, short barreled, M4 rifle is a protected arm.

The Heller decision pretended that Miller said only arms in ordinary use by regular citizens were protected.

The way I understand it is that Miller said arms commonly used by the military are the only ones protected and that's why the SBS was illegal.

Crom
02-23-2012, 11:05 AM
Here is some relevant quotes the Court wrote about Miller in Heller


Miller did "not turn on the difference between muskets and sawed-off shotguns, it turned, rather, on the basic difference between the military and nonmilitary use and possession of guns,"

Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.


We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller's phrase "part of ordinary military equipment" could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller's "ordinary military equipment" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." 307 U.S., at 179, 59 S.Ct. 816 (http://scholar.google.com/scholar_case?case=17128640835628801970&q=heller+v.+dc&hl=en&as_sdt=2003). The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense. "In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same." State v. Kessler, 289 Ore. 359, 368, 614 P.2d 94, 98 (1980) (http://scholar.google.com/scholar_case?case=16910265786683508012&q=heller+v.+dc&hl=en&as_sdt=2003) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (1973)). Indeed, that is precisely the way in which the Second Amendment's operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.[25]

BlindRacer
02-23-2012, 11:14 AM
Something I see with regards to the Miller opinion, is that when a certain gun...ei, SBS or SBR is banned initially (constitutionally or not), then it becomes out of common use. Thus making it illegal to own, because it was initially banned. Same with making Full Auto mostly banned. It's now out of common use, and can now be, according to Miller, legally banned.

Ban anything, like simi-auto, becomes out of common use (because it's unconstitutionally banned), then it can be legally banned according to Miller.

So anyways, what is the difference between an 18" shotgun, and a 17.5" shotgun? Or one who's overall length is a little too short? It doesn't magically become evil. It also doesn't change anything as long as it's a law abiding citizen who owns it. And it doesn't change anything in the hands of a criminal, because they are going to use it illegally either way. So what's the difference?

OleCuss
02-23-2012, 11:25 AM
Miller is the most important 2A SCOTUS case & one of the largest losses of 2A Liberty. Only the NFA, GCA & Brady is worse. Miller is hugely important to the future of the 2A, if civilians are to able own future modern effective weapons like DE (http://en.wikipedia.org/wiki/Directed-energy_weapon) type stuff, that is if America even lasts long enough. Once nano/smart (http://en.wikipedia.org/wiki/Future_Force_Warrior) soft body armor becomes prevalent & inexpensive, projectile weapons like firearms (not powerful rail guns (http://en.wikipedia.org/wiki/Railgun)) will become obsolescent, except for non armored targets.

Could you imagine the Minutemen standing up to the Red Coats armed with swords, spears, bows & arrows and maybe a few "illegal" crossbows, because firearms and non-sporting weapons like crossbows were illegal for citizens/colonials to own? Can you see Minutemen who had never held or shot a rifle in their life, being able to pick up one up from a dead Red Coat & be able to shoot it? If they could figure out how to load & fire it, do you think they could even hit anything? Picture a new Continental Army trying to use catapults & Trebuchets (http://en.wikipedia.org/wiki/Trebuchet) against Red Coat cannon, because citizens/colonials were barred from owning cannons, gunpowder etc.? Following the NRA's plan, that will be what any resistance to a future tyrannical Fed government or advanced occupier like China will look like.

The whole point of a Militia (http://en.wikipedia.org/wiki/Militia_(United_States)) is that the common person can be quickly turned into a defensive army & be ready and able to use effective modern military weapons without having to be supplied weapons and lengthy training, as they are already self trained to use the weapons they own. In 1939 a short barrel shotgun was very suitable for use by the Militia. The US Military was using shotguns then & are still using them now. Don't believe the propaganda about what a Militia really is. It has not changed, other than to include women & African American's (not sure if that is the current PC term, I don't mean to offend anyone). See USC 10 Sec 311. Most civilian gun owners would be members of the unorganized Militia, thus legally (Save for Miller, the Feds & the NRA) be allowed to posses all modern military weapons. It's that simple & not hard to understand why Miller is so very important.

The NRA does a criminal disservice to Members and American gun owners by supporting Fed anti Militia & anti gun laws & SCOTUS rulings like the: '34 NFA, '38 FFA, '39 Miller, '58 MSA, '68 GCA, '76 ITAR/USML, '86 FOPA/Hughes 922o, '86 LEOPA, '90 CCA/GFSZ/Unsoeld 922R, etc etc. Their "middle" of the road & appeasement approach to gun rights has & will cost American civilians the right to own future modern effective weapons. Try buying a powerful laser today, like the preban laser that John Norrell used to make into a rifle. Unlike the view point of the NRA, the 2A has nothing at all to do with "sporting" or hunting deer. It's all about US civilians being able to own modern military weapons (Yes that means those evil Machine Guns they hate so much) to protect the country & themselves from any and all forms of attack. Don't worry Bubba, a future laser or plasma rifle will be able to kill a deer, much better than & further away than your .270 or .30-06, just that you will not be able to own one because of the NRA's "sporting" position.

Not sure how to respond to all that.

You have some possibly unwarranted technological assumptions but you are generally correct about where weaponry could go and how the NRA is still not a perfect friend to our RKBA.

Fun to hear you mention the unorganized militia. Not often understood - and unfortunately gutted and assigned as a function of the state.

As to whether Miller is the most important 2A case? I think that one could argue that point - especially in a time of Heller 1, McDonald, and Ezell (and maybe Chester). Someday Peterson could be more cited than is Miller.

Crom
02-23-2012, 11:34 AM
Something I see with regards to the Miller opinion, is that when a certain gun...ei, SBS or SBR is banned initially (constitutionally or not), then it becomes out of common use. Thus making it illegal to own, because it was initially banned. Same with making Full Auto mostly banned. It's now out of common use, and can now be, according to Miller, legally banned.

Ban anything, like simi-auto, becomes out of common use (because it's unconstitutionally banned), then it can be legally banned according to Miller.

So anyways, what is the difference between an 18" shotgun, and a 17.5" shotgun? Or one who's overall length is a little too short? It doesn't magically become evil. It also doesn't change anything as long as it's a law abiding citizen who owns it. And it doesn't change anything in the hands of a criminal, because they are going to use it illegally either way. So what's the difference?

Excellent points. I've see Bill Wiese post (http://www.calguns.net/calgunforum/showpost.php?p=6421344&postcount=17)on this subject before. Here is a snipit of what he wrote:


Direct attacks on NFA are justifiably a long way off. I'd say the SBR/SBS bans would be the most ripe for challenge given the arbitrary & capricious length standards - and that these rules were, by design, a direct offshoot of an early attempt to ban handguns thru NFA that didn't go through -- and Heller says we *can* have handguns. The idea that plus or minus an inch or two on a length makes one a felon [or bans the gun into prohibitum] and kills gunrights will not stand if attacked properly. MGs are gonna be a lot further off, at best - and there may be better non-civil rights ways of attacking NFA registry (given ATF bookkeeping, opening of repeated amnesty periods, etc. -- dunno....)

Kharn
02-23-2012, 2:17 PM
That's more like what would happen.

All those folks in DC who may have been convicted and punished under the law Heller invalidated still have criminal records and are not eligible for reparations. If someone were actually still in jail for such violation, I think a lawyer might try to get them out, were that to be the only charge.Lowery v US was already an appeal under that exact situation, SC denied cert so he's still a convicted felon.

Crom
02-23-2012, 4:41 PM
Lowery v US was already an appeal under that exact situation, SC denied cert so he's still a convicted felon.

I was saddened when I learned the news of that. It make one wonder.