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View Full Version : Nugget from Miller decision regarding AB711


Uriah02
10-12-2013, 4:01 PM
I was just reading over the Miller decision as part of my research paper and I found this nugget that might bring encouragement to others. As much of a pain as Miller is to the non-felon, the "common use" clause may have some company that we can be grateful for.

'The possession of arms also implied the possession of ammunition, and the authorities paid quite as much attention to the latter as to the former.' US v Miller (1939) (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=307&page=174)

Tincon
10-12-2013, 11:01 PM
Miller was abrogated by Heller and is no longer good law. Also, "common use" is no longer the test used. It has been replaced by a more complicated analysis which involves "typical lawful use". That said, ammunition is certainly protected by the new analysis. To what extent, we do not yet know.

press1280
10-13-2013, 3:23 AM
Miller wasn't abrogated by Heller. The "collective rights" opinions from the CCA that claimed to follow Miller WERE abrogated.

krucam
10-13-2013, 3:54 AM
I would be interested in reading a case or two using this newer "typical lawful use" test that has replaced Miller's old-school dicta...

Tincon
10-13-2013, 3:58 AM
Miller wasn't abrogated by Heller. The "collective rights" opinions from the CCA that claimed to follow Miller WERE abrogated.

You are incorrect. The abrogation of Miller has been recognized by several federal courts since Miller (See e.g. U.S. v. Skoien, 2008 WL 4682598, W.D.Wis.; U.S. v. Huet 2010 WL 4853847, W.D.Pa.).

Also, from Heller itself:

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.

This is a much better rule than the old "common use" rule from Miller. Under the former rule, any weapon that had not already achieved common use status, either because it was new or because it did not have mass appeal, could not be protected under the Second Amendment. Under the new rule from Heller, unless it can be proven that a weapon is typically used by criminals rather than law abiding citizens, it is protected. This includes both newly developed weapons, as well as those which for whatever reason were not widely popular (as long as they are not predominately used by criminals). Miller is dead. Long live Heller.

prometa
10-13-2013, 8:53 AM
I was just reading over the Miller decision as part of my research paper and I found this nugget that might bring encouragement to others. As much of a pain as Miller is to the non-felon, the "common use" clause may have some company that we can be grateful for.

Here is how it would go, in my opinion.

The ninth will vote to uphold on the basis that non lead ammo is substantially equal to lead ammo so that no harm has actually come to any hunter.

They will go on to say that banning lead ammo has a legitimate government purpose of protecting the environment, and because the bill only bans the lead and nothing else, it is as narrowly tailored as possible and meets even strict scrutiny.

SCOTUS will deny cert because they do not really want to examine the "typical use" framework that is full of logical cracks and missing pieces. For example, what constitutes typical? Can absolutely nothing in use by the law abiding be banned regardless of new information?

Typical use is better than common use but still creates a race condition where as long as criminals get to it first and bans come swiftly, it's ban-able regardless.

Tincon
10-13-2013, 12:55 PM
I can't disagree with most of that, unfortunately. But, a better outcome is possible. Under strict scrutiny, the government would need to show a compelling purpose. There is no real evidence that lead ammo does significant harm to the environment. Even under intermediate scrutiny, they would have to show some important purpose.

press1280
10-13-2013, 11:48 PM
I'd consider abrogated to be when the court effectively overrules it to the point when it's just a footnote in history. They said in Heller that their opinion was consistent with Miller.
Also note SCOTUS didn't specifically abrogate/overturn Cruikshank, even though for all purposes it was since its logic (no 2A incorporation) was shot down because the due process clause wasn't used for incorporation at that time.
I do see where Miller could be cited for a future AW case, and I do believe I saw Miller cited once or twice in lower court cases recently. Cruikshank, OTOH, is likely relegated to the ash heap of history.

Wolverine
10-14-2013, 8:41 AM
Here is how it would go, in my opinion.

The ninth will vote to uphold on the basis that non lead ammo is substantially equal to lead ammo so that no harm has actually come to any hunter.

They will go on to say that banning lead ammo has a legitimate government purpose of protecting the environment, and because the bill only bans the lead and nothing else, it is as narrowly tailored as possible and meets even strict scrutiny.

SCOTUS will deny cert because they do not really want to examine the "typical use" framework that is full of logical cracks and missing pieces. For example, what constitutes typical? Can absolutely nothing in use by the law abiding be banned regardless of new information?

Typical use is better than common use but still creates a race condition where as long as criminals get to it first and bans come swiftly, it's ban-able regardless.

Some court will add that the 2nd amendment isn't about hunting, since the ban on lead ammo for use in hunting doesn't impact lead ammo used for self-defense, then the 2nd amendment is not implicated.

Since states already enjoy wide latitude in regulating hunting - types of weapons used, calibers used, type of arrows, type of traps, hunting seasons, types & gender of game, etc., etc. - hunting is viewed as a state granted privilege that can be regulated to death or even banned entirely with only a minimum of judicial review.

Tiberius
10-14-2013, 9:04 AM
I guess I need to read Heller - but that quote from it seems to suggest that the California handgun roster is unconstitutional, since it effectively bans guns which are typically possessed by law-abiding citizens. And with the new microstamping wrinkle, the roster is a total ban on new handguns.

"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."

Tincon
10-14-2013, 10:12 AM
I guess I need to read Heller - but that quote from it seems to suggest that the California handgun roster is unconstitutional, since it effectively bans guns which are typically possessed by law-abiding citizens. And with the new microstamping wrinkle, the roster is a total ban on new handguns.

I agree, but realize there are (at least) two components to this analysis. One, is it protected (we know handguns generally are). And two, is the restriction justified. The will be based on the level of scrutiny (which we don't know yet).

So for example, in order to overcome the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest.

So, say we have a short barreled shotgun (which for whatever reason is not protected because it isn't typically used by law abiding citizens). We don't even worry what the reason for banning it is, because it isn't protected by the Second Amendment. The Government can ban it.

But if we have a handgun, we know those are protected. So unless it is an unusual kind of handgun that the government can show is not typically used by law abiding citizens, then it is protected by the Second Amendment. But that does not mean it can't be regulated. It means that we then look to see (under intermediate scrutiny) if the regulation furthers an important government interest in a way that is substantially related to that interest.

In the case of the roster, does paying a fee every year make the gun more safe? Does the color or finish matter? Size?

So the roster law is at least partially unconstitutional. But I could see them requiring a loaded chamber indicator, for example. That might further an important government interest (people not shooting themselves) in a substantially related way.

But say we are using strict scrutiny (which we should because we know 2A is a fundamental right, but for which we probably don't have 5 SCOTUS votes).

Saving multiple lives is still probably a compelling government interest. But there is also probably a less restrictive way keep people from shooting themselves because they think the gun is unloaded. For example, warning labels, education, etc. The government would have to prove that these means were substantially less effective than the LCI.

Tincon
10-14-2013, 10:14 AM
I'd consider abrogated to be when the court effectively overrules it to the point when it's just a footnote in history.

It is abrogated. If you have westlaw you can see right there that it says the case is abrogated. I think if multiple federal judges and the westlaw research attorneys think it is abrogated, that trumps your personal opinion.

curtisfong
10-14-2013, 11:34 AM
But I could see them requiring a loaded chamber indicator, for example.

If "they" were really concerned with efficacy, they'd ban a LCI. Everybody would want it, and its popularity would soar.