pageok
pageok
pageok
Entirely Clear:

An unfortunate locution from D.C. v. Heller:

It is entirely clear that the Court's basis for saying that the Second Amendment did not apply was not that the defendants were "bear[ing] arms" not "for ... military purposes" but for "nonmilitary use."

This didn't strike me as quite successful, likely because of the three "not"'s. An uncharacteristic slip in an otherwise very readable opinion.

Here's the context, which may make the sentence a bit clearer, but not much:

The judgment in the case upheld against a Second Amendment challenge two men's federal convictions for transporting an unregistered short-barreled shotgun in interstate commerce, in violation of the National Firearms Act. It is entirely clear that the Court's basis for saying that the Second Amendment did not apply was not that the defendants were "bear[ing] arms" not "for ... military purposes" but for "nonmilitary use." Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection ....

therut (mail):
HUH?????
11.5.2008 7:27pm
tsotha:
Just out of curiosity, who would have written a sentence like that? Is it one of the justices or a clerk?
11.5.2008 7:33pm
Soronel Haetir (mail):
What I find even more unfortunate about this passage is that aiui the statement isn't even true. Miller won at the district court and therefore was never convicted.
11.5.2008 7:37pm
A. Zarkov (mail):
A lawyer's work product is his words. A justice or a clerk writing such a sentence should feel a deep sense of embarrassment.
11.5.2008 7:40pm
Eugene Volokh (www):
As I said, I should stress that this is a rare stylistic slipup in a long and generally very readable opinion. (Likewise with the substantive slipup about the procedural posture of Miller.)
11.5.2008 8:07pm
Soronel Haetir (mail):
Given that both Scalia and Stevens made the same mistake regarding Miller's non-conviction I almost think this mistake to be intentional. Such a mistake allows the justices to neatly side-step the issues Miller raised, especially given that it was never returned for resolution whether a short barreled shotgun is a protected arm.
11.5.2008 8:23pm
starrydeceases:
While that section certainly could have been better written, I did not in any way find the meaning unclear. That said, that may be because I was already familiar with the relevant issue in Miller. Of much more concern is the fact that there was ample evidence for the court to have concluded that a short barrelled shotgun should indeed be protected under the rationale the court used, though I don't believe anyone actually argued the point. Of course, nobody argued anything at all on behalf of Miller, in any case.
11.5.2008 8:34pm
Xanthippas (mail) (www):
I would really, really hate to be called on in class to explain what the court means by that.
11.5.2008 9:21pm
J. Aldridge:
By the same reasoning, then, anyone with an unregistered short-barreled shotgun in foreign commerce, is in violation of a potential National Firearms Act within foreign Nations.

Surely no one will argue "to regulate commerce" among States is different with foreign Nations.

It is dangerous to allow Congress to regulate firearms via the commerce clause.
11.5.2008 9:53pm
Brooks Lyman (mail):
But here Heller is quoting Miller, so the clumsiness is not the fault of Scalia or his clerk, but the quote which should be quoted accurately - which isn't to say the the result isn't clumsy in the extreme, but I had no trouble understanding it. Of course, I'm not a lawyer....

As for Miller, I assume that he could have been sent to prison, except that as I understand it, he took it on the lam.

As regards the question of short-barreled (sawed-off) shotguns being adjudged to be not military/militia weapons, I've always understood that to be a lack of rather specialized knowledge on the part of the justices - short barreled shotguns (Trench Guns) were used in WWI and even absent that usage, could certainly be considered to be applicable to military/militia operations. But, given that Miller was as much as anything a collusion between the Court and the Attorney General to validate the National Firearms Act, it could also be a deliberate blindness on the part of the Court.
11.5.2008 10:32pm
Soronel Haetir (mail):

Brooks Lyman ,

AIUI, Miller was in fact dead at the time the opinion was handed down.
11.5.2008 11:14pm
James Gibson (mail):
Eugene, did you read how the City of DC interpreted that segment from Miller. They flipped it completely around to say the court was banning arms that were general issue in the Army.

Further, the short barrel shotgun is an improper statement. If I have a shotgun for trap its barrel will be shorter then that of a hunting shotgun. A police style shotgun will have an even shorter barrel. But the sawed-off shotgun, by Federal definition is under 18 inches in barrel. All the trench guns of world war one are 20 inches in length. Thus the guns people continuously try to equate to the Federal ban don't meet the Federal definition.
11.6.2008 1:00am
Roger Schlafly (www):
As for Miller, I assume that he could have been sent to prison
Yes, if he had been convicted of a crime.

The point here is that a sawed-off shotgun was regarded as a gangster gun with no legitimate purpose.
11.6.2008 3:56am
leew:
James Gibson:

All the trench guns of world war one are 20 inches in length.


Cite, please.
11.6.2008 12:11pm
steelbuster (mail):
Trench gun specs - http://www.winchestercollector.org/guns/1897shot.shtml

This 20" barreled 1897 'trench gun' is the same as the one I carried in VietNam. It dated from WW1 era, and it remains the prototype for all current military or riot shotguns.
11.7.2008 8:47am
Nelson Lund (mail):
If Scalia's misstatement of the facts in the Miller case was a "slipup," it was also one that fed into what I think was Scalia's bizarre interpretation of Miller. For details, see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1235537
11.7.2008 11:35am