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Response to MarvinGardens (Reply #66)

Sat Jun 15, 2019, 10:42 AM

76. 1939 miller explained further

NC state constitution 'have arms' decree: Nothing herein shall justify the practice of carrying concealed weapons, or prevent the General Assembly from enacting penal statutes against that practice.

marvin: The modern N.C. constitution added the qualifier ... I wonder why they felt the need to add that qualifier.

No, the modern NC constitution does have that qualifier, no state does today that I know of. The proscription on carrying concealed firearms to some extent or another was passed & held by about 10 states in the 1800's, ironically western or southern for the most part. Back then open carry was OK since bar drinkers & card players & restaurant goers knew you were armed & were aware, while carrying concealed created a covert way of taking a gun out which was unethically considered 'cheating'.

marvin: They could have left in the old language, if it was just an uncontroversial old passage that, rather than protecting an individual right,

No, these state proscriptions on carrying concealed were not protecting any right - the proscriptions applied to state legislatures & their abilities to fine or imprison violators. The ability to pass gun control laws is & was the issue, while few back then argued it violated the 2nd amendment.

marvin: As to Miller, it was a narrow ruling that acknowledged that Congress had the power to prohibit the movement of sawed-off shotguns in interstate commerce. It is clear from reading it that it does not apply to weapons that would be useful for the common defense.

That's the gun lobby spin of 1939 Miller, for sure, to blunt it, but you need to reread the following, since you are intentionally ignoring the crux:

1939 Miller: The Constitution, as originally adopted, granted to the Congress power -- "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."
With obvious purpose to assure the continuation and render possible the effectiveness of such {militia] forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

https://supreme.justia.com/cases/federal/us/307/174/case.html

This 1939 supreme court ruling on miller was UNANIMOUS. Not one justice felt the above wording to be wrong or misleading about any individual rkba, they clearly called it for the militia interpretation. Not one justice thought 'whoa fellow justices, look how we worded that, future generations are gonna think we're ruling for a militia interp' Nope, all thought it was proper wording.
.. Note also, the 9th recused justice later wrote a book or paper supporting gun control.

Tack on amicus brief citing adams by justice dept in 1938 to the 1939 supreme court re miller: In the only other case in which the provisions of the National Firearms Act have been assailed as being in violation of the Second Amendment, the contention was summarily rejected as follows:
The second amendment to the Constitution, providing, "the right of the people to keep and bear arms, shall not be infringed," has no application to this act. The Constitution does not grant the privilege to racketeers and desperadoes to carry weapons of the character dealt with in the act. It refers to the militia, a protective force of government; to the collective body and not individual rights.
http://www.guncite.com/miller-brief.htm
https://www.democraticunderground.com/?com=view_post&forum=1172&pid=207435

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