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Debunking the Miller Brief: The Federal Government's First Attempt at Eroding the 2nd Amendment.


The U.S. brief to the Supreme Court presented a collective rights argument to the court that heard the Miller case. The government in its summary stated (emphasis has been added):

The Second Amendment does not grant to the people the right to keep and bear arms, but merely recognizes the prior existence of that right and prohibits its infringement by Congress... In both countries [England and U.S.] the right to keep and bear arms has been generally restricted to the keeping and bearing of arms by the people collectively for their common defense and security. Indeed, the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organization provided for by law.

English Common Law

The government argued that our Second Amendment was derived from English common law, and English common law restricted gun ownership to the people collectively. As will be shown this is a false assessment of English common law at the time of the Second Amendment's birth.

But first the government's case...

Thus it would seem that the early English law did not guarantee an unrestricted right to bear arms. This right, however, it is clear, gave sanction only to the arming of the people as a body to defend their rights against tyrannical and unprincipled rulers. It did not permit the keeping of arms for purposes of private defense.

Thus, in Aymette v. State, 21 Tenn. 154 2 Humph. 154 (1840), the court, in reviewing the history and origin of the right in England to bear arms, particularly as assured by the Bill of Rights of 1688: ... (See the brief for full text.)

The law, we have seen, only allowed persons of a certain rank to have arms, and consequently this declaration of right had reference to such only. It was in reference to these facts, and to this state of the English law, that the second section of the amendment to the Constitution of the United States was incorporated into that instrument. It declares that "a well regulated militia being necessary... ".

This is true as far as it goes, but notice the year, 1688. That was almost one hundred years before the Revolution, and a lot changed in England soon after 1688!

The following is from To Keep and Bear Arms: The Origins of an Anglo-American Right by Joyce Lee Malcom. Much documentation is provided in her book, but for brevity only her conclusions are presented here:

Blackstone's [a leading and influential English jurist] comments on this subject are of utmost importance since his work immediately became the great authority on English common law in both England and America. Blackstone emphatically endorsed the view that keeping arms was necessary both for self defence, "the natural right of resistance and self preservation", and "to restrain the violence of oppression".

By the late eighteenth and early nineteenth century, parliament, the courts, and legal opinion were in agreement on the right of Protestant Englishmen to be armed and the place of this right in their nation's delicately balanced constitution...The right of individuals to be armed had become, as the [English] Bill of Rights had claimed it was, an ancient and indubitable right. It was this heritage that Englishmen took with them to the American colonies and this heritage which Americans fought to protect in 1775.

Malcom also documents how the original restrictions on firearms ownership mentioned in the Aymette decision were eliminated in the early 18th century. The above Aymette decision (1840) was the first to limit the keeping of arms to military type weapons, or weapons used for the common defense, but it did acknowledge an individual right and necessity for individuals to keep those weapons.

The Brief's Mis-Representation of State Supreme Court Decisions

From the brief (emphasis added):

"While some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property as well as the right of the people to bear them collectively (People v. Brown, 253 Mich. 537; State v. Duke, 42 Tex. 455), the cases are unanimous in holding that the term "arms" as used in constitutional provisions refers only to those weapons which are ordinarily used for military or public defense purposes and does not relate to those weapons which are commonly used by criminals.

Unanimous? The following is from Halbrook, Stephen P., That Every Man Be Armed: The Evolution of a Constitutional Right, University of New Mexico Press, 1984:

The classic case of Nunn v. State in 1846 had held that "the language of the second amendment is broad enough to embrace both Federal and State governments-nor is there anything in its terms which restricts its meaning." The Georgia high court declared invalid a statutory prohibition on breast pistols on the basis of the guarantees of the U.S. Constitution:
The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed...

So much for the unanimous claim of courts restricting arms to military arms!

The First Collective Rights Decision

From the brief:

In Salina v. Blaksley , 72 Kan. 230, the court, in referring to the provision of the State Constitution declaring that the people had the right to bear arms for their defense and security, said (pp. 232- 233):
That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal constitution...
Here is what Halbrook says about the above decision:
...in Salina v. Blaksley (1905), the Supreme Court of Kansas, in upholding a conviction for carrying a revolver while intoxicated, took a restrictive view of both of the relevant state constitutional provision, guaranteeing arms possession for defense and security, and of the federal Second Amendment: the court declared that only "the right to bear arms as a member of the state militia" was intended. Contrariwise, the court treated the federal provision as applicable to the states and agreed that the "legislature can regulate the mode of carrying deadly weapons, provided they are not such as are ordinarily used in civilized warfare" The collectivist approach taken in Salina, that the relevant constitutional provisions only referred to the right to bear arms in a military organization provided by law, "went further than any other case" except for the opinion of one concurring judge in the early Arkansas case of State v. Buzzard. [Emphasis added] This approach appears illogical on its face: the members of a military organization constitutionally provided for by state law could hardly need any state constitutional right to bear arms.
Compare the above decision to one by the Michigan Supreme Court, People v. Brown (1931). Note this decision was only a few years before the Miller case, but we'll see why the government wouldn't quote anything from this case!

Again Halbrook, quoting from People v. Brown:

When the bulwark of state defense was the militia, privately armed, there may have been good reason for the historical and military test of the right to bear arms. But in this state the militia, although legally existent and composed of all able-bodied male citizens...is practically extinct and has been superseded by the National Guard and reserve organizations... The historical test would render the constitutional provision lifeless.

The protection of the Constitution is not limited to militiamen nor military purposes, in terms, but extends to "every person" to bear arms for the "defense of himself" as well as of the state.


What is worse are the decisions of many courts subsequent to Miller. Some whether intentional or not, mis-cite Miller and render anti-Second Amendment decisions devoid of any valid scholarly, historical, or legal analysis.