Re: Silveira DENIED Certiorari

Spike <[EMAIL PROTECTED]> wrote in
news:[EMAIL PROTECTED]: 

> In article
> <[EMAIL PROTECTED]>, 
> [EMAIL PROTECTED] says... 

>> Of course, there's never been any personal gun right under
>> the Second Amendment, 

> Could you forward your copy to me? Mine's different and is
> about individual rights....

Sure.  Read this.

[begin excerpts]

U. S. Constitution

Second Amendment

A well-regulated militia being necessary to the security of a 
free state, the right of the people to keep and bear arms 
shall not be infringed.

* * * * *

The Texas Constitution

Article 1, Section 23

Every citizen shall have the right to keep and bear arms in 
the lawful defense of himself or the State; but the 
Legislature shall have power, by law, to regulate the 
wearing of arms, with a view to prevent crime.

* * * * *

The clause in the constitution of the United States, that it 
is said to be in violation of, is the 2d article of the 
amendments: "A well regulated militia being necessary to the 
security of a free state, the right of the people to keep 
and bear arms shall not be infringed."  O. & W. Dig. 7.  The 
clause in the constitution of this state, which it is said 
to violate, is the 13th section of the bill of rights: 
"Every citizen shall have the right to keep and bear arms, 
in the lawful defense of himself or the state." O. & W. Dig. 
14.

The object of the clause first cited, has reference to the 
perpetuation of free government, and is based on the idea, 
that the people cannot be effectually oppressed and 
enslaved, who are not first disarmed. The clause cited in 
our bill of rights, has the same broad object in relation to 
the government, and in addition thereto, secures a personal 
right to the citizen.  The right of a citizen to bear arms, 
in the lawful defense of himself or the state, is absolute. 
He does not derive it from the state government, but 
directly from the sovereign convention of the people that 
framed the state government.

The clause cited in our bill of rights, has the same broad 
object in relation to the government, and in addition 
thereto, secures a personal right to the citizen.

The right of a citizen to bear arms, in the lawful defense 
of himself or the state, is absolute. He does not derive it 
from the state government, but directly from the sovereign 
convention of the people that framed the state government. 
It is one of the "high powers" delegated directly to the 
citizen, and "is excepted out of the general powers of 
government."  A law cannot be passed to infringe upon or 
impair it, because it is above the law, and independent of 
the law-making power.

Cockrum v. State, 24 Texas 394 (1859)

[end excerpts]

Simple once you pay attention, eh Spoke?

_________________


In United States v. Miller, 307 U.S. .04, 59 S.Ct. 816, 83 
L.Ed. 1206 (1939), the Supreme Court held that the National 
Firearms Act of 1934 did not violate the Second Amendment. 
In its opinion the Court stated:

"In the absence of any evidence tending to show that 
possession or use of a 'shotgun having a barrel of less than 
eighteen inches in length' at this time has some reasonable 
relationship to the preservation or efficiency of a well 
regulated militia, we cannot say that the Second Amendment 
guarantees the right to keep and bear such an instrument. 
Certainly it is not within judicial notice that this weapon 
is any part of the ordinary military equipment or that its 
use could contribute to the common defense.  Id. at 178, 59 
S.Ct. at 818 (citation omitted)."

Warin argues that the necessary implication of the quoted 
language is that a member of the "sedentary militia" may 
possess any weapon having military capability and that 
application of 26 U.S.C. section 5861(d) [footnote 2] to 
such a person violates the Second Amendment.  We disagree. 
In Miller the Supreme Court did not reach the question of 
the extent to which a weapon which is "part of the ordinary 
military equipment" or whose "use could contribute to the 
common defense" may be regulated.  In holding that the 
absence of evidence placing the weapon involved in the 
charges against Miller in one of these categories precluded 
the trial court from quashing the indictment on Second 
Amendment grounds, the Court did not hold the converse-that 
the Second Amendment is an absolute prohibition against all 
regulation of the manufacture, transfer and possession of 
any instrument capable of being used in military action.

Within a few years after Miller v. United States was 
announced the First Circuit dealt with arguments similar to 
those made by Warin in the present case.  In Cases v. United 
States, 131 F.2d 916 (1st Cir 1942), cert. denied sub nom, 
Velazquez v. United States, 319 U.S. 770, 63 S.Ct. 1431, 87 
L.Ed. 1718 (1943), the court held that the Supreme Court did 
not intend to formulate a general rule in Miller, but merely 
dealt with the facts of that case.  The court of appeals 
noted the development of new weaponry during the early years 
of World War II and concluded that it was not the intention 
of the Supreme Court to hold that the Second Amendment 
prohibits Congress from regulating any weapons except 
antiques "such as a flintlock musket or a matchlock 
harquebus."  131 F.2d at 922.  If the logical extension of 
the defendant argument for the holding of Miller was 
inconceivable in 1942, it is completely irrational in this 
time of nuclear weapons.

Agreeing as we do with the conclusion in Cases v. United 
States, supra, that the Supreme Court did not lay down a 
general rule in Miller, we consider the present case on its 
own facts and in light of applicable authoritative 
decisions.  It is clear that the Second Amendment guarantees 
a collective rather than an individual right.  In Stevens v. 
United States, 440 F.2d 144, 149 (6th Cir. 1971), this court 
held, in a case challenging the constitutionality of 18 
U.S.C. App. section 1202(a)(1):

Since the Second Amendment right "to keep and bear Arms" 
applies only to the right of the State to maintain a militia 
and not to the individual's right to bear arms, there can be 
no serious claim to any express constitutional right of an 
individual to possess a firearm.

See also, United States v. Johnson, 497 F.2d 648, 560 (4th 
Cir. 1974); United States v. Tot, 131 F.2d 261, 266 (3d Cir. 
1942), rev'd on other grounds, 319 U.S. 463, 63 S.Ct. 1241, 
87 L.Ed. 1619 (1943).

It is also established that the collective right of the 
militia is limited to keeping and bearing arms, the 
possession or use of which "at this time has some reasonable 
relationship to the preservation or efficiency of a well 
regulated militia, . . ." United States v. Miller, supra, 
307 U.S.at 178, 59 S.Ct at 819. See also, United States v. 
Johnson, supra; Cody v. United States, 460 F.2d 34, 37 (8th 
Cir.), cert. denied, 409 U.S. 1010, 93 S.Ct. 454, 34 L.Ed.2d 
303 (1972).

The fact that the defendant Warin, in common with all adult 
residents and citizens of Ohio, is subject to enrollment in 
the militia of the State confers upon him no right to 
possess the submachine gun in question.  By statute the 
State of Ohio exempts "members of . . . the organized 
militia of this or any other state . . .," (emphasis added) 
from the provision, "No person shall knowingly acquire, 
have, carry, or use any dangerous ordnance." Ohio Revised 
Code section 2923.17. "Dangerous ordnance" is defined to 
include any automatic firearm.  O.R.C. section 2923.11. 
There is no such exemption for members of the "sedentary 
militia." Furthermore, there is absolutely no evidence that 
a submachine gun in the hands of an individual "sedentary 
militia" member would have any, much less a "reasonable 
relationship to the preservation or efficiency of a well 
regulated militia."  Miller, supra, 307 U.S. at 178, 59 
S.Ct. at 819.  Thus we conclude that the defendant has no 
private right to keep and bear arms under the Second 
Amendment which would bar his prosecution and conviction for 
violating 26 U.S.C. section 5861(d).

U.S. v. Warin, 530 F.2d 130 (6th Cir.), cert. denied, 426 
U.S. 948 (1976)

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