The Second Amendment as Teaching Tool -- Propositions That a Precedent Can Stand For

              I use United States v. Miller not just to show the various modalities of argument, but also to show how many different propositions a precedent can stand for.  I give students the following excerpt:

              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.

              With obvious purpose to assure the continuation and render possible the effectiveness of [the Militia] the declaration and guarantee of the Second Amendment were made.  It must be interpreted and applied with that end in view. . . .  The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia -- civilians primarily, soldiers on occasion.  The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators.  These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense.

              1.  The Second Amendment does not protect the right to keep and bear weapons that have no "reasonable relationship to the preservation or efficiency of a well regulated militia" -- that are not "part of the ordinary military equipment" or "could contribute to the common defense."

              2.  The Second Amendment does protect the right to keep and bear weapons that have such a reasonable relationship to the preservation or efficiency of a militia.  [This is not a holding of the case, but one can argue that it should be inferred from the Court's argument -- if the Second Amendment didn't protect such weapons, why talk about it?  The counter-argument is that the Court didn't have to decide whether the Second Amendment protects any individual right, and so chose not to because there was an easier ground of decision, #1 above.]

              3.  Sawed-off shotguns have insufficient relationship to the preservation or efficiency of a well regulated militia to be protected.  [This sounds like a factual statement, but it's also a normative judgment:  It's not just that sawed-off shotguns have no military or militia uses (they definitely do); rather, they don't have enough relationship.]

              4.  The Second Amendment must be interpreted with a view towards assuring the continuation and effectiveness of the Militia.

              5.  The Second Amendment doesn't protect a right to possess or use sawed-off shotguns.

              6.  The "Militia" consists of "all males physically capable of acting in concert for the common defense."

              7.  It's proper to consider original meaning when interpreting constitutional provisions, and in particular it's proper to consider "the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators."