I think it must be that they just can’t help themselves.

I was reading this article which mentioned the Reno brief on the Heller case and something struck me as odd. Thinking maybe the WaPo got it wrong I went directly to the Reno brief. Nope, WaPo got it right. Reno et al misrepresented something from the Miller case.

Reno et al say:

In opposing Second Amendment challenges to those prosecutions, the government contended for more than 60 years that the Second Amendment did not protect an individual right to keep and bear arms for purposes unrelated to participation in a well-regulated militia. The government set out that position in its brief in United States v. Miller, 307 U.S. 174 (1939), the only prior case in which this Court has squarely addressed a Second Amendment challenge to federal firearms legislation. In rejecting the defendants’ Second Amendment challenge to the NFA, which rendered unlawful their transport of an unregistered sawed-off shotgun across state lines, the Court agreed with the government that the “possession or use” of a firearm must “ha[ve] some reasonable relationship to the preservation or efficiency of a well regulated militia” to fall within the scope of the Second Amendment.

What the Miller decision actually says is:

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.

In Miller the shotgun must have “some reasonable relationship to the preservation or efficiency of a well regulated militia” to be protected against government regulation. Not that the individual must have “some reasonable relationship to the preservation or efficiency of a well regulated militia”. Hence by substituting individual for shotgun Reno et al attempt to completely change the meaning of the Miller decision.

Also note that using the reasoning of Reno et al the enslavement of some minority would be completely acceptable if it had not been successfully challenged for 60 years or more. All those runaway slaves in jail might want to challenge their convictions if the courts were to rule this particular minority should be regarded as freemen. And we can’t have that sort of disruption to our society, it just wouldn’t be right.

The world would have been better off if Reno et al had traded places with their victims at Waco.