“That is the focus I would bring to an amicus brief: establishing a constitutional principle that not only prevents ‘military’ characteristics from becoming a constitutional liability, but makes them an affirmative basis for protection.” [More]
The Framers put the prefatory clause in there for a reason.
Funny how no one seems to remember US v. Miller strongly suggested that to be protected against being declared contraband, one might have to demonstrate that the firearm in question has some reasonable use for militia purposes. All they seem to remember is that it “confirmed the constitutionality of the NFA,” which is one among thousands of other things that it DID NOT do.
Exactly. The item at issue in Miller wasn’t even a machine gun. Nor a silencer, nor a destructive device. It was a sawed-off double-barrel shotgun below the minimum overall length set by the NFA.
The case was decided based on the fact that nobody demonstrated to the Court that such a shotgun bore any utility for militia use. And that fact was largely because Mr. Miller disappeared (he was a little bit dead) and hadn’t paid his legal bills, so his attorney no-showed. (Why the case wasn’t remanded or dismissed when one side failed to appear, I’ll never understand.)
But the opinion explicitly said that weapons suitable for militia use are protected arms — the ban on Miller’s shotgun was affirmed simply because nobody appeared to testify it was suitable for militia use. The anti-2A folks all forget that key part.
The entire decision of the Miller case was this: that the lower-court judge was ordered to hold an actual trial to hear evidence as to whether or not the gun was suitable for militia use, rather than dismissing the case out of hand (which he had already done twice) as repugnant to the Second Amendment. The Supreme Court found NOTHING else in this case — no more, and no less. And the inferior court never reheard the case, since the defendant was already dead. It’s a wonder that Miller is considered even more than a vanishing footnote in Second Amendment jurisprudence.
With all of the things that went wrong in the handling of the Miller case, it boggles the mind that it was allowed to be the touchstone of Federal policy towards gun rights since 1939.
Imagine for moment if the Dred Scott decision was allowed to guide all Federal civil rights policy.