What Miller says is government is powerless to restrict the possession and use (by ordinary citizens) of arms of the type in common use of the citizenry, that are of a type that is part of the ordinary military equipment or of a type of arm that's use could contribute to the common defense (in the types of engagements militia is expected to face).
A reading that applies all prongs of the Miller protection criteria demands that modern assault weapons are protected as are modern revolvers and pistols. The only thing that the Miller test looks at is how effective the gun is at killing people.
The Supreme Court heard nothing from Miller, there were no briefs filed and no oral argument . . . All the Court heard was the US Attorney's arguments and it did not have any independent knowledge of sawed-off shotguns being used in warfare.
Just three years after Miller a lower federal court had occasion to review Miller and interpret it. That court --Cases v. U.S, 131 F.2d 916 (1st Cir. 1942)-- recognized that the gun SCOTUS said "had no reasonable relationship" would indeed be useful in warfare and Miller's rule, if fully applied would mean all federal gun control would be struck down because:
"At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called 'Commando Units' some sort of military use seems to have been found for almost any modern lethal weapon. In view of this, if the rule of the Miller case is general and complete, the result would follow that, under present day conditions, the federal government would be empowered only to regulate the possession or use of weapons such as a flintlock musket or a matchlock harquebus. But to hold that the Second Amendment limits the federal government to regulations concerning only weapons which can be classed as antiques or curiosities,-- almost any other might bear some reasonable relationship to the preservation or efficiency of a well regulated militia unit of the present day,-- is in effect to hold that the limitation of the Second Amendment is absolute.
Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result."
Another objection to the rule of the Miller case as a full and general statement is that according to it Congress would be prevented by the Second Amendment from regulating the possession or use by private persons not present or prospective members of any military unit, of distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns, even though under the circumstances surrounding such possession or use it would be inconceivable that a private person could have any legitimate reason for having such a weapon. It seems to us unlikely that the framers of the Amendment intended any such result."
While offering a brutally honest (if not hyperbolic) interpretation of the Miller holding, this court offers no support that the framers intended the federal government to have power over the personal arms of the private citizen. It runs with that though, expressing how uncomfortable the court was with what it deemed to be the inevitable societal implications of the Miller rule being applicable at their present time, the Cases court simply rejected the Miller holding.
But now the judges were faced with a dilemma. The law could afford them no comfort, the law was a bed of nails. This realization, I would go so far as to say it manifested itself as a panic, forced them to turn to their only solace, the facts of the case before them. It was time to make lemonade.
The opinion continues:
"We therefore turn to the record in the case at bar. From it it appears that on or about August 27, 1941, the appellant received into his possession and carried away ten rounds of ammunition, and that on the evening of August 30 of the same year he went to Annadale's Beach Club on Isla Verde in the municipality of Carolina, Puerto Rico, equipped with a .38 caliber Colt type revolver of Spanish make which, when some one turned out the lights, he used, apparently not wholly without effect, upon another patron of the place who in some way seems to have incurred his displeasure. While the weapon may be capable of military use, or while at least familiarity with it might be regarded as of value in training a person to use a comparable weapon of military type and caliber, still there is no evidence that the appellant was or ever had been a member of any military organization or that his use of the weapon under the circumstances disclosed was in preparation for a military career."
So now they make the incredible leap of stipulating the state of mind of the person claiming a Second Amendment right as a condition for exercise. The Cases court changed the rules, they required that the person, as a prerequisite to maintaining a Second Amendment claim, have as his intent in using the firearm, essentially his paramount concern, the maintenance and preservation of the militia! If the gun isn't used by the military, its use is only protected if that use is "in preparation for a military career."
Congratulations! You have just witnessed the birth of the "militia right" interpretation of the 2nd Amendment!
This travesty will be used and built upon for 66 years to sustain unconstitutional gun control laws until Heller invalidated it in 2008 (along with the "state's right" interpretation, created in U.S. v. Tot, 131 F.2d 261 (3 rd Cir. 1942).
That is the indisputable history of what christiefan is spewing . . .
