Didn't the 1939 U. S. v. Miller case rule on the basis of the militia argument?
Not in the way you mean.
Miller only examined and discussed the type of arm and whether the arm was of a type used in civilized warfare and if it had military usefulness. The Court only heard the government's arguments, there were no briefs filed or argument made on behalf of Miller and Layton discussing the military usefulness of a shotgun with a barrel under 18 inches.
If you want to read an honest assessment of what
Miller means, read
Cases v. U.S, 131 F.2d 916 (1 st Cir. 1942). It was so brutally honest about the "Miller Rule", that this lower federal court had to dismiss and ignore SCOTUS and invent the "militia right" interpretation to keep federal gun control on the books. I'll quote
Cases at the bottom of this post . . . read it and learn how wrong you are or don't, and stay ignorant.
Two things are undeniable,
Miller held for the individual right and no SCOTUS opinion on the RKBA / 2ndA has ever embraced any permutation of any collective right theory. It was bullshit devised to justify dismissing and ignoring the Supreme Court -- be happy, it lasted for 66 years.
don't why the different interpretations make any difference in practice since they both allow regulation.
Only because the standard of scrutiny has not been established.
The right to arms has been deemed a fundamental right, laws impacting the core right of being armed for self defense will be held to strict scrutiny. When that happens a wide swath of federal, state and local laws will be going bye-bye . . .
Cases quotes
Miller's familiar paragraph and then explains what it means for the government's ability to restrict arms from the citizen (paragraph breaks added):
"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."
. . . The rule which it laid down was adequate to dispose of the case before it and that we think was as far as the Supreme Court intended to go. 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.
This court first admits that the reasoning used to justify the NFA restriction on the sawed-off shotgun is bogus. It then pontificates on what the framers felt about arms restrictions . . . The court offers no legal argument to support its feeling that the framers didn't want to bind government's ability to restrict arms keeping and bearing . . . It just flies right past that. This court, before inventing new rules, even says that the possession and use of the handgun at issue can be said to meet the "Miller rule" . . .
"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. In fact, the only inference possible is that the appellant at the time charged in the indictment was in possession of, transporting, and using the firearm and ammunition purely and simply on a frolic of his own and without any thought or intention of contributing to the efficiency of the well regulated militia which the Second Amendment was designed to foster as necessary to the security of a free state. We are of the view that, as applied to the appellant, the Federal Firearms Act does not conflict with the Second Amendment to the Constitution of the United States."
And Abracadabra! The "militia right" interpretation of the 2nd Amendment is born in the federal courts of the USA!
This court changed the rules. Instead of looking at the type of arm and if it could be used to effect in battle, this court made the mindset and actions of the citizen directly contributing to the efficiency of the militia, the determinate factors for 2nd Amendment protection.
THAT'S what "legislating from the bench" and "judicial activism" looks like.
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