Paul, as I’ve said before, “Miller could not have a sawed-off shotgun because it wasn’t a military-pattern weapon.(But of course it WAS.) I can’t have an M-4 (without jumping through a lot of hoops.) BECAUSE it’s a military-pattern weapon.”
You misinterpret the Miller decision. The Court stated that “in the absence of evidence” they could not take judicial notice that Miller’s “shotgun having a barrel less than 18 inches in length” was suitable for militia use. This was because Miller had no representation before the Supreme Court, and this question had not been raised in District court. They therefore reversed the District court decision, and remanded the case for FINDING – which, of course, never happened. They DID NOT SAY that Miller’s shotgun COULDN’T be part of the “ordinary military equipment,” they said THEY HAD NO EVIDENCE IT MIGHT BE – and, to be blunt, they didn’t, because there was no one to produce that evidence.
It was quite a feat of legal gymnastics that allowed the Supreme Court to dodge a legislative bullet – and keep dodging it from 1939 until the Heller decision 69 years later.
Now, if the Court is to remain intellectually honest, they must support stare decisis from Scott v. Sanford (1857): (“… keep and carry arms wherever they went.”), U.S. v. Cruikshank (1875): “…bearing arms for a lawful purpose.”, Presser v. Illinois (1886 – cites Cruikshank): “It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the states, and, in view of this prerogative of the general government, as well as of its general powers, the states cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the general government.”