Sure. But when Circuits Courts misinterpret SCOTUS precedent, as they did chronically with Miller and Presser (reading both cases for the OPPOSITE of what those cases say), SCOUTS can allow the error to stand, and it did, for decades. SCOTUS is hostile to substantial RKBA.
-- Did anyone cite Miller during the Heller arguments? --
Yeah. Scalia misinterpreted it on purpose. Miller says the government can't interfere with RKBA relating to military grade weapons. Scalia said that Miller stands for the proposition that one a ban stands long enough, it becomes constitutional.
We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller's phrase "part of ordinary military equipment" could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller's "ordinary military equipmen" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time." 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms "in common use at the time" for lawful purposes like self-defense. "In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same." State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (1973)). Indeed, that is precisely the way in which the Second Amendment's operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.
This read is particularly galling, because the Miller opinion says that the short barrel shotgun is within the ambit of the 2nd amendment, if "this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense," with the Miller decision to reverse and send the case back to the lower court being justified by SCOTUS professing ignorance on this point.
Now that Miller has been misconstrued as a matter of law, all SCOTUS has to do to allow banning of weapons is just delay taking cases long enough that the ban becomes "lonmg standing."
I hated to read that, because I don't doubt you. It taints my admiration of Scalia.
We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.
As you stated, SBS and automatic rifles are not "typically possessed by law-abiding citizens" because they are essentially banned. So we are stuck with this circular logic.
...the short barrel shotgun is within the ambit of the 2nd amendment, if "this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense," with the Miller decision to reverse and send the case back to the lower court being justified by SCOTUS professing ignorance on this point.
Ignorance due to the fact that no one was present to argue for Miller in this case. Of course it would have been easy to show that SBS were indeed in use by the military. And the Court was honest enough not to assume facts not presented to the Court, even though it may well have been common knowledge.
Thanks for that post.
“This read is particularly galling, because the Miller opinion says that the short barrel shotgun is within the ambit of the 2nd amendment, if “this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense,” with the Miller decision to reverse and send the case back to the lower court being justified by SCOTUS professing ignorance on this point.”
And, yet, the Supreme Court in 1939 had members that served and KNEW that sawed-off shotties were VERY useful for militia purposes, that they were (and still are) called “trench brooms.” It really, really ticks me off that something which is common knowledge has to still be “within judicial notice” in order to be considered in a decision. Are the Justices Martians, that they have to be led by the hand on matters of common sense or common knowledge because otherwise they don’t know anything?