The Miller court made no ruling. The case was remanded to the lower court. No one "won" or "lost".
"Secondly, the vast majority of Law Reviews on the Second Amendment hold it to be an individual right"
Which means diddley-squat. The vast majority of lower federal courts and lower federal court decisions hold it to be a collective right. If the U.S. Supreme Court takes this case, what will they consider -- law reviews or lower federal court decisions?
"Thirdly, even Alan Dershowitz reluctantly admits the 2nd Amendment applies to individuals.
He said, "Foolish liberals who are trying to read the Second Amendment out of the Constitution by claiming it's not an individual right or that it's too much of a safety hazard don't see the danger in the big picture. They're courting disaster by encouraging others to use the same means to eliminate portions of the Constitution they don't like."
I would not conclude, from that statement, that Alan Dershowitz admits the 2nd Amendment applies to individuals. And even if he did, who is Alan Dershowitz? If he said it was a collective right would that mean anything to you?
Don't be so sure. Scholarship on an issue is often important in Supreme Court decisions. You're right about Dershowitz; he's not a constitutional scholar. But when people like Tribe or the folks at Boalt Hall speak on a constitutional issue--as this article mentions--that is the type of stuff that can make the Supreme Court listen.
Don't pooh-pooh legal scholarship. Books and law review articles can absolutely change the way the law is viewed. Bork's Antitrust Paradox comes immediately to mind, along with John Hart Ely's Democracy and Distrust.
Au Contraire!
http://www.jpfo.org/miller.htm
Only once in the Twentieth Century has the U.S. Supreme Court interpreted any part of the Second Amendment. That case was U.S. v. Miller, which the Court heard and decided in 1939.1 The Court held that the National FirearmsAct – under which machineguns, shotguns with barrels under 18" in length, short-barreled rifles, and firearms silencers had to be registered and a $200/item tax paid was constitutional. Few who discuss this decision have actually read it, and so know that the Court heard only one side of the matter, the Government's. Fewer still have read the entire record, and so know that the Court rejected most of the Government's claims about the Second Amendment
United States vs. Miller (1938)
If the U.S. Supreme Court takes this case, what will they consider -- law reviews or lower federal court decisions?
The Constitution.
The USSC makes precedent for the lower courts, not vice-versa.
I predict that DC will not appeal this case to the USSC precisely because an affirmative ruling would invalidate ALL gun control laws throughout the country.
Sarah Brady and Company can't afford that.
"The Miller court made no ruling. The case was remanded to the lower court. No one "won" or "lost". "
Miller reversed the lower court decision and remanded back for review. Miller had no representation at all. He was dead and no defense was present. The case is invalid and MUST be revisited by the USSC at some point.
The USSC did make a ruling, even if it was unconstitutional of them to do so since there was no representation for Miller.
Mike
The feds clearly won, because if the court had upheld the ruling of the court below, which ruled that the National Firearm Act was a violation of the Second Amendment, and thus no law at all, they would have lost.
However at most the Miller ruling would mean that only keeping and bearing arms of military significance is protected by the second amendment, at least that was interpretation of "Miller" put forth a couple of years later by the First Circuit in "Cases".
What the remand may have been for, was to determine if a short barreled shotgun was a militarily significant weapon.
For a fact, they had been a few decades before, and even at the time were in use by police, as they are today. Police, more likely to be "mounted", are willing to give up ammunition capacity for "handiness", which is the reason the military prefers somewhat longer barrels, not for the barrels themselves, but for the added magazine capacity.