The writers of the brief were obligated to defend the DC Court's decision in the context of the Miller decison if it was possible to do so. It would be a mistake to ask the Supreme Court to overturn Miller if it was not necessary to deciding Heller.
The brief DOES make the case that the pre-existing right of the people to keep and bear arms is a FUNDAMENTAL, INDIVIDUAL right that should be subject to STRICT SCRUTINY.
Further, in the case of machineguns, the government is never going to get away with claiming that machineguns are not in common use and thus not protected, since that very government has been prohibiting their common use for 75 years and prohibiting their manufacture for common use for half that time.
If the laws prohibiting ownership of machineguns were repealed, the sales would be in the millions of units.
Actually, ready the brief, it builds exactly that argument - since MG’s have been restricted for 75 years, they are no longer in common use, and hence are subject to unlimited restriction.
Which is why I have reservations.
Before page 44, it is brilliant - after that, it is expedient, at best.
Ah, well. Strategy, vs. tactics.
Not wishing to split hairs. In my State, WA machine gun ownership is prohibited, in other states (say Idaho, for example),if I understand things correctly, machine gun ownership is taxed and the local LE has to sign for you having checked you out prior to the fully automatic weapon being transferred to you (at least according to a former co-worker who had a Thompson and a greasegun he bought many years ago, when he lived in Idaho.)
About two months ago, I was in a gun shop in Washington State and a lady had a WW1 French Chenault fully automatic rifle she inherited. It was fun to see all the gun shop folks say, but you can't own that! She just wanted to sell it. The gun store folks said they couldn't purchase it. I just wanted to take a close look at it.
Would I like to own a BAR or a belt fed something? Sure, but doubt I would ever buy one as it would be hard to fit in the two gun safes I currently have as they are full, and really don't have room for a really really, large safe.