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. [Yeah, and so were short barrel shotguns, and so, application of Miller in light of the missing finding of fact would result in holding the 1934 NFA unconstitutional in light of the 2nd amendment. Scalia dodges this obvious conclusion in an easy case (Miller is so simple, even a cave-man can get it right)] ...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. [Read Miller yourself. Scalia is directly, and blatantly, completely reversing what Miller says.]
Here's another one, where he shows rank dishonesty in a concise statement that (man, this guy has brass balls) even includes a cite to the language that shows his conclusion to be wrong!
Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: "In the absence of any evidence tending to show that the possession or use of a [short- barreled shotgun] 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."
Had Miller shown, on remand, that short barrel shotguns has some reasonable relationship to the preservation or efficiency of a well regulated militia, the ruling below (the 1934 NFA is unconstitutional in light of the 2nd amendment) would have been AFFIRMED. In Miller, the logic was that if a short barrel shotgun has a Militia use, then it IS protected. Miller didn't find the type of weapon at issue was not eligible for 2nd amendment protection. The Court said "absent evidence, WE CAN'T SAY."
I find Scalia's read of Miller to be startling, so startling in fact, that I conclude it is a deliberate act of LYING. If Congress had any balls, it would impeach the entirety of SCOTUS over this. Oh wait, I forget, Congress is by nature gun-grabbing too. If the gun-friendly public had any sense, it would be outraged over the rank dishonesty and misrepresentation that Scalia spouted in Heller. But no, they got the "individual right" bone, and feel just great about it.
In order to read Heller fairly, I think you need to realize that Scalia and the Court were under an obligation to preserve Miller if a correct decision in Heller was consistent with it.
Scalia is not saying that he agrees with Miller. But if one is bound by Miller, then one must take into account what it said.
Scalia correctly points out that one possible reading of Miller is that machineguns are protected [ and some concealable handguns might not be ]. He correctly points out that the Miller Court decision was consistent with the idea that short-barreled shotguns were not protected. The actual outcome of Miller is that the decision regarding the shotgun was never decided and therefor the law passed by Congress to prohibit such shotguns remained in effect.
Much depends upon the truth of the statement regarding "the historical tradition of prohibiting the carrying of dangerous and unusual weapons".
You and I and Scalia all recognize that a proper reading of Miller could make the ban on machineguns unConstitutional. The analysis of Miller which resulted in Heller is that Miller was incorrect to limit the scope of the right to ONLY Militia purposes.
A small step from Heller would be a decision regarding so-called "assault weapons". Certainly the self-loading center-fire rifle of military design is the direct descendant of the Revolutionary musket. There is no way that a Supreme Court should find that such a rifle is not protected.
Then it is another extremely tiny step to recognize that a select fire rifle is both useful to a Militia and would be the rifle of choice given the fact that the descendant of the musket described above can be manufactured for about two dollars more with a select-fire switch, without giving up any of its prior functionality.
What seems like a giant step to the anti-gunners is really just two tiny steps away, even with Miller's now-overturned narrowing of the scope of the protected right.
My concern with the future state of Heller is that it does not address the other "destructive devices" that should be protected. At such time as any conflict with a tyrannical government begins, Americans will be at a disadvantage in having to develop and manufacture such devices from a starting point of zero inventory. That was certainly not our Founder's intentions.
But I would encourage you to recognize that Scalia tossed out the narrowed scope of Miller and might yet be forced to deal with what is actually a very powerful ruling in Miller regarding the types of weapons protected.
The first atomic weapons yielded the equivalent of about 20 thousand tons of TNT. I see no indications that the "dangerous or unusual weapons" of which Scalia speaks would have precluded a manufacturer of arms from possessing twenty thousand tons of black powder in the years immediately following the Revolution.
The key words here are "typically" and "lawful".
These words make it very easy for a later Scalia to find that so-called "assault weapons" ARE typically found in the home ( I own several ) and they have many lawful uses and would be the preferred weapon to perform Militia service.
I don't see any impediment here to a later ruling much to the advantage of pro-gunners. Both the dangers and the utility of "machineguns" are exaggerated by anti-gunners and pro-gunners alike. The distinction between "centerfire, magazine-fed, military pattern rifle" and "machinegun" is so slight that there is a man in prison today, I believe, whose firearm malfunctioned, supposedly transforming the former into the latter. Such an occurrence ought to convince a man of Scalia's intellect that there is no distinction between the two that would justify protecting one and not the other. Nor would such distinction justify imprisonment for accidently possessing such a rifle.