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Critical discussion of Miller (important to overturning AWBs and the 1986 Machine gun ban) From the decision at pages 47-54:

We now ask whether any of our precedents forecloses
the conclusions we have reached about the meaning of the
Second Amendment.

...

JUSTICE STEVENS places overwhelming reliance upon
this Court’s decision in United States v. Miller, 307 U. S.
174 (1939). “[H]undreds of judges,” we are told, “have
relied on the view of the amendment we endorsed there,”
post, at 2, and “[e]ven if the textual and historical arguments
on both side of the issue were evenly balanced,
respect for the well-settled views of all of our predecessors
on this Court, and for the rule of law itself . . . would
prevent most jurists from endorsing such a dramatic
upheaval in the law,” post, at 4. And what is, according to
JUSTICE STEVENS, the holding of Miller that demands
such obeisance? That the Second Amendment “protects
the right to keep and bear arms for certain military purposes,
but that it does not curtail the legislature’s power to
regulate the nonmilitary use and ownership of weapons.”
Post, at 2.

Nothing so clearly demonstrates the weakness of
JUSTICE STEVENS’ case. Miller did not hold that and
cannot possibly be read to have held that. The judgment
in the case upheld against a Second Amendment challenge
two men’s federal convictions for transporting an unregistered
short-barreled shotgun in interstate commerce, in
violation of the National Firearms Act, 48 Stat. 1236. It is
entirely clear that the Court’s basis for saying that the
Second Amendment did not apply was not that the defendants
were “bear[ing] arms” not “for . . . military purposes”
but for “nonmilitary use,” post, at 2. 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 [shortbarreled
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.”
307 U. S., at 178 (emphasis added). “Certainly,”
the Court continued, “it is not within judicial notice that
this weapon is any part of the ordinary military equipment
or that its use could contribute to the common defense.”
Ibid. Beyond that, the opinion provided no explanation
of the content of the right.
This holding is not only consistent with, but positively
suggests, that the Second Amendment confers an individual
right to keep and bear arms (though only arms that
“have some reasonable relationship to the preservation or
efficiency of a well regulated militia”). Had the Court
believed that the Second Amendment protects only those
serving in the militia, it would have been odd to examine
the character of the weapon rather than simply note that
the two crooks were not militiamen. JUSTICE STEVENS can
say again and again that Miller did “not turn on the difference
between muskets and sawed-off shotguns, it
turned, rather, on the basic difference between the military
and nonmilitary use and possession of guns,” post, at
42–43, but the words of the opinion prove otherwise. The
most JUSTICE STEVENS can plausibly claim for Miller is
that it declined to decide the nature of the Second
Amendment right, despite the Solicitor General’s argument
(made in the alternative) that the right was collective,
see Brief for United States, O. T. 1938, No. 696,
pp. 4–5. Miller stands only for the proposition that the
Second Amendment right, whatever its nature, extends
only to certain types of weapons.
It is particularly wrongheaded to read Miller for more
than what it said, because the case did not even purport to
be a thorough examination of the Second Amendment.
JUSTICE STEVENS claims, post, at 42, that the opinion
reached its conclusion “[a]fter reviewing many of the same
sources that are discussed at greater length by the Court
today.” Not many, which was not entirely the Court’s
fault. The respondent made no appearance in the case,
neither filing a brief nor appearing at oral argument; the
Court heard from no one but the Government (reason
enough, one would think, not to make that case the beginning
and the end of this Court’s consideration of the Second
Amendment). See Frye, The Peculiar Story of United
States v. Miller, 3 N. Y. U. J. L. & Liberty 48, 65–68
(2008). The Government’s brief spent two pages discussing
English legal sources, concluding “that at least the
carrying of weapons without lawful occasion or excuse was
always a crime” and that (because of the class-based restrictions
and the prohibition on terrorizing people with
dangerous or unusual weapons) “the early English law did
not guarantee an unrestricted right to bear arms.” Brief
for United States, O. T. 1938, No. 696, at 9–11. It then
went on to rely primarily on the discussion of the English
right to bear arms in Aymette v. State, 21 Tenn. 154, for
the proposition that the only uses of arms protected by the
Second Amendment are those that relate to the militia,
not self-defense. See Brief for United States, O. T. 1938,
No. 696, at 12–18. The final section of the brief recognized
that “some courts have said that the right to bear arms
includes the right of the individual to have them for the
protection of his person and property,” and launched an
alternative argument that “weapons which are commonly
used by criminals,” such as sawed-off shotguns, are not
protected. See id., at 18–21. The Government’s Miller
brief thus provided scant discussion of the history of the
Second Amendment—and the Court was presented with
no counterdiscussion. As for the text of the Court’s opinion
itself, that discusses none of the history of the Second
Amendment. It assumes from the prologue that the
Amendment was designed to preserve the militia, 307
U. S., at 178 (which we do not dispute), and then reviews
some historical materials dealing with the nature of the
militia, and in particular with the nature of the arms their
members were expected to possess, id., at 178–182. Not a
word (not a word) about the history of the Second Amendment.
This is the mighty rock upon which the dissent
rests its case.24

24 As for the “hundreds of judges,” post, at 2, who have relied on the
view of the Second Amendment JUSTICE STEVENS claims we endorsed in
Miller: If so, they overread Miller. And their erroneous reliance upon
an uncontested and virtually unreasoned case cannot nullify the
reliance of millions of Americans (as our historical analysis has shown)
upon the true meaning of the right to keep and bear arms. In any
event, it should not be thought that the cases decided by these judges
would necessarily have come out differently under a proper interpretation
of the right.

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 equipment” 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.
That accords with the historical understanding of the
scope of the right, see Part III, infra.25
We conclude that nothing in our precedents forecloses
our adoption of the original understanding of the Second
Amendment. It should be unsurprising that such a significant
matter has been for so long judicially unresolved.
For most of our history, the Bill of Rights was not thought
applicable to the States, and the Federal Government did
not significantly regulate the possession of firearms by
law-abiding citizens. Other provisions of the Bill of Rights
have similarly remained unilluminated for lengthy periods.
This Court first held a law to violate the First
Amendment’s guarantee of freedom of speech in 1931,
almost 150 years after the Amendment was ratified, see
Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and
it was not until after World War II that we held a law
invalid under the Establishment Clause, see Illinois ex rel.
McCollum v. Board of Ed. of School Dist. No. 71, Champaign
Cty., 333 U. S. 203 (1948). Even a question as basic
as the scope of proscribable libel was not addressed by this
Court until 1964, nearly two centuries after the founding.
See New York Times Co. v. Sullivan, 376 U. S. 254 (1964).
It is demonstrably not true that, as JUSTICE STEVENS
claims, post, at 41–42, “for most of our history, the invalidity
of Second-Amendment-based objections to firearms
regulations has been well settled and uncontroversial.”
For most of our history the question did not present itself.