And Heller didn’t overturn Miller, so the right is currently recognized as the ability to possess, (1) in your own home, (2) for a traditionally lawful purpose, (3) a weapon that has some reasonable relationship to the preservation or efficiency of a well regulated militia.
“In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" 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. Certainly 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.”
“
United States v. Miller, 307 U.S. 174, 59 S.Ct. 816, 83 L.Ed. 1206, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia,
i.e., those in common use for lawful purposes. Pp. 2812 - 2816.”
So that’s it in terms of the Supreme Court.
In terms of historical precedent, the 9th circuit recently went back to the 1300’s and traced restrictions on carrying weapons outside the home all the way to present day. I suspect most cases will do this from now on to appeal to Roberts and Kavanaugh.
This idea that the second amendment doesn’t allow any restriction on gun ownership is a product of modern propaganda. I do think we will move towards defining the second amendment, and as the Roberts court has done with the first amendment, it will be a libertarian definition, but Scalia’s dicta from Heller that you quoted is good to keep in mind as that happens.
Oh boy...
The NFA 1934 was, by and large, a revenue gathering measure (the government has never disputed that) and was meant as a method of starting federal level gun control. It was followed by the failed Federal Firearms Act (you really should read up on that sh!t) that would have prohibited an entire class of arms. Now, obviously, we're talking the 1930s here where the federal government was really going out of its way for a power consolidation, but anyway...
The major intent of the NFA was to start restricting classes of weapons used by "criminals" allegedly in response to the Valentine's Day massacre. Hell, the authors of the bills admit that.
Miller argued that the NFA was a revenue gathering measure, the gun in question was transported for "interstate commerce," (even though they never proved Miller and his partner were engaged in interstate commerce) and the final two (one of which was actually blown up by Scalia in the
Heller decision)
The Second Amendment protects only the ownership of military-type weapons appropriate for use in an organized militia
Which, again, Scalia blew up in the first portion of the Heller opinion:
The phrase “keep arms” was not prevalent in the written documents of the founding period that we have found, but there are a few examples, all of which favor viewing the right to “keep Arms” as an individual right unconnected with militia service. We turn to the phrases “keep arms” and “bear arms.” Johnson defined “keep” as, most relevantly, “[t]o retain; not to lose,” and “[t]o have in custody.” Johnson 1095. Webster defined it as “[t]o hold; to retain in one’s power or possession.” No party has apprised us of an idiomatic meaning of “keep Arms.” Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.”
At the time of the founding, as now, to “bear” meant to “carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford). When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose— confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’” Id., at 143 (dissenting opinion) (quoting Black’s Law Dictionary 214 (6th ed. 1998)). We think that JUSTICE GINSBURG accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization
And finally that the Stevens shotgun in question had never been in a militia organization.
Of course it hadn't. But then again, weapons of militia service were never defined by any Constitutional Amendment nor were they by any State law. Militia service, during the 18th and 19th century, was a "come as you are" affair. Citizens were to show up when called "bearing arms" which would, in turn, become their "militia weapons." Something McReynolds never really went into with the
Miller decision. Specifically:
does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes
And the vast majority of weapons regulated under the NFA are used for lawful purposes. The NFA, GCA 1968 and FOPA 1986 (the Hughes Amendment specifically) saw to keeping them out of "common use." Regardless, short barrel shotguns, short barrel rifles, suppressors, machine guns, etc, etc have a long history of being used in warfare by military
and by citizen-soldiers. The SCOTUS either didn't know this or ignored it because of the revenue gathering measures of the NFA and/or because they thought it was taking weapons out of criminal's hands. Basically, ordinary gun dealers at the time couldn't afford the annual fee to be an NFA dealer (if memory serves it was something like $500 or $1,000 which was a hefty sum in the 1930s) and refused to do so.
It was gun control, regardless of the "revenue gathering" talk the Treasury Department claimed. Yet, criminals still got their short barrel shotguns, machine guns, etc anyway. See a repeating pattern here? My, how history repeats itself...
Anyway,
Miller actually got blown up by the
Heller decision if you look at the four items pushed by the government.
ETA: I have no idea why some of my post was struck through.
