If we get anything from Miller (post Heller) it is that the military and militia purposes were considered synonymous. For the record, I believe Heller erred in its reading, because in the historical landscape from which they drew their 'reading', there was no difference between military and civilian small arms. Because there was no difference, neither was there a disparity of firepower, a critical fact which the Second Amendment intended to preserve as its primary function and purpose.
Of course then, all that was needed to preserve that equanimity was make sure everyone could be armed. A musket, after all, is a musket.
The common use test is somewhat specious, because no such test would have existed at the time of founding, because, again, all the bearable arms were essentially equivalent.
The Heller court went on to say that "it may be objected" that modern developments such as bombers and tanks create a disparity of firepower that creates a disconnect of the militia clause from the right itself, but that fact cannot "change their interpretation of the right".
But in direct conflict with the stated inability to change their interpretation of the right, the court said that invalidating bans on "M16s and the like" would be "startling".
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.”
I would ask: In common use by whom? The same arms were in common use by the regular troops. Today, the M4 is the most commonly used American weapon, BOTH in the military and in its civilian, semi-auto only configuration. The most widely used sniper rifle is a near copy of common hunting rifles, i.e. the Remington 700. Interestingly, civilian small arms have always historically mirrored their military-issue cousins, and that continues to this day (though perhaps not beyond
this day, if one lives in NY, CT, MD, or IL)
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.” 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
But of course, Miller said nothing of the sort. If the Miller court intended to weigh anything, it was whether there was a militia/military purpose of the weapon that placed it under the protection of the amendment. There would be no logical reason to make such an assessment if their actual intent was to decide whether it was a household item or not.
It was simply not within judicial notice that the SBSs were ordinary military equipment. The case was orphaned, and was decided without ever being fully litigated.
So this is a contorted, inverted reading by the Heller court, born, in my opinion of an unwillingness to even consider reconciling Miller's advocacy of 2A protection for military small arms in the context of modern urban society.
From my FB Wall:
If there is an anti-tyranny and self defense purpose to the 2nd amendment (and the Supreme Court and several other federal courts have clearly said that there is), then legislation reducing the capability and performance characteristics of the most common, semi-automatic small arms would eviscerate the amendment of its core purpose.
The Second Amendment's very function is to put law abiding citizens on at least equal footing with criminals, and would-be tyrants. Anything less than equal footing for the citizen guts the amendment of that function and renders it null.
The Supreme Court has made it abundantly clear that long-standing laws banning firearms ownership for felons, mentally ill, and drug addicts are not in question. Many other regulations will certainly pass constitutional muster.
But there is a cavernous difference between regulations (such as requiring training, safe storage, background checks, maintaining proficiency, etc) and banning or neutering an entire class of common, garden variety semi-automatic firearms (now disparagingly called assault weapons).
All firearms, self evidently, are lethal weapons. The performance characteristics of all semi-automatic firearms have not changed in 100 years. The idea that a semi-automatic-only, civilian AR15 is some kind of exotic, unusual weapon is completely false. AR15-pattern rifles, by a wide margin, are the most common long arm chosen by Americans, for every conceivable lawful purpose for which a firearm can be used.
The 2nd amendment specifically protects keeping and bearing lethal weapons that are in common use. (See US Supreme Court Heller vs DC, 2008, and McDonald vs Chicago 2010, Us vs Miller 1939.)
If we dare to repeal the amendment, then there is a constitutional procedure in place to accomplish that. But we simply cannot pretend the amendment doesn't mean what it says without structurally undermining the whole document. If we can turn a blind eye to one fundamental, enumerated, and incorporated civil right, then no other civil right will ever be immune to the whims of the legislature.