I would rather have Miller, flawed as it was, as the basis for further elucidation of the 2nd Amendment, than Heller. Remember that Miller involved a sawed-off shotgun, and no evidence had been introduced that a sawed-off shotgun was part of the ordinary equipment of the military. If the case instead had involved a machine gun, the Court, applying its rationale, would have held that the machine gun was protected by the 2nd Amendment. (Or, being cynical, it would have found a completely different rationale to arrive at the preordained result.) In any case, Scalia, writing in Heller, completely gutted the rationale of Miller. In the long run this is not good for gun owners. Hopefully a future pro-gun Supreme Court will correct the mistakes in Heller.
I hope you realize that's akin to wishing that Dred Scott was still the law of the land re: slavery. Miller was something of a..."travesty of injustice" just doesn't quite state it strongly enough. When you ram a case involving a new, unprecedented law, impacting literally all Americans, up to a SCOTUS you were threatening to pack with sycophants should they fail to abide by your many executive abuses of power, over the attempts of the plaintiff to settle upon losing his appeal, even over his actual
death in order to manufacture fresh binding precedent for a highly controversial law that still had many skeptics, and then don't even provide for a token opposing argument before the justices (let alone solicit one of the lawyers who had previously argued on behalf of Miller). Yeah, I can't see why we'd want anything besides such solid legal bedrock to base our modern federal gun control system on, either.
That whole case was such an obvious kangaroo-show that it's amazing we even care about the arguments that were presented, today, let alone cite them as binding.
The flawed Heller decision, by largely subverting/mooting Miller with almost entirely compelling arguments, was at least an improvement in that respect. And to be honest, all of us here know that the only real resolution to this does not lie in opinions of a century ago, but in a modern re-hearing of Miller involving "assault weapons" (or even NFA items, potentially, though it scarcely matters) that finally puts to paper whether or not the feds/states can ban firearms just because they say so. The rest of us can decide whether or not to continue honoring the social contract with our DC leadership at that point.
The flaw in Heller re: compelling state interest to trample our rights was likely a part of getting Kennedy on board with the majority, but I suspect more broadly the result of our modern judicial system's institutionalized cowardice, aka "stare decisis," which has come to submit well founded logical arguments to the mistakes of our forbears. Regardless of Kennedy, more than a few of the majority justices were likely unwilling to instantly undo a century's error as far as the Miller decision, outright, even if every single one of Scalia's supporting arguments against the DC handgun ban pointed at that exact conclusion. After all, the case was "only about handguns" so it therefore couldn't extend to rifles, shotguns, or heaven forbid, even machineguns! So they found a way to limit the scope to what they felt empowered to rule on, even if it defied all logic in their own decision up to that point.
TCB
