ctdonath
Member
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.”
...
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.
Thus they skirt the machinegun issue: common folk don't have them, therefore they are not protected - utterly failing to take into account that a tool cannot become common if it is largely prohibited before broad distribution is reached (to wit: every AR15 would likely have a "third position" if not prohibitively expensive, and subsequently prohibited outright).
This can be addressed in a subsequent case, but won't be a simple word-substitution approach.