No argument that the Court pulled a lot out of the air or elsewhere in Miller. The "common use" term comes from Miller, though - Scalia et. al. did not make it up. I searched the decision again, Scalia brings up "common use" 4 times, putting it in direct quotes all but once. Each time it's clear he's referring to the Miller decision. While Scalia seemed to validate Miller (probably to placate Kennedy and had no reason in Heller to overturn), it's telling that he didn't apply the Miller test directly to decide Heller. Maybe I'm not understanding what you're seeing in the decision, but there's plenty of things wrong with Miller in addition to the above: - Miller never showed up in Court to fully defend his case (he was dead, I think) -Miller's interpretation of what the militia is is wrong - it only defines the portion of the militia called by Congress, not the whole militia. - The Miller SC misapplied their own test: trench guns were in common use by the militia in WWI. - Miller, interpreted literally the way some antis do, denies the right to be in the militia to women, the disabled, and people over 45 - this is in the same sentence as the infamous "in common use at the time" if I recall correctly. - The Miller test would allow full auto (not a problem for us, but a problem for antis) - Scalia, laid the groundwork to argue the individual right to self-defense embedded in 2A renders the Miller test unsuitable, because there's plenty of self-defense weapons not used by the militia that we have a right to. Scalia quote: This makes the Miller test a test of what they cannot ban at best rather than THE test. Scalia's words about self-defense being a right unconnected to the militia are pretty powerful. What Gang of Four tyrant would deny a disabled, 46-year old woman the right to use pepper spray because it's not used by Miller's militia and she's not a member? I think, given friendly courts in the future, he ended it "between the lines" of the decision. Scalia does say this: The more I digest the decision and other interpretations, the more I realize: - Scalia (and his allies) did an excellent job laying the groundwork. - Scalia claimed every inch he possibly could without flipping Kennedy - this case was decided by a couple of sentences. - The Gang of Four dissenters believe in an individual right that can be taken away at the whim of government, in other words, no right at all. They interpret the constitution anyway they want and have no particular regard for it. - We can still lose. Friendly courts need to establish strict scrutiny, incorporation, and as you say, revisit Miller. If strict scrutiny and incorporation are not established, our right is guaranteed to disappear over time.