we did not get a stated standard of strict scrutiny or an affirmation of our right to own anything not commonly in use by the public, or the right to bear concealed arms.
We made significant progress on those first two.
On the individual right question, a necessary precursor to a useful strict scrutiny question, we won big. In the process, the ruling set the second amendment right alongside other enumerated rights in the BOR and specifically rejected the "rational basis" test. As I mentioned, that makes me wonder how the NFA tax can stand.
We actually did get one affirmation of our right to own arms, whether or not they are common. The lower court ruling said, "Once it is determined—as we have done—that handguns are “Arms” referred to in the Second Amendment, it is not open to the District to ban them."
The Supreme Court qualified that somewhat:
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...Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”.
I have several problems with this.
First, Miller didn't say anything about protecting only weapons "typically possessed for lawful purposes." They just said they didn't notice that it was an ordinary military weapon whose use could contribute to the common defense.
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.
Also, a shotgun with a short barrel does have plenty of self defense and military uses, whether the Court noticed or not, and like machine guns, they would be common if not for the ban.
Finally, I fail to see what is so dangerous about a short barrel shotgun or an M-16. Are they that much more dangerous than standard shotguns and AR-15s?
