Really great analysis of the upcoming Heller Decision and the impact on FDR’s legacy case Miller. (Next week??)
3. Whither Miller? In the same vein, it will be fascinating to see how the Heller Court handles the 69-year-old opinion in U.S. v. Miller. Miller is compatible with an individual right to arms that stresses the civic purposes of arms ownership, and the concept of the citizen militia and the “ordinary military equipment” pertaining to it.
Many members of the Court are clearly uneasy at the prospect of a strong interpretation of Miller, which one might boil down crudely into the formula: “machine guns for the people!”. In oral argument in Heller, Justice Kennedy openly questioned whether Miller should continue to provide the guiding framework for Second Amendment adjudication. I predict that the Court will put some distance between itself and a strict reading of Miller, perhaps through some agile recasting of the earlier opinion.