[snipping, but appropos of Miller]
It's hard to see why it would be necessary for the court to overturn--much less decide to disregard it entirely, as Lucas urges--in order to produce a individual-rights 2A decision. When even the 9th circuit, in Silviera, concedes that its previous declaration that Miller stands for a collective-rights view is unsound, Miller just isn't an obstacle to the goals of any gun-rights view of the 2A, except perhaps an absolutist one.
I'd tend to think that, if fairly read, the difference betweem Miller-based views and broader based ones would boil down to maybe whether posesssion of smaller handguns is protected (clearly, ownership of Arkansas Toothpicks would be at risk if the VPC moved in that direction.).
This does presuppose a fair reading of it (fair reading being defined as one conforming to my predelictions). When Miller refers to "possession and use" contributing to militia, we tend to emphasize "possession" and to treat this broadly.... if a gun or class of gun has any military use (and it's hard to think of one that does not) its ownership would be protected, because beoming skilled with it generally gives military skills. It might be possible to read Miller more narrowly, tho. Show that possession and use contributes in some way more specific than acquisition of general skills.
I wonder if a better approach would be to treat Miller as just being somewhat underinclusive, as might be expected with a case briefed only by one side. That is, it emphasized what leaps into mind on a facial skim of the Amendment ... collective defense, militia. That is a big aspect, but the historical research of the last 20 years indicates there was also a personal protection aspect, one emphasized by Amar's 14th amendment research. So it's not a question of rejecting Miller or accepting it, but rather of creating "Miller-plus" standards. --
