"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.”
In the last several years, gun control advocates have argued that the Miller case proved that the Second Amendment was related solely to the militia and that it didn't guarantee an individual right to bear arms.
Several groups that have filed briefs in the District of Columbia case on the side of D.C. have cited the Miller case and said most federal circuit courts have interpreted it to mean that the Second Amendment doesn't guarantee individual ownership rights.
But gun rights advocates, along with many constitutional scholars, have said that the decision was too narrow to construe as a definitive statement on the Second Amendment.
The appeals court in the District of Columbia case said last year that the Supreme Court in the Miller case "was focused only on what arms are protected by the Second Amendment ... and not the collective or individual nature of the right.”
Many questions will remain
The U.S. Justice Department, which will be given time to argue its position before the justices on Tuesday, agreed with the appeals court that the Second Amendment grants an individual the right to own guns.
But it said the court of appeals took too broad an approach to the definition of arms that "could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machine guns.”
The Justice Department wants the case sent back to the appeals court to be analyzed under a different standard that would protect some federal regulations.
Barnett, the Georgetown University law professor, said that even if the Supreme Court upholds an individual right to own guns, few gun control laws would be struck down as a result. He made an exception for the handgun ban in Chicago.
He said that reasonable regulation would be allowed, just as it is with other rights, including free speech.
Texas Solicitor General Ted Cruz said the Supreme Court's ruling in this case may not even apply to the states, since it involves a federal entity, the District of Columbia.
Cruz said that was one of the many questions that would have to be determined after the court rules on the District of Columbia's gun laws.
Cruz filed a brief on behalf of 31 states, including Oklahoma, arguing that the Second Amendment protects individual ownership rights.