How about that loon Ashcroft, eh, going against a grand old tradition of squeezing the Constitution for every drop of authority it could be construed to grant to Washington. The nerve!
You’ll probably hear it repeated, if you haven’t already, that the Supreme Court in US v Miller (1939) upheld a conviction for illegal possession of a short shotgun, on the grounds that Jack Miller was not enrolled in an organized militia. That’s the conventional story, and it is inaccurate. (For one thing, Miller was never convicted; the government appealed a dismissal.) The key passage of the decision is this:
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.
In other words, the District Court ought not to have dismissed the case without first hearing evidence that a short shotgun is useful in war. Neither the District Court nor the Supreme Court showed any sign of giving a rat’s ass whether Miller was in the National Guard or not.
Unfortunately for posterity, the case was never finally resolved; by the time it got to the Supremes (who said ‘start over’), Miller had died – by gunfire, as it happens.