The one statement that troubles me from the Parker decision was to the effect that the word "arms" is so indefinite that it must look to the prefatory language for its definition. Given that the protected common-law right includes self-defense, then "arms" must also include items which are particularly suited to self-defense.
Your concern regarding "in common use", I think, is not a great concern.
The Parker court was required to address the objections of DC to the effect that Miller applied. Since it was possible to establish, through the requirements of early militia laws that pistols were required of a subset of the militia, then one must presume that the pistols were in common use at that time, and the court reasonably included the lineal descendants as qualifying under Miller. The Parker court made no further attempt to determine whether "common use" or "linal descendancy" were absolute requirements. Whether a machine gun is a lineal descendant of a rifle is of little concern, since no Court would ever claim that a state-armed militia could not have them.
This discussion of "common use" and usefulness to a militia is aimed squarely at not having to attack Miller, while still recognizing Heller's protected right.
In keeping with the Supreme Court's desire to make a narrow ruling, I would expect that they can afford to say little about whether the holding in Miller must be addressed. Only the fact that Miller and Layton didn't have to be members of a militia needs to be addressed. The scope of "arms", which clearly includes pistols, need not be further addressed by the Heller Court.
Ginsberg can be lulled back to sleep and provided a little cover by the claim that "in common use" can be used to prohibit arms suitable to a militia. But I think she knows better.
Because handguns have been banned they can be banned and should be banned.
Perhaps I missed it but has Mr. Paulsen ever done anything but propose conundrums, ask questions and spread old school Fear,Uncertainty,Confusion and Doubt about everything related to the 2nd Amendment?
You have followed his comments much more closely than I.
Best regards,
Stevens didn't think there was connection between the second amendment and self defense. You do?
"JUSTICE STEVENS: How do you explain the fact that you include self-defense, but only two States, Pennsylvania and Vermont, did refer to self-defense as a permissible justification and all of the others referred to common defense or defense of the State, and in the Articles of Confederation and the Constitution itself there is no reference to self-defense?"
As a matter of fact, Stevens went on and on and Gura had no effective reply.
"The Parker court made no further attempt to determine whether "common use" or "linal descendancy" were absolute requirements."
The Parker court applied a "two-prong Miller test" -- 1) a “reasonable relationship to the preservation or efficiency of a well regulated militia” and, 2) arms that are "of the kind in common use”. If that's not an absolute requirement, why refer to it and why use it?
"The scope of "arms", which clearly includes pistols, need not be further addressed by the Heller Court."
No, it need not. But the next "Gura" who appears before the U.S. Supreme Court to defend his client who possessed a machine gun has got his work cut out for him, since the original Gura effectively took away any argument he might use.