US v. Miller is not a good case for the proposition of sound judicial proceedings.
Miller and Layton were bootleggers caught with a sawed off shotgun. The US Attorney tried to prosecute them for NFA violations.
Miller filed a demurrer that the NFA violated the Second Amendment. A demurrer is a legal pleading that essentially states that even if all allegations in the complaint are taken as true, there is no legal cause of action. In this instance, Miller allows that he had a sawed-off shotgun and that it violated the NFA. Nonetheless, the charge must be dismissed because the NFA is unlawful.
The judge granted the demurrer without explanation or reasoning, and dismissed the charges. History has it that the judge was pro-gun control/NFA. He knew Miller would “disappear” because he testified against other gang members. The judge expected the US Attorney to appeal the case and win a reversal because Miller would not be around to defend the appeal. That is what happened. So, some extra-judicial processes gave the judge’s/government’s intended result, validating the NFA, without it playing out in a trial.
The US Attorney went from the federal district court that granted the demurrer directly to the SCOTUS, very unusual to bypass the federal circuit court. SCOTUS has to accept the appeal as they could not let the invalidation of the NFA stand.
The Supremes had no record or reasoning to review why the district court judge granted the demurrer.
Judicial notice is an evidentiary short cut. For well-establish facts, the court can take judicial notice of the fact and omit the requirement that it be proven by competent evidence, e.g., the court takes judicial notice that the sky is blue; no meteorologist need testify to that.
So, the Supremes are trying to understand what the trial judge did. That is when they said that “certainly it is not within judicial notice of this weapon is any part of the ordinary military equipment, or that it’s use could be contributed to the common defense.” The meaning here is that sawed-off shotguns are not so well-established as ordinary military equipment that a court could allow that to be a judicially noticed fact and bypass the requirement that Miller present testimony or other evidence of that fact. The “ordinariness” and contribution to common defense would have to be proven by evidence at a trial.
The Supremes remanded or returned the case back to the district/trial court for further hearing, which never happened.
Also, the meaning of “when called for service these men were expected to appear being supplied by themselves and of the kind in common use at the time” is that a historian would have to testify to this at the subsequent trial. A judge cannot use his knowledge of history to assume sawed-off shotguns fall within the expectation of the time. That is what happened in Heller with all the historical review and amicus briefs, etc.
There have been subsequent cases regarding machines guns, etc. that have a better procedural and judicial history than Miller that have supported regulation/control/prohibition. Most of these have been Commerce Clause challenges. The NFA was passed pursuant to Congress’s taxing power. See Robert’s Obamacare opinion as to the extent SCOTUS will allow Congress to torture it taxing power.