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. Aymette v. State, 2 Humphreys (Tenn.) 154, 158.
The contention that Miller stands for the proposition that Congress may regulate only those classes of weapons which have, or have no, relationship to the militia is absurd. The Supreme Court "did not intend to formulate a general rule in Miller, but merely dealt with the facts of that case." Warin, 530 F.2d at 106 (citing Cases, 131 F.2d at 922). Given the destructive capabilities of modern weaponry, it is inconceivable and irrational to suggest that Congress may only regulate weapons which have no possible relationship to the common defense today "such as a flintlock musket or a matchlock harquebus."
I would also add that Miller uses the term Judicial Notice which is a rule in the law of evidence that allows a fact to be introduced into evidence if the truth of that fact is so notorious or well known that it cannot be refuted. This is done upon the request of the party seeking to have the fact at issue determined by the court. Matters admitted under judicial notice are accepted without being formally introduced by a witness or other rule of evidence, and even if one party wishes to lead evidence to the contrary.
Judicial notice is frequently used for the simplest, most obvious common sense facts, such as which day of the week corresponded to a particular calendar date.
The fact that McReynolds states that "it is not within judicial notice that this weapon is any part of the ordinary military equipment" demonstrates that the firearm was not the issue.
Had it have been, then it would have been entered into evidence that sawed off shotguns were used for the common defence. It was an unrefuted fact that Sawed Off Shotguns are used by the military.
See This for an explanation of Aymette
