I was pleased to hear of the recent DC v. Heller US supreme court decision that affirmed that the “right to keep and bear arms” is indeed an individual right of all citizens. However, I was disappointed to see that the court used circular logic in their assumptions on what constituted firearms “in common use” Just as I warned back in March, (immediately following the oral arguments), the court relied on arguments made by Mr. Gura (the plaintiff’s attorney). In my opinion, Gura’s arguments were a disservice to American gun owners and “the militia at large”. (Which consists of all male citizens age 17 to 45, per US Code Title 10, Section 311.) Gura discounted any Second Amendment protection for machineguns, because he claims that the Second Amendments protects only those guns “in common use” as suitable for individuals to bring from their homes, for their personal use in service with the militia. Gura stated:
“They wished to preserve the ability of people to act as militia, and so there was certainly no plan for, say, a technical obsolescence. However, the fact is that [US v.] Miller spoke very strongly about the fact that people were expected to bring arms supplied by themselves of the kind in common use at the time. So if in this time people do not have, or are not recognized by any court to have, a common application for, say, a machine gun or a rocket launcher or some other sort of …”
That was a specious argument. What Gura overlooked is the fact that machineguns are not presently “in common use” only because 74 years ago, Congress effectively banned them, by placing a confiscatory tax and onerous fingerprinting and background check requirements upon purchasers. It is a tax of $200 per machinegun transfer. (Which was a huge sum of money, in 1934.) Machineguns would be in fairly common use today in the US by private citizens, if it were not for the National Firearms Act. Oddly, I find myself siding in part with Justice Breyer (one of the liberal softies on the bench) who stated in the dissenting opinion:
“Nor is it at all clear to me how the majority decides which loaded “arms” a homeowner may keep. The majority says that that Amendment protects those weapons “typically possessed by law-abiding citizens for lawful purposes.” Ante, at 53. This definition conveniently excludes machineguns, but permits handguns, which the majority describes as “the most popular weapon chosen by Americans for self-defense in the home.” Ante, at 57; see also ante, at 54–55. But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun. On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.”
It will be interesting to see how the precedent set by Heller will be applied –possibly overturning other unconstitutional gun laws at the State and Federal level. I am hopeful that Heller will be the death knell of such laws, but the realist in me can see the waffling and back-peddling included in the decision. (With phrases citing ““laws forbidding the carrying of firearms in sensitive places such as schools and government buildings””.) Let’s wait and see. Who knows, you may find full autos on the tables at your local gun show in a few years, available for “cash and carry” sale.