The Occasional Observer: Machine guns/Advanced weaponry not protected, according to Heller

Machine guns/Advanced weaponry not protected, according to Heller

Thursday, June 26, 2008 | Posted by Fredo | | Edit Post

From pgs 55-56, addressing whether machine guns may be banned:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require
sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our nterpretation of the right.

So on this last point, I would infer that Scalia is saying that the "protected right" is specifically tied to rifles and pistols. This fits with the prefatory clause, because rifles and pistols were used by the militia at the time. The right has not changed to encompass machine guns and bombers. The protected right is what it was before (rifles and pistols), so it is merely the connective logic to the militia that breaks down as military weapons have evolved. The "protected right" will not evolve to include new classes of arms--machine guns (or rocket launchers, nukes, etc.)--rather, it only evolves to allow for newer types of guns within the same class.

If I understand him correctly.

2 comments:

SheaHeyKid said...: Sorry, but IMO the interpretation of this particular piece is weak at best. I don't think it has solid historical legs to stand on.

The problem is that there really was no difference between the "arms" that citizens were allowed to own compared to what they might face under attack from a "professional" military/government at that time. That is, citizens were allowed to own rifles, muskets, bayonets, and I believe even cannons. Those are the EXACT same weapons that an opposing army would have, thus creating a level playing field between a militia and an army. I think the only thing that might have been regulated for individuals was large amounts of gunpowder, to avoid accidental explosions.

I think that unfortunately if you do not have balance (between weaponry of citizens/militias and armies), the 2nd clause of the 2nd amendment is indeed broken from the 1st clause. Furthermore, the point they raise is the exact same one I raised several months ago: Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks.

The only reasonable interpretation of the 2nd amendment is that the founders wanted individuals to be able to protect themselves at all times, and unless they are equipped with similar weaponry, they cannot. The problem we encounter is that at the time of the 2nd amendment, the US did not have a standing army, with a separate budget (soldiers were barely even paid on time), and advanced weaponry. So my guess is that if the founders were around today and they were drafting the 2nd amendment, it would be worded differently in light of the fact that the weaponry and its potential killing power has evolved so dramatically. But that's not how it is presently written.; 6/26/2008 1:08 PM
Fredo said...: Well, for the most part, Scalia agrees with you. He explicitly states that 1st and 2nd clauses are now, as you put it, "broken."

He also explicitly states that the arms that citizens kept were the exact same as the military.

Unfortunately, he kind of cops out on reaching the logical conclusion, that if the amendment exists so that citizens can fight off a would-be tyrant, they must have weapons up to the job.

Instead, he wants to avoid opening Pandora's Box of "what defines an arm" by saying that, in this case, it's not really pertinent--since it's a case about handgun ownership.

You can bet there will be more lawsuits coming. Bank on the State of NY being sued for banning so-called "assault weapons."; 6/26/2008 1:34 PM