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Post-Heller Federal Appellate Decision on the Second Amendment:

U.S. v. Fincher (8th Cir.) (thanks to How Appealing for the pointer):

[U]nder Heller, Fincher's possession of the guns is not protected by the Second Amendment. Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use. [The court apparently took the same view as to Fincher's sawed-off shotgun. -EV] Furthermore, Fincher has not directly attacked the federal registration requirements on firearms, and we doubt that any such attack would succeed in light of Heller.

There's more, dealing with Fincher's pre-Heller arguments that his membership in a non-state-run militia group gave his actions constitutional protection.

vinnie (mail):
Machine guns are not in common use by law-abiding citizens for lawful purposes



Hmm...... I thought that the select fire Ak 47 was the most common gun in the world. How many were made?
8.13.2008 2:25pm
Brett Bellmore:
That's so self-referential; Machine guns can be illegal because they're not commonly owned because they're illegal... (Yes, I'm aware there are a limited number in circulation which it's legal to own, a number too small to make them "commonly owned".)

It's a recipe to halt progress in civilian firearms in it's tracks: No new innovation can start out "commonly owned", hence the government can ban every new firearm.
8.13.2008 2:30pm
billb:
I'm sure you know this Brett, but in case others don't: the number in circulation is low due to the NFA tax and registration requirements and because it is presently illegal to sell or import for sale a machine gun to a civilian made after 1986 or so (which helps keep prices quite high). See here for some more details. E.g.: As of 1995, there were about a quarter million machine guns registered with the BATF (about half of those being civilian owned and the other half law enforcement).
8.13.2008 2:53pm
EconGrad:
How many machine guns must be owned by citizens and used for lawful purposes to make it "common"? There are about 177,000 "transferable" machine guns in the NFRTR. Some folks own more than one, and some folks only have one. I have 5. No matter how you do the math, there's more than a few people who own these things for "lawful purposes". And what the hell does "commonly owned" have to do with anything anyway? I really think that Heller has the potential to be a big negative for NFA rights. This is absurd since NFA firearms (machine guns, short barreled rifles, short barreled shotguns, destructive devices, etc.) are (in my opinion) exactly the sorts of thing the 2nd Amendment contemplates us owning.

I share Brett's sentiment. If there weren't an unconstitutional tax on NFA firearms (one that was quite oppressive when first passed in 1934) who's to say what would and wouldn't be "common" today. Never mind the 18USC922(o) ban in 1986 which today has rendered machine gun ownership nearly a rich man's privilege.

I can only hope that in future cases that make it to SCOTUS that they find some way to escape the shackles they've placed on themselves with that "commonly owned" language and recognize the breadth of the 2nd certainly must include machine guns -- whether they are comfortable with that fact or not.

If we don't need 'em, then Law Enforcement certainly doesn't need them, and I'd say neither does the National Guard when acting in their domestic NG capacity.
8.13.2008 2:58pm
Sarcastro (www):
Machine guns nothing. Bazookas for everybody! This is progress!
8.13.2008 3:09pm
The Unbeliever:
Something I always wondered, as I didn't pay attention to the debate at the time: why does the NFA restrict machine guns made after 1986? Why should it be fine to own one produced before that particular date, but not afterwards?

When applying a common sense test, this makes it bad law: either machine guns are OK to own (subject to taxes/criminal status/etc), or they're not. It seems like this was an attempt to put MGs into the "not" category without criminalizing current owners, in which case the question should be whether the NFA restriction itself is constitutional under Heller, not whether it prevents ownership in an individual case.

Take the cited case's logic to its logical end, and one could easily see a court using the "unusual" test to declare that handguns in Washington D.C. are not commonly owned or in "common use" because the city banned them for so many years. Surely that's not an end state acceptable under the Heller interpretation, at least for handguns; where's the justification for applying that logic to MGs?
8.13.2008 3:13pm
glangston (mail):
I'm pretty sure that crimes committed with legally owned (law abiding citizens) machine guns are near zero. Therefore it would seem fairer to state the truth that legally owned machine guns ARE used for lawful purposes. And they are not prohibited, merely taxed and registered. This stuff reads like drug laws where people try and claim drugs are illegal when they are in fact controlled.

Crime with Legally Owned Machine Guns

In 1995 there were over 240,000 machine guns registered with the BATF. (Zawitz, Marianne,Bureau of Justice Statistics, Guns Used in Crime [PDF].) About half are owned by civilians and the other half by police departments and other governmental agencies (Gary Kleck, Targeting Guns: Firearms and Their Control, Walter de Gruyter, Inc., New York, 1997.)

Since 1934, there appear to have been at least two homicides committed with legally owned automatic weapons. One was a murder committed by a law enforcement officer (as opposed to a civilian). On September 15th, 1988, a 13-year veteran of the Dayton, Ohio police department, Patrolman Roger Waller, then 32, used his fully automatic MAC-11 .380 caliber submachine gun to kill a police informant, 52-year-old Lawrence Hileman. Patrolman Waller pleaded guilty in 1990, and he and an accomplice were sentenced to 18 years in prison. The 1986 'ban' on sales of new machine guns does not apply to purchases by law enforcement or government agencies.
---
Thanks to the staff of the Columbus, Ohio Public Library for the details of the Waller case.

Source: talk.politics.guns FAQ, part 2.

The other homicide, possibly involving a legally owned machine gun, occurred on September 14, 1992, also in Ohio (source).

In Targeting Guns, Kleck cites the director of BATF testifying before Congress that he knew of less than ten crimes that were committed with legally owned machine guns (no time period was specified). Kleck says these crimes could have been nothing more than violations of gun regulations such as failure to notify BATF after moving a registered gun between states.
8.13.2008 3:13pm
Jim at FSU (mail):
This sloppiness pisses me off. The language from Heller relates to the "historical tradition of prohibiting the carrying of dangerous and unusual weapons." Carrying is not the same as possessing.

Scalia is referring to a 13th century English law that prohibited carrying dangerous and unusual weapons in the marketplace because it would cause people to become terrified. It is very similar to laws in open carry states that prohibited "going armed to the terror of the public." For example, carrying an AK-47 around in the mall in a place where doing so is unusual. These were disturbance of the peace type regulations, not regulations on the type of weapons that may be possessed.
8.13.2008 3:13pm
Happyshooter:
The police in my state have almost totally converted to automatic rifles from shotguns. If that isn't "common use" I do not know what is.
8.13.2008 3:21pm
PersonFromPorlock:
So, an interesting question: what mechanism could there be for shaming Justices who spout nonsense from the bench?
8.13.2008 3:30pm
Eugene Volokh (www):
Happyshooter: Fully automatic rifles as standard equipment for police? That's surprising, and would even be surprising for SWAT teams, given that precision is quite important for police work, and fully automatic fire is generally not particularly precise (nor is it supposed to be). Or am I mistaken?
8.13.2008 3:31pm
runape (mail):
"That's so self-referential; Machine guns can be illegal because they're not commonly owned because they're illegal... (Yes, I'm aware there are a limited number in circulation which it's legal to own, a number too small to make them "commonly owned".)"

This strikes me as a poor argument (although I am admittedly biased). After all, there was a time when machine guns were legal (way back when), and Congress and the states decided to ban them. Why did Congress and the states decide to ban them? Presumably because they believed them to be dangerous (and because of the gun control lobby, and many other reasons).

In any event, before you raise the "self-referential" critique, I think you need to address the statistics on ownership when such weapons were still legal. Were they commonly owned at the time they were legal? I don't have any statistics at hand, but I suspect not. And why not? I would speculate (and again, this is speculation) that many more people believed machine guns to be unduly dangerous than believed them to be safe, or useful, or necessary (given the availability of, e.g., handguns).

This argument is not like the "state trends in the death penalty" argument, which I believe you are echoing to some degree, because the ban on unusual or uncommon weapons is not relying on trends. I don't think society's views on weapon ownership have shifted significantly, in any event; there are people (and community cultures) that like guns, and there are those that don't. Those that do had guns when they were legal; those that don't, didn't. I don't think you can establish that there was a trend towards ownership of automatic weapons that was snuffed out by gun control (and if you can establish that, I'd be interested to learn how.)
8.13.2008 3:36pm
Mark Jones:
Billb--and you're surprised by this?

That "not commonly owned (because you're unconstitutionally prohibited from obtaining one)" canard is the same kind of sleight of hand they use in fourth amendment cases about traffic stops. First, you violate the fourth amendment by searching vehicles; then you hold that the fourth amendment doesn't apply because you have no reasonable expectation of privacy your vehicle...because the government never properly recognized it in the first place.

Lather, rinse, repeat--and eventually you get to the point where automobiles are fourth amendment-free zones.

This is just more of the same.
8.13.2008 3:38pm
Jim at FSU (mail):
Handheld machine guns basically serve the same combat role as shotguns. It's a spray of projectiles that is only accurate or useful at close range. AR-15s can be chambered to fire a wide variety or rounds including small shotgun cartridges like 410. There are kalashnikov's (AK-47 family guns) chambered in 12, 20 and 410 gauges. Let there be no doubt that it is completely legal to own a military configuration long gun that fires a plurality of projectiles each time you pull the trigger.

The only difference between a select fire AR-15 and an AR-15 chambered to fire 410 gauge shotgun shells (each containing 3 000 buckshot) is that:
-the select fire rifle has a switch that turns it from a shotgun back into a normal rifle

Get it? A switch that converts a gun between two legal configurations is illegal because of the particular technical means used to implement the shotgun functionality.
8.13.2008 3:39pm
zippypinhead:
Fascinating... A slightly messy case, which probably destroys what little certiorari chances it otherwise might have. This sort of opinion gets issued from time to time when the law changes between the trial and the appellate opinion being handed down, but when the appellate court does not want to figure out whether to remand the case for further proceedings -- usually because doing so wouldn't change the outcome. Rather than addressing issues of retroactivity and/or waived arguments, the Court of Appeals simply assumed the defendant would have made arguments based on the new caselaw, and then rejected these hypothetical arguments. Result-oriented, but probably works as a matter of judicial economy since this defendant almost certainly wouldn't have prevailed even if he'd made a full-out Heller individual rights argument below.

On the post-Heller merits, I think this case probably reached the same result any lower court will reach, given the dicta on point in Heller's majority opinion. To get around the unargued individual rights issue, the court mainly focused on the defendant's machinegun and short-barrelled shotgun not being protected under the Heller/Miller "common use" test. As many have pointed out, Heller's "common use" gloss is a pretty craven bootstrap, but given how explicit Justice Scalia's opinion was on this point, I really can't see the lower courts directly calling the Supremes' bluff on that issue.

Frankly, IMHO the best way to attack the NFA and 922(o) would not be as a defense to criminal charges, as the defendants in most of these cases are the sort of unsavory characters that scare judges (and most everyone else). The best test case would be for an otherwise law-abiding citizen to attempt to register a post-1986 machinegun, which would of course be rejected by BATF. Preferably the citizen would not actually have taken possession of the gun yet, so he can't be charged criminally. Then after he's rejected, he can file a civil suit challenging the Constitutionality of 922(o) and the NFA. This is basically what Dick Heller did with D.C.'s handgun ban (which has some similarities to 922(o)).
8.13.2008 3:43pm
Jim at FSU (mail):
EV- assault rifles (select fire rifles) fit in all the same places that shotguns do. The advantage over traditional shotguns is that:
-when you are in an open area, you can fire it semiautomatically for more accuracy
-it penetrates body armor better
-it doesn't penetrate barriers like drywall, wood or brick as well as slugs or buckshot do, thus reducing the risk to bystanders
-cheaper to practice with. Assault rifle is generally a quarter as expensive per round.
-you can carry more ammo per given weight and go more rounds without reloading. 10 rounds of shotgun ammo or 60 rounds of rifle ammo? 8 rounds per magazine or 30+?

Etc etc. This topic has been done to death by the world's militaries for the past half century.
8.13.2008 3:49pm
Jim at FSU (mail):
The best bet is probably a Lopez style challenge to 922(o) under commerce clause grounds.

If 922(o) goes, machine guns will be back in "common use" by the end of the year.
8.13.2008 3:52pm
billb:
Mark Jones: I'm surprised by very little these days. It seemed to me Brett didn't quite tell enough of the story on why the numbers on ownership of machine guns are the way they are, so I thought I'd pass along a few more tidbits of information for everyone. Did I evince surprise somehow? I didn't mean to.
8.13.2008 3:56pm
tommears (mail):
I found the discussion of Mr. Fincher's personal militia fascinating. Were I ever in Arkansas during an emergency I am certain I would feel much safer knowing that the govenor or maybe the mayor of a city could activate the Washington County Militia to provide for civil defense.
8.13.2008 3:56pm
David E. Young (mail) (www):
Were selective-fire arms an issue in the Disctict of Columbia vs Heller case? If not, wouldn't every comment relating to them be dicta in a case that has nothing to do with them?

What are the most commonly used arms for militia purposes in modern times? Who are the militia?

While the Heller decision is sound historically as far as it went, the historical militia-Bill of Rights nexus was not actually examined in the case. In fact it was purposefully ignored, IMHO. The majority justices simply set that aside for the time being largely because the minority justices had fallen into the control advocate's 'the militia are the military' trap.

On the contrary, the militia are not the military but rather all the able-bodied civilians who are not soldiers and who might need to function for mutual defense against tyranny during some unforseeable emergency. The Second Amendment reference is not to militia selected by the government (select militia, select corps - see period sources and discussions of them) but to all the militia.

Again, what arms are the most commonly used for militia purposes in modern times? I predict a lot more of "Givin 'em Heller" in the future.
8.13.2008 4:00pm
runape (mail):
"That "not commonly owned (because you're unconstitutionally prohibited from obtaining one)" canard is the same kind of sleight of hand they use in fourth amendment cases about traffic stops."

Again, I think this is a poor analogy, but I'm curious for your response.

In my view, there is a perfectly rational explanation for why machine guns are less common than handguns: they are more dangerous than handguns, or at least are perceived as such. It seems wrong to say that gun control is the reason that machine guns are not more commonly owned. That is something like saying that gun control is the reason that rocket launchers are not more commonly owned. I concede that gun control might have snuffed out a trend towards widespread ownership of rocket launchers. But isn't the more plausible explanation simply that they were and always have been uncommon because they are dangerous (or at least perceived as such)?
8.13.2008 4:01pm
runape (mail):
And, to be clear (before the wolves jump), I am not saying that machine guns are necessarily as dangerous as rocket launchers. I am saying that that is the nature of the argument in Heller. Reasonable people may disagree in close cases, I suppose.
8.13.2008 4:03pm
Oren:

The best bet is probably a Lopez style challenge to 922(o) under commerce clause grounds.

If 922(o) goes, machine guns will be back in "common use" by the end of the year.

Hard to imagine that working under Raich (unless Scalia changes his tune).
8.13.2008 4:14pm
Mark Jones:
runape--yes, machine guns are perceived as dangerous. But so what? Hands, rifles and shotguns are also perceived as dangerous. Terrifyingly so, to hear the gun control crowd tell it. And yet, many tens of millions of people in this country own them and never kill anyone.

Machineguns are "not in common use by law-abiding citizens for lawful purposes" for only one reason: government intervention.

First the NFA in 1934 required payment of the the-exorbitant tax of $200 per weapon for the privilege of owning a machine gun, as well as stringent licensing requirements. Nonetheless, a fair number of people were still willing and able to pay the tax and own machine guns. (And even then, if your state prohibited ownership of automatic weapons, the federal rules were irrelevant.)

Enter the 1986 act (I forget it's name), which forbade the import or manufacture or sale of machine guns to civilians. This had the effect of permanently limiting the number of machine guns ordinary citizens could (legally) own to those which predated the ban. Which, not surprisingly, drove the price of these now far more valuable weapons through the roof, making them unaffordable to most people all over again.

So, to answer your question, no. No, the reason machine guns aren't in common use by law-abiding citizens isn't because they're viewed as dangerous. Not by said citizens, anyhow. But because for most of a century, ownership of said weapons has been at best strongly restricted by GOVERNMENT ACTION, and in many states prohibited outright.

So NOW the government comes along to tell us that while Heller recognizes an individual right...it doesn't apply to weapons which aren't in common use by law-abiding citizens for lawful purposes. That's a nifty little Catch-22, don't you think? There are LOTS of ordinary citizens who would own machine guns if they could afford one--I'm one of them.
8.13.2008 4:23pm
Brett Bellmore:

the court mainly focused on the defendant's machinegun and short-barrelled shotgun not being protected under the Heller/Miller "common use" test.


There's no "Heller/Miller" common use test: The Miller test was whether the arm in question was useful for military purposes, the Heller test whether it was commonly owned by civilians. Machine guns and short-barreled shotguns most assuredly passed the Miller test, as would have been proven in Miller if there'd been anybody representing him to place the relevant evidence into the record for the Court to take note of it.

They don't pass the Heller test only because the government outlawed them while the Supreme court wasn't in a mood to take 2nd amendment cases.
8.13.2008 4:28pm
Brett Bellmore:
I'm actually more concerned about the prospective application of that common use criteria. As I mentioned above, innovations in firearms by definition can not be in common use at the time they originate, even if they're such that they'd rapidly be adopted in the absence of legal obstacles. Scalia's "common use" criteria is a recipe for halting progress in civilian firearms technology, if the government wants to do that.
8.13.2008 4:32pm
zippypinhead:
There's no "Heller/Miller" common use test: The Miller test was whether the arm in question was useful for military purposes, the Heller test whether it was commonly owned by civilians. Machine guns and short-barreled shotguns most assuredly passed the Miller test...
Semantics only. The original Miller test was generally interpreted as having two parts. Justice Scalia made relatively clear that the "military use" prong of the old Miller test is not with us any longer, but the "common use" prong still exists and is the touchstone for the type of arms protected by the Second Amendment. Why? I suspect because he needed to do so in order to get 5 votes, given the hysteria about machineguns in various briefs (including the Solicitor General's) and the obvious skittishness about the issue that we heard from some of the Justices in oral argument.

Having said that, you're right that if Mr. Miller had gotten an opportunity to make a complete factual record, the utility of the WWI trench gun would have put the lie to the claim that there was no evidence short-barrelled shotguns were militarily relevant. Miller was a bizarre, result-oriented case that one hopes would never make it to the Supreme Court on that record today.
8.13.2008 4:39pm
Jim at FSU (mail):
I agree. To a certain extent, all firearms are dangerous.

If this is the post-Heller test, the only real factual question would be whether they were "unusual." I can't really think of any compelling government interest served by banning firearms that are merely unusual. The more I think about it, the more I realize that the "dangerous and unusual" test is a crappy one.

Actually, why aren't courts engaging in the traditional tests to determine if government regulations are permitted or not?

Compelling government interest in banning the M16? I can't think of one. Remember that the AR-15 is completely legal, 99 percent the same weapon and neither weapon is commonly used by criminals, rebels or any other troublesome group.

Narrowly tailored? Not exactly- 922(o) bans everything from an air-craft mounted autocannon to a MK19 grenade launching machine gun to a 10/22 fired by a motorized crank.

Assuming that someone can enumerate a non-idiotic compelling government interest, would there be less restrictive means of achieving it?

Where are such questions in the post heller jurisprudence?
8.13.2008 4:59pm
Happyshooter:
EV: The federal government gives police departments free M-16s, usually M-16A1s (the full auto version as opposed to the three round burst).

With the addition of an adjustable stock they fit into the same rack as a shotgun and give the officer 30 rounds in the rifle as well as being much more accurate and able to hit out to 100 yards in semi-skilled hands like the police patrol officer, instead of the 30 some odd yards of the shotgun.

Plus, did I mention the government gives them out free to the police?

The military upgraded to the three round burst version leaving the racks in warehouses full of 100s of thousands of the older rifles.
8.13.2008 5:09pm
Jim at FSU (mail):
Yes, and those rifles would all have been sold into the civilian marksmanship program already if it wasn't for the stupid NFA/FOPA restrictions on machine guns. Most of those guns will end up being destroyed in the end, I'll bet.
8.13.2008 5:12pm
PubliusFL:
runape: Mark Jones and Brett Bellmore are right on.

At the time of the 1934 NFA, machine guns weren't uncommon because of any broad consensus that they were unusually dangerous. They were uncommon because they were new and extremely expensive. The Browning Automatic Rifle (BAR) and the Thompson submachine gun were among the first automatic weapons to be mass-produced in the U.S., and didn't go into production until the late 1910s. Then the Great Depression hit about a decade later. By 1939, the cost of a Tommy gun to the Army was still more than the $200 transfer tax imposed by the 1934 NFA, which was itself about a third of the per capita income of the time. That'd be like a machine gun costing approximately $13,000 today. It took World War II to get the production costs of submachine guns down significantly, and by that time the NFA was already in place with its effective $200 price floor.

Like Brett pointed out, the effect of the "common use" rule is really to kill innovation. If Scalia was right about that, Congress could have frozen civilian gun ownership at a late 18th century technology level simply by banning (or prohibitively taxing) every new development in firearms technology, because at the time of the ban the new technology would not have been "in common use." It's just absurd to think about.
8.13.2008 5:24pm
runape (mail):
"Machineguns are "not in common use by law-abiding citizens for lawful purposes" for only one reason: government intervention."

Mark, I think you are missing my point (though perhaps I am wrong). If, as you state, the NFA required payment of $200 in 1934 to own a machine gun, my question is: why did they do so? And I would guess (although I am not certain) that the purpose of the original tax was to regulate, and not to generate revenue. Any why did they wish to regulate machine guns? Again, I am speculating, but I suspect the answer is that a majority of citizens (or, at least, people with influence) believed that machine guns were dangerous.

Now you might argue that there was, in fact, a majority of people who favored private ownership of machine guns, but that those people lacked political power. That strikes me as unlikely, but it's a question with an answer.

But my point is that it wasn't regulation that made machine guns unpopular. And I don't think you can show that machine guns would have become much more popular than they were prior to regulation, if only the government hadn't intervened. It's all counterfactual, of course, but it's hard to see why demand for machine guns would have risen significantly over time - or at least I haven't heard any good reasons why it would have were it not for regulation.
8.13.2008 5:31pm
SeaDrive:

-it doesn't penetrate barriers like drywall, wood or brick as well as slugs or buckshot do, thus reducing the risk to bystanders


I hope no one trusts his life to a hiding behind a drywall partition while someone is spraying file from a M-16 variant.

The big advantage to the public of having police use shotguns rather than automatic weapons is that the latter are lethal at a much greater range. If I'm 300 yards from the shooting, I would much prefer you use a shotgun.
8.13.2008 5:35pm
runape (mail):
"At the time of the 1934 NFA, machine guns weren't uncommon because of any broad consensus that they were unusually dangerous. They were uncommon because they were new and extremely expensive."

That's interesting, and would be one answer to the argument. But I'm not convinced that there are a significant number of people out there who want to own a machine gun. I'm sure there are stats that came up during the Heller briefing, so please do correct me if I'm wrong; but how many people today want to own a machine gun?

My essential point is that I don't think gun control has altered preferences in the manner suggested by some of the earlier comments. And I would wager that even if you count the number of machine gun owners AND the number of people who would like to own a machine gun but can't because of gun control laws, you still couldn't fairly conclude that machine guns are in common use (or would be, without gun control). I think most people don't want to own machine guns, and they don't for the same reason they don't want to own tanks. They're dangerous, impractical, and largely gratuitous even if you believe guns are an effective means of self-defense.
8.13.2008 5:38pm
PaddyL (mail):
Every Swiss male between the age of 18 and 55 serves in the Swiss Army. Upon turning 18, each serves actively for 6 to 12 months upon of basic and advanced training and trains for 2 to 4 weeks of active service every summer. Every army member has an assault rifle (machine gun), ample ammunition, and all the other gear common for the infantry.

Switzerland is the model for an active democracy as distinguished from a republic like ours. As I recall, Switzerland has one of the lowest crime rates on the planet. Could it be because every homeowner is armed to the teeth?
8.13.2008 5:39pm
PubliusFL:
runape: That's interesting, and would be one answer to the argument. But I'm not convinced that there are a significant number of people out there who want to own a machine gun. I'm sure there are stats that came up during the Heller briefing, so please do correct me if I'm wrong; but how many people today want to own a machine gun? . . . I think most people don't want to own machine guns, and they don't for the same reason they don't want to own tanks.

That's the other problem with the "in common use" test, if you interpret it as protecting only what "most people today" want to own. Constitutional rights protecting what everyone wants to do anyways are pretty pointless. Not many First Amendment cases start off with the Supreme Court asking "how many people want to say this kind of stuff anyways?" The Bill of Rights is by nature a countermajoritarian document.
8.13.2008 5:53pm
Waldensian (mail):

I think most people don't want to own machine guns, and they don't for the same reason they don't want to own tanks. They're dangerous, impractical, and largely gratuitous even if you believe guns are an effective means of self-defense.

I'd love to own a machine gun, and frankly I'd love to own a tank, too (although I don't know where I'd put the latter, street parking around here can be hard to come by).

I've thought about buying a machine gun -- I'm pretty sure I could get past the regulatory hurdles -- but the dipstick federal law has made the things prohibitively expensive.

I don't understand why anyone would think a machine gun is particularly "dangerous" -- it isn't unpredictable and it won't bite you. I guess my point is that it's no more dangerous than any other firearm. True, many people have irrational fears of firearms (but generally not nailguns, go figure).

Firearms are a well-proven means of self defense.

I don't know what "impractical" and "gratuitous" are supposed to mean in this context, other than "I don't want you to have one of those." I'm a firearms collector (with an 03 FFL).

Is it more "gratuitous" or "impractical" for me to own a machine gun than it would be for a car enthusiast to own a 1964 Austin Healy Sprite? Or would you like to regulate that as well? Note that Sprites are "dangerous" -- bad seatbelts, horrible crashworthiness.

Why should you get to decide what is "practical" for me?
8.13.2008 5:54pm
Mark Jones:
But my point is that it wasn't regulation that made machine guns unpopular.


runape, I think you're missing my point. Machineguns were fairly new when the NFA was passed in 1934. They were, as already pointed out above, extremely expensive. Could, I don't know, expense have had something to do with their not being more widely owned? I think so.

Then, before they could become popular as the price fell, the effective price was artificially (and permanently) inflated by the government. And many states outlawed them entirely--at least for mere citizens. Given all that, to now point to their alleged unpopularity as sufficient grounds to exempt them from 2nd Amendment status is absurd.

And even if machineguns were outlawed in all those states because the public felt they were dangerous--so what? Given the second amendment, those laws too were unconstitutional and null and void from day one. To compound that violation of the RTKBA by saying that the prior infringement of the right legitimizes continuing to infringe it is...well, words fail me.

As I posted initially, it's the same sleight of hand that's made automobiles into fourth amendment-free zones. "No reasonable expectation of privacy" translates as "We never respected your privacy in this situation before, so why should you expect us to start now?"
8.13.2008 6:09pm
Dave N (mail):
Machine guns nothing. Bazookas for everybody! This is progress!
No, suitcase nukes for everyone. THAT'S progress.
8.13.2008 6:27pm
zippypinhead:
EV: The federal government gives police departments free M-16s, usually M-16A1s (the full auto version as opposed to the three round burst).

[T]hey... give the officer 30 rounds in the rifle as well as being much more accurate and able to hit out to 100 yards in semi-skilled hands like the police patrol officer, instead of the 30 some odd yards of the shotgun.
The District of Columbia police recently got a whole bunch of old mil-surp M-16A1s complete with the original triangular handguards, which they're going to put in at least some patrol cars. However, according to press reports they were first converted to semi-auto only for police use. Even so, I do have to confess the photo in the Washington Post of a slightly-overweight beat cop practicing with one at the MPD range was slightly disconcerting, especially when one considers just how crummy shots most of D.C.'s "finest" have proven to be when they've occasionally gotten into firefights with the gang-bangers.

BTW: whomever wrote that an advantage of a mil-spec assault rifle over a shotgun with buckshot is less over-penetration through structures is full of it. A 5.56 NATO FMJ round traveling at 3,200 fps is going to go through your wall, the walls of your neighbor's house, and the wall of the preschool a quarter mile up the street. This is one reason the FBI tactical units use lower-powered pistol rounds in their select-fire MP5s. Coincidentally, Mythbusters did an episode not long ago where they tried to chop down a large (12"+ diameter) tree with bullets to test a Civil War story. When they used a SAW with 5.56 rounds, it punched a few hundred neat little holes in one side of the tree and right out the other side. I'm sure the episode is illegally posted on Youtube for the truly curious.
8.13.2008 6:36pm
Jim at FSU (mail):

I think most people don't want to own machine guns, and they don't for the same reason they don't want to own tanks. They're dangerous, impractical, and largely gratuitous even if you believe guns are an effective means of self-defense.

Machine guns are no more dangerous than their non-machine gun relatives. Semiautomatic versions of assault rifles are among the most popular long guns in current civilian use. Part of the reason for this is that many citizens were trained on these weapons in the military or are friends with someone who was. The "machine gun" version is no different except it has a selector switch to access 3-round burst or full auto.

Tanks are extremely expensive to own and maintain or more people would own them. If tank collection amongst the wealthy is any indication, I would imagine that it would be fairly common but for the economic hurdles. Certainly no less common than any other weird collecting hobby like stamps or old sports cars.

Anyway, criminals use tanks to commit crime about as often as they use machine guns to commit crime, which is almost never. The notion that either of these pieces of equipment are either inherently dangerous or suited to evil purposes is nonsense.
8.13.2008 6:43pm
Jim at FSU (mail):
Runape, regarding the unpopularity of machine guns in the 1930s, a good comparison is to remember the unpopularity of 50 caliber sniper rifles back when the only model available cost over 9000 dollars. A lot more people have purchased 50 caliber rifles since the prices on 50 caliber rifles came down to the 2000-3000 dollar range. And I'm sure even more would purchase them if the price came down to the 1000 dollar range.

Would it have been ok to ban them in the mid 90s when they were unusual? Would it be OK now? What is the threshold beyond which enough people own a weapon for it to be considered protected by the 2nd amendment?
8.13.2008 6:46pm
zippypinhead:
Yes, and those [obsolescent M-16 &M-16A1] rifles would all have been sold into the civilian marksmanship program already if it wasn't for the stupid NFA/FOPA restrictions on machine guns. Most of those guns will end up being destroyed in the end, I'll bet.
That's what happened to most of the Army's stored M-14s in the 1990s. Then they realized the .308 was vastly superior at the longer ranges they were facing in Afghanistan and rural parts of Iraq, and they rearsenaled and issued virtually every one they still had left, especially to special forces units. Interestingly, I have read that the GIs are using them almost exclusively on semi-auto mode because they find it too hard to control the M-14 firing the highpower .308 round while shooting offhand in full-auto.

On the CMP selling mil-surp M-16s if the NFA goes away: Yes, I and a lot of other people would immediately cancel our orders for correct grade Garands and substitute an M-16 for the same ($950) price. But it will never happen - President Obama would immediately shut down the sales arm of CMP before he'd let a government-chartered entity put "dangerous assault weapons" on the street. Um... actually, now that I think of it, he's likely to do that anyway once he finds out they're selling Garands, M1 Carbines and 1903 Springfields to mere civilians (especially irresponsible civilians like Waldasian and myself who have qualifying club memberships and C&R FFLs or other proof of firearms expertise). Let's not tell him, OK?
8.13.2008 6:56pm
Dilan Esper (mail) (www):
Like Brett pointed out, the effect of the "common use" rule is really to kill innovation. If Scalia was right about that, Congress could have frozen civilian gun ownership at a late 18th century technology level simply by banning (or prohibitively taxing) every new development in firearms technology, because at the time of the ban the new technology would not have been "in common use." It's just absurd to think about.

I am not sure if this really kills innovation. There is still plenty of innovation within the category of handguns-- so long as such innovation do not create an incredibly dangerous handgun (e.g., a "Davy Crockett" device wouldn't count as a handgun), they are still protected under the Heller right. I bet more broadly that innovation within the categories of shotguns, rifles, semiautomatic rifles and pistols, and even much of what gets defined as "assault weapons" is quite well protected.

It's only those innovations that really put the weapon into a more dangerous category that are going to render the weapon subject to prohibition. I realize this is a fuzzy line and not the one that many gun rights types might like, but it is still a line and one that will protect a lot of guns.
8.13.2008 7:16pm
Melancton Smith:
zippyinhead wrote:

The District of Columbia police recently got a whole bunch of old mil-surp M-16A1s complete with the original triangular handguards, which they're going to put in at least some patrol cars. However, according to press reports they were first converted to semi-auto only for police use.


According to BATFE, a machine gun cannot be converted to a semi-automatic rifle. But I pick at nits.

On the topic of 'unusual and dangerous' I don't see how machine guns qualify. A machine gun is not that much more dangerous than a semi-auto rifle. This is why I'm not foaming at the mouth to have machine guns. I think the restrictions on them are ridiculous, however.

I also don't see how a semi-automatic rifle is a lineal descendent of a musket but a fully automatic rifle is not.
8.13.2008 7:21pm
jxr (mail):
Machine guns were put under NFA'34 control because Prohibition gangsters found them useful, and FDR's admnistration wanted to "do something" about it -- particularly after the Chicago's Valentine's Day Massacre.

Before the NFA'34, machine guns cost 4 or 5 times the price of a quality handgun and almost 20 times the price of a servicable break-action shotgun. Gangsters could afford them, most could not.

And for a common person, the tactical advantage of a machine gun (suppressive fire: making your enemy keep their head down whild your side moves; and defending a mass attack) were not that important -- though of great use to a militia.

Also, even before the NFA'34, recreational shooters probably found more fun in having 5 different guns to shoot than just one automatic weapon.

Lastly, it's so expensive to have fun using a full-automatic gun. Cartridges cost money too (don't we know!) so beside the high intial price, using them for fun is prohibitive.
8.13.2008 7:34pm
Brett Bellmore:

It's only those innovations that really put the weapon into a more dangerous category that are going to render the weapon subject to prohibition.


According to gun controllers, they're ALL "incredibly dangerous".
8.13.2008 7:51pm
Jim at FSU (mail):

It's only those innovations that really put the weapon into a more dangerous category that are going to render the weapon subject to prohibition. I realize this is a fuzzy line and not the one that many gun rights types might like, but it is still a line and one that will protect a lot of guns.


And this is the problem that we seem to be having. Your "dangerous categories" are just arbitrary divisions drawn through the middle of the category "firearms." In places like CA, the category of "firearms too dangerous for public consumption" continually expands. First it was NFA items, then it was the early 90s definition of assault weapons (semiauto with 2 evil features), then it was the late 90s definition of assault weapons (semiauto with 1 evil feature) then it was non-semiauto rifles that were too powerful, handguns that didn't have enough safety features, and so on. Look to England and Australia for how this goes.

The problem is that there is no limit to what can be banned under your supposed rule. Under your test, the government doesn't need to prove a compelling interest is at stake and it doesn't have to show how their restrictions narrowly serve that interest. All they have to do is show that this weapons is more "dangerous and unusual" than some arbitrarily chosen line. If the court buys that the line is in a certain place, you can ban nearly anything.

Conclusion: it is a shitty test. I sincerely hope that the Court was using it as a placeholder until they get some real jurisprudence worked out.
8.13.2008 7:53pm
Tony Tutins (mail):
Let us establish our firearms rights gradually so that judges are not tempted to deny them to us out of prudence. In other words don't even think of demanding "suitcase nukes now!" Next we have to incorporate the Second Amendment right against the states. Then we can work to repeal Miller. However unfair it may be, Miller stands for the proposition that the NFA is constitutional, and thus machine gun and short barrel shotguns can be severely restricted.

Baby steps work: Remember that the first step towards Roe v. Wade was Poe v. Ullman: can physicians prescribe contraception to respectable married ladies who want to limit the size of their families? If the first step had been "abortion on demand for teenagers, without parental notification" how far do you think that would have gotten?
8.13.2008 8:38pm
Jim at FSU (mail):
Yeah I know. I'm not suggesting a new litigation strategy, I'm trying to argue against this new "Heller test" that seem to have popped up.

Also, I'm not arguing that machine guns are all protected by the 2nd amendment, I am arguing that
1) machine guns aren't a point on a graph, they're a huge blob with a line passing through it.
2) Courts need to actually perform analysis to determine where this line rests. They need to treat it like a fundamental individual right and then examine whether restricts on that right are justified or not. With regard to felons in possession, it should be easy. With regard to particular weapon types it should NOT be easy because that is a very unsettled area of law.
3) Right now it seems like they are just saying "Heller," doing some hand waving and arriving at a result that looks suspiciously pre-Heller.

My main worry is that by repeatedly citing Heller as shorthand for "gun restrictions based on type are all constitutional" it will eventually come to mean that, much like Miller eventually came to mean "2nd amendment is a collective right."

When the supreme court declined to establish a complete body of jurisprudence on the 2nd amendment, that wasn't a signal to the lower courts to do the same. They're supposed to make a good faith effort to develop the law, not pick their favorite outcome and treat it like black letter law.
8.13.2008 8:56pm
GunShowOnTheNet (mail) (www):
The government(s) are expressly forbidden from enacting ANY law which contravenes the Right of We The People to Keep and Bear ANY arms whatsoever. And, the writings of the founders make it quite clear that they INTENDED for We The People to be armed just as the military is armed:

"The prohibition is general. NO clause in the Constitution could by ANY rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, EITHER should attempt it, this amendment may be appealed to as a RESTRAINT on BOTH."

- William Rawle, A View of the Constitution, 125-6 (2nd ed. 1829). (Appointed by President George Washington as U.S. District Attorney for Pennsylvania in 1791).

"Their swords, and EVERY OTHER terrible implement of the soldier, are the BIRTHRIGHT of an American. . . . [T]he unlimited power of the sword is NOT in the hands of EITHER the federal or state governments, but, where I trust in God it will ever remain, IN THE HANDS OF THE PEOPLE."

- Tenche Coxe, using the pseudonym "a Pennsylvanian", Feb. 20, 1788, Pennsylvania Gazette. Mr. Coxe was a prominent Philadelphian and political economist who was named assistant secretary of the treasury in 1790, commissioner of revenue in 1792, and purveyor of public supplies in 1803. Whose series of newspaper articles were very much approved by both Mr. Hamilton and Mr. Madison.

"The right of the people to keep and bear arms shall NOT be infringed.' The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of EVERY description, and NOT such merely as are used by the militia, shall NOT be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that ANY law, State or Federal, is repugnant to the Constitution, and VOID, which contravenes this right.

- Nunn vs. State, Georgia State Supreme Court, [1 Ga. (1 Kel.) 243, at 251 (1846)].

"Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped....

"...This will not only lessen the call for military establishments, but if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist."

- Alexander Hamilton, Jan. 9, 1788, The Federalist No. 29.
8.13.2008 8:57pm
zippypinhead:
I am not sure if [the "common use" test] really kills innovation. There is still plenty of innovation within the category of handguns-- so long as such innovation do not create an incredibly dangerous handgun
Actually, one big problem currently is that the most vehement parts of the gun-control lobby are demanding MORE innovation in handgun design, supposedly to make them "safer." In places like California and New Jersey, there have been legislative efforts to mandate "micro-stamping" (stamping a serial number on every shell casing when the firing pin strikes it) and "user-authenticated" firearms, where some sort of biometric technology would lock the gun except when being handled by the registered/authorized user.

I hate to agree with Dilan on anything, but frankly at a macro level handgun development has long been frozen at a pre-WWI level. The cynic would argue that since the 9mm Luger P08 in 1900 and the .45ACP Colt M1911 in - you guessed it - 1911, all handgun development has been incremental. Yes, a new Glock 30 has improvements over the 1911 (the Glock 30 magazine holds 3 more rounds, it is lighter, has an improved safety, and is easier to field-strip), but they both fire the .45 ACP and each have their own set of rabid partisans who wouldn't be caught dead (pun intended) with the other. Especially if you're comparing the Glock with a newer 1911 series 80, or the 1911 versions currently offered by Kimber, Wilson Combat, Springfield and others.

The "common use test kills innovation" is an interesting hypothetical argument, but doesn't seem to be a big threat, at least not based on the observed history of handgun development over the last century. It's arguably more of an issue with rifles, but even there the first semi-autos hit the U.S. commercial market before WWI with the Winchester 1905 and the Remington Model 8, and even Armalite's AR-10, the .30 caliber predecessor of the M-16, is over 50 years old.
8.13.2008 9:04pm
zippypinhead:
[on the issue of police agencies getting M-16s that have been converted to semi-auto only]:
"According to BATFE, a machine gun cannot be converted to a semi-automatic rifle. But I pick at nits."
To be clear, BATFE says you cannot change the LEGAL STATUS of a machinegun by converting it to semi-auto. Once a machinegun, always a machinegun. But that doesn't matter for police, who are exempt from Federal machinegun restrictions. See 18 U.S.C. ยง922(o)(2)(A) (exempting government agencies).

But it's not difficult TECHNICALLY to disable automatic fire in most machineguns, which is what apparently was done to D.C.'s "new" M-16s. They're always going to be machineguns legally, but they're no more "dangerous" (as that term is being used in this thread) than a boring little civilian Ruger Mini-14 semi-auto that fires the exact same .223/5.56 round.
8.13.2008 9:19pm
zippypinhead:
OK, I had better clarify my snarky "boring little civilian Ruger Mini-14 semi-auto that fires the exact same .223/5.56 round" before somebody gigs me.

Yes, the Mimi-14 is a really fun gun to shoot, and a fairly decent varmit rifle. But every time I shoot one it feels like somebody's left one of my Garands in the dryer too long and shrunk it. And the Mini-14 is a great gun for kids who aren't quite big enough yet to comfortably handle a real deer rifle.

Incidentally, the Mini-14 is one of the [many] guns that the "assault weapons ban" partisans like Representative McCarthy want to prohibit. Strange, because unlike the "ugly black guns" the banners hate, they don't even look scary.

And this is more than enough comments by one person in a row. Bye...
8.13.2008 9:34pm
Jim at FSU (mail):
I agree with the innovation in handgun thing. Most of the advances in the past few decades seem limited to miniaturization. The Kel-tec P3AT especially, but also the small carry guns that were developed in the 90s and 2000's.

Most of the innovation in guns right now is IMO in:
-more controllable full auto- kriss .45, p90, etc
-bullpups (QBZ97, Keltec RFB, FN F2000, FN P90, etc)
-PDW's (P90, HK MP7, etc)
-suppressor design, quieter, more durable
-explosive devices- ie thermobaric 40mm ammo, frag-12 shotgun ammo, etc.
-gun optics with more computer hardware in them for ranging, calculating ballistics, etc
8.13.2008 9:47pm
Waldensian (mail):

Um... actually, now that I think of it, he's likely to do that anyway once he finds out they're selling Garands, M1 Carbines and 1903 Springfields to mere civilians (especially irresponsible civilians like Waldasian and myself who have qualifying club memberships and C&R FFLs or other proof of firearms expertise). Let's not tell him, OK?

Funny you would mention that. I have in fact obtained a Garand, an M1 Carbine, and an 03 Springfield from the CMP.

They're just awesome.

I love telling gun-control fanatics that the U.S. government simply mails "high powered military guns" to my house. Their minds can't seem to grasp it.

Let me just repeat that, because somewhere in web land a gun-control fanatic is reading this and can't comprehend it: The U.S. Government sends guns to my house through the mail.

Amazingly enough, I haven't shot myself or anyone else, "swept" a street, etc. No doubt I will do this any day now, however, because I own guns that are "impractical," "gratuitous," and/or "dangerous."

Don't blame me -- blame the feds! Bwahahahahah!!!
8.13.2008 11:19pm
Sebastian (mail) (www):
This is something I've given some thought to. There are a few ways out of the trap The Court has created in Heller. I think one argument is that when assessing whether an arm is protected by the second amendment, one can't ignore police use when deciding whether an arm in question is in "common use." If a type of arm in question is part of the ordinary equipment of police officers, then it must clearly be useful for self-defense, and this would be protected.

Note that this may not get you machine guns, because it's not clear exactly how common machine guns are as part of ordinary police equipment. I don't think under this standard that you necessarily have to show that every patrol car has one, so much as it's not out of the ordinary to encounter one in the ordinary course of police work.

This would get you out of the trap of the government being able to ban any new technology. If police are exempted, as they usually are, and the arm in question is adopted by police, then pretty clearly it ought to be protected for civilians too. It would also solve the problem of folks who worry that bazookas and rocket launchers will become protected as well, since they will never be part of police equipment, since they are offensive weapons used pretty specifically in military operations.

It's not a perfect test, and there's certainly an argument that the second amendment was intended to protect offensive military weapons, but practically we can't expect the courts to adopt it. I think forcing the idea that police use must be looked at would be a way to correct the trap "in common use" has created for us.
8.13.2008 11:20pm
Texas Mike:
Here's an innovation I'm sure the gun grabbers would like to squelch - caseless ammo (see the August American Rifleman, or go to NRA's website for the story on the LSAT). I'm sure DC Mayor Fenty would have a stroke about a firearm that didn't leave spent shell casings laying around. Sure revolvers don't drop their spent shells, but logic never slowed down a banner.
8.13.2008 11:29pm
Sebastian (mail) (www):
California already bans caseless ammo if I recall. But my understanding is, much like the plastic handgun ban, this was largely paranoid fantasy driving the decision. With current technology, caseless ammo is uncommon because it doesn't work. My understanding is that it's unreliable, and too prone to cooking off.
8.14.2008 1:01am
RKV (mail):
Among the "lawful purposes" specifically enumerated in the Constitution are, under Article 1, Section 8 - a) execute the laws b) suppress insurrections and c) repel invasions. Pretty much impossible to do c without military grade arms, and automatic weapons ARE commonly used by law abiding citizens - for instance members of our citizen army. The judge has his facts backward. Unsurprisingly.
8.14.2008 1:08am
SeaDrive:
In its clunky, inefficient sort of way, the USA is still a government of the People. Now the People may understand that some feel the need to have a handgun under their pillow or like to go down to the rifle range to play soldier, but the People are not going to tolerate fire fights in the streets. So far, there have not been many, in fact, only one comes directly to mind (I don't follow these things especially). But there will be a line drawn somewhere between an air rifle and an A-bomb, and it's silly to argue that the only, or even the most important, basis for drawing the line is the text of the Second Amendment.
8.14.2008 10:20am
Melancton Smith:
SeaDrive wrote:

Now the People may understand that some feel the need to have a handgun under their pillow or like to go down to the rifle range to play soldier


Condescend much?
8.14.2008 10:25am
SeaDrive:

Condescend much?


Sure, but it's hardly the least of the oratorical flourishes on VC. Besides, it serves as a reminder of how incomprehensible the arguments of the pro-gun crowd seem to many people with no knowledge or experience of guns.
8.14.2008 11:01am
runape (mail):
"Runape, regarding the unpopularity of machine guns in the 1930s, a good comparison is to remember the unpopularity of 50 caliber sniper rifles back when the only model available cost over 9000 dollars. A lot more people have purchased 50 caliber rifles since the prices on 50 caliber rifles came down to the 2000-3000 dollar range. And I'm sure even more would purchase them if the price came down to the 1000 dollar range."

That's my point, though - I don't think "a lot" of people would, even if they were relatively inexpensive. I'm saying, even if you add up the number of people who own them AND the number of people who wish they could afford them, you still wouldn't have a whole lot of takers. (I'm trying not to judge, incidentally, although I'm sure this will be taken that way.)

When I said machine guns were "gratuitous" before, what I meant was that there are cheaper, easier to use substitutes that do the trick. (Handguns are easier to use in the sense that, for people who aren't expert at handling guns, they are less likely to spray bullets and cause damage inadvertently. This seems uncontroversial, I think?)

The effect of price on demand is an interesting question of economic theory. But I note that what many posters have said above - that the expense of machine guns (due in part to taxes) made them less popular - seems dubious. In most instances, consumers find expensive goods more appealing than cheap goods. Most consumers would prefer a Porsche to a Pinto if money were no object. That is not to say that most consumers would therefore buy a Porsche, because obviously most would be priced out of the market - and so too with machine guns, apparently. But I'm not convinced that there's a significant number of people who even wish they could own a machine gun (VC denizens notwithstanding).
8.14.2008 11:23am
vinnie (mail):
(Handguns are easier to use in the sense that, for people who aren't expert at handling guns, they are less likely to spray bullets and cause damage inadvertently. This seems uncontroversial, I think?)

No. The same thing that makes a handgun so good for home defense makes it harder to handle safely. Its size makes it easier to point and inadvertently point at someone.
As for price: select fire ak 47s are available for less than $50 American in some countries. Add another $50 for shipping and handling and watch how fast they sell.
8.14.2008 11:48am
PubliusFL:
Dilan Esper: I am not sure if this really kills innovation. There is still plenty of innovation within the category of handguns-- so long as such innovation do not create an incredibly dangerous handgun (e.g., a "Davy Crockett" device wouldn't count as a handgun), they are still protected under the Heller right. I bet more broadly that innovation within the categories of shotguns, rifles, semiautomatic rifles and pistols, and even much of what gets defined as "assault weapons" is quite well protected.

Don't put too much faith in your crystal ball. Caseless ammunition has been suggested as a potential field of major innovation that is already being cut off (for civilian purposes at least) by legislation. Sebastian suggests that caseless ammunition is impractical because it doesn't work well, but technical problems like that may or may not be solved over time. Right now we can't say. At the time of the American Revolution, most gunsmiths would have made similar arguments about the impracticality of breechloading rifles (the Ferguson rifle didn't work so well). The bugs were worked out, thanks to things like advances in metallurgy and the development of smokeless powder.

But my point was not so much about the effect of the "in common use for lawful purposes" test on future innovation. It was about the absurd results that flow from imagining that such a test is part of the Second Amendment that was actually adopted in 1791. If Congress has had, all along, the power to ban firearms that are more dangerous than what is already in common use, the only reason civilians are not restricted to owning muzzle-loading flintlocks now is that Congress didn't act fast enough to ban civilian possession of breechloaders, metallic cartridges, percussion caps, etc. It's absurd to imagine the Second Amendment permitting such a result because it would completely eviscerate the Second Amendment.
8.14.2008 12:19pm
Mark Jones:

But I'm not convinced that there's a significant number of people who even wish they could own a machine gun (VC denizens notwithstanding).


You never answered the question asked of you, though. How many people must be interested in owning machineguns before it's "enough" to satisfy the "in common use" test? And why should the RKBA be subjected to that when, for instance, the first amendment isn't? I don't have to demonstrate some critical mass of interested parties before my right to speak--and speak outrageously--is recognized.
8.14.2008 12:48pm
Loren (mail):
That's my point, though - I don't think "a lot" of people would, even if they were relatively inexpensive. I'm saying, even if you add up the number of people who own them AND the number of people who wish they could afford them, you still wouldn't have a whole lot of takers. (I'm trying not to judge, incidentally, although I'm sure this will be taken that way.)



So by analogy, since few people currently own 727 aircraft, and not a lot would buy one, even if they were relatively inexpensive, it is OK to ban their ownership by people?
8.14.2008 1:05pm
zippypinhead:
Funny you would mention that. I have in fact obtained a Garand, an M1 Carbine, and an 03 Springfield from the CMP. They're just awesome.

I love telling gun-control fanatics that the U.S. government simply mails "high powered military guns" to my house. Their minds can't seem to grasp it. Let me just repeat that, because somewhere in web land a gun-control fanatic is reading this and can't comprehend it: The U.S. Government sends guns to my house through the mail.
Shhhhh! I told you not to tell! Now President Obama is going to pull the plug on a great program! Scary 50-100 year old MILITARY rifles being delivered directly to mere civilians' homes? Oh my... Although maybe we can distract him by pointing out that CMP doesn't really mail rifles to peoples' houses (they send them FedEx).

Incidentally, to my knowledge there has been literally NO criminal use of any CMP-distributed rifle. Ever. Clearly we collectors and restorers of vintage mil-surp arms are wimps. Or maybe just law abiding citizens.

The last criminal use of any rifle of the type currently being sold by CMP that I know of? 1966, involving an M1 Carbine in the hands of an ex-Marine with a terminal brain tumor. Unfortunately, the incident got really bad press (not to mention leaving bullet holes in the Univ. of Texas clock tower from the return fire by armed civilians and the local police). This one tragedy over 40 years ago is literally the only reason I can think of why Representative McCarthy specifically listed the M1 Carbine -- a rifle not manufactured since 1945 -- in her recent assault weapons ban renewal/expansion bill.
8.14.2008 4:38pm
zippypinhead:
Incidentally, Waldensian --

Although the mil-surp rifles CMP distributes don't seem to be of any interest to criminals, the Civilian Marksmanship Program does play a fairly prominent role in the problems of one plaintiff in Alan Gura's challenge to Chicago's idiotic gun regulations, as described in the complaint at paragraphs 29-33. The pleadings can be found here.
8.14.2008 4:45pm
Mike Gallo (mail) (www):
runape-

To give you a better idea of what you're talking about, I could spend the exact same amount of money (barring federal prosecution, of course, which could cost me 10 years and $25K, IIRC) building the AR-15 I am currently building, and make it selective-fire. It would require no more than a small piece of stamped sheetmetal, about the size of a set of fingernail clippers (called a lightning link, though for a few dollars more you could go with a drop-in auto sear).

I flatly reject your premise that "not many people would want them." This is like saying that if you offered an LX version of a Honda Accord for the same price as the DX, that it would not lead to an increase in the consumption of the LX model. Or perhaps a better example is buying a family sedan that, with the press of a button, became a sports car; docile and practical when you want it to be, and as much fun as you can have (legally) when you want it to be.

I think it comes down to basic economics: the government controlled access, and therefore ownership numbers are low. I guaran-frickin'-tee you that, absent NFA and the 922(o) ban, there would be tens of millions of machineguns in civilian hands right now. Most would probably have supressors as well!
8.14.2008 7:16pm
Kristopher (mail) (www):
( sarcasm )
Actually, the vote is far more dangerous than any machinegun.

People who insist on casting votes other than for those candidates in "common use" should be prevented from making such dangerous votes.

Who can tell what could happen if unusual legislators got elected?
( / sarcasm )
8.14.2008 7:28pm