First off, I am not a lawyer, but while I think it is clear that existing machine gun legislation in safe under Heller in the short term, I do not think that a challenge has been ruled out completely.
In light of statement like this, machine gun bans might seem to be upheld by the court:
Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in 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. (p55)
However, I read that as not upholding outright machine gun bans, but saying that some regulation is possible and machine guns may fall into the category of weapons that can be restricted. Sebastian hits on the “in common use” test. In short, machine guns are not “in common use,” but that is because of the Hughes Amendment, the ’68 Gun Control Act, and the NFA. The problem we would face would be to prove that machine guns would be in common use without those regulations.
Furthermore, without guidance from the court, we cannot know what would be considered “dangerous and unusual.” Any weapon is dangerous by definition. A $100,000 Holland & Holland double rifle in .600 nitro mag would be both “dangerous” and “unusual,” not to mention not “in common use” under the strict use of those words. However, it is not significantly more dangerous than a 30-06 model 700, and is not unusual in terms of function, considering it uses an explosive charge to fire a lead bullet. A land mine, on the other hand, would almost certainly be considered “dangerous and unusual,” both in terms of the greater danger it could pose and the fact that there is no type of land mine in common use, whereas a machine gun is a slight variation on a common form of arms. The question is where on the scale the court would place machine guns.
Also consider statements like this:
the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. (p8)
Machineguns, at least the shoulder fired kind or machine pistols, are “instruments that constitute bearable arms,” and thus the amendment would apply to them.
Although the court did not apply a standard of review, Scalia appears to eliminate “rational-basis” (p56 n 27,) leaving intermediate and strict scrutiny, or some composite level of scrutiny not yet seen in Constitutional law. The laws may stand under intermediate scrutiny, where “a regulation involves important governmental interests that are furthered by substantially related means;” however, the Hughes Amendment, and probably the ’68 GCA restrictions would almost certainly not meet strict scrutiny, with the NFA a little more questionable.
In short, I don’t think the door was closed on a Constitutional challenge on machineguns, but from the ruling, I think it is clear that we would really need to bring our A game, which you need to do anytime you come before the Supreme Court.
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