So what about machine guns?

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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So what about machine guns? — 7 Comments

  1. And I’ll throw in a “What about suppressors?” too. They’re regulated like firearms, but there’s no real safety reason to “ban” them and a pretty compelling reason to allow them.

    In fact you could make a case of REQUIRING them at certain ranges because of noise restrictions.

    The more I think about it, the less solid the NFA looks in light of Heller.

  2. I think suppressors could actually be “deregulated” (for lack of a better term, since they aren’t really banned) through the legislative process.
    I would prefer to act through the legislative process, instead of the courts, where possible. There is less chance of a bad decision that is next to impossible to reverse, and I think that it is a more orderly way to get things done. This is certainly not to say that I object to using the courts where necessary, just a general preference.
    As to the NFA, I think that a lot of it could be dismantled through Congress. Suppressors make sense in a lot of cases; we put mufflers on our cars, why not guns? Short barrel restrictions and AOW rules are of questionable value. Machine guns will be the hardest to push through Congress, I doubt there are too many people that want to associate with that, except maybe to vote to pass, but we need people to introduce and co-sponsor the bill, as well as get it through the committees.
    The other factor is that machine guns are probably going to have to be years down the road, either in the courts or Congress. We need 2A jurisprudence to be a lot more settled before taking it on in the courts, and if we ever got it through Congress, it would only be after significant progress in public perception. But all of these things are achievable if done properly.

  3. Of course, automatic rifles are ok. The “militia phrase” sets the context that requires AT LEAST the protection of those arms normally issued to the individual infrantryman or the (paramilitary) police officer.

    And it is right there in the decision as well:

    Majority Opinion DC v Heller, page 8:

    All bearable arms.

    I think that Justice Scalia might have just SLIPPED that by. There is no quibble there. That is without qualification.

  4. The 1986 Machine Gun Ban in my view would be unconstitutional because Machine Guns are regulated. Does it make sense to ban MG guns made after 1986? New Machine Guns would be regulated and we could finally see a drop in the prices of MG. As for RPG’s, Land Mines, grenades and Etc. They would be classified as explosives. They would fall under a different type of reg and would probably be considered unusual. But A GE Mini Gun firing 308 would be considered legal and regulated. You can buy one today if you have $265000 laying around. So the case can be made this is not unusual. Next is the 50 Cal Ban. This could be taken to court as well. We may see more gov. regulation now on guns but there should not be any bans on firearms as long as they don’t contain explosives. Which is why we have to watch out for OSHA. They tried once to classify ammunition as explosive. They may try again.

  5. Pingback: Snowflakes in Hell » The Question of Machine Guns

  6. I can live, unhappily, with indefinite continuation of NFA. GCA ’68 inspires considerably more anger, but being a realist I’m willing to wait rather a while for it to be fixed legislatively.

    But there is NO WAY that the total ban on new civilian registrations since 1986 can be anything other than “arbitrary and capricious”, and therefore presumptively invalid under Heller. An automatic firearm is more dangerous than a semiautomatic one, and more unusual. But an automatic firearm made in 1987 is exactly identical in every relevant way to one of the same model made in 1985, except for the federal law which leaves the latter legally ownable by anyone who can keep their nose clean long enough to fill out the paperwork and pay the tax while rendering the former absolutely forbidden to any civilian ownership whatsoever, now and for all time.

    Miriam-Webster would do well to include the Hughes Amendment as an illustration of the meaning of “arbitrary” in their dictionaries.

    Furthermore, since the Hughes Amendment is Federal law, it could (in theory) be more readily struck down right now than any of the onerous state and local prohibitions which are in actuality going to be the next battlefield. Incorporation is irrelevant to the Hughes.

    I understand the tactical reasons for choosing to fight for incorporation first. But we should not lose sight of the fact that the prerequisite question for striking down Hughes is actually _more_ settled by Heller than the equivalent question for striking down the Chicago handgun ban.

  7. While I obviously agree that the machine gun ban should be overturned (or more preferably repealed,) I don’t know about the “arbitrary and capricious” argument. That part of the decision specifically was addressing licensing, and is quoting from the oral arguments.

    Respondent conceded at oral argument that he does
    not “have a problem with . . . licensing” and that the District’s
    law is permissible so long as it is “not enforced in an
    arbitrary and capricious manner.” ( page 59 )

    Furthermore, the way the ban is set up is effectively a ban with a grandfather clause, which is not uncommon. What makes this different is that machine guns are still legal to manufacture under certain circumstances (military, LE and export,) whereas such a ban would normally be on all production after the ban took effect. When the court refers to “arbitrary and capricious” licensing, I think what they are referring to is a situation like exists in some areas of California, where if you are famous you can get a carry permit, any one else need not apply.

    You are correct in saying that, being a federal law, the Hughes Amendment is probably more readily challenged under Heller. However, I think that the better line would probably be under the “entire class of arms” argument. For tactical reasons, I think incorporation is the better fight, especially in Chicago, where the case is very close to D.C., making the case almost exclusively incorporation. Also, machine guns are a very touchy subject, and fighting that fight without some more established jurisprudence could not only damage the machine gun fight, but others as well. A bad ruling could affect much more than FA.

    Anyways, I want someone to slip an amendment on a bill in the dead of night repealing Hughes, I like poetic justice.

    The other irony is that for the moment NFA might help us, because lifting ’86 ban and the GCA provisions would leave us with the NFA, and so few crimes have been committed with NFA weapons that the opposition is left without a strong rational argument. However, I think long term NFA should be repealed.

    Remember too, that even without a court ruling, Congress is free to repeal any of those. Contact them early and often.

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