Why No Right to Machine Guns?

Jacob Sullum | June 26, 2008

Justice Antonin Scalia, writing for the majority in D.C. v. Heller, distinguishes between "unusual and dangerous weapons," which can be banned without violating the Second Amendment, and weapons "in common use...for lawful purposes," which can't. The distinction is necessary partly to shore up his argument that "nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment"—i.e., that it protects an individual right to arms. In particular, Scalia argues that the 1939 decision U.S. v. Miller, which gun control supporters (including the Heller dissenters) portray as endorsing the militia-only, collective-right view of the Second Amendment, in fact "stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons." The law at issue in Miller was a federal ban on sawed-off shotguns, and the Court said "it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense." It therefore concluded that short-barreled shotguns are not covered by the Second Amendment, which applies only to the sort of weapons that citizens would bring with them for militia duty.

Scalia is right that Justice John Paul Stevens' reading of Miller—that the Second Amendment applies only to possession of guns while serving in the organized militia—is implausible. "Had the Court believed that the Second Amendment protects only those serving in the militia," Scalia writes, "it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen." 

Nevertheless, for someone determined (as Scalia apparently is) to maintain existing federal gun laws, there are a couple of problems with accepting the Miller Court's view of which weapons are covered by the Second Amendment. First, the Court's assumption that short-barreled shotguns are not appropriate for military use was incorrect. Second, this test would mean that the Second Amendment covers machine guns, which also are banned by federal law.* Scalia acknowledges this difficulty:

Read in isolation, Miller's phrase "part of ordinary military equipment" could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939.

To avoid this uncomfortable result, Scalia latches onto another phrase in Miller:

We think that Miller's "ordinary military equipment" language must be read in tandem with what comes after: "[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time."

Machine guns obviously were not "in common use" at the time the Second Amendment was adopted. But that's not enough to avoid overturning the ban on automatic weapons, since, as Scalia himself emphasizes, constitutional rights do not apply only to colonial-era technology:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, 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.

Scalia needs to make this point because otherwise today's pistols and revolvers, quite different from the firearms available in the 18th century, would not be covered by the Second Amendment. But why stop there? Why isn't an M-16, eminently suitable for military use but also the sort of weapon militia members could keep in their homes and bring with them when their services were necessary (as Swiss and Israeli citizen-soldiers do), included as well? Apparently because machine guns are not "in common use...for lawful purposes" in the United States today. But maybe they would be if they were legal. This seems like circular reasoning to me.

* As a commenter noted, private citizens can legally possess machine guns manufactured before 1986 if they successfully complete an onerous and expensive licensing process. The sale of new machine guns to civilians is prohibited.

Comments

Fluffy|6.26.08 @ 4:27PM|#

The problem is the procedural insistence on reconciling the decision to Miller, instead of just saying, "Miller was stupid so we're overturning it."

Other Matt|6.26.08 @ 4:31PM|#

Um...we can own machine guns, subject to a Class 3 license. At least in most states one can.

Anon|6.26.08 @ 4:32PM|#

Israei

|6.26.08 @ 4:33PM|#

Libertarians are never happy, are they?

|6.26.08 @ 4:35PM|#

This reminds me of a discussion I had with a political science professor once... he was trying to argue that no Constitutional right was absolute, and, in making his case, he said "take the 2nd Amendment... even if you believe it entails an individual right to bear arms" (yeah, I know, a die-hard lefty) "there's no right to, say, have nuclear weapons."

At that point I raised my hand and said "but what if I feel the best method of protecting my home, family, and property is with a small yield tactical fissile device? Who are you to say I can't have one?"

The prof stood there mortified, some students' jaws dropped, but I got a decent amount of applause as well. :)

|6.26.08 @ 4:37PM|#

The militia clause, IMHO, is there to say we CAN have the same armament as an infantryman, which would mean at least full auto capable M16s. It's there to strengthen the legal right, not restrict it to Natl Guard soldiers.

Nigel Watt|6.26.08 @ 4:38PM|#

As I guessed earlier, and as this post points out well, Scalia would deliver a uselessly contorted opinion that doesn't really change anything.

|6.26.08 @ 4:47PM|#

It's a mistake to discount the importance of this opinion. It does state once and for all that the Second Amendment is an individual right, and it sets the table, silverware and napkins included, for a state-originated decision that will establish that the Second Amendment is included in the "incorporated" rights and that will provide some sort of strict scrutiny test for limiting such rights. Maybe you don't get your nuclear weapon, but this moves the debate away from flat-out bans of all guns.

Incidentally, a liberal court won't reverse this. If the SCOTUS started throwing stare decisis to the winds, we'd see judicial chaos. Case in point: This conservative court has not attempted to reverse Roe.

|6.26.08 @ 4:53PM|#

Incidentally, a liberal court won't reverse this.

They won't have to. The decision as written is full of loopholes and omissions that will make it easy to reduce to a dead letter by any court determined to do so.

|6.26.08 @ 4:57PM|#

If the SCOTUS started throwing stare decisis to the winds, we'd see judicial chaos.

Restrictions don't apply to liberals - they'll overturn any damn thing they want.

Other Matt|6.26.08 @ 5:01PM|#

* As a commenter noted..

Cool, I'm editworthy now!

Maybe you don't get your nuclear weapon, but this moves the debate away from flat-out bans of all guns.

Unless, of course, you describe it as an "assault weapon", whatever the hell that means. I fail to grasp how black plastic in lieu of wood makes it much more menacing.

|6.26.08 @ 5:18PM|#

Madmikefisk-

Some people think that those who accept or subscribe to the notion that there are constitutional absolutes (or absolutes in any dimension) are intellectualy challenged. It sounds like your professor might have been one of those people. They will assert that the ability to see gray and a refusal to accept any absolutes is a hallmark of a superior mind. I have always KNOWN that this is a pile of disguised defecation. IMO, it is just the opposite-those that insist tht there are no absolutes have the inferior minds.

|6.26.08 @ 5:22PM|#

Madmikefisk-

On the nuclear weapon argument: The only entity in the history of man to use atomic weapons is the united states government. That entity is going to tell me or you or even Joe whether we can defend ourselves and limit how we can defend ourselves?

Mr. X|6.26.08 @ 5:30PM|#

Just to state the obvious, the ownership of machine guns was not at issue in this case. If neither party directly raises the issue, the Court is not supposed to take it on itself to decide it.

|6.26.08 @ 5:31PM|#

If I lived south of the border that I currently live north of, I would want that man-portable minigun from Predator/Terminator 2. although a Carl Gustav would due nicely, too.

Jacob|6.26.08 @ 5:32PM|#

The second amendment applied to all weapons of any kind because the most devastating weapons available at the time weren't that devastating. If we want it to have limits, we should change it.

|6.26.08 @ 5:35PM|#

Mr. X said:

Just to state the obvious, the ownership of machine guns was not at issue in this case. If neither party directly raises the issue, the Court is not supposed to take it on itself to decide it.

Except the Court did decide this. Maybe not specifically. But they clearly said that there were definable levels of restricted weaponry access, levels which were likely in concert with existing restrictions.

Mr. X|6.26.08 @ 5:39PM|#

Except the Court did decide this. Maybe not specifically. But they clearly said that there were definable levels of restricted weaponry access, levels which were likely in concert with existing restrictions.

Those statements are what lawyers refer to as dicta, which is Latin for "shit the judge felt like saying but has no controlling legal effect."

Statements that say that the D.C. handgun ban is unconstitutional are called holdings, which is a legal term of art that means "shit the judge felt like saying that is now binding law on all lower courts."

Mr. X|6.26.08 @ 5:41PM|#

Except the Court did decide this. Maybe not specifically. But they clearly said that there were definable levels of restricted weaponry access, levels which were likely in concert with existing restrictions.

Those statements are what lawyers refer to as dicta, which is Latin for "shit the judge felt like saying but has no controlling legal effect."

Statements that say that the D.C. handgun ban is unconstitutional are called holdings, which is a legal term of art that means "shit the judge felt like saying that is now binding law on all lower courts."

(now with fixed HTML tags)

Chad|6.26.08 @ 5:56PM|#

Jacob | June 26, 2008, 5:32pm | #

The second amendment applied to all weapons of any kind because the most devastating weapons available at the time weren't that devastating. If we want it to have limits, we should change it.

Not really. Note the word "bear", which very plausibly restricts the 2nd to weapons small enough to carry, and would therefore not include cannons or warships, for example. I think it is reasonable to extend the 2nd to modern equivalents of 18th century weapons (handguns, rifles, and swords) but not things clearly outside the bounds of what existed at the time (nuclear weapons, cruise missiles, etc).

However, hurray for the court.

Paul|6.26.08 @ 5:57PM|#

he was trying to argue that no Constitutional right was absolute,

Right, take the first amendment, for instance...

lunchstealer|6.26.08 @ 6:00PM|#

Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search

Since when has Scalia argued that modern forms of search (drug sniffing dogs, IR scans) were covered by the 4th?

Mr. X|6.26.08 @ 6:01PM|#

Since when has Scalia argued that modern forms of search (drug sniffing dogs, IR scans) were covered by the 4th?

Since Kyllo. He wrote the opinion that said that IR scans are unconstitutional under the Fourth Amendment.

Paul|6.26.08 @ 6:17PM|#

Those statements are what lawyers refer to as dicta

I thought we referred to lawyers as dicti...

I'm here all week.

Fluffy|6.26.08 @ 6:19PM|#

If the SCOTUS started throwing stare decisis to the winds, we'd see judicial chaos.

To me this is a big "So what?"

On balance, liberty is undermined by our existing set of precedents.

It's hard to know if "judicial chaos" would serve liberty or harm it. I do know, however, that the existing body of precedents is what allows the Court to ignore the text of the amendments as written, even when they half-acknowledge them as in Heller. So it's a question of whether the new precedents that would be thrown up by "judicial chaos" would be better or worse than the ones we've already got.

|6.26.08 @ 6:22PM|#

The second amendment applied to all weapons of any kind because the most devastating weapons available at the time weren't that devastating. If we want it to have limits, we should change it.

Jacob
Look up "double canister" sure it might not be as complicated or flashy as the newest gee-whiz thermobaric systems but it got the job done. They also had the beginnings of fused shells and rocket artillery when the Bill of Rights was written.

Syd|6.26.08 @ 6:33PM|#

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.

"They have machine guns you can carry!"--Tony Camonte, Scarface, the Shame of a Nation.

Travis|6.26.08 @ 6:49PM|#

"Libertarians are never happy, are they?"

No.

Ben|6.26.08 @ 6:51PM|#

I agree with Matt--one can own a machine-gun if one pays the fee and meets the requirements for license. Which is in line with the latest SCOTUS ruling. One can own a variety of military weapons, including the M-16 or even a .50 Cal, crew-served machine gun. And the government can regulate that ownership.

M\'|6.26.08 @ 7:43PM|#

Not really. Note the word "bear", which very plausibly restricts the 2nd to weapons small enough to carry, and would therefore not include cannons or warships, for example.

It also means "to have and be intitled to" and "to have and to use; exercise". "To be able to be physically carried" has nothing to do with it rather, it "to bear" may imply "to carry" in many senses but "to bear" doesn't imply the necessity of physically carrying anything.

I think it is reasonable to extend the 2nd to modern equivalents of 18th century weapons (handguns, rifles, and swords) but not things clearly outside the bounds of what existed at the time (nuclear weapons, cruise missiles, etc).

It isn't reasonable. I can say with perfect confidence that the framers' mental awareness would not restrict their thinking to considering only what would be available at the time especially in light of the fact that the 2nd amendment is to help guarantee a right for citizens to pretect themselves against oppression by the government. The "militia" afterall is simply the collective right of citizens to protect themselves from threats on either side of the border if a nonviolent solution isn't viable.

BTW, "inelienable" is an absolute term used by the framers and they know that man has an absolute right to self-determination restricted only by the strength of his will. Pressure can be nescessary to strengthen the will of humanity to ascend and demand more of life than their current circumstances. ALL is available for those willing to search. That's the only hint I'll provide and the rest is up to you if you really want to know what's going on.

|6.26.08 @ 8:01PM|#

Yeah, but Class III licenses aren't shall-issue. You need signed approval of your local chief LEO.

|6.26.08 @ 8:31PM|#

What Scalia says is meaningless. You will find the following in Griswold "Finally, it should be said of the Court's holding today that it in no way interferes with a State's proper regulation of sexual promiscuity or misconduct."

You just have to build from one decision to another.

Brett|6.26.08 @ 10:04PM|#

"Libertarians are never happy, are they?"

Not while I sleep in an apartment in the hood hoping no-one breaks in.

|6.26.08 @ 10:47PM|#

When a judge goes beyond the actual case before the court is that not what people carry on about as "judicial activism" or "legislating form the bench". In this case the issue of private ownership of automatic weapons and the issue of incorporation of the 2nd amendment into the liberty element of the fourteenth were not properly before the court. Am I to understand that the author is now advocating more "judicial activism" just because he happens to agree with the court on this particular point.

Anonymo the Anonymous|6.26.08 @ 10:50PM|#

Not really a gun person but I do find the nomenclature interesting, so I was wondering if it was really proper to speak of the M-16 as a "machine gun". The impression I had was that it was not, firstly because an M-16 is a rifle and, strictly speaking, anything with a rifled barrel is not a "gun", right? And secondly, does "machine gun" refer only to guns that operate with some specific kinds of mechanisms, and not just anything capable of automatic fire?

Like I said, not that knowledgeable, so just looking for some simple answers. Don't want to start a whole thing here.

Bazil|6.26.08 @ 11:54PM|#

I think the spirit of the second amendment is that the Government wouldn't establish a Monopoly on the use of force and therefore if it does something ill, there will be a citizenry force that can rise up and correct things.

We've long passed the stage of technological development where even if we each had a Tank, the government can out-gun us (predator drones anyone?) so you can argue over the type of guns are outlawed.

Technology long made the second amendment's point moot. Now it's a matter of the right to own a toy or not to own a toy.

yawn

Anonymo the Anonymous|6.26.08 @ 11:59PM|#

We've long passed the stage of technological development where even if we each had a Tank, the government can out-gun us (predator drones anyone?) so you can argue over the type of guns are outlawed.

Agreed that they can certainly outgun us if they wanted to, but I don't think that renders it entirely moot. The point is private gun ownership raises the cost of tyranny, even if it doesn't make it impossible. They could crush us with tanks and Predator drones, but they would have to actually bring out the tanks and Predator drones. Even then, look at what a populace armed with guns and improvised explosives is doing against the world's best-equipped military in Iraq. Insurgency may not "win", but it is a deterrent.

Now the real reason this is all moot is because nobody in America gives a fuck.

dpsc|6.27.08 @ 12:24AM|#

Fluffy: On balance, liberty is undermined by our existing set of precedents.

I'm going to have to disagree with you on that one. I think the SCOTUS has made some terrible decisions (kelo comes to mind), but on balance I think it has promoted liberty. It hasn't done so consistently, but what has? I wouldn't want to live in a country without Griswold, and even some decisions that I have a hard time with in principle, like Brown and RvW, seem pragmatically necessary to me. The balance of power that the founders built into the American state works- it doesn't work all that well, but again, what does?

I'm going to have to agree with anonymo though- I'm not sure about the nomenclature but I wouldn't call anything that the average joe can fire without a bipod a "machine gun".

I'm a reasonably good shot (as a number of deer would tell you if I had not shot them before they had the chance- though I guess if I hadn't they wouldn't know I was a good shooter so... well it's a bit confusing), and I honestly don't see the big deal about M-16s.

I have never actually fired an M-16 but I have spent quite a bit of time with an SKS (basically a Chinese-made AK) that had been converted to full auto. It uses a much larger round than an M-16. I've also played with the AR-15 a bit, and I think it is very similar to the M-16. My impression is that anyone who can aim would be a lot more dangerous with a good hunting rifle, under civilian conditions, unless they were at very close range.

A real tripod mounted heavy machine gun is a different story. You could wipe out a small town with one if you were properly situated, and had enough ammo. And it would be awfully hard for anyone to get near enough to take you out with normal covilian armament, if you were shielded from sniper fire. I'm all for the 2nd amendment, but I think that letting people buy true military HMGs might be going a bit too far.

|6.27.08 @ 1:10AM|#

Under the "dangerous" standard I think that a three round burst weapon (the standard M-16A2 for example) may pass.

Since a three round burst will end up roughly in the same place as a single round it is not significantly more dangerous (to non-targets) than a single shot weapon.

Also I am wondering if laws banning things that make guns more accurate (and thus less dangerous) such as laser sights and vertical forward grips could be challenged.

dpsc|6.27.08 @ 3:00AM|#

Under the "dangerous" standard...

I think that the best answer to bad speech is good speech. That idea can be extended to guns- the best answer to bad gunplay is good gunplay.

I'm not sure about the "dangerous" standard- after all, a good hunting rifle is awfully dangerous. I think it's better to ask if a weapon can be countered with the weapons normal people in the community are likely to have. The M16 can be- at decent range I would much rather have the rifle. The HMG is a bit different, and the tac-nukes are clearly right out under that standard.

|6.27.08 @ 4:31AM|#

"Agreed that they can certainly outgun us if they wanted to, but I don't think that renders it entirely moot. The point is private gun ownership raises the cost of tyranny, even if it doesn't make it impossible. They could crush us with tanks and Predator drones, but they would have to actually bring out the tanks and Predator drones. Even then, look at what a populace armed with guns and improvised explosives is doing against the world's best-equipped military in Iraq. Insurgency may not "win", but it is a deterrent.

Now the real reason this is all moot is because nobody in America gives a fuck."

Exactly

Loupeznik|6.27.08 @ 10:25AM|#

soright,

There are not the majority we once had who give a fuck. True, but there are a few... There is a line in the sand already drawn for those few. Perhaps this decision stalled us finding out where it is

|6.27.08 @ 3:51PM|#

* As a commenter noted, private citizens can legally possess machine guns manufactured before 1986 if they successfully complete an onerous and expensive licensing process. The sale of new machine guns to civilians is prohibited.

1986, the year crack was invented as a scare drug, like the meth hysteria of the present. Isn't a 1960's model M-60's 7.62 mm much more lethal than a 1990's model M-247 SAW's 5.56 mm? Why is 1986 such an important year in machine guns?

|6.28.08 @ 1:20AM|#

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.

But look what the Heller decision actually INCLUDES, its right there:

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.