On Standards of Interpretation

Continuing a thread that started with my post about police rifles, I wanted to note that what I’m speaking of is not what interpretation of the second amendment is most correct historically, but which interpretations protect the widest array of firearms that the federal judiciary would adopt.

Note that there is no way the federal judiciary is going to accept a standard that laws regulating any kind of arm is by default unconstitutional.  There will be lines drawn with certain classes of arms being protected, and certain classes not being protected.  We have it on pretty good authority, both from Alan Gura, and various other folks with legal knowledge in the issue, that it is extremely unlikely that the federal judiciary will even rule that automatic firearms are protected arms under the second amendment.

So I think it behooves us to think of a standard that the federal judiciary will accept that nontheless, protects an awful lot of firearms.  My “common police use” standard wasn’t meant to be an all inclusive rule, just one way to think about the problem.  For instance, Bryan Miller’s crown jewel, the New Jersey Smart Gun ban would fail the common police use test, since police are exempted from it.  The beauty of the test is that it forces politicians to seriously consider actions like what Chicago may be doing.  If it can be shown that M4s are in common use in police departments, the constitutional case for restricting them starts getting weak.  Certainly magazine size limits and bans on so called “assault weapons” would not pass this test already.

That’s not to say I think the “common police use” test should be the only one.  I would propose a three fold test to determine whether the arm is protected under the second amendment:

  1. Is the arm usable for personal self-defense, or
  2. It has a function in the preservation of or practicing skill at arms, and
  3. It is of a type or functional variant of a firearm in common police or civilian use.

Type or functional variant makes this pretty broad, so many types of firearms fall into this.  This test also doesn’t shut the door forever on machine guns, but nor does it directly address whether they are protected.  It’s also a bit stronger than the “common civilian use” test that the court alluded to, since pretty obviously that would close the door on machine guns.

But this is only meant to be a standard of interpretation for what is an arm under the second amendment.  At some point we also have to address what constitutes an infringement.

20 Responses to “On Standards of Interpretation”

  1. Turk Turon says:

    A hypothetical test for firearms would be, “Can it fire more than one projectile with one pull of the trigger?” My only problem here is this might be interpreted to exclude birdshot and buckshot. Double-barrelled shotguns would clearly not “fire more than one projectile with one pull of the trigger” since doubles either have one trigger for two barrels or two triggers for two barrels; with the latter, both barrels can be fired simultaneously, but not with “one pull of the trigger” since there is a trigger for each barrel, two pulls are req’d.

    On the other hand I don’t want to abandon MG owners, so this test kinda fails there. Paradoxically, though, how many current MG owners would welcome the repeal of the Lautenberg Amendment, now that they have so much money tied up in their collections?

    And as for “infringe”, I would give the gov’t just 24 hours to “show cause”, just like the other Amendments to the BoR. So, OK, NYC, if you want to license gun owners, fine, but the license is free for the asking and is available within 24 hours, without exception, it allows the holder to both “keep” and “bear” and it is available to residents and non-residents alike. Faced with restrictions like that, even Chicago and NYC would give up on registration and licensing.

    My feeling is that The Founders knew that guns were lethal when they wrote, proposed, debated, passed and ratified the 2A, so infringing because of “public safety” is to infringe at the very point The Founders wanted to protect.

  2. Doctor S. says:

    I love your long list of blog links! got room for one more?

  3. Cliff says:

    One interesting effect of your proposed rule is that things like swords, which are clearly arms, and are clearly useful for self defense and practice, could be regulated out of existence. This would, of course, work well for the people who think the Constitution should “evolve,” but would be a problem for those who think that it means what it meant in 1793.

  4. Sebastian says:


    That’s definitely a problem with this test, but so would swords fail an “ordinary equipment of a soldier” test. There’s another test that I heard proposed which is that arms which are protected are those which are direct lineal decedents of those present at the time of the founding. Modern handguns, repeating and semi-automatic rifles, as well as shotguns, would qualify. Machine guns would not. Maybe I’ll do another post later on this.

  5. Ride Fast says:

    Just a thought on “direct lineal decedents of those present at the time of the founding”. There were multi-shot firearms that are the direct lineal precedents to machine guns. Granted none of them worked very well, all were dangerous to the user but they did fire one round after another with one “trigger action”.

    One type lit a fuse which was threated through multiple ball rounds with blackpowder packed between them, burning from the muzzle back toward where the breech would be if it had one.

    Then there were “pepperbox” types which could ignite all chambers at once.

  6. Ride Fast says:

    […] More on Standards of Interpretation […]

  7. RAH says:

    Personally I think Mr Gura is wrong. Supreme Court justices often ask questions to see if the attorney has thought about the issue. Never negotiate aginst yourself and that is just what Mr Gura did to himself. He suggested that a reasonable restriction was Machine guns. That is what the DOJ was to argue, Mr. Gura did not have to argue the DOJ position. All he had to do was to suggest reasonable would be felons, committed mental pateints, people declared in competent and leave it at that.

    It is hubris to think that you know what a Supreme Court Justice thinks or would accept. Leave that to the judge. Mr. Gura needed to argue his case . He never should have got into the Machine gun issue since that was not relevant to his case.

    That argument should have been left to another case. This was clearly a beginners mistake. Since he felt that judges are against machine guns. I would not agree, I simply do not know what most of federal juudges think about the issue on a case based on 2 amendment issues. I read Mr. Gura statement and he seem to think that federal judges are predisposed to be against machine guns.

    That is the same type thinking that New Yorkers felt after the 2004 election. They were surprised at the vote since everyone they knew thought just like them. Attorneys who work in DC get influence by prevailing political thought. Republicans think they can not win so they do not try.Never assume that you know what a judge is thinking. An Attorney argues his case but should not argue against his case or get diverted to an irrelevant issue. Machine guns were irrelevant to the Heller case.

  8. Xrlq says:

    Sebastian: I don’t necessarily disagree with your conclusion that severe restrictions on full autos will ultimately be upheld, but I think the reasoning will depend not on whether they are “arms” (which they clearly are) but rather, whether a ban on full autos only, while allowing most others, constitutes an “infringement.” Aside from being usable for personal defense, I think a key question is whether the enhanced capabilities of a particular gun serve licit purposes, illicit ones, or both, and to what degree. Large magazines serve both purposes, since the bad guy gets to kill more people but the good guy gets more opportunities to stop the bad guy if he misses. Full auto capability arguably does more to enable mass killings than to assist in self-defense. Undetectable (“plastic”) guns would have no enhanced capability for self-defense (metal guns work just as well if not better) but significant enhanced capability for breaching security at airports, courthouses, etc. So presumably, government can ban those arms in particular without infringing the right of the people to keep or bear arms generally.

    Cliff: I don’t think the Second Amendment was ever intended to apply to 1793 arms in particular. Unless you’re going to argue that guns created after 1793 are not “arms” protected by the 1793 definition of the Second Amendment, it makes equally little sense to argue that antiquated arms remain protected after they become obsolete. Obviously, a different result would obtain if government were to argue that arms in general are obsolete.

    RAH: I agree that Gura went too far in conceding that bans on machine guns were reasonable, rather than merely noting that it was not necessary to determine that they were not reasonable in order to rule in this case. I don’t think it’s going to make much of a difference in this case, though.

  9. B Smith says:

    I answer, again:
    Is the firearm useful for personal self defense? Depends on what I’m defending against—a street-punk thug, or a bunch of federal guerillas kicking in my door and wantonly violating my rights, because some crackhead gave up my name (knowing that I have a gun in my house) to get some time off his sentence?
    Is the weapon useful for maintaining skill at arms? What kind of standard is that? My own skill with a rocket or grenade launcher is seriously deteriorated, because I haven’t had the liberty to maintain my skill with either since I was in the military some years ago!!!
    Is it of a type in common police or civilian use? How about adding military use, since it’s the military who will be used to tamp us unruly proletariats down by an ever-increasingly oppressive government? ‘Infringement’ has already occurred, and continues with every “reasonable” restriction (just what is the definition of ‘infringe’, anyway?)
    If you’re not harming or endangering your fellow citizens (which we already have plenty of laws against), then there is no defensible reason you shouldn’t be able to keep a Mk.19 or a TOW missile launcher—and plenty of grenades and rockets—in your basement if you can afford it and so desire.

  10. Sebastian says:

    I don’t really disagree B Smith, but will the courts allow a rule that protects a right to own a TOW missile launcher? The court will draw lines. Probably not as far as we would like. The trick, I think, is to get them to draw a line that they think is pretty narrow, but keeps the door open for a lot of guns to be protected.

  11. workinwifdakids says:

    I want us to be careful about saying that a judge can tell us what our rights are. Our rights were born of the laws of nature and nature’s God, and nothing – not even a legal repeal of the 2nd Amendment – can change that.

    We could not give up these rights, even if we wanted earnestly to do so.

  12. Sebastian says:

    True, but the government can infringe on them regardless. Rights may be natural, but that doesn’t force the government to respect them. Judges do that. That’s why we have to be concerned about this topic.

  13. Gregg says:

    As far as swords being obsolete, while that may be true in modern warfare it is not necessarily so in self-defense situations. Swords are just BIG knives and we are all aware that 21-30 feet of seperation is necessary if we wish to survive an encounter with a knife armed assailant.

    OTOH, why would anyone want to regulate alleged obsolete weapons? It is nonsensical.

    Yes, I am aware that nunchucks and 3 section staffs are regulated or banned in many locales. Which in my opinion is incredibly nonsensical since most people trying to use one of the aforementioned weapons are more likely to knock themselves out than threaten anyone else.

    Sebastian, I know that we want as broad an interpretation as possible and others want as narrow as possible. Thing is, we are told on a daily basis that we live in a society of laws, not men. If the USSC rules that “reasonable” infringements are acceptable, then they are proving that statement to be a lie.

  14. Sebastian says:

    Well, I think for now they aren’t going to talk much about standards. They are going to settle the question before them and let the circuit courts fight over it for a few years before taking another case. But The Courts are going to allow restrictions on guns, just as they allow some restrictions on speech (not talking about McCain-Feingold here, but things like time and manner restrictions governments may put on speech), the question then becomes is there an easy standard that courts would be willing to adopt that wouldn’t handcuff us in later cases.

  15. Gregg says:

    Allowing restrictions on speech are Constitutionally acceptable according to the 1st A which states that “Congress shall make no law” though possibly abhorent to the 14thA (I think the 14th).

    Whereas the 2nd states”… shall not be infringed.” The choice of words is vastly different and I believe important.

  16. Gregg says:

    Whoops forgot to put my whole thought down.
    Speech restrictions would be acceptable for the States not for the feds.

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