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Circular Reasoning

Looks like Wayne Fincher appealed his case based on Heller, and lost, based on the reasoning that machine guns, which are banned, aren’t in common use, which makes their being banned constitutional.

Lots of back and forth in the comments about the absurdity of the ruling.  I agree with folks that the “common use” test proffered by Heller is insufficient, but I think a way around it, without having to blatantly overrule it, is to suggest that one must look at police use, when determining whether an arm in question is protected.  If an arm in question is of a type that is part of the ordinary equipment of police work, it must necessarily be protected by the second amendment.  Of course, this doesn’t necessarily get you machine guns, as I’m not certain whether machine guns are common police equipment.  But it does get you out of the trap where the government could prohibit or frustrate commerce in new arms technology before it becomes “common” and then not worry.  If it’s a useful instrument for self-defense, police departments will probably pick it up, and it will become common.  Note that I don’t think you have to show that every patrol car has one, just that it’s not unusual, or unheard of.

15 Responses to “Circular Reasoning”

  1. CorbinKale says:

    Sounds like a terrible misreading of Miller, which found that the weapons protected under the 2nd Amendment must have some utility for militia purposes. They are standard issue in every military application I have ever seen. Fincher’s lawyer sucks!

  2. Pete says:

    If Obama gets elected, I have a bad feeling that DC’s current “definition” of a machine gun, that is, what is actually a semi-automatic, will become a BATFE policy too, so then many of us lawful gun owners will suddenly become federal felons for owning guns like my S&W 659.

  3. Dod says:

    Sebastian,

    I am curious why you are going with common use as “part of the ordinary equipment of police work”. It seems to me that undercuts the military preparedness purpose of the second amendment because ordinary police equipment is definitely not military. Plus there was no concept of a professional police force when the IIA was written. I understand it would solve the problem of “common use” for new firearms that are introduced but I’m concerned it would end up being even more limiting for existing firearms.

    Dod

  4. Sebastian says:

    Lawyers are obligated to look after the interests of their client, and I would argue his lawyers were obligated to pursue a second amendment challenge if there was any chance of his client winning on it.

    That said, Fincher isn’t the case you’re going to win with. Judges will look for reasons to dispose of the case, rather than seriously engage the issue. If I think about how it might make sense to go after the NFA, I would start with suppressors, SBRs, SBSs. You’d rather it be an administrative denial rather than a criminal case. Get someone to try to register a suppressor in a jurisdiction where the local sheriff won’t sign off.. use the denial as standing, etc. Then take another little bit off if you can.

    But really, I think the judiciary will need time to digest Heller. You’ll want incorporation to be a given, and a pretty wide variety of arms that actually are common to be protected before we worry about the NFA. For now, these kinds of cursory dismissals are what we’re going to see, and I’m not sure there’s too much point in getting worked up about them until we get the basics more established.

  5. Sebastian says:

    Dod:

    I didn’t make the rule, the Supreme Court did. I’m suggesting a way to work within what The Court gave us to work with. It’s much easier to do something like that, than to get a precedent overturned. Common use was dicta, but the lower courts will give weight to it. Maybe we can find someone on a lower court who’s willing to take a different look at “common use” that might not be entirely open to going against The Court’s dicta on the matter.

    The federal judiciary is not amiable toward gun rights. If they were, we would have settled this a lot sooner. Hell, even Judge Posner, who is generally pretty sensible, is on the wrong side of this issue.

  6. Dod says:

    I realize what you were getting at. I was just suggesting we could aim for a higher goal than basic police arms. But in the end your “what we can actually convince a court” calculus may be right.

  7. Melancton Smith says:

    Definitely police equipment should be considered when determining what are militia appropriate arms…the function currently served by law enforcement was one of the functions served by the militia…

    Not the only function however…

  8. Dave says:

    They were taxed out of common use. If not for a couple of bad laws that artificially inflate prices, you could probably get a simple gun along the lines of a grease gun or a Sten for $250.
    Repealing the law that prevents the manufacture of new fully automatic guns is the first part of the problem. Next would be finding a gun company to build a lot of dirt cheap Sten type guns that people could afford.

  9. CorbinKale says:

    A well-regulated Police Force, being necessary to the security…

    Nope, I think the original works best.

  10. Sebastian says:

    Well, strictly speaking, the militia was the police force way back when. We don’t really have any modern analogy to the 18th century militia today.

  11. Melancton Smith says:

    We don’t? I consider myself part of a militia analogous to the 18th century militia. Just because my Governor doesn’t choose to call me to duty doesn’t mean I am absolved of my civic obligation.

    Remember: no militia, no free state.

  12. Sebastian says:

    It’s precisely because the state does not call you that we don’t have a modern analog. I don’t think that really changes the second amendments guarantee, but precious few of us have been called to drill or muster for most of the past century.

  13. Melancton Smith says:

    I disagree that not having to use the militia means there is no militia. Requirements to drill and muster have been dropped for a very long time.

    Under current Federal law, I am a member of the militia.
    Under current Illinois State law, I am a member of the militia.

    Several states still have active defense forces. These forces were used at least as recently as the 1940’s.

    Remember: no militia, no free state.

  14. Sebastian says:

    I didn’t say there was no militia, but it doesn’t resemble the militia of the 18th century.

  15. Melancton Smith says:

    Fair enough, and you have a point.

    Perhaps the duties of the militia are different today than they were.

    However, I disagree with the government on the utility of the militia.

    I think we need more ‘militia attitude’. We need to step up and fix those things that go wrong. I see some of that happening. Flight 93, for one. But also some neighbors in NO during Katrina. I have friends who were out of town during that and some of their neighbors armed up and kept the houses and property safe. This also includes ‘mundane’ activities like sand-bagging when the waters are rising.

Trackbacks/Pingbacks

  1. SayUncle » As predicted - [...] Sebastian notes the circular logic and offers another measure to test common use: use of arms by police. [...]
  2. Snowflakes in Hell » Blog Archive » NFA Challenges - [...] with determining whether an arm is “common” or “unusual and dangerous” one has to look at police use.  I…
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