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No Love for .50 Cals in California State Courts

Eugene Volokh takes a look at a decision in California State Court of Appeals that rules .50 calibers are not constitutionally protected.  I think the state court’s analysis of the commonality of these types of arms is deeply flawed, as they are indeed “common” and not any more “dangerous” than other firearms that the State of California has not seen fit to ban.

I also don’t think one can take a self-defense approach to the Second Amendment that only considers self-defense under average circumstances.  A Barret M82, or an AR-15 may, under a state of civil order, not be ideal firearms for self-defense under most circumstances.  But what about a state of civil disorder?  I don’t think self-defense under extreme circumstances can be so easily dismissed.

As I’ve argued, like Professor Nelson Lund has also, that any analysis done under Heller’s common use test has to also consider police use.  Does a .50BMG pass this test?  I think it would be hard to argue they are common in police arsenals, though some exist.  But I would also argue that it is not especially dangerous, compared to other small arms.

14 Responses to “No Love for .50 Cals in California State Courts”

  1. Does the CA 50cal ban affect everything? Or just the BMG?

  2. Crotalus says:

    I believe that it’s just .50 BMG, But I’m not sure. Either way, I’m not giving up my Kentucky Rifle.

  3. Crotatus:

    I think the CA 50cal ban, is the only 50cal ban, in practice or even making the rounds, that only targets the BMG. NJ, NY, and HI(?) legislation target everything, except shotguns it seems.

  4. Arnie says:

    Gentlemen, there you have it!!!! This is why I have argued and pleaded on this website not to let the traitors redefine the type or purpose of the arms the Second Amendment protects against “federal” infringement! Do not play their game because this is the kind of judicial treason that results! The 2nd Amendment prohibits the general government from regulating or in any way inconveniencing our individual right to acquire, keep and employ military assault rifles for the killing of massive numbers of traitorous human tyrants from the general government who would dare to take away our liberty and to enslave us under their despotism, plain and simple!!! NEVER let them get away with the lie that it only protects arms for sporting, hunting, or even self-defense purposes. Read the blasted Amendment!!!! It is for securing freedom, securing freedom, SECURING FREEDOM!!!!! From WHOM? From the general (erroneously called “federal”) government! Every article of the Bill of Rights was written to protect the States and individual citizens from the government now in Washington, D.C. The 2A was no exception. Of course we have a right to .50 cal machine guns, M-16s and grenade launchers. Those are what we need to secure our States’ freedom from national tyranny. Those are the types of weapons the Second Amendment was designed to protect!
    Having said all that, I understand this was California STATE law that banned these weapons. The 2A does not prohibit that. Half an ounce of common sense would have, but then, we are talking about California. The 14th A is still up in the air on this issue. But the court’s reasoning is still wrong, dangerously wrong, and if any of those judges makes it to the U.S. Supreme Court with that misunderstanding of the Second Amendment, kiss ALL of your rights goodbye! PLEASE remember: protecting our right to own and bear arms whose only purpose is to kill massive numbers of human beings (treasonous tyrants) is exactly what the 2A is ALL about! Defend that! Proclaim that! Write that to your Congressman! And most importantly, buy yourself some assault rifles – before it is too late! – Arnie

  5. NJSoldier says:

    I agree with Arnie. Read Jefferson, John Jay, the Federalist Papers, etc… They were revolutionaries who create the 2nd Amendment so future generations could also rebel against tyrannical government when it becomes necessary (are we there yet?).

    They wanted the ability to defend themselves against oppressive government forces – not just burglars.

    “When the people fear their government, there is tyranny; when the government fears the people, there is liberty. “
    Thomas Jefferson

  6. M Gallo says:

    Ironically the .50BMG ban gave us the vastly superior .416 Barrett, but I digress.

    I still think the “in common use for a lawful purpose” statement can certainly be taken to mean “incommonly used for unlawful purposes,” as they were trying to give Miller a nod. So, as long as you can show that, say, machineguns are not commonly used in crimes (removing the State’s interest in regulating them), then how do they not pass the “in common use for a lawful purpose” test? We need to stop reffering to it as the “common use” test and start making this distinction, IMHO, otherwise it’s very easy to lose a case because of arbitrary ownership numbers.

  7. Nathan says:

    I disagree with your analysis that the 50 BMG is no more harmful than small arms.

    It’s an anti-material rifle and great for shooting engines. If you take out the front and rear vehicle in a convoy of civilian vehicles, the people in the middle are stuck in the middle and easy to kill.

    This is a capability that rounds like the 5.56 and 7.62 don’t offer and places the 50 BMG in a deifferent category of weapon.

  8. Nathan says:

    I disagree with your analysis that the 50 BMG is no more harmful than small arms.

    It’s an anti-material rifle and great for shooting engines. If you take out the front and rear vehicle in a convoy of civilian vehicles, the people in the middle are stuck in the middle and easy to kill.

    This is a capability that rounds like the 5.56 and 7.62 don’t offer and places the 50 BMG in a different category of weapon.

  9. Sebastian says:

    OK, so you ban the 50BMG, and I decide to use, say, a substitute round, like .416 Barret. Hell, a .45-70 government round will shoot through ballistic glass like a hot knife through butter. So will a shotgun slug.

    At some point you can’t get around the fact that all small arms can be dangerous in the hands of someone wanting to kill people. You can say the same thing about matches and gasoline too.

    I understand that courts have to sort what’s constitutional and what isn’t, which might necessitate lines that don’t make much sense. But I don’t much buy the notion because you can disable vehicles with it, which you can do with many other rounds that aren’t the 50BMG, that it falls out of constitutional protection.

  10. Nathan says:

    And I can use hand grenades for hunting and self-defense.

  11. Matt Groom says:

    No, Nathan. You can’t use hand grenades for hunting and self defense. If you’ve ever thrown one, you know how dangerous and unpredictable they are. Also, self defense means that if it’s used within 15 feet, it won’t kill you as well as the hostile.

    The original law that declared anything larger than the .50 BMG to be a destructive device was the 1968 Gun Control Act (one of the most aptly named of all the anti-civil rights legislations thus far). The .50 BMG was about 56 years old at that point. It was not and is not a new development. It had been used in places like Korea and Vietnam to take long range shots on distant targets, most famously by Carlos Hathcock. They simply were trying to outlaw calibers that were considered too large to be practical, but stopped at .50 caliber, because it was demonstrably practical and useful.

    Attempting to outlaw individual cartridges has absolutely nothing to do with public safety and everything to do with pushing Liberty into a tiny box so that it can be put into a shed and forgotten about until it is thrown away during spring cleanup when no one is looking. It’s about destroying our past, not protecting our future.

    Of course the .50 BMG is protected. Otherwise, I suppose we’ll all just have to settle for that ever-popular (In CA) wildcat, the .499 BMG. And so on. This isn’t about Muzzle Energies, it’s about power. State power.

    A .30-06 will shoot through a cast iron engine block quite well, I assure you. And an Aluminum block? Forget about it. My Grandfather got a special medal from his unit for shooting down a Mitsubishi Zero with his Model 1903A4 Springfield at Tarawa. He later got half credit for doing the same somewhere else, but insisted it was another guy who fired at the same instant. Got the blood soaked Imperial Japanese flag to prove it. He was also awarded two Silver Stars, so it’s not like he needed to make this stuff up to impress his kids and grandkids, either.

    The arguments that the .50 isn’t legitimate because it’s expensive and powerful are the same as arguments made against so-called assault rifles and pit bulls “they’re scary looking, there fore they’re dangerous”. I don’t own a .50 BMG, I think they’re stupid. But I think the .405 Winchester is stupid too, but I don’t want it outlawed, either.

    The only people who want to cherry pick certain calibers to outlaw are the same people who only want to burn certain books and ban certain kinds of speech. They only want to prohibit certain kinds of religious thought, and outlaw certain kinds of cars. They only think the government should control certain businesses, and they only think that certain people should pay taxes, and I personally think these certain people should go to a certain place that is neither Heaven, nor Purgatory, but very closely resembles California.

  12. Arnie says:

    Exellent responses, gentlemen! Nathan, I could use a grenade launcher or RPG for defending my State’s freedom against Washington tyranny, thus making any national ban unconstitutional. M Gallo, is the .416 really vastly superior to the BMG? I’ve been looking for something moe powerful than the .50 cal that needs no special (and unconstitutional) national license. I would really appreciate any comparative details. Thanks! – Arnie

  13. workinwifdakids says:

    California’s illegal and unconstitutional ban is limited to the .50BMG cartridge. As a side-note, any time anyone has questions related to California law, please wander over to http://www.calguns.net, and check out the CalGuns subforum on Law & Politics.

    Back on point, I see the 50BMG as a special purpose cartridge somewhat related to climbing Mount McKinley. Sure you have to have *some* laws, but the activity is so daunting and expensive few would or could do it without any laws.

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