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A Legal Theory on Destructive Devices

It is important, I think, to come up with legal distinctions between certain types arms, protected by the Second Amendment, and other types of arms, which are unprotected.  Even most people who believe in a very broad reading of the Second Amendment would generally agree the Second Amendment protects no right for someone to have a nuclear, chemical or biological weapon of mass destruction.  Even if there is not agreement among Second Amendment activists about where the boundary ought to be, we can at least agree that there is a boundary, and distinctions must be made between arms that are protected, and those that are not.

The Second Amendment constructed by Heller protects the right of self-preservation, or more precisely, the tools necessary to exercise the right of self-preservation.  Under that kind of interpretation, the courts would examine the device’s utility for that purpose, when seeking to discover whether it is an “arm” in the scope of the Second Amendment.  It would seem unlikely that destructive devices of an explosive nature would be possessed for such a purpose.  But as I’ve said before, I don’t think the courts can just consider self-preservation under normal circumstances, but must also consider extraordinary circumstances, to determine whether a particular arm is useful for self-defense, and should fall under Second Amendment protection.  In the case of a .50 BMG vs. a pipe bomb or grenade, I think a distinction can be made.

The first distinction is that a .50BMG most definitely is useful for personal self-defense, in that it is a discriminate weapon, that can be aimed at a threat, and can disable that threat.  A grenade is not so discriminate.  It has to be lobbed a certain distance in order not to injure the thrower, and is only very generally discriminative, in that the shrapnel it sends in all directions does not distinguish between friend and foe, and can cause considerable collateral damage to property.

But I think there’s another distinction between the two.  One can imagine a .50BMG being useful in a period of temporary civil disorder, such as a hurricane or an earthquake, where an ability to disable a vehicle, or shoot through cover, could mean the difference between self-preservation and being dead. One can also imagine a grenade, for instance, being useful for fending off multiple attackers.  In either temporary, or a more lasting civil disorder, both could be useful.  But obtaining a precision rifle, such as a .50BMG rifle, is probably going to be very difficult during civil unrest.  Obtaining explosives is easy, as the ingredients to create them would be readily available even in the event of civil breakdown.  In that instance, I think it’s not unreasonable to suggest that banning the manufacture or possession of pipe bombs does not run afoul of the Second Amendment, because under ordinary circumstances, they aren’t useful for self-defense, and under extraordinary circumstances, in the absence of law and order, they would be available.  I think that likely strengthens the government’s case that the burden on self-defense is minimal.

Of course, this very fact makes the effectiveness of the law suspect, at best, since it wouldn’t be hard for those with criminal intent to make them under normal circumstances, but this isn’t an argument about what makes for good public policy, but about what is constitutional.  When it comes to that, I’m willing to accept a Second Amendment that doesn’t cover destructive devices, if their exclusion makes the federal courts more likely to offer stronger protections to other small arms.  The burden created on my ability to defend myself is minimal, and even for those who argue that the Second Amendment is meant to guard against tyrannical government, let’s face it, under those kinds of circumstances, pipe bombs aren’t going to be hard to come by.

52 Responses to “A Legal Theory on Destructive Devices”

  1. Monty says:

    As you mention, a grenade could very well be a useful item of self defense during a prolonged period of civil disorder. Probably far more useful then a pipe bomb. Unlike a pipbomb, it will be hard to create a decent grenade once that civil disorder occurs. If it is normal for an infantryman in our military to be armed wtih grenades, then shouldn’t grenades be available to members of the militia (all citizens willing to bear arms) to arm themselves with?

  2. Sebastian says:

    Why would it be hard to create a decent grenade? All you need is some explosives, a fuse, and something to use as shrapnel.

  3. Sebastian says:

    If it is normal for an infantryman in our military to be armed wtih grenades, then shouldn’t grenades be available to members of the militia (all citizens willing to bear arms) to arm themselves with?

    I don’t have a problem with the idea personally, because I generally think people will be responsible, but that’s pretty much not going to be adopted by the courts. I mean, during extensive civil disorder, if you can’t keep the next town over from coming into your town and raping your women, and stealing your food supply, one can imagine a chemical weapons could be useful for self-preservation too, but I don’t think too many people would seriously argue the Second Amendment protects ownership of chemical weapons.

  4. Sebastian says:

    A better example would be an RPG, which would be about as hard to come by as a precision rifle. Particularly if fitted with a shaped charged warhead meant for destroying armored vehicles. But it’s still distinctive from a .50BMG precision rifle because of the indiscriminate nature of explosive ordnance.

    Of course, with the right permits, you can legally possess an RPG or grenade. Unlike machine guns, they aren’t banned entirely.

  5. Brass says:

    Sebastian, are you aware that the military considers fragmentation grenades to be a defensive device? Something to consider.

  6. Billll says:

    The only difference between a terrorists bomb and an entertaining bit of pyrotechnics, is where it’s put when it goes off.

  7. Jdude says:

    “In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” Miller

    “The Court also added non-binding dicta regarding the private ownership of machine guns. In doing so, it suggested the elevation of the second prong of Miller[citation needed] (“common use”), which by itself protects handguns, over the first prong (protecting arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”), which may not by itself protect machine guns: “It may be objected that if weapons that are most useful in military service—M16 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.”[35]” Heller decision, via wiki

    “The Breyer dissent also objected to the “common use” distinction used by the majority to distinguish handguns from machineguns: “But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machine-gun…There is no basis for believing that the Framers intended such circular reasoning.”[39] (Other commentators have agreed with Breyer’s criticism, but argued that the Court therefore erred in not overturning current machinegun restrictions.[40][41])”
    Heller dissent, via wiki

    “”[a]ssuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.”” Heller, via wiki

    The best case scenario, as I see it, is time/place/manner restrictions – a law saying one cannot use their grenade as a home defense device if the neighbor’s house is say… less than 1000 feet away (arbitrary number) would be appropriate. Barring the carry of an rpg for day to day carry (as it is a particularly specialized weapon) would probably be legal and appropriate. Storage requirements for your explosive weaponry would if you live within a certain distance of your neighbor would also be appropriate, I think.

    What i would not consider correct is disallowing what weapons one may own in his own home, and leave there, be they as silly as a pipe bomb or large as a naval cannon.

    There are a few legitimate uses for pipe bombs that I just read elsewhere. Removing stumps and destroying beaver dams were a few of those listed.

    So, like I said before: time/place/manner restrictions. One should not take their firearms into a tightly controlled nuclear facility but shouldn’t be automatically prohibited from keeping them in the house.

  8. Jdude says:

    So, like I said before: time/place/manner restrictions. One should not take their firearms [or other weapons] into a tightly controlled nuclear facility but shouldn’t be automatically prohibited from keeping them in the house.

    quick edit.

  9. Ry Jones says:

    “Of course, with the right permits, you can legally possess an RPG or grenade. Unlike machine guns, they aren’t banned entirely.”

    No permits to own any of them. You pay a tax ($200 in all of those cases) and wait a while, provided you live in one of the many NFA states.

    Furthermore, I don’t agree there should be a line. I also think prisoners should be armed when they’re incarcerated; no place in the US is more violent than our criminal justice system.

  10. Sebastian says:

    I suspect if you arm the prisoners, they won’t stay incarcerated for very long :)

    I used the “permit” language just for folks who might not understand that you can’t possess one without a tax stamp, which though not technically a permit, is effectively one.

  11. Sebastian says:

    Sebastian, are you aware that the military considers fragmentation grenades to be a defensive device? Something to consider.

    I was not aware, but it seems to me they could be used for either offense or defense. Nontheless, it’s hard for me to see how you could protect yourself with one under ordinary circumstances.

  12. Sebastian says:

    Jdude:

    I would be happy with Billll’s construction of “‘keep and bear’ should define anything that could be carried or drawn by a 1/2 ton pickup.” But I also think Heller largely closed the door on any major evaluation of the NFA (though I’m still hopeful for minor evaluations of it). What I would not want to happen is for the courts, in an attempt to preserve the restrictions on destructive devices, argue that such restrictions are reasonable under the Second Amendment, and thus can be applied to other types of small arms.

    Go read Eugene Volokh’s Law Review article on the Second Amendment. It’s very well thought out, even though I have a few nitpicks with him on short barreled shotguns and assault weapons.

  13. Peter says:

    I read this somewhere, and I don’t remember where:

    Miller (1939) should be interpreted not as civilian equivalency to the Armed Forces, since there are hundreds of places where the only evidence of the FedGov is the Post Office.
    Rather, the equivalency should be with local police: if your PD or Sherriff has a SWAT team with sub-machine guns, true assault rifles and any sort of explosive (flash bangs, smoke, tear gas, whatever), then you as a resident of that jurisdiction should have the same. If the cops don’t like you or I having a surplus M60 MG, then they have to give theirs up as well.

  14. ishida says:

    Sebastian, did you SERIOUSLY just say you’re not allowed to own a machine gun?

    Your entire opinion was just discounted to nothing.

    Considering the arguments you were using were the exact same ones used to restrict the Second Amendment in the first place, that wasn’t a very big drop.

  15. Sebastian says:

    ishida:

    I am not saying that. I think machine guns should be constitutionally protected. But I am not optimistic that the courts are even willing to consider it. Hell, if it were up to me, anything you could carry would be. But it’s not up to me. It’s up to the courts, and when the courts are deciding these things, we better have some arguments ready in a language that the courts are wiling to adopt.

  16. Sean Sorrentino says:

    “Sebastian, are you aware that the military considers fragmentation grenades to be a defensive device?”

    when i was in the military, there was a distinction between “offensive” and “defensive” grenades. the distinction was that you didn’t have to take cover for offensive grenades. essentially the distinction was between flash-bang/concussion grenades and fragmentation. i don’t think that the Army really meant that you could only use frags in a defensive role, just that they had to categorize it somehow, even if that category really made no sense.

  17. MDerosier says:

    I completely disagree with the concept of laws prohibiting the ownership of any weapon. That includes nuclear weapons, biological weapons, and anything else all the way to a pointy stick. The reason isn’t because I believe owning such things are practical or useful, but rather because limiting the types of weapons “allowed” by the people inevitably leads towards tightening of restrictions on all weapons. When we are dealing with legislation, we are dealing with political philosophy. By restricting weapon ownership, we are making some moral choices here that I am not comfortable with. Restricting weapon ownership makes the statement that the law’s purpose is to punish people for crimes they may or may not commit — thoughtcrime, essentially. Restriction also states that it is acceptable to limit freedoms and rights, and that only the state can decide what form individual rights can take. Playing that game is dangerous, because although either side can gain or lose yardage, by the time the pro-gun players start to get close to the end zone, they have no way to repel their opponents.

    Now, does this mean I think people should have nukes and smallpox? No. And I believe that obtaining those types of things would be either prohibitively expensive OR would require theft to accomplish. On one hand, there’s a deterrent for the law-abiding, and on the other the criminals have already committed a crime, so there needn’t be a law against their ownership.

    This is a philosophical argument, and the sides are misrepresented by your post. Opting for “reasonable restrictions” on weapons (which can also be referred to as “arms” – the term isn’t just for firearms) is simply pushing for government intervention, while opposing restriction is pushing for individual rights. There is no other way of framing this debate.

  18. MicroBalrog says:

    If I recall correctly, 20mm rifles, cannon, and so forth, were not federally regulated before 1968. Didn’t everybody get along just fine, regardless? Why can’t we return to that time and get it over with?

  19. MDerosier says:

    MicroBalrog’s point can also be looked at from a different angle: As I recall, privately owned artillery was used in every war fought on American soil. This hearkens back to the old idea about how and American military should be formed. The original American military was a force comprised of ordinary citizens – the unorganized militia. Every able man was to be called upon during times of war to protect the country and the freedoms it represented. There was never meant to be a standing military. We were to be like Switzerland: A country with no army but its people, working towards the defense of their homeland. Now that we have a standing army, virtually no one but the brave souls who volunteer feel that they have any duty to protect their freedoms and their homeland. With this “someone else’s job” mentality comes the idea that there is no purpose to allowing civilians the means to defend the homestead. Instead of acting towards security through freedom, we are now acting towards freedom through legislated restriction. Does this really sound like the sort of ideal that America should stand for? Does this foster the attitude encompassed by the slogan “Land of the free, home of the brave”?

  20. Sebastian says:

    Mostly because there’s no political will on the part of enough people to go back there. But that aside, you kind of have an interesting paradox on these kinds of things. As technology advances, it becomes easier for individuals to have access to means of destruction on a large scale. The paradox is, the increasing availability of the technology means regulating it, from a public policy point of view, makes less and less sense. On a global scale you see this with the current nuclear proliferation regime, which is quickly becoming meaningless and useless. But that’s not to say the new world we’re moving into now will be better or worse, but most people will probably agree that preserving the status quo is important because otherwise Iran will have a nuclear bomb. But maybe they would anyway? That’s the problem we have on a smaller scale.

  21. MDerosier says:

    However, in spite of technological advances, the cost of materials and research involved in producing nuclear and biological weapons remains prohibitive. Enriched uranium and plutonium is pretty hard to come by, and the restrictions preventing citizens from obtaining nuclear waste products (for public health reasons) already criminalize the act of producing a dirty bomb. The issue, as I understand it, is whether or not it the possession of such devices should be regulated, and as I have stated I believe that criminalizing possession is philosophically akin to punishing people for thoughts. After all, doesn’t the idea “innocent until proven guilty” logically irreconcilable with the idea of criminalizing a person for merely owning a weapon? The extension of that logic leads us to the conclusion that everyone owning a firearm will kill someone, so it is better to outlaw guns than allow people to legally own them. The extent of damage that could be caused by a weapon is irrelevant unless that weapon is used, and until the weapon is used, no crime has been committed. Law’s purpose in America should not be to prevent bad things from happening – that is nanny statism. The law’s purpose is to punish wrongdoers; those who have committed a criminal act against another person. Again, the debate shouldn’t be framed in terms of how much regulation is too much, it should be seen as whether it is moral or not to regulate at all, as regulation of rights stands in direct opposition of individual rights, even if the regulations are “reasonable”. It is important to note that “reasonable” is a subjective term, and as such it leaves room for interpretation. Law should not be subjective.

  22. Sebastian says:

    Nuclear is cost prohibitive, only really available to states, but biological and chemical is within the reach of individuals or small groups with a bit of technical know how. The hard part is producing it without killing yourself.

  23. N.U.G.U.N. says:

    I’ve always interpreted that 2nd Amendment as a right to keep and bear personal arms. Firearms, swords, knives, any other weapon that is an individual weapon. Thus I do believe the M16 should fall into that.

    But I do not believe that the 2nd Amendment protects say my right to keep and bear a tank. That is NOT to say that I don’t think that someone should be able to do so, just not as a guaranteed right. I have a right to arms but not artillery (cannon, mortar, rocket, etc).

    I do believe towns should have the right to such in the fashion of an armory, but not for police. If that makes sense…

  24. Brad says:

    Drawing Lines on Rights

    I sometimes joke that if the Government respected 2nd Amendment rights to the degree that abortion rights are currently respected, then we would have government subsidized machine guns, provided to minors, and without parental consent! I’m pretty extreme when it comes to our rights, but I also understand the realities of politics; for example I agreed with the litigation strategy used in D.C. v Heller, which tried to limit the court’s attention to only handguns and avoided all talk of so-called “assault weapons.”

    Having said that I see serious flaws in your attempt to draw a line at weapons which cause “indiscriminate damage.” Such a distinction is a loophole a mile wide which the anti-gunners could use to attack not only so-called “assault weapons” but also high-powered rifles and shotguns. Instead I favor using a more sophisticated standard which would allow the government to totally prohibit only a very limited class of weapons: the NBC weapons or nuclear/radiological, biological/toxins and chemical/poison weapons. So in between the ordinary class of very lightly regulated weapons such as handguns, shotguns and rifles and the prohibited class of NBC weapons, we could keep most of the basic NFA regulations for the ‘grey area’ weapons.

    The political advantage of this ‘grey area’ standard is that it remains close to contemporary practices. About the only changes that should be fought for is recognition that any outright ban of NFA type weapons is unconstitutional (so the 1986 Hughes prohibition has to go) and arbitrary and capricious enforcement of NFA regulations has to go (such as fully discretionary police sign off).

    California law exemplifies just how bad the abuse of line drawing can become. Locally in San Diego, we have a high school honor student who is up on felony charges of possession of a destructive device, possession of bomb making materials and bringing a bomb onto school grounds, all because of a dumb prank during graduation. Instead of using M-80’s or firecrackers (which are also illegal in California, though not felonies) the honor student used two-liter plastic soda bottles (prepped to pop from internal gas pressure) which he left in some trash cans during school hours. The media describes the bottles as “acid” filled without going into any details, which probably means the so-called “acid” was supermarket quality vinegar combined with something like baking soda.

    This poor kids life is now ruined, all because he didn’t know how stupidly the lines of legality have been drawn in California. Try to avoid making a similar error in your own line drawing thought experiment!

  25. Sebastian says:

    Having said that I see serious flaws in your attempt to draw a line at weapons which cause “indiscriminate damage.”

    I mean that with a very specific definition, in the sense that guns are not indiscriminate, because they are aimed at a threat, a conscious decision is made to stop that threat, the trigger is pulled, and the attack is hopefully disrupted. Just because the anti-gunners will hijack the definition, as they have with just about every term in Heller, doesn’t meant you can’t proffer a legal definition that works.

    The risk in arguing that the Second Amendment prohibits Hughes creates the risk that, even if the Court would agree, which I doubt it would, that the rest of the NFA regulations on machine guns could be constitutional, which means it’s perfectly acceptable to license a right, or at the least to tax it to near extinction. Now, you could have some kind of sliding scale standard, where machine guns warrant more regulation than say, a pistol. But I think it’s more likely to get a better result for most of the guns people want to possess, in terms of whether licensing or excessive taxation is permitted, if certain arms are viewed by the Courts as being outside the scope. That makes the likelihood of obscure and subjective balancing tests less likely.

    The case of the kid in California is disturbing, and I don’t think any sane system of justice should do such a thing. But as I’ve said, there’s a difference between what’s good public policy, and what’s constitutional. I would argue any government that classifies the baking soda and vinegar in a bottle trick as a destructive device has lost its mind… but I wouldn’t argue the Second Amendment protects someone’s right to possess such a device.

  26. Ry Jones says:

    “But I do not believe that the 2nd Amendment protects say my right to keep and bear a tank. That is NOT to say that I don’t think that someone should be able to do so, just not as a guaranteed right. I have a right to arms but not artillery (cannon, mortar, rocket, etc).”

    Oddly, it’s easier to buy a tank or cannon than a gun in almost all US jurisdictions. Mortars? easier.

  27. MDerosier says:

    As I alluded to in my prior comment, the second amendment is not worded in a way that specifies only firearms or personal weapons. It is a right to keep and bear arms. Arms can mean all manner of weapon, and it was purposely worded to mean this. The bill of rights was an assurance that the government would respect our rights to defend our property, be secure in our effects, and speak our minds. These assurances of our rights are directed specifically at our government, as a reminder that we have these rights and they should be respected. The rights are not meant to protect us from each other, they are meant to protect us from our government. To this end, the second amendment can and should be interpreted as our right to own the same weapons as the government.

    And this takes us back to the philosophical concept of what it means to live in a free society. In a truly free society, which is what many of us want America to be, the government should not be able to do anything that an individual cannot do himself. If a person cannot kill another person, except in self-defense, the government should not be allowed that power either. If an individual cannot steal from another, the government should not be able to either. If an individual cannot own a weapon, neither should the government. This is the logical extension of the ideals of a free society; that an individual may act only in ways that respect others’ rights to life, liberty and property.

    To this end, even if it means that people will accidentally kill themselves while misusing their weapons, we should still expect the government to recognize our right to possess these weapons, both as security against foreign invaders, but also against domestic threats, including our own government. Even if it is true that a destructive device serves no peaceful purpose, that should not preclude ownership. The world is an unpredictable place, and should a war break out, the peoples’ right to have a fighting chance of defending their lives, liberty and property against an attacking army should be respected.

  28. Crotalus says:

    I came to the conclusion that the 2A stops at bombs because of their indiscriminate way of killing, meaning that their killing power is generally in a spherical nature and takes out everybody within a certain radius. I also figure that crew-served weapons such as artillery might be beyond the scope of the 2A, but I could be wrong.

    However, I also believe that “all’s fair in love and war”, so if we are in another American Revolution, I would not hesitate to use IED’s or anything else I could get my hands on.

  29. Brad says:

    Sebastion

    Yes, the anti-gunners will scheme and lie and distort, but that is no reason to make their unholy work any easier, which is just what a “indiscriminate damage” standard might do.

    The antis have already made hay of claiming so-called assault weapons are illegitimate because they are supposedly made for “spray firing from the hip”. Your proposed standard could bolster the anti-gunners fear mongering. How “discriminate” is heavy ball .30 caliber ammunition which has a maximum range exceeding 5000 yards? How discriminating is buckshot which literally sprays as many as 40 lethal projectiles* with a single trigger pull? The “indiscriminate damage” standard is a non-starter.

    “…I think it’s more likely to get a better result for most of the guns people want to possess, in terms of whether licensing or excessive taxation is permitted, if certain arms are viewed by the Courts as being outside the scope [of 2nd Amd protection].”

    Are you saying that NFA weapons will have to be sacrificed to insure protection of the rest? Careful, or more than just NFA weapons will get sacrificed too. We don’t want to end up with a printing press version of the 2nd Amendment, where we end up thankful that we only lost smokeless powder but managed to keep breech loading repeaters! Fighting the political battle with intelligence doesn’t mean we have to preemptively concede to the enemy where the line will end up drawn.

    (*41 pellets of #4 buckshot from 3″ 12 ga shotshell)

  30. Brad says:

    D’oh! Sorry I misspelled your name, no insult intended.

  31. Link P says:

    Shall Not Be Infringed!

    Any attempt to restrict arms is infringement, as is any attempt to define acceptable and unacceptable arms. As many previous posters have pointed out, it is the actions the arms are used in that is of critical import. Don’t aid the enemy by defining for them an unacceptable class of armament. All arms are Constitutionally lawful as defined by the founding fathers.

    A prime example of the treachery this collaboration brings is that this is considered a destructive device!

    http://en.wikipedia.org/wiki/DAO-12

    It is just a shotgun, nothing more and nothing less, but it has been eliminated by the unconstitutional “sporting purpose” clause.

    Thanks, but no. I stand with the 2nd Amendment as being the only legitimate arms law in this nation. While I will obey unconstitutionally restrictive laws as a matter of practicality, I will not endorse them.

  32. Jdude says:

    Let us pretend for the moment that the “discriminate rule” is the one in place. With this, pipe bombs would not be protected, nor would grenades. But claymore mines would be- they are aimed, primed and fired all on command of the user.

  33. Brad says:

    Realistic regulations

    When it comes to regulation of rights using a sliding scale, that is not unknown when it comes to other activities than gun rights. Take alcoholic beverages for example. Even the 1st Amendment uses a sliding scale of regulation.

    Think of all the activities protected under the 1st Amendment, yet access to them is subject to very different levels of control. There is a heck of a range of difference of public regulation of checking out a library book compared to checking out a strip show act.

    My point isn’t to compare the sainted 1st Amendment to the debated 2nd Amendment, but to point out that under the 1st Amendment even some heavily regulated activities still have constitutional protection and are not subject to prohibition.

  34. Brad says:

    “I would argue any government that classifies the baking soda and vinegar in a bottle trick as a destructive device has lost its mind…”

    More Moronic California Weapons Laws

    More fun examples from California. Laugh or cry at them as you see fit.

    There was the case of the licensed gun dealer in San Francisco who was busted on felony charges stemming from storage of his friends property. The charge? Possession of more than twenty pounds of smokeless powder! Yeppers, in Commiefornia possession of more than 1 pound of black powder or more than 20 pounds of smokeless powder without a special license is a felony crime. I didn’t even know that garbage law even existed until I read about the poor guy in a newspaper story.

    Other examples? Oh yes, did you know any rocket greater than 0.5 inches in diameter is a destructive device under California law? Those Estes model rocket fans better watch out! I wonder if Elon Musk, owner of SpaceX orbital rockets, understands his peril?

    Or how about spud guns? Well a spud gun powered by compressed air is perfectly legal, but the more typical hairspray powered spud gun is a prohibited “zip gun” and a felony to possess.

    And anti-gunners better not try using a trusty baseball bat for home defense in substitution for a firearm. Why? Because the bat is considered an illegal “baton” if used as a weapon and therefore a felony to possess. That’s right folks, in California a stick is an illegal weapon!

    Because California isn’t a democracy, it’s a moronacy — rule by morons.

  35. Clint says:

    In the American Revolution, “Town-owned” cannon were NOT bought by the town hall mayor types. It was a group a businessmen and landowners who “group purchased” the hardware.

    Yes You have a right to own a tank. However you do not have the right to shoot at anyone else or their property without their consent. Furthermore, you can’t use highways unless you can drive the speed limit, nor use city streets unless you modified the tank to not damage the roads.

    See, ownership is not the problem, use is.

    What burns my butt is why do otherwise smart people think that “groups” are more responsible and moral than “individuals”? Villains do not advertised themselves as such. They play the Good Guy card and get other people to do things that “sound good” but in reality just hurt people for the villain’s benefit. I am not anti corporation or anti-govt. But look at the fed.gov and Enron and you’ll see what I mean.

  36. Clint says:

    BTW, Grenades are built so the fragments don’t go though walls. Research “Offensive grenade” and “Defensive grenade”. Ironically, the Defensive grenade is deadlier, but is still built to not penetrate barriers which the defenders hide behind.

    example:”The MK3A2 has an effective casualty radius in open areas of 2 meters”

    So if a cop had a group of ms13 break into his house, the family can hole up in the bedroom/safe room, and the frag grenade can be throw down the hall. Take out most bad guys in one shot. Will need to Spackle the walls and buy a new TV but nothing is perfect. Would I use a grenade in the street where windows can be broken for up to 40 meters? No.

    Again it is a USAGE issue. The same as not shooting a rifle at a bad guy standing in front of a bunch of kids or blamming away with a hi-cap gun, sans sights, just filling the room with lead hoping to hit the target. After all, unless your house is brick or concrete your neighbors are in for a surprise. (And don’t forget apartments…)

  37. Clint says:

    Personally, NBC’s are all that should be outlawed, but then again they should be illegal for govt’s as well.(but that a different topic.) The only regulated weapons are the ones with top-secret gear due to national security. Otherwise, anything you can afford you should be allowed to buy. An F-22 fighter? No, too much top secret stuff, an F-16, yes but with de-classified electronics.

    The good news is we are quite a bit away from commercializing NBC’s. The bad news is we are starting to sound like the anti-gunners: “Oh, we only want machine guns not handguns.” Then: “Oh, you can keep your deer rifle, we only want to stop Saturday night specials…” etc. etc. etc.

    The anti crowd drew a line they said they would never cross and then crossed it. What is the point of the pro side drawing a line? “We solemnly swear to only advocate X and Y weapons and never ask for Z.”

    Do you really think they will believe us?

    Incrementalism worked for the anti side, now it will work for the pro side and the people who hate us we never believe we are going to stop. Just like they were never going to stop.

    Rather that worry about where our end game will be, we should focus on the next step, then the step after, then the step after that. At some point people (other than the fringe) will stop advocating for “more”. So the system is self limiting; it is the nature of politics.

    First we should focus on silencers, then other NFA items (non-machinegun), then the GCA, then machineguns. The order is not because of any special value in these items but because this is a political battle of “winning hearts and minds” and this order will win over more fence-sitters than doing it the other way around. Of course, that’s my opinion, I’ve been wrong before.

    Sorry for being long winded.

  38. M Gallo says:

    I tend to agree with earlier posters that Prior Restraint is not a useful governing tool, and should really never be used.

    Chemical (and, I hazard to say, biological) weapons can’t be outlawed under a “commonly available” method of discernment, Sebastian. I can make chemical weapons at home with little danger and minimal materials (car batteries, painting supplies, etc.). In fact, most of the chemicals used in the preparation of home-made explosives would be usable as weapons themselves. Hell, you can generate HCl gas with materials from the hardware store, or isolate capsaicin from peppers and “weaponize” it with nothing more than boiling water.

    Weaponized biologics would be harder to come by, but the very fact that pathogens are quite literally everywhere means that even if isolation is difficult, procurement of the raw materials and equipment is very simple.

    Now nuclear, OTOH, I don’t know. If we outlaw Nucs, what’s next? Plasma weapons or laser rifles?

    I guess I’m just trying to show that there are not really any such things as reasonable legal standards when it comes to regulating weapons possession, as those who would do harm with them could do so anyways. Perhaps just regulating the commercial sale of such things, and forcing anyone who wants them to home-brew would at least keep the mere possession legal, but not allow “easy access” to idiots?

  39. Caleb says:

    Yo Sebastian, you need to put a word limit on your comments. All these wall o’text posts make finding actual worthwhile, intelligent writing more difficult.

  40. Sebastian says:

    Yes, the anti-gunners will scheme and lie and distort, but that is no reason to make their unholy work any easier, which is just what a “indiscriminate damage” standard might do.

    I don’t think of the court fight as being between pro and anti-gunners. It’s really between sets of attorneys and federal judges. In a legal parlance, there’s a lot less room for twisting words. In a legal argument, you have room to explain why a .30 caliber rifle is discriminate, while a bomb is not.

  41. ishida says:

    “Of course, with the right permits, you can legally possess an RPG or grenade. Unlike machine guns, they aren’t banned entirely.”

    That is what I was speaking about.
    MACHINE GUNS ARE NOT BANNED ENTIRELY.
    Not even for civilians.
    You mention boomershoot, yet you don’t seem to notice that machine guns are sometimes used there, as well as Knob Creek?
    They may be expensive, but they are NOT completely banned.

  42. Sebastian says:

    Oh geez ishida… do you think I don’t know the law in that regard? They are banned the same way that assault weapons were. Sure, there are some grandfathered weapons, but new ones are illegal. Price wise, they are beyond reach for most people, so in effect, they are illegal, even if not technically.

    But I will try to be careful in my choice of language. That was probably a bit more absolute than it needed to be.

  43. Arnie says:

    First, thank you for this wonderful site and discussion, Sebastian! May patriots everywhere log on to it.
    Now then, if I may say, MDosier and Link P are right! The Second Amendment was not written to secure my right to personal self-defense (the Ninth was). It was written so that a State or States could defeat the national government in battle should it ever violate its Constitutional limits and usurp powers and authorities beloging soley to the States or to the people (“the security of a free State”), i.e., to defeat a national tyranny similar to that of Great Britain’s in 1776. Hence, the 2A does not allow any federal regulation of any individual’s possesion of any weapon whatsoever (including nukes, Bio, and chem) in any State! That is the purview and jurisdiction soley of the sovereign State governments. That is clearly what the Second Amendment says, clearly what it means, and clearly (more today than ever) what is needed to secure our freedom from an ever-growing, ever-encroaching, ever-aggrandizing, treasonous national tyranny. The States created the Constitution, only the States can change the Constitution (Article V), and only the States can terminate the Constitution; yet the modern central government has usurped those last two powers in violation of the Constitution. We have tried political and judicial remedies: eight years of Republican dominance only saw the central government grow bigger and faster than ever before into unconstitutional areas; a “conservative” Supreme Court, in Heller, just emasculated the Second Amendment, transforming it into a mere right of self-defense against burglars instead of the necessary power to destroy government tyranny. The ONLY remaining remedy is “an appeal to arms (Patrick Henry)” in the hands of the people which, under State coordination, is capable of defeating a despotic central government as our forefathers defeated the superpower tyrant of their day (Great Britain). That was the sole purpos and motive behind the Second Amendment.
    But by saying that the national government has authority to make ANY exceptions to the “shall not be infringed” clause is putting the fox in charge of the hen-!house. Of course, it will allow us the arms necessary to kill each other (handguns, rifles, shotguns), but not the weapons for which the 2A was truly written (full combat battle weapons of necessary capability to defeat national tyranny)! By acquiescing to ANY federal regulation of even the slightest nature, you throw out the entire Second Amendment and allow the central government to TOTALLY disarm us! All they need then is to bribe, with OUR tax payments, enough voters to get majorities of liberals in Congress and the Supreme Court and they can “reasonably regulate” away all arms from individual citizens. They are already over half-way there!
    Gentlemen, I know my position is not popular. But it is what the Second Amendment says. And it is the ONLY position that guarantees our freedom (that is also what the Second Amendment says!). Any lesser rendering opens the door to tyranny – and tyrants ALWAYS barge in! Petition your State to defend your right to combat arms against federal infringement. If it won’t, consider moving to Texas. The Texans seem closest to doing so.
    Respectfully, Arnie

  44. thebastidge says:

    “Obtaining explosives is easy, as the ingredients to create them would be readily available even in the event of civil breakdown. In that instance, I think it’s not unreasonable to suggest that banning the manufacture or possession of pipe bombs does not run afoul of the Second Amendment, because under ordinary circumstances, they aren’t useful for self-defense, and under extraordinary circumstances, in the absence of law and order, they would be available.

    Of course, this very fact makes the effectiveness of the law suspect, at best, since it wouldn’t be hard for those with criminal intent to make them under normal circumstances, but this isn’t an argument about what makes for good public policy, but about what is constitutional. “

    The ability or inability to enforce a law equally is a Constitutional test. Laws that are not universally enforceable lead to abuse. It creates situations where law enforcement “throws the book” at you, hoping something will stick, even when they don’t have solid evidence and a clear theory of the crime.

    It should never have needed to be spelled out, so it’s a derivative test of Constitutionality used by the courts. If I were re-writing, I guess I’d probably put some verbiage in about the inability to legislate the impossible. Congress never should have even debated the idea of legislating pi=3.

    Anyway, my point being, that if it is impossible to effectively police the manufacture of destructive devices, then we should only regulate the use of them because such use provides concrete, measurable damages, and focuses efforts of law enforcement to those instances where an actual complaint is made rather than prohibition.

    And your point about normal/extraordinary circumstances just means it’s easier for the government to unilaterally re-draw the line in the sand. If people under normal circumstances (who are generally law-abiding) can be pushed, intimidated, and morally brow-beaten into accepting more restrictions and oppression, it’s a self-reinforcing spiral towards being able to control them futher. And there’s a whole lot of ‘extraordinary circumstance’ far short of open, pitched battles between government goons and brave rebels. The NAZIs and Soviet Union didn’t fight pitched battles with dissidents- they came for them in the night.

    People who are encouraged and culturally disposed towards independence, on the other hand, will push back (mostly legally, but with extra-legal means when absolutely necessary.) I guess what I’m saying here is that by making something taboo to law-abiding people, you make it easier to oppress everybody. The theory on the totalitarian viewpoint is that if you make it undesirable to resist in the early stages, there will come a point where people are unable to resist. (And there’s no clock ticking down til doomsday, it’s a tug o’war back and forth over the middle ground, for the most part.)

  45. MicroBalrog says:

    Mmm. There’s no political will to repeal GCA-1968 NOW. The political status quo is malleable to us, to remake as we will by activism and persuasion. One day – one day sooner than you think – we’re going to repeal the Hughes Amendment, and then the NFA will in turn be fair game. Why should I tie myslef down with legal definitinos which will make it difficult on me to proceed beyond that?

  46. Sebastian says:

    I think it would be a great and wondrous achievement to get rid of Hughes. If the American people ever accept unrestricted sales of grenades, bombs, and RPGs to civilians, I’ll eat my hat. Even if you get rid of Hughes, NFA is still there, and while I’m optimistic we can get rid of some aspects of the NFA, I don’t think you’re going to see machine guns in the local hardware store.

  47. JON HUETTL says:

    Arnie, your post #43 is printed and going into a picture frame and set apon the desk. Thank you for reading the Constitution and allowing others to read what you understand from the words and ideas as the founding fathers knew them to be.

    Just waiting to hear your answer as to why the official dictionary of the Congress of the United States has not be revised since 1870,

    I ask this because since Sebastian has challanged all to a war of words that legal eagles refer to as ‘THE ART OF WORD.’

  48. MicroBalrog says:

    Dear Sebastian!

    First of all, your prophecy is sort of self-fulfilling. If we argue against this, we work against it happening.

    Second, WRT your hat: Would you like fries with that?

  49. Sebastian says:

    That sounds like a variation on “If we just shout loud enough.”

    There is a 0% chance the federal judiciary will adopt an interpretation of the 2A that covers ordnance. Even machine guns I’d put at not much higher than 10%.

  50. MicroBalrog says:

    1. There’s more than one way to eat the elephant. The legislative process still exists.

    2. We already have one Justice who’s on record opposing Hughes on grounds other than the 2nd Amendment, and another who’s probably amenable to this approach. Now to finagle a legal angle to give us three more – or to win elections long enough to appoint them.

  51. Arnie says:

    Thank you for your kind words, Mr. HUETTL ( I am now embarrassed by all my typos!). I must confess, my convictions are due to no wisdom of my own worthy of such high praise, but rather to consistent exposure to the direct writings of our Founding Fathers, of their immediate successors, and of the pertinent court rulings of our first century as “free and independent States.” And I credit oganizations like the National Rifle Association with doing the historical research and making it available to any citizen who seeks the original intent of the great men who won for us our liberty, and who gave us a Constitutionally limited government to secure that liberty from all hazards, including and especially tyranny. In addition, men like Constitutional lawyer Steven Halbrook and author Dave Kopel have worked mightily to bring facts to bear on the true meaning of the 2nd Amendment, and of the historical common law right to armed self-defense in the 9th Amendment. And I credit men like Sebastian for creating websites that give us all a forum to share this information, to cogitate and refine our understanding of Constitutional law and Founding truths, and to “let facts be submitted to a candid world.” These are the men and organizations who truly deserve your praise and mine.
    Blessings of liberty to you and to all!
    Arnie

  52. Sebastian says:

    I like your enthusiasm, Microbalrog. My fear is we don’t have the time to change the playing field in our favor. The base is going to be laid down before hope and change is out of office. Indeed, it’s already being laid, and while I would say it’s mostly going well, there have been some troubling setbacks.

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