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Third Circuit: No 2A Right to Machine Guns

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This decision was released right before I left for Louisville. The Third Circuit contains Pennsylvania, Delaware and New Jersey, and has not, in general, been a very Second Amendment friendly circuit.

Heller and subsequent decisions in our Court make clear that the de facto ban on machine guns found in § 922(o) does not impose a burden on conduct falling within the scope of the Second Amendment. Turning first to Heller, we note that that opinion discusses machine guns on several occasions, and each time suggests that these weapons may be banned without burdening Second Amendment rights.

I’ll be honest, I think that’s a misreading of Heller. The Heller opinion does strongly imply that perhaps bans on M16s might be permissible, but it does not explicitly state it. The Court’s opinion calls the reading of Miller that would rule the NFA’s machine-gun provisions unconstitutional “startling.”

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. 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.”

I think the Court is correct, except I think the only fair way to determine “common use” is to examine whether the weapon is part of “ordinary police equipment,” the police being the nearest modern analogue to the militia. If the Heller “common use” test were untempered by any analysis of police equipment, the government could evade the “common use” test by banning any new defensive technology before it has a chance to end up being commonly used, as the State of Massachusetts tried to do with electric stun guns (which SCOTUS struck down recently).

So was the NFA truly banning unprotected weapons that have no common defensive use, or was it merely trying to evade Second Amendment protections by preemptively banning it before the people had a chance to speak? To look at that, you have to look at what the police are choosing to arm themselves with, since police carry guns for self-defense, and not to conduct battlefield operations. Are machine guns in common use among police? I don’t know, but the courts should be asking that question before simply categorically declaring machine guns outside of Second Amendment protections.

27 Responses to “Third Circuit: No 2A Right to Machine Guns”

  1. Robert says:

    The problem with the “common use” test when it comes to machine guns is that the underlying logic is circular. I would agree that machine guns are not presently in common use. But the reason they are not is due to a functional past ban. So the logic goes like this:

    Q: How is it that the government can ban machine guns?
    A: We can ban machine guns because they aren’t in common use.
    Q: Is there a reason machine guns aren’t in common use?
    A: Sure. It’s because we banned them.

    This is a textbook example of circular logic, which is when the reasoner begins with the same argument that are trying to end with.

    • Sebastian says:

      Looking at police use gets you out of that circular logic. If they have become common police equipment, it’s likely the law was intended to evade Second Amendment protections rather than merely restricting unprotected weapons.

      • Alpheus says:

        I would go so far as to say that any weapon that is available to the soldier or sailor or pilot should be available for the civilian. Anti-gun rights people are always afraid that civilians might get ahold of a fighter jet or a nuclear weapon, but in all seriousness, if a person out to do harm can afford one of these things, then it is very safe to say that the same person can afford to do harm in any number of ways.

        Indeed, a person who can afford a fighter jet can probably get one, regardless of legality!

        (And we would do well that some surprisingly destructive devices — including black powder cannons and flame throwers — are largely unregulated. If someone wants to do harm with a rocket launcher or a mortar, how hard would it be for that person to buy or make a cannon, and do harm with that? The fact that we never hear about bank tellers held at cannon-point should indicate that we aren’t likely to hear about similar incidents with tanks or fighter jets, if these items were made legal.)

        • Braden Lynch says:

          Exactly. The whole (but uncomfortable) point of the Second Amendment is so that the People could fight against a corrupt government if needed. So, ALL weapons should be allowed to citizens.

          The “common use” argument is crap. When a phaser, disruptor, a good old fashioned blaster, or a phased plasma rifle in the 40 watt range is invented, it will be novel. That should not be the rationale used to deny it to the People.

          • Sebastian says:

            Aint gonna happen. We can’t even get them to protect automatic weapons. Hell, we’re probably going to be lucky to get so called assault weapons. But I can come up with ways of limited the right that doesn’t create the “common use” trap. Maybe someday if we’re extraordinarily lucky, courts will agree to look to police use to see if governments are engaging in evasion.

  2. I don’t recognize the country I grew up in anymore. What a sick, twisted reading of Miller.

  3. Tirno says:

    A more reasonable and historically grounded reading of the rationale for the National Firearms Act is that the overwhelming majority of the 1934 Congress knew for a fact that an outright ban on a class of firearms would not pass constitutional muster. This is the same generation of politicians that knew for a fact that they did not have the power to outlaw the sale of alcohol, so they needed an Amendment to gain that power.

    Therefore, they went with next best thing: an outrageous tax burden. $200 in 1934 would be the equivalent of about $8,340 in 2016 income. The point was not to ‘ban’ these classes of firearms, but to ‘tax’ them at a point that only the very richest and most powerful (and therefore those most capable of providing substantial campaign contributions) could absorb the hit. The registration process was, of course, you can totally believe this, just to facilitate the taxation system with the technology and business processes of the day. Remember that the BATFE was, until recently, a division of the Treasury Department. Also remember, in those days, a “computer” was a job description for an educated young unmarried woman who worked in an enormous room at a small desk with dozens of other similar young unmarried women at small desks, and their job was to perform mathematical computations on pieces of paper.

    The 1986 Hughes amendment that closed the registry of machine guns to those manufactured before 1986 was passed on a voice vote, not a recorded vote, and a careful review of the video of that congressional process would reveal that the NAY vote was considerable louder than the YEA vote, and the presiding official simply declared it passed over outraged objections in the chamber.

    Any understanding of US vs Miller must factor in the fact that Miller died before the case could be heard by the Supreme Court, and his lawyer did not show up to make arguments. Nevertheless, working only on the arguments presented by the government, they still found that weapons with a reasonable relationship to the proper functioning of a militia are protected by the Second Amendment, and that the lower court should solicit evidence supporting or denying this quality when considering whether any particular weapon is protected. Had Miller been alive and his lawyer present, it would not have been hard to substantiate that claim as the short-barreled shotgun that was at the core of the case has been used in WW1 by US forces in the trenches.

    • Arnie says:

      Like!!!👍

    • Sebastian says:

      Any member can call for a recorded vote. No one did, so it passed. That’s not a line of argument that can be used in court.

      • Miles says:

        And the court has repeatedly made it clear that they will never entertain ruling on how The House, or The Senate, conducts it’s internal (bill passing) business.

        • Patrick Henry, the 2nd says:

          Yep, because courts love avoiding doing their job with semantic arguments like “political decision” and “standing” and “intermediate scrutiny”.

          • Miles says:

            Oh no, they don’t use even that amount of effort in ‘camel swallowing’, or ‘gnat straining’!

            They have specifically said that how – the method – Congress passes a bill into law is not within the purview of the court to even consider.
            Just like how The House made their rules on how they choose who the Speaker will be and how the Senate made their rules on how it is decided whether or not to give ‘advice and consent’ to Presidential appointments and treaties or how each body to ‘debates’.

            In this instance, that camel’s nose needs to be kept out from under the tent. For if not, each ‘loosing side’ of a bill would certainly use the court and give it even more political power.

            • Alpheus says:

              I think I agree with this analysis, except for one small, carefully-crafted exception: when the Senate takes a House bill, and then guts it, and puts budget and tax rules into it, such a bill should not be considered something that originated in the House.

              But then, the Constitution has a specific requirement that any bill that deals with finances must originate in the House, so this is a Constitutional issue, after all.

              • Ian Argent says:

                Good luck with defining what that means – that’s definitely a case of “cure worse than the disease.”

  4. Tarkin says:

    MG are in common use with the police. My small-town police department has m-16 and HK-UMPs.

    • Will says:

      I doubt that you could find a PD or SO that doesn’t have some number of machineguns racked in their armory. In the 90’s, the feds were giving away m-16’s to any podunk dept that would take them. The types of mg’s they may have is quite varied. I’m unsure if many Vulcan miniguns are held, but there are some out there. The Ma Deuce/w tripod was somewhat common in big cities. Basically, if it was select fire, or FA only, you will find at least one on the books somewhere. Hmm, maybe not in their logbook, as traditionally most depts were fairly lax on the paperwork side. Wasn’t considered important. (Odd stuff turns up when they clean out supply rooms and closets.) Some of these guns were bring-backs (battlefield pickups) that got turned in over the years.

  5. KM says:

    the police being the nearest modern analogue to the militia

    The police – fed, county, municipal – resemble a standing army much more than they do a militia.
    Yes, they are civilians. (they always seem to forget that)
    It’s their actions and the laws that give them qualified immunity that take them out of “militia” status IMHO.

  6. Ian Argent says:

    Police carry their arms for defense of self and others – they are not the military. Short rationalization (consistent with the Peelian Principles) of why police self-defense gear should be considered “common use.”

  7. Joe W says:

    Long time lurker, first time poster. Anyway, I’m living behind the iron curtain in NY and I’m feeling pretty dejected. It would appear that no matter how legally sound our argument is these liberal courts are dead set on upholding the state’s unconstitutional laws. Do you think this ruling, in anyway, bolsters protections for semi-autos? What about the Caeteno ruling? How about Kolbe?

    Its hard to stay optimistic. We’re basically looking at the destruction on the 2A. A ban on modern rifles and magazines will free the 2A in time basically nullifying it or rendering it toothless turning it into the “right to hunt.”

  8. Cargosquid says:

    “We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. 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. 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.””

    “It may be objected that if weapons that are most useful in military service—M-16 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 to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”

    This ruling seems to be confirming Heller’s interpretation of Miller. But the ruling seems to contradict that bit of Heller that says that automatic weapons ARE linked to the 2nd. Personally, I think Scalia was just terrified of following the obvious logic and overturning the NFA.

  9. Joe W says:

    Is there ANY hope at all of getting these semi-auto bans overturned?

    • Sebastian says:

      Federal preemption, maybe.

      • Ian Argent says:

        Another 2-3 pro-2A votes on SCOTUS. Arguably there’s only 2 reliable 2A votes there now.

        So, yeah, federal pre-emption. The groundwork was laid with LEOSA. Same thing that will get us shall-issue and nationwide reciprocity

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