More on Machine Guns

From Dave Hardy:

I think EVERYONE associated with this case who knows anything about appellate argument — and I’ve talked to many in that class — agreed that if you cannot come up with a 2nd Amendment test that lets the government do a lot of things with full autos, you lose. That’s bottom line. You can have a second amendment for things other than full auto, or you can have no second amendment. Take your pick, there is no third alternative. Life isn’t fair. I was very relieved when the Court showed signs of taking the view that Heller is asking to own a .38, not a Thompson, so we can deal with the full auto issue if and when someone brings a case (which I hope will be about ten years down the road).

I think ragging on Gura for this is not very productive.  The guy just, in all likelihood, won a case that gives us a second amendment that means something.  I was not happy that so much of the oral arguments focused on machine guns, but what are you going to do? He was the one up there, and not us.  It’s a lot easier to think “He probably could have answered that question without mentioning machine guns” when you’re sitting there listening rather than on the spot being grilled by justices in the highest court in the land.

That said, I’ll leave the comments open for folks who want to outline ideas for how to make the distinction between arms that are protected by the second amendment, and arms that aren’t, that meet the standard laid out by Dave above.

11 Responses to “More on Machine Guns”

  1. Alan Andrews says:

    There are a lot of “rights” to some some pretty unpopular things that have been found in the constitution. Some of them more scary than machine guns. ( at least to me )

    I think the key is an incremental approach. Take the individual right, which I honestly never expected to see in my lifetime and go with that. Then build on it gradually, allowing the public to see that gun rights don’t lead to blood in the streets. We’ll never win some people over, but the intellectually honest people will, in time be won over. After all most states have shall issue concealed carry now without the scary gunfight scenarios the other side predicted.

    The thing to avoid is declaring classes or types of arms as illegal right off the bat. The bottom line is that currently machine guns are NOT illegal at the federal level. If you can find a pre 86 MG for sale and you can jump through the paper work hoops then you can own one. Yes, it sucks that a $100 piece of stamped metal costs over $4000 now, but that’s better than nothing. I’d like to avoid making things worse at this point, and that’s why I’m worried about the oral arguments that sounded to me like 86 all over again where machine gun owners are sacrificed for the “greater good”.

    I’m not a lawyer, obviously, so I’d like to know if the justices are likely to have an ruling that actually covers machine guns in DC v. Heller? I would think they would keep to a more narrow opinion that just deals with the handgun ban itself.

  2. Sebastian says:

    Keep in mind I’m not a lawyer either, just an observer.

    Machine guns aren’t at issue in Heller. Anything they say about machine guns will be dicta, but that doesn’t matter much because the lower courts will pay attention to it in deciding how to construct the scope of the second amendment.

    I’m sharing everyone’s frustration with the machine gun issue, but it’s tempered by the fact that we’ll likely win on every other front if I’m reading the tea leaves correctly. Can we live with a second amendment that doesn’t protect machine guns?

  3. Sailorcurt says:

    Started to comment, but it quickly got too long (imagine that).

    My response is HERE

  4. RAH says:

    I felt Gura misstepped at this point. But Clement very clearly stated that machines would be covered under the militia purpose since it was the common isssued arm.

    I thought Gura was too quick to restrict the right. WE want this to vague and not even address machine guns. Leave the possibility to be as broad as possible.

    I agree he could easily said mortars or nukes as extreme examples. If asked directly say that this case is about banning handguns.

    The Justices ask a lot of questions to try to get idea of how far the attorney has thought out the implications. They generally will narrow it down.

    As to reasonable regulation could be zoning restrictions on ranges or not allowed to target shoot where houses are close and to prevent felons as listed in the militia clause.

  5. Sebastian says:

    I thought he did too, but people who know more about this stuff than me seem to think what he did was necessary, so I’m not going to dwell on it. Gura did a good job, overall.

    The courts are going to leave a good bit of room for government regulation of firearms, either directly or incidentally, no matter how all this turns out.

  6. Alcibiades McZombie says:

    I’d rather get suppressors than machine guns…

  7. Mike OTDP says:

    You’ve GOT suppressors. $200 transfer tax, get through the background check, and you can put the latest bleeding-edge suppressor technology on your gun.

  8. Alcibiades McZombie says:

    Well, you’ve already got machine guns, then. Just pay the exorbitant prices.

  9. Alcibiades McZombie says:

    Though, a full-auto Ruger Charger would be pretty cool…

  10. Sanchez aka "Jack of All Trades" says:

    Then I suppose you wouldn’t mind paying exorbitant prices on supressors.

    I’m sure we’ll never be rid of the Hughes Amendment. Same two reasons as everyone else has said. The whole thing about ownership of machine guns being intolerable outside the gun community and machine gun owners having too much money tied into them. Best thing we can hope for like Armed Canadian said is an amnesty period.

  11. Alcibiades McZombie says:

    If it wasn’t clear, it’s not the prices that matter.