Continuing a thread that started with my post about police rifles, I wanted to note that what I’m speaking of is not what interpretation of the second amendment is most correct historically, but which interpretations protect the widest array of firearms that the federal judiciary would adopt.
Note that there is no way the federal judiciary is going to accept a standard that laws regulating any kind of arm is by default unconstitutional.Â There will be lines drawn with certain classes of arms being protected, and certain classes not being protected.Â We have it on pretty good authority, both from Alan Gura, and various other folks with legal knowledge in the issue, that it is extremely unlikely that the federal judiciary will even rule that automatic firearms are protected arms under the second amendment.
So I think it behooves us to think of a standard that the federal judiciary will accept that nontheless, protects an awful lot of firearms.Â My “common police use” standard wasn’t meant to be an all inclusive rule, just one way to think about the problem.Â For instance, Bryan Miller’s crown jewel, the New Jersey Smart Gun ban would fail the common police use test, since police are exempted from it.Â The beauty of the test is that it forces politicians to seriously consider actions like what Chicago may be doing.Â If it can be shown that M4s are in common use in police departments, the constitutional case for restricting them starts getting weak.Â Certainly magazine size limits and bans on so called “assault weapons” would not pass this test already.
That’s not to say I think the “common police use” test should be the only one.Â I would propose a three fold test to determine whether the arm is protected under the second amendment:
- Is the arm usable for personal self-defense, or
- It has a function in the preservation of or practicing skill at arms, and
- It is of a type or functional variant of a firearm in common police or civilian use.
Type or functional variant makes this pretty broad, so many types of firearms fall into this.Â This test also doesn’t shut the door forever on machine guns, but nor does it directly address whether they are protected.Â It’s also a bit stronger than the “common civilian use” test that the court alluded to, since pretty obviously that would close the door on machine guns.
But this is only meant to be a standard of interpretation for what is an arm under the second amendment.Â At some point we also have to address what constitutes an infringement.