The Fifth Circuit led the way regarding the individual rights view of the Second Amendment so it was interesting to read a recent opinion holding that machine guns were not included. A 1986 expanding a national regulation to specifically ban machine guns* (including conversion of other weapons) made after that date. Pre-existing ownership is still legal as a matter of federal law. The Fifth Circuit was following recent lower court precedent in this respect, but went somewhat further than merely saying machine guns are not covered. The reasoning particularly interested me.
We hold that possession of an unregistered pipe bomb, by its very nature, creates a substantial risk of violence. Unlike a handgun, it is not considered sport to hunt or engage in target practice with a pipe bomb. Moreover, it would be quite difficult to protect oneself or one's family with a pipe bomb. In fact, we cannot conceive of any non-violent or lawful uses for a pipe bomb.
This is from an earlier opinion cited here regarding the "dangerous" nature of a pipe bomb.** It is relevant since an exception in D.C. v. Heller are "dangerous and unusual weapons," though the last opinion cited there was handed down in 1874. However, Scalia rejects the "startling" (possibility of a federal law somehow being unconstitutional doesn't seem too shocking in itself) idea that the current machine gun ban is unconstitutional. He does so in part to separate personal ownership from ownership that might have a valuable militia purpose. But, just what this specific term means was left noticeably to the lower courts to determine. Handguns were noted to be in common use and practical for personal home defense over other guns without comparing it as such to a "dangerous and unusual" arm.
OTOH, in Staples v. U.S., cited by the 5th Circuit, the Supreme Court (in 1994, with only two justices dissenting) required actual knowledge a gun is a banned machine gun. Justice Ginsburg concurred (only Stevens/Blackmun dissented) to emphasize that Congress recognized "widespread lawful gun ownership” and a "very limited class of firearms, those they considered especially dangerous" that was "often difficult to distinguish from others non-regulated types." This would have been a useful citation in Heller to help clarify rankings among categories, including the comment: "we might surely classify certain categories of guns -- no doubt including the machine guns, sawed off shotguns, and artillery pieces that Congress has subjected to regulation -- as items the ownership of which would have the same quasi suspect character we attributed to owning hand grenades."
OTOH, in Staples v. U.S., cited by the 5th Circuit, the Supreme Court (in 1994, with only two justices dissenting) required actual knowledge a gun is a banned machine gun. Justice Ginsburg concurred (only Stevens/Blackmun dissented) to emphasize that Congress recognized "widespread lawful gun ownership” and a "very limited class of firearms, those they considered especially dangerous" that was "often difficult to distinguish from others non-regulated types." This would have been a useful citation in Heller to help clarify rankings among categories, including the comment: "we might surely classify certain categories of guns -- no doubt including the machine guns, sawed off shotguns, and artillery pieces that Congress has subjected to regulation -- as items the ownership of which would have the same quasi suspect character we attributed to owning hand grenades."
All guns are "dangerous" in some sense of the word. The term "dangerous and unusual" (interesting match to "cruel and unusual") has been interpreted to use that word to mean "especially dangerous." The earlier case was not a Second Amendment case, but comparison of a pipe bomb and handgun is telling. The Second Amendment might not have expressly been given the Heller reading, but there was a widespread general understanding that individual ownership should be treated differently when certain types of arms were involved. The opinion here also discusses "unusual," which it notes has been a matter of some debate. Regardless, like using various Establishment Clause tests, machine guns are "unusual" no matter what test used. A key factor being widespread bans (cf. Alito's analysis as applied to stun guns). This again reminds one of how "cruel and unusual" has been applied.
This is interesting and itself goes into more detail than the 3CA opinion, but overall seems rather straightforward. Plus, Heller itself assumes the government can ban machine guns. It also addresses the possible rejoinder that machines guns would seem to be helpful for a "well-regulated militia." The opinion determined that this was advanced by an individual right to keep and bear arms, arms in common use at the time for personal self-defense. This was actually the core concern according to Heller -- the personal right to have an arm to deal with confrontations, particularly in the home ("Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.")
What really made me say "hmm," though it does seem to logically follow, is page 11 of the appellate ruling:
Heller, therefore, distinguished between two classes of weapons: (1) those that are useful in the militia or military, and (2) those that are “possessed at home” and are in “common use at the time for lawful purposes like self-defense.” See id. at 621−27 (quotation marks omitted). The individual right protected by the Second Amendment applies only to the second category of weapons, though that category at times may overlap with the first.
The italics are in the original. A logical -- one made by the author talking about his book on the First Congress -- interpretation of the Second Amendment is one that focuses on the militia. States would retain the power over their militia, which would be armed with various types of weapons (the First Militia Act actually required ownership of certain weapons and equipment; state militia laws did as well) and they would not necessarily always be "possessed at home." Given the recent holiday, reference can be made to the spark that started the Revolutionary War -- reports militia stores would be seized by the British. Home and personal defense was not quite the same thing here.
The usual complaint is that modern arms are quite different from the typical musket of old, helping to show that the Second Amendment is obsolete. The Supreme Court tries to deal with this by noting that yes we have much more serious weaponry now, but the type of arms the amendment is meant to cover is more limited. This seems a bit of a quirk of technology -- if the advancements in technology that arose not too much later (cf. weaponry of the Civil War), would the overall logic of the amendment be different? I think not. The basic logic of the militia and the need to arm "the people" (which turned out generally to be a subset of white males) would hold. The fact the average person might not have some repeating rifles or the like at home wouldn't change this.
As noted in McDonald v. Chicago, sure, there was a development over time regarding the understanding of just what the Second Amendment meant. Calling out Scalia on bad originalism is a bit of a parlor game, but even textually, the whole thing is somewhat troubling, at least curious. A text that specifically highlights -- something the Constitution nearly never did -- what is specifically at issue largely edits out the first part as something of an also ran ("might'). Yes, in the long run, this is said to advance the needs of the militia. But, doesn't it have a sort of round peg in a square hole flavor? Why wouldn't the "arms" be militia arms?
The focus on an individual right for personal self-defense in the home, a right that I do think exists, is confused here. The Second Amendment to me is best seen as tied to a specific purpose that does involve individual ownership, but only as a means to an end. People have guns for a range of purposes -- hunting, self-defense, target shooting and so forth. Originally, one purpose was to defend society in generally, beyond the degree self-defense itself does that. The current approach is too personal, solitary for my tastes. The image is of a solitary (probably male) person defending hearth and home. But, the Second Amendment is about the "militia," which like the jury is more of a group effort.
I would get to the same basic place in another fashion. First, the "dangerous and unusual" exception would provide a narrow means. Second, more broadly, personal ownership would be seen as part of a wider whole, just as free speech and other rights would be. There is a general right to keep and bear arms to advance the interests of the well-regulated militia. This involves regulation, more so than religious belief or speech; we don't read of "well-regulated churches" or the like. This alone seems notable, including as a partial reply to Justice Thomas' recent dissents that argue that the Second Amendment is getting second class treatment. Guns here are different. It's in the text alone. This is so even if you think "well-regulated" is self-regulation to "make regular." Still not present for religion and speech, which can be rather irregular. Disorder is more encouraged in those contexts.
All rights will be regulated somehow. Specifically, the regulations here are appropriate for the items ("dangerous and unusual") and overall ends. The ends here being self-defense, certain types of firearms can be banned, just as certain types of speech is deemed too dangerous or not worthwhile enough to allow (libel, child porn, threats etc.). The home is special here as it is for various rights. Thus, yes, possession in the home would get special protection, but like Lawrence v. Texas, don't think the right is limited to the home. This would not really for me be a "Second Amendment" purpose. Personal self-defense is a separate liberty.
Heller does focus on personal self-defense and there is a general understanding that agrees with that point of view. So be it. There is a means to connect it all together. The government can very well decide that machine guns are necessary for militia service. There also might be other weapons that are "dangerous and unusual" in some fashion that for the limited purpose of professional militia use would be appropriate. It might even be constitutionally impermissible for the federal government to deny specific states the power to do so. But, for the specific personal individual right at issue, it very well might be different. The qualifiers are added advisedly since, like jury service, I think there is an "individual right" to membership in the professional militia, which again might have arms different than those individuals themselves can for home use.
Since Heller was so originalist in nature, it seems notable that the idea of two categories of arms would probably seem curious to the Founders. The weapons they took to the field were akin to the ones they had at home. There weren't "militia" and "personal use" weapons to the extent the "two classes" discussion seems to establish. The approach here seems somewhat artificial, even if handguns might be a form of military sidearm or whatever. Now, personal weapons are front and center, their connection to the militia somewhat happenstance. Why not simply accept that personal ownership is a separate liberty and militia use can be regulated separately? Even if the second part of the Second Amendment is not a clean overlap of the first, there is more of a connection than the current rule says.
I think the Second Amendment applies to "both" types of weapons but their different purposes and effects allows different rules.
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* Defined here as a gun where one pull of the trigger fires more than one shot. Per Wikipedia, a "semi-automatic" is a weapon where the gun is ready to fire after the first shot but it requires another pull to do so.