What to Watch For in D.C. v. Heller

lookout2.jpgThe Supreme Court’s next scheduled opinion day, Monday, June 16, could yield a decision in the landmark Second Amendment case of D.C. v. Heller. My guess is that we’ll see Heller on or after June 23, at the very end of the Term. I guess that simply because Heller is the biggest case of the year, it raises wide-open constitutional issues, and it was argued late in the Term, in mid-March.

Either way, here are key points to look for when the opinions arrive. As you’ll see, many of them only come into play if a majority of the Court interprets the Second Amendment as securing an individual constitutional right to arms. Since I think this is the more likely (but by no means guaranteed!) outcome, I’ll run with that assumption in much of what follows.

1. Recognition of an Individual Right to Arms? The threshold issue. Will the Court recognize a genuinely individual right to arms, i.e., one that is not contingent upon participation in a state-regulated military organization? Like most observers, I interpreted the oral argument as revealing that there were between five and seven votes among the Justices for a genuine individual right.

2. What Purposes Does the Right Protect? Privately owned firearms can potentially serve a variety of legitimate purposes. Some of these are civic purposes: deterring tyranny; protecting against invasion or internal disorder; promoting military readiness through individual practice with firearms. Others are private, personal purposes: self-defense against criminal violence; hunting; participating in the shooting sports. Assuming that the Court recognizes an individual Second Amendment right to arms, will it interpret that right in a way that stresses protection for the private purposes of citizen arms — as urged by the provocative amicus brief of Professor Nelson Lund? Or will it emphasize the civic purposes of citizen arms — as it seemed to do in the 1939 Miller decision? Or will it (correctly, in my view) embrace both kinds of purposes, as do many state constitutional decisions? The answer to this question will greatly influence the success of future Second Amendment challenges to restrictive gun legislation. …

Some kinds of restrictions (such as D.C.’s draconian “safe storage” requirements that do not allow a resident to keep any firearm in a usable defensive condition in her home) impinge most strongly on the private purposes of gun ownership. Others, such as bans on modern semiautomatic rifles, seem more likely to come into tension with the civic purposes of gun ownership, to the extent those are recognized as part of the Second Amendment.

3. Whither Miller? In the same vein, it will be fascinating to see how the Heller Court handles the 69-year-old opinion in U.S. v. Miller. Miller is compatible with an individual right to arms that stresses the civic purposes of arms ownership, and the concept of the citizen militia and the “ordinary military equipment” pertaining to it. Many members of the Court are clearly uneasy at the prospect of a strong interpretation of Miller, which one might boil down crudely into the formula: “machine guns for the people!”. In oral argument in Heller, Justice Kennedy openly questioned whether Miller should continue to provide the guiding framework for Second Amendment adjudication. I predict that the Court will put some distance between itself and a strict reading of Miller, perhaps through some agile recasting of the earlier opinion.

4. What Level of Scrutiny Applies? The Heller briefing featured an intense debate about whether Second Amendment challenges implicate strict scrutiny, or some more deferential standard of review. Again, the answer to this question will directly affect Heller‘s future value as a litigating tool to challenge restrictive gun legislation. One possibility (suggested by Chief Justice Roberts during the oral argument) is that the Court will not squarely resolve this issue, but will instead give us an opinion that suggests a heightened, but unspecified, form of scrutiny, leaving it to lower courts and later cases to flesh out many of the details of the right. This approach might recall the famously open-textured opinion in Lawrence v. Texas, which recognized an unenumerated substantive due process right to adult noncommercial consensual sex.

5. Will the Court Actually Strike Down the Challenged Provisions of D.C. Law? Whatever doctrinal moves a pro-rights Heller opinion might make, the bottom-line result will be vital in determining the decision’s effect in the lower courts. Lower federal courts did not begin to take the limits of the Commerce Clause even semi-seriously until the Supreme Court actually started striking down laws that exceeded them, in U.S. v. Lopez and U.S. v. Morrison. Similarly, as Brannon Denning has discussed, most lower federal courts have traditionally been hostile to Second Amendment claims — hostile well beyond the limits suggested by the Supreme Court’s ambiguous 1939 Miller decision. The practical force of the Second Amendment right announced in Heller (if that is what happens) may depend heavily on whether the Court is willing to reject the Solicitor General’s call for a remand, and actually hold unconstitutional the D.C. handgun ban, the ban on functional firearms in the home, or all the challenged provisions. Presenting the lower courts with a square holding of unconstitutionality would make clear that the Second Amendment is now a real part of American constitutional law.

6. Are “Keep” and “Bear” Separate Rights? State constitutional right-to-arms opinions often distinguish the right to “keep” arms from the right to “bear” them, concluding that bearing arms for use outside the home permits a greater level of regulation than keeping them on one’s own property. For example, in a 2004 decision, the Rhode Island Supreme Court described “the keeping of arms” at an individual’s “home or business” as “the sine qua non of the individual right” to arms.

The D.C. Circuit’s opinion below suggested that the challenged D.C. provisions violated Mr. Heller’s Second Amendment right to “keep” arms. There was an interesting exchange on this point during the Heller oral argument, when Solicitor General Clement refused to accept Justice Stevens’s insistence that “keep and bear” should be interpreted as a unitary provision.

7. Blocs of Justices. While I believe that the Court will be able to generate a majority opinion in Heller, I suspect that the Justices will use concurring and/or dissenting opinions to express different views on how to interpret the right to arms.

I expect Justices Scalia and Thomas to take a strong pro-rights stance, endorsing a version of Miller than gives broad protection to those militia-useful firearms that are commonly owned by Americans today, and protects both civic and private purposes.

I think Justice Kennedy (possibly joined by Chief Justice Roberts and Justice Alito) is likely to endorse a conception of the right to arms that distances itself from Miller, and focuses more narrowly on private purposes. This might allow legislatures somewhat more latitude to regulate the types of firearms owned than the than the view I’m (tentiatively) ascribing to Scalia, Thomas, and Miller. But it would still require government to respect a range of traditional uses for private arms, definitely including self-defense, and possibly hunting and recreation as well. I predict either Justice Kennedy or Chief Justice Roberts will write the Court’s opinion, and this bloc’s view of the Second Amendment is likely to govern the case.

In oral argument, Justice Breyer seemed interested in a conception of the right to arms that would protect individual arms ownership to some degree, but would focus tightly on civic purposes, and therefore allow potential militiamen to keep ordinary rifles and shotguns in order to practice with them. However, it seemed that Breyer’s conception would not give much weight to private purposes for arms ownership, such as self-defense. Justice Ginsburg’s views were hard to ascertain in the oral argument, but if forced to guess, I think she may embrace Justice Breyer’s view.

Finally, Justice Stevens seemed to support the formerly received, 1970s-vintage view of the Second Amendment, under which it protects no sort of individual right to possess arms that is enforceable apart from the say-so of a state government and an organized state military force. Justice Souter’s unrelentingly negative questioning in oral argument leads me to think he will join Justice Stevens’s view.

8. Hints About Other Federal Gun Laws? If the Court recognizes an individual right to arms, it may use dicta in Heller to stave off future challenges to certain federal gun laws by stressing that these laws are not called into question by the holding. It’s very likely that any pro-rights opinion will say something to distinguish the federal machinegun ban, 18 U.S.C. § 922(o), the federal ban on possession of firearms by convicted felons, 18 U.S.C. § 922(g)(1), and perhaps the federal restrictions on armor-piercing handgun ammunition, 18 U.S.C. §§ 921(a)(17)(B), 922(a)(7)-(8), which were brought up at oral argument.

Other, less likely candidates for distinguishing dicta include so-called “assault weapon” bans on modern semiautomatic firearms; the controversial federal “Lautenberg Amendment,” 18 U.S.C. § 922(g)(9), which strips individuals convicted of certain misdemeanors of the right to arms; and the very broad federal Gun-Free School Zones Act, 18 U.S.C. § 922(q) (re-enacted in 1996 after an earlier version was invalidated in U.S. v. Lopez). Since I do think that at least some of the federal statutes in the latter list are violative of the Second Amendment, I hope that the Court will not pre-judge their constitutionality in its Heller opinion.

9. Hints About Incorporation? If D.C.’s handgun ban is held unconstitutional in Heller (as it should be), the city of Chicago’s essentially identical ban on handguns will offer a prime target for a test case designed to present the issue of Second Amendment incorporation. A lower court that considers the issue in light of the Supreme Court’s post-1960 “selective incorporation” precedents will have a very difficult time avoiding the incorporation of the Second Amendment, at least in some form, against state and local governments. The only way lower courts might be able to avoid that conclusion is by cleaving to nineteenth century Supreme Court opinions like Presser v. Illinois and U.S. v. Cruikshank that declined to incorporate the Second Amendment, just as the Court at that time declined to incorporate the other provisions of the Bill of Rights. The Court repeatedly rejected this approach during the twentieth century.

So it will be interesting to see whether Heller nods to incorporation — perhaps in a passage that acknowledges the issue, reserves decision on it, and notes that the governing law of incorporation has changed dramatically since Presser and Cruikshank were decided. Such an observation would help encourage the lower courts to consider the issue afresh.

10. A GVR in the companion case? The Supreme Court litigation in D.C. v. Heller has been so rich and important that one forgets about the accompanying cross-petition for certiorari, Parker v. D.C. The Heller litigation originally involved six different plaintiffs, each raising slightly different challenges to D.C.’s gun laws. However, the D.C. Circuit panel dismissed five of the six plaintiffs (all but Dick Heller) under an unusual standing doctrine that the circuit had adopted in an earlier Second Amendment case. This is why the case was recaptioned from Parker to Heller when it reached the Supreme Court.

When the District of Columbia petitioned the Supreme Court for review of the D.C. Circuit’s opinion granting judgment in Mr. Heller’s favor, plaintiffs’ counsel cross-petitioned for review of the denial of standing to the other five plaintiffs. The cert petition on the standing issue, still captioned Parker, has been waiting in limbo on the Justices’ desks for seven months, while the Court has granted cert in Heller and held briefing and argument on the Second Amendment merits issue.

I predict that if the Court holds for Mr. Heller on the Second Amendment issue, it will consider this to be quite enough work for one day without also wading into the tangled complexities of standing doctrine. It will “GVR” (summarily Grant, Vacate, and Remand) the Parker part of the litigation back to the D.C. Circuit, which will have to reconsider the question of Second Amendment standing for the other plaintiffs, in light of what the Court says about the nature of the Second Amendment right in Heller.

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76 Responses

  1. Letalis Maximus, Esq. says:

    Ah, section 922(o). The old “machine gun boogie man.” It will indeed be interesting to see what, if anything, the Court has to say about that.

  2. Letalis Maximus, Esq. says:

    Ah, section 922(o). The old “machine gun boogie man.” It will indeed be interesting to see what, if anything, the Court has to say about that.

  3. I lack the expertise to properly evaluate this analysis, but for what it’s worth, it seems solid and well thought-out. I’m particularly interested in incorporation, naturally, and in seeing the particularly odious Lautenberg Amendment infringement stuck down, but that last is undoubtedly for another day. I’m also rather hoping for a bonus recognition that individuals may not be forbidden from owning the common device of modern armies, the machine gun. It would be most amusing to watch the knee-jerk gun banners go apeshit over this.

  4. tom swift says:

    Let’s see how they make that “shall not be infringed” business go away.

    They’ll have to if they are going to allow, say, the NFA 1934 to stand. Or the GCA 1968. Or BATF’s obsession with “sporting use.”

  5. Sam says:

    I just want to know if I’m going to have still jump through several hoops to legally buy a handgun in NJ.

    Currently I first need to obtain a “Firearms Purchaser Identification Card”. This involves release of any mental health records, giving the names and addresses of two non-family references who apparently have to vouch for you (whose business is it if I want to buy a gun?), and be fingerprinted and have a full FBI background check completed.

    Then I have to apply for a seperate Pistol Permit. Approval of this is apparently at the whim of your local chief of police who can deny it for any reason and not tell you why.

    The whole process can take months even though it’s supposed to be within 30 days by law and costs close to $100 total.

    Is the NJ legislature going to have to revamp this?

  6. Spider says:

    There’s no way this court, or any other court, will allow private citizens to posses machine guns. (ie: full auto) And as a gun owner and lover, i agree with that. What i would like to see is a clarification on the dreaded “semi-automatic” label which is used by the Left to describe almost every weapon, making them all sound ominous. Other than a single shot weapon, or a full-auto machine gun, every gun is a semi-auto!

    But, with the country going further and further to the left, those of us who treasure our 2nd Amendment right had better keep our fingers crossed!

  7. Don Meaker says:

    A proper decision would reaffirm the right of any member of the organized or unorganized militia (section 311, title 10) to purchase arms currently used as equipment of the National Guard. That would include Machineguns. Also mortars, artillery, aircraft (See Texas Air National Guard).

    Further, said right would be secure against state or local meddling, per the 14th Amendment which forbids states from depriving citizens of their rights.

    It may be noted that the Letters of Marque and Reprisal clause recognized the private ownership of crew served weapons. After all what is an armed ship, with cannon, but a crew served weapon? The Second Amendment must be interpreted in the light of the Letters of Marque and Reprisal clause. The 14th Amendment must be interpreted as having extended federally guaranteed rights to include protection against oppression or infringement by the states

  8. ron malba says:

    There’s no way this court, or any other court, will allow private citizens to posses machine guns. (ie: full auto) And as a gun owner and lover, i agree with that.

    If you were a gun owner, you would know that they already DO. The machine gun has to have been made before a certain date.

    In 1986, Congress enacted the Firearm Owners’ Protection Act, banning the future manufacture of machine guns for the civilian market. It also banned the transfer and possession of machine guns not lawfully possessed before May 19, 1986.

  9. Fat Man says:

    I was shaken by this weeks pro-terrorism decision. I think that if 5 of those codgers in black robes decide to support the DC city council instead of the Constitution, they may just do it.

    In a way it would be a good thing in that it would remind Americans how much the rule of lawyers differs from the rule of law.

  10. Nosy says:

    I find the misreading of Miller to be an ongoing problem in the legal world. Probably this is due to a multi-decade long misreading by liberal judges. The facts of the case are not hard to understand, unless one deliberately wants to do so.

    1. Miller was charged with a violation of the National Firearms Act of 1934 (NFA-34) in the form of possession of a shotgun with a barrel shorter than 18 inches.

    2. The judge who heard the case threw out the NFA-34 as a violation of the 2nd Amendment. He clearly understood what “shall not be infringed” means.

    3. The US government appealed directly to the Supreme Court. That’s why the case is US vs Miller, rather than Miller vs. US.

    4. The USSC said essentially to the judge who had thrown out NFA-34 “We don’t have any evidence in our court at this moment showing short barreled shotguns as part of the 2nd Amendment RKBA. So you can’t just throw out the law, you have to have a trial. Please do so.” The case was remanded back to be tried.

    5. Since neither Miller nor his partner were around to be tried any more, no such trial was ever held.

    Therefore, US vs. Miller decides nothing other than the fact that there should have been a trial in Arkansas in the 1930’s. It didn’t address what the militia clause means. It didn’t address what “keep and bear” means. It didn’t uphold the Constitutionality of NFA-34 all that much.

    Upon this, legions of liberal jurists have constructed all sorts of nonsense. But the case itself is not as generally presented.

    Corrections welcome, flames to /dev/null

  11. Glen Alexander says:

    Yes, it’s a widespread misconception that ordinary citizens cannot posses functional machine guns (also called “select fire” or “full auto” weapons). Machine guns can be legally owned by civilians under the provisions of the National Firearms Act (NFA) of 1934, as administered by the Treasury Department. I believe that approximately 40 states currently have little or no additional restrictions on private machine gun ownership.

    A last-minute provision of the Firearm Owner’s Protection Act (FOPA) of 1986 (inserted at the dead of night on a voice vote by a New Jersey congressman) prohibited the civilian ownership and transfer of full-auto weapons manufactured after May 19, 1986. That provision has created a very healthy and appreciating market among ordinary citizens in what are called “pre ’86” transferrable machine guns.

    To my knowledge, there has been no scholarly research or opinion suggesting that DC v Heller might somehow change this arrangement, notwithstanding the Solicitor General’s inflammatory statements during oral arguments.

    It’s worth noting that obtaining an NFA-registered pre ’86 full auto weapon is quite a bit more cumbersome than simply buying a semi-auto rifle, shotgun or handgun. Local law enforcement approval is required, and fingerprints must be submitted with an application to the Treasury for an NFA tax stamp, which is issued after the applicant passes a background check and pays a $200 fee.

    Also, to my knowledge, only two murders have ever been committed since 1934 using an NFA-registered machine gun. One of these was committed by a police officer.

    So-call semi-auto “assault weapons” are a recent semantic invention, as historically, a military assault weapon has always meant a select fire (full auto) machine gun. Semi-auto rifles, etc. are not “assault weapons.” Attempts to ban them as such have simply focused on cosmetic features which might cause them to appear “menacing” or “evil” to someone unfamiliar with firearms.

    Finally, contrary to some reporting and popular opinion, semi-auto firearms are quite difficult to convert to full auto. Doing so (including mere possession of the applicable parts) carries severe federal penalties, starting with a minimum 10 year prison sentence.

  12. Ogre says:

    Assuming the Supreme Court rules it is an individual right, I would love to be used as a test case to get California’s habit of taking away that right arbitrarily.

    Background, when I separated from my wife (now divorced), she lied (through omission) that there was domestic violence. What she failed to mention was that the violence was her drug using daughter (my step-daughter) attacking me with a knife (because I told her she couldn’t go out to party). Despite my filing, with a lawyers help, documents that clarified what happened, the judge put a restraining order on me. As part of the restraining order, I was forced to turn my deliver my firearms to the local police.

    So without being convicted of any crime I was deprived of a Constitutional Right simply on the word of another person. Where’s the justice in that!?

    Unfortunately, I don’t have the unlimited funds needed to take this kind of case through the long legal process.

  13. Brian G says:

    Here’s an example of the liberals I went to law school with:

    Liberal: “[Abortion, euthanasia, gay marriage, education, welfare, health care] is a constitutional right.”

    Me: “Where does it say that in the Constitution?”

    Liberal: “Blah, blah, blah.”

    Me: “OK, so it doesn’t say it in there, right?”

    Liberal: No response

    Me: “You have a constitutional right to bear arms that shall not be infringed.”

    Liberal: No you don’t. Guns kill people and you don’t have a right to have one.

    Me: “But it says so in the Second Amendment.”

    Liberal: “That only means the military can have guns” or [my favorite, in light of their opinion that abortion et al is a constituional right] “You are reading things into the 2nd Amendment that just aren’t there.”

  14. Mike Manges says:

    One consequence of the decision could be the dilution or disappearance of a Republicans voting block. Possibly creating stronger liberal Democratic politicians. If my memory serves me Nixon lost the popular vote to Kennedy by less than the membership of the NRA at that time. I also suspect the NRA’s membership may drop as well, thus weakening the lobbying for conservation and pro-hunting legislation.

  15. Jack Burton says:

    Here’s an area that is just waiting for someone to file a lawsuit…CCW and Churches: Does the state have a role to play?


  16. notahack says:

    Mike Manges I do not believe even a very strong 2nd opinion will hurt NRA or gun rights membership. The way the battle lines are drawn right now I don’t see it having any practical effect in the field besides antis dropping their inane militia only line of pedantic pandering. They fully recognize now that dog don’t hunt with the American public when even USA Today polls reflect 97% of participants think we the people have an individual right to arms. Their gun ban arguments are about crime prevention, for the children and about being reasonable and even about the environment. The battle will be about insane jump through the hoop regulations like the gentleman from new jersey grossed about and fantasy technology like microstamping and ammunition contol like serializing each and every cartridge. Well hmmp you have the right but we will make it so onerous and restrictive and expensive very very few people will enjoy it. IT IS FOR THE CHILDREN AND CONDORS!!!!! People who care about gun rights will keep the fight and many like me don’t see even a strong opinion swaying the battles that are being fought in state courthouses all over the United States of America.

  17. Fred says:

    Here’s another question – what about knives and other edged weapons? Several states have restrictions on knives that are almost as strict as those of guns. All of the arguments that apply to firearms could also apply to various styles of knives (dirks, daggers, butterfly knives)that are heavily restricted or banned in manz areas.

  18. rayra says:

    I note with dismay that despite Mr O’Shea’s able dissertation on the situation, he STILL gets it wrong and perpetuates the misrepresentation that machineguns are BANNED. They are not. They are more accurately restricted, upon proof of good standing and application for and payment of a $200 tax stamp. They are then further restricted or allowed by the States, separately. 4 states forbid private ownership (WA, HI, NY, DE), another 7 limit ownership to manufacturers and dealers (CA, KS, IA, IL, MI, NJ, RI), while the remaining 39 States allow private ownership.

    The gotcha is the ‘86 FOPA did just what the ‘34 GCA deliberately sought to do – raise the price of such arms through the stratosphere, out of the range of the common man – that’s what makes all the quibble about ‘commonly in use’ such a fraud. Hard to ‘commonly use’ a type of firearm that is grossly expensive. The ‘34 GCA established the $200 tax at a time when the Thompson Submachinegun cost fractionally more than that, essentially doubling the price – and doing so at a time when the average per capita income was $316. Essentially making a machinegun cost more than a year’s wages, during the Depression. The ‘86 FOPA by capping the number of machineguns available for private ownership immediately drove their prices up by 200-500%. Once again, out of range of the common man. Or at least the common man that doesn’t choose to pay the price of a mid-sized sedan for one.

    And as an aside I’m going to assert that spider is a poseur / fraud, akin to the American Hunters and Shooters Association. Professing support for firearms while disseminating misinformation and counter / undermining positions.

    oh and spider, a single-action revolver certainly isn’t a semi-auto.

  19. rayra says:

    Mike Manges, that’s laughable. In the face of a potential marxist president and socialist congress, and with the ‘best’ case a RINO with a very likely veto-proof socialist congress, vigorous vocal support of 2nd amendment issues is even more necessary. Quite the opposite from your premise of dissolution.

    McCarthy’s HR1022 still waits in the wings / committee, Ted Kennedy’s AWBII is circulating. All manner of fraud-driven ammo-restricting bills are circulating at the state level, driven by 3 pac northwest liberals with a fat checkbook and a busy lobbyist. And a vague technology patent in their pockets that ensures they get richer when such onerous Microstamping bills are passed.

    No, the battle is as vigorous as ever, regardless of how Heller is rendered.

  20. Mike O'Shea says:


    You’re right, 18 U.S.C. 922(o) is more precisely a “post-May 19, 1986 machinegun ban.” There is a fairly small, fixed supply of legally transferable, registered pre-1986 MGs that currently sell for $4,000 to $20,000+. Acquiring them requires extensive BATFE paperwork, background checks, and payment of a $200 federal transfer tax. Some states prohibit them.

    I was making a shorthand reference to the provision, in what was already a long post. I’m sorry if it promoted confusion. (I assigned a case about 922(o) (U.S. v. Rybar) to my firearms law seminar this spring.)


    Good question. There is a long history of restrictions on knife carry in many American states. Some states include knives among the weapons that can be carried by citizens who obtain a valid concealed carry (CCW) permit. Others don’t, limiting the CCW permit to guns only. Most prohibitions on knife carry focus on knives that are intended as “offensive weapons” (in the words of Oklahoma’s statute), such as “dirks,” “daggers,” “bowie knives,” etc. This can lead to a lot of gray area in determining which knives are legal to carry.

    Oregon’s courts have construed that state’s constitutional right-to-arms provision to include non-firearm weapons such as saps and knives in the definition of protected “arms.”

    The more the Heller Court steers away from the “citizen militia” concept, and toward a private-centered Second Amendment based on the personal right of self-defense, the more room there may be for an Oregon-type argument that common non-firearm weapons like knives and pepper spray are also “arms” protected by the Second Amendment. After all, police frequently carry them.

  21. George says:

    Great article (and good post by rayra.) I live in NY, (I wish that I lived in a class 3 state,) and the basic handgun ruling is based on Miller and bottom line is that “the ability to own a handgun in NY is a privilege not a right.” I can not wait to see what impact this is going to have. (Is NYC’s $344 handgun license fee for a 3 year license too much to have to pay for a right?)

    With the AP story from HCI/Brady “We’ve lost the battle on what the Second Amendment means,” campaign president Paul Helmke told ABC News. “Seventy-five percent of the public thinks it’s an individual right. Why are we arguing a theory anymore? We are concerned about what we can do practically.”


    I wonder if one or two of the Judges might have to rewrite some of their opinion?

    I think that many people will not be happy with what ever the opinion is. We will not get everything that we want and will have to wait for years to find out what “infringe” means. I wonder what the Judges that Obam appoints are going to add.

  22. stonetools says:

    I am one who is more purely concerned with the effect of the Heller result. For example, what possible distinguishing language could the court use to save the restrictions on heavy machine guns? Am I the only one on this thread who is wary of the possibility that my next door neighbor would have a .50 caliber machine gun to play around with-one with armor piercing bullets that can go through walls and still kill people? It seems to me that plastic explosives, mortars, and hand grenades are just as much “arms” as anything else. Why should civilians be banned from owning them if its an individual right? We should always remember that any weapon which is widely available to law abiding citizens will be equally available to criminals.

    Its interesting that just about anyone who has actually served in the military and seen what military grade weaponry can do is usually against civilians having routrine access to such weaponry.

  23. rayra says:

    I’ll go ahead and point a big ol’ “j’accuse!” at Mike Manges, seems he was right at the forefront of the latest Deconstructionist meme, when he pushed the nonsense about the NRA ‘disbanding now that the struggle is won’ –


    Pretty obviously a coordinated campaign to get us to both figuratively and literally lay down arms.

    And it all stinks of a campaign to wish the gun issue into the cornfield, with an ardent anti-gun Presidential candidate in the offing.

  24. Brett Bellmore says:

    “Am I the only one on this thread who is wary of the possibility that my next door neighbor would have a .50 caliber machine gun to play around with-one with armor piercing bullets that can go through walls and still kill people?”

    Are you concerned that your neighbor has a 2 ton SUV that could turn you into a greasy smear any time he chose to run you over with it? Are you concerned that your neighbor has a 5 gallon can of gasoline for his mower, that could turn your home into a blazing inferno any time he felt like dumping it on your house and tossing a match? Are you concerned that he has household chemicals that can poison you?

    We all live, in a sense, at our neighbors’ sufferance. Firearms don’t make this more true, they just make it slightly more obvious to those who never thought about it.

  25. rayra says:

    stonetools is another fool that spouts the formulaic rhetoric of the totalitarian gun-banner.

    ‘wary’? No, not in the least. The owner of such arms is thrice-vetted, a financial success, HIGHLY wary about security of his full-auto possession and by the very nature of the piece, is only going to be firing it on a range with sufficient backstop and clear range.

    It takes a projectionist idiot to imagine the owner of a .50bmg is going to be ‘playing’ with it in their home.

    As to the garbage about ‘armor piercing’ – a regular puny 9mm pistol bullet with 1/6th the mass 1/40th the muzzle energy will go thru your house just as readily. No ‘armor piercing’ required. For that matter, a regular rifle cartridge in any of the popular >~.30 calibers will go thru a quarter inch of mild steel quite readily.

    As to the other mush about criminals’ equal access – quite the distortion / inversion, as invariably criminals have GREATER access since they by definition are law breakers and pay no heed to the restrictions law-abiding folk must labor under – which is what Heller is all about.

    Cities like DC, NYC, Chicago, all heavily infringing, attempting to disarm law-abiding citizens – all have the highest levels of criminals misusing firearms.

    And the last bit of garbage is the worst strawman of all, almost a ‘Stolen Valor’ variant of ‘you plebes don’t know what you are talking about’, attempting to borrow / infer expertise where none exists while trying to sway opinion. Fraud.

    Well let me tell you something, “stonetool” – as a Marine, I took an oath to uphold and defend the Constitution against all enemies foreign AND DOMESTIC. That includes the 2nd Amendment as an individual right, as intended by the Founders. And as readily understood as such by anyone that has perused the Federalist papers or any of the writings of the men that crafted that document.

    It is only since the 1920s that ardent socialists have been steadily chipping away at that right, and deliberately teaching that it is not what it is. And that includes the Democrat congressman that included sections of the Nazi gun control regs, phrase for phrase, in the ’68 GCA.

    To recap, stonetool pranced in here with


    my neighbor will shoot thru my house!

    armor piercing!

    Individual Right = Grenades! (he probably thought he was being smooth by not leaping to the ‘Nukes’ line of rhetoric)

    Crooks get guns from legal owners!

    and a false claim of expertise re the military.

    It’s like a Brady laundry list. That POS Helmke couldn’t have written a more thorough bit of fear-mongering.


    As an aside, for anyone that actually wants to learn about some of the actual penetrative effects / ballistics of commonly available arms, go to the Box O’Truth –


  26. mike123 says:

    We’ll see how the lawyers on Supreme Court get around the pesky language of THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED.

    The Solictor General representing President Bush argued shall not be infringed means the government can regulate and ban guns, so its possible.

    BUT, Americans know anything less than an absolute right position that overturns of all federal gun laws and appliciation to the states will be another example of the Supremes destroying our liberty, a-la McConnell v. FEC, Kelo, and others.

  27. L Liesner says:

    The Second Amendment, like the other nine in the Bill of Rights was written in very plain language.It was the judges, lawyers, and politicians that bastardized the language and today it takes a constitutional lawyer to understand what the word is, is.So much for progress. I have little faith in this court when it pertains to FREEDOM and the Constitution.

  28. GarandFan says:

    Notahack has it right. The left has all but given up on anti-fiream legislation and Heller hasn’t even been published yet. The attack now is via ammunition. Laser-ingraving, ballistic fingerprinting, computerized handguns, anything and everything they can think of. Kalifornia is considering a law requiring your fingerprint, name and address, and ammo info in order to purchase. Plus a $3 tax per transaction….supposedly to maintain a ‘database’ on purchasers. Violations will be punished by CIVIL penalties. They don’t even try to equate this law to any form of crime fighting.

  29. rgaye says:

    There’s no way this court, or any other court, will allow private citizens to posses machine guns. (ie: full auto) And as a gun owner and lover, i agree with that. What i would like to see is a clarification on the dreaded “semi-automatic” label which is used by the Left to describe almost every weapon, making them all sound ominous. Other than a single shot weapon, or a full-auto machine gun, every gun is a semi-auto!

    As a self professed gun owner/lover why is it you think they shouldn’t be able to?

    Why is it that you get to decide that semi is OK but full is not? Maybe it should be single shot black power is the only OK firearm… if we’re going to be forced to endure them in our society that is.

    Yep, that leftward drift will be the incremental end of our rights.

    BTW it IS legal.

  30. Ted In Bed says:

    Will they choose the side of British General Gage or the Colonists who fought at Lexington and Concord?

    For those who forget thier American history, General Gage left Boston to confiscate the firearms, powder, and cannons of the townspeople of Concord and Lexington. Paul Revere’s ride was to tell the Colonist which path Gage’s men were to come. 1775 to now …. will we lose what our forefathers fought to defend.

  31. juris imprudent says:

    stonetools is obviously concerned about things that will destroy his straw-man, er, I mean his house of straw.

  32. gnholb says:

    I believe private citizens already own operational P 51 Mustangs, B 17’s, B 24’s, various other military aircraft and a variety of tanks, and armored personnel carriers. There is, I believe, a growing market for those wealthy enough to own submarines.

    No one I know seems to mind.

    But then, I’m probably missing the point of liberal hysterical fear of inanimate objects.

  33. Jim March says:

    Good rundown, but you missed something important.

    It’s absolutely clear that Justice Kennedy has a big issue with full-auto, and that some sort of pro-self-defense decision would have to factor that in. There’s a few ways to get there.

    One would be to repudiate Cruikshank in particular, and Presser which depends thoroughly on Cruikshank.

    This wouldn’t be hard. Cruikshank can fairly be described as among the most obscenely racist decisions the court ever issued, and is a candidate for the “top” slot.

    In Cruikshank, blacks in Louisiana tried to excercise their new right to vote under the 15th Amendment of 1870. Lining up at the courthouse, they were first disarmed by a mixture of local government officials and the Klan, who then launched three days of arson, riot, rape and murder. Over 100 blacks died in the Colfax massacre of April 1873. Federal troops restored order after the “contaminated” courthouse was burned to the ground.

    Federal charges of violating black civil rights were issued against 60 conspirators including Mr. Cruikshank. Cited were violations of black’s 1st Amendment right to peaceful assembly, 2nd Amendment right to arms and 15th Amendment right to vote.

    The Supremes decided that they didn’t like the 14th Amendment and ignored it completely, stating that the Federal government had no right to control civil rights violations by state actors.

    Today, if a state tried to violate people’s right to vote or peacefully assemble, the Feds would stomp on them with both feet, as well they should. Yet during the re-building of the 14th Amendment in the 20th century under the “selective incorporation” doctrine, the 2nd Amendment was never applied to the states and hence Cruikshank’s portion regarding the 2nd is still seen as case law by anti-self-defense forces in and out of government – cited in the 21st century by the California Attorney General’s office as one example. It is likely the single most morally vile piece of “good” case law still on the books and is beyond over-ripe for challenge.

    So: if we take a closer look at the 14th Amendment in it’s pre-Cruikshank state, we see speeches by it’s primary author John Bingham directly supporting armed self defense as being among the protected “privileges and immunities of US citizenship”. In the Dred Scott case of 1856, the US Supremes enumerated various “privileges and immunities of US citizenship” as including “a right to keep and bear arms wherever they went, singly or in companies” while stating that blacks don’t have such rights. To overturn Dred Scott’s stance that America is and always has been a racist nation, John Bingham turned their own words against them in the opening of the 14th.

    The Cruikshank court didn’t like the idea that Dred Scott had been overturned by constitutional amendment, hence they ignored the 14th.

    The kicker is that when the 14th passed in 1868, blacks didn’t yet have the vote. So they were being granted a civil right to personal protection at the same time they didn’t have “political rights” including jury service and militia duties.

    That’s what Kennedy wants: a disconnect between personal defense and militia service.

    But if he gets there via a true restoration of the 14th, and it’s laid out that way in Heller, it *could* kill the Chicago handgun ban dead right there.

    Whether it’s this case or another, America’s first great civil rights leader, white Ohio Republican legislator John Bingham, will finally see his life’s work restored to his intent.

    Jim March

  34. lysander says:

    More arguments should delve into Congress’ utilization of Letters of Marquis and Reprisal. It was not an uncommon practice for Congress to commission private citizen/businessmen (through Letters of Marquis and Reprisal) to direct their privately-owned merchant vessels armed to the teeth with “every terrible implement of the soldier” to engage pirates and/or other enemies of the state. Congress did not grant special exceptions to own state-of-the-art military armaments to the armed-vessel-owning merchants they commissioned with Letters of Marquis and Reprisal. Their ships were already armed to the teeth. As was the case for all citizens, these merchants were free to possess whatever armaments they decided were necessary to conduct their business (i.e. an unalienable right guaranteed by the 2nd Amendment). Those commissioned were ordinary citizens – special only in the sense that they could afford fully-armed merchant vessels. The fact that we now have a navy to do what was previously directed to merchants, through Letters of Marquis and Reprisal, does not negate the acknowledgement by Congress (and the U.S. Constitution, I might add) that the 2nd Amendment’s guarantee of private ownership of state of the art military hardware is essential to the security of this nation.

  35. Uncle Lar says:

    As several have pointed out, the anti gun crowd have had some success in demonizing full auto to the extent that most citizens believe machine guns are illegal. Such is the reality we live with.

    Now, with the BATFE persecution of David Olofson, we have them positioning themselves to make the case that any semi auto firearm is potentially a machine gun. They just need to prove it with a few simple “tests.” Remember, Olofson had an old AR15 that was perfectly legal, but worn and dirty after firing several hundred rounds, and the person he’d lent the rifle to experienced a double fire followed by a jam. BATFE labs tested the gun and reported it to be a legal semi auto, at which point the investigating officers demanded that it be retested with commercial soft primer ammo. Under that type of testing they were able to get the gun to double, and declared it a machine gun.

    I maintain that under these conditions they can make any semi auto go full eventually. And where does that leave all us owners of semi’s?

  36. Bruce V says:

    What are the ramifacations if (hopefully) an individual rights opnion is issued with regards to NFA 1934 $200.00 “TAX”; in as much as a RIGHT can not be taxed? Will all of the $200.00 taxes that have been collected (stolen from) the owners of class III firearms owners over the years be refunded?

  37. MannyJ says:

    Hi, Mike! Hey, so this is where you’ve been keeping yourself. Nice article.

    A few thoughts from a non-expert:

    I like the interpretation by CoAs that “bear arms” refers to a right to join the militia, subject to state regulation but free of federal interference. That “bear arms” is what a soldier does, not what a hunter does, matches my recollection of how 18th-19th century novels and tracts use the term. This interpretation also makes the 2nd Amendment a typical Ciceronian checks-and-balances provision, like so much else of our Constitution.

    But that does not mean there is no individual right, because I agree with you that “keep and bear” does not read as a single right. Soldiers do not “keep and bear,” they bear. Also, this provision is in the Bill of Rights, a collection of individual rights. Keep arms makes sense as a supporting right reserved to individuals: you can keep arms so that you will be available for militia call.

    That said, the scope of the right is totally unclear. The absolute phrasing does not tell us much — we sharply limit “free” speech, which is framed just as absolutely, and which, after all, presents much less of a “clear and present danger” even at its most extreme than firearms do. Also, why imagine that the 14th Amendment incorporated the 2nd Amendment right as one against the states? If I am right about what “bear arms” means, then 14th Amendment incorporation would make little sense — not because the right is not important, but because it is bound up into a vision of state regulation as no other right in the Bill of Rights is. If DC is treated as a state, which it is in most contexts, the 2nd Amendment may not help at all.

    I think you’re right in your Justice count and that this Court will find some way to assert a strong individual right against states. But I think this would be an error, not just of policy, but of interpretation.

  38. Socom16 says:

    Q = If all forms of American Government ceased to exist, would I still have a Right to Keep and Bear Arms?

  39. Rob, Esq. says:


    Let me help you figure out the language. If a plain-meaning reading of the text leaves doubt, you can look to the context (as you pointed out, the Bill of Rights) and if there are any remaining questions, you can examine the legislative history, including comments of the legislators. While not binding on any court, this kind of investigation frequently sheds light on the true intent of the individuals responsible for the language.

    So take a look at the Framers’ take on individuals and firearms and tell me if you can come to any conclusion other than the one that we Second Amendment advocates do – that they intended to protect a God-given, individual right to keep AND bear arms, as private individuals, for defense of the nation, state, municipality, family, and individual.

    There can be no honest doubt.

  40. Wendy Weinbaum says:

    As a Jewess in the US, I would like to remind everyone that criminals are stopped by FIREARMS, not by talk. And, that America wasn’t won with a registered gun! That is why all REAL Americans put our 2nd Amendment FIRST!

  41. Bruce V says:

    Q = If all forms of American Government ceased to exist, would I still have a Right to Keep and Bear Arms?

    Posted by: Socom16 at June 16, 2008 01:05 PM

    Yes, you would; the Constitution is a document that restricts the power of government from infringing on our God given RIGHTS.

  42. CTD says:

    there has been no scholarly research or opinion suggesting that DC v Heller might somehow change this arrangement

    To the contrary: there is no discernable difference between DC’s outright ban on handguns vs. the federal ban on machineguns. Both demonize a category as “too dangerous”, prohibit possession of any such items made after a given date, and grandfather possession which was legal prior to prohibition (the only difference being that with 922(o), grandfathered possession is transferrable). If anything, the latter category is more protected, being obviously the more suitable for the application indicated in the 2ndA’s preliminary clause.

    The similarity is enough that it largely (almost exclusively) drove the Solicitor General’s brief, and garnered enough interest among the judges that they included him in oral arguments (a rarity).

    As written, one can practically take the lower court’s verdict, replace “handgun” with “machinegun”, and have an equally persuasive argument. As such, I believe many will do exactly that (or equivalent thereto), by filing Form 4s with the BATFE to purchase new MGs, then file suit in federal court accordingly.

    There is no magical difference between MGs and other guns that will be protected by a Hellerverdict. Their ability to fire faster is not hugely different, and is comparable to other alleged objections to other types of arms (capacity, concealability, rate of fire, caliber, etc.) which will nonetheless garner federal protection.

    That there is little scholarly research thereon has far more to do with it being a “third rail” issue than there being any discernable difference. Given discussion on other subjects, there really isn’t anything to add by discussing MGs in that light, other than they too (post-’86 included) should be legal.

  43. CTD says:

    the scope of the right is totally unclear.

    Only if you deny the plain meaning of the right.

    The right of the people to keep and bear arms shall not be infringed. That indicates no limit on “people”, “keep”, “bear”, or “arms” – and emphasizes that lack of limit by plainly saying it “shall not be infringed”.

    This right is to be protected at least in part because a well-regulated (equipped, ready to function) militia (all citizens reasonably expected to serve in community defense) being necessary to the security of a free state (or any suitable level of patriotic jurisdiction). Those acting in such service are drawn from the people at large, and are expected to show up armed to at least minimum reasonable standards.

    Without the people at large being armed, you cannot have a militia. This is not difficult to understand unless you refuse to accept the conclusion.

    we sharply limit “free” speech

    Not really. You can say darn near anything you want, with the only limitations being “strict scrutiny” ones: you are liable for the consequences of what you say, and some consequences are so obvious and henous that we pre-emptively restrict them; if, however, such comments are true they are not restricted.

    The only real limitations involve misuse of radio-broadcast media, which is closely related to the extremely limited availability of the radio spectrum; anything you “can’t say on the air” can be said in print, cable, verbally, etc.

    To have comparable “sharp limits” on keeping & bearing arms, one could own, store & transport anything, with the only caveat that (A) you can’t store area-effect arms where others would be unavoidably harmed by an “accidental discharge”, and (B) you can’t go around “pointing” arms at people without good reason.

    Upshot: the 2nd Amendment is very clear. If you’re having trouble understanding it, that’s because you refuse to accept the plain meaning thereof.

  44. Joe says:

    State constitutions before the US Constitution had Bills of Rights language, including keep and bear arms, specificly to protect individual rights against state government. The ratification of the US Constitution was delayed by the states until the US Constitution was amended with the first 10 amendments to have the same individual rights protection against federal government as done in the state constitutions.

    Ratification of the US Constitution was reconignition that 2nd Amendment and other individula rights amendments must apply to both State and Federal governments.

  45. CTD says:

    I live in NY, (I wish that I lived in a class 3 state,)

    FWIW: You CAN buy an Class III AOW in NY – a 12ga pistol (google Serbu Super Shorty for an example). My sheriff was startled when asked to sign the Form 4, as nobody had asked him to in 13 years in that position.

  46. Jerry s says:

    It is interesting to read the various views of the Second amendment. What is most interesting, but common, is the progun owners statements about legal posession of a MACHINE GUN. The belief that ordinary citizens cannot posess a Machine gun are totaly false. Federal law does not make posession illegal it only taxes the transfer. 37 states allow legal posession of machine guns. and there are a lot of US citizens exercising their rights under the second amendment. The thought of a pro second amendment person willing to concede that a certain type of fire arm should be banned makes me wonder how these persons would like it if the SCOTUS said that Shotguns be banned or controled because of the type of fire arm or ammunition it shoots. Fair weather gun owners have always been the plague of the SECOND Amendment. Willing to give up anothers right but not theirs.

    I live in Wisconsin and own over 100 class3 firearms. Machine guns, Mortars and short barreled firearms. All legal.

  47. RobertG says:

    Oh Lord do I hope and pray for an honest ruling from the Court. Licences, registration, waiting periods are all bad. I have little hope they will all be gone with anyone ruling but these are goals for Honest Citizens to strive for.

    So who do we trust, our selves and fellow citizens or a self serving group of politicians and dependant civil servants? My choice would be We the People, but I am told that makes me an extremist. So God Bless my fellow Extremist.

  48. chris says:

    the wording of the 2nd coupled with the 9th and 10th amendments clearly establishes that the right to keep and bear arms is a right reserved to the people… because of this, how is it possible that the federal government or the states can enact ANY laws???

    those rights are reserved to the people…

    all of the rest of the discussions and the so called ‘victories’ that the gun world spouts off about are crap… we should be advocating for a total removal of the gun laws on the books in every state…

    the federal government and the states have conspired for years to violate the god given and constitutionally affirmed rights of all americans and its about damned time that we stop pussyfooting around with these tiny steps and take back the rights that have illegally stolen from us…

  49. John McEnerney says:

    Apparently a language lesson is in order: “to bear” does not encompass any implied meaning other than its definition, i.e. “to carry”. It is not used predominantly in a military context, and it is not used solely to describe arms, e.g. “bearing gifts”, “bearing burdens”, “borne on wings of steel”


    Function: verb

    Inflected Form(s):

    bore \ˈbȯr\; borne also born \ˈbȯrn\; bear·ing


    Middle English beren to carry, bring forth, from Old English beran; akin to Old High German beran to carry, Latin ferre, Greek pherein


    before 12th century

  50. Lou Levy says:

    This article and the responses put a lie to the notion that only redneck milita types support private gun ownership in the United States. It should be required reading in Britain!

    I find myself asking if all of you understand that under Martial Law, all of this becomes moot.

    Since the Johnson Adminstration a long series of Executive Orders have been put into place which take effect the instant a President declares that a “state of national emergency” exists, and have the effect of vacating the Constitution. One of those Executive Orders allows the confiscation of all privately held firearms.