Machine Guns and Heller PDF Print

Heller and Machineguns

In District of Colombia vs Heller, a number of longstanding questions about the Second Amendment were established as principles of law by the US Supreme Court. While the decision itself was primarily limited to the question of handguns, the analysis contains plenty of statements and criteria that allow one to apply it to other forms of weaponry. Here we are specifically considering its application to machineguns according to the definition according to US federal law.

DC vs Heller found that among the purposes of the Second Amendment was a desire to “deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved”. Heller further states that “United States v. Miller, 307 U. S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes”, specifying that Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.”

Heller makes use of the construction of common use in reference to Miller, and it is certainly possible to argue that automatic weapons are not currently "in common use". However, it is legally dishonest to claim that an item that may be subject to an unconstitutionally broad ban is not in "common use" when the ban itself makes common use illegal. More broadly, it is clear looking at the history of the past century that machine guns have been in very common use in every major conflict, both those comprised of standing armies and those of citizen armies resisting invasion or fighting for independence. The Swiss, a prototypical civilian militia, maintain an automatic firearm in the home of every able bodied member. One can hardly argue that machineguns are not in "common use" or “unusual” with regards to active militias operating in defense of their homeland – in fact, machineguns such as the AK-47 are the single most common means of defense used by such militias.

Civilian law enforcement at both federal and state level make use of machine guns for security purposes for protection of individuals and defense of property in public spaces. Such use strongly suggests that there would be ample "common use" in executive protection, security guards, and other such areas should machineguns not be banned.

Nor is it reasonable to label machineguns under the NFA regulations particularly dangerous. Any weapon is inherently dangerous; the ability to dispense lethal force in protection of life, liberty, and property is necessary in some cases, but does not come without some risk. Since the passage of the NFA, there have been only two cases of registered (legal) machineguns being used in criminal conduct, an admirable record of essentially negligible crime over the course of a century. With such a record one can hardly consider legal, ATF-approved machineguns to be any more "dangerous" than title 1 firearms not subject to such rigorous background checks and approvals.

In Heller, the court finds that “The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Machineguns are overwhelmingly chosen for use in civilian militia purpose worldwide by those given the legal option, and as such a complete ban of such weapons may be considered to be contrary to the stated intent and language of the Second Amendment.

Miller itself found that “With obvious purpose to assure the continuation and render possible the effectiveness of such forces the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” To deny the unorganized militia the ability to own the common arms of the modern soldier is by definition to render them less effective than their counterparts in the standing army, directly contrary to the intent of the Second Amendment as affirmed in Heller.