In states, incorporation is not an issue and the power to regulate guns must be tied to a specific Congressional power.

In D.C. Article I, Section 8, Clause 17 applies which gives Congress the power “to exercise exclusive legislation in all cases whatsoever over such district . . .” which has routinely been described as plenary power. Congressional power is at its zenith in the District of Columbia.

It is not nearly as difficult to draw the distinction as some would suggest. The focus of the Second Amendment and the right to keep and bear arms is clearly the individual, and heavy weaponry, weapons of mass destruction, nuclear weapons, etc. are not applicable to an individual’s circumstances. For example, you can’t respond to an intruder who is crawling through your bedroom window by setting off a nuclear bomb, as that would incinerate you as well. Nor can you call in a request for a jet to launch an air strike on your front door if someone is trying to break it down, as that sort of weapons system is not something that can be managed by an individual.

On a separate note, some have suggested that banning short-barreled handguns might be reasonable since they are more concealable than other handguns. D.C. has argued, however, that ALL handguns should be banned because they are more concealable than long guns. And, of course, gun control advocates have already had some success at banning certain rifles and shotguns. The arguments change to suit the situation, but disarmament is their ultimate goal. And, hopefully, the Supreme Court will rule that disarmament is unconstitutional.

The founding fathers, to be fair, simply couldn’t have anticipated nuclear weapons, nor for that matter surface to air missiles capable of downing civilian aircraft (I hardly need point out that mass air transport was another concept unknown in 1791).

I confess to being uncomfortable with the idea of uncontrolled direct personal ownership of nuclear weapons, or of other weapons of mass destruction. This is hardly a unique view. Going down the ladder, it is an interesting question for instance whether a machine gun (by which I do mean an actual machine gun, and not a hysterical media distortion of mere automatic rifles into true machine guns) qualifies as a “weapon of mass destruction”). I do not think that it does, but recognise the scope for controversy. Certainly I do not think that short-barrelled shotguns should be restricted, since such are in wide use in the military by for example special forces, as well as by civilian police forces. Nor should automatic rifles be restricted, for much the same reasons. As a practical matter, the Swiss don’t appear to have a special problem with automatic rifles in private homes.

I realise the difficulty with drawing such lines, and do not wish to be drawn into a long discussion over them, but only to point out a few thoughts for the sake of a small addition to clarity, at which endeavor I hope this post has succeeded.

I will add one more point, which is that it is a good question how well an outraged civilian population would be able to actually fight a heavily militarised federal government, should it come to that. This isn’t relevant to using firearms for defending one’s life and safety against ordinary thugs, but is very interesting nonetheless.

Dick Heller wants a hand gun in his home for self defense. I think that Gura wisely took machine guns off the table because that’s not what this case is about. They tried to ask him whether guns can be banned in schools and again he counters, “perhaps, but that’s not what the case is about”. Ginsburg brought up licensing and he said that its reasonable to do a background check and test someone’s vision before obtaining a weapon.

People seem to have wanted him to be more extreme but that would accomplish nothing: he already has the votes of the justices who would have been responsive to that argument. You may or may not agree with this strategy but I think it makes sense for someone trying to win the case.

Besides the fact that none of the debates seemed to consider the idea that private self defense was being considered, do you think that people are guaranteed all means necessary to defend themselves? People in D.C. can defend themselves with rifles and shotguns (putting aside the trigger lock argument for now). The fundamental right to self defense has always been regulated by the common law. If you have the right to self defense, does that mean you have the right to defend yourself with a machine gun?

I am not quite sure why Gura conceded that machine guns could be constitutionally banned, since a huge part of Heller’s argument was that you can’t ban a type of arm that can be used for self defense; that to do so would be inherently unreasonable. The only reason I can think of that would support the idea of a machine gun ban is that machine guns are very dangerous, and that the government has decided that they do more harm than good. Under that line of reasoning, though, it is at least arguable (or conceivable) that in some circumstances, concealable handguns would also do more harm than good, and would thus be ban-able.

That is what troubles me about Heller’s argument: he seems to argue that there is a right to self defense of any weapon of his choosing, but then backtracks and says, well, not really any weapon of choosing (since machine guns and armor-piercing bullets are out of the question), so that what arms you are allowed to have is still tied to a legislative judgment about which arms are too harmful to have. And it makes no sense to me to say that the right is all about self defense, but then tie it to what arms would be useful in a militia.

All these questions are probably useless now, but it is just what struck me as doctrinally confusing in Heller’s argument yesterday.

Over a hundred thousand machineguns are already legally owned by private citizens today, and of these legally owned machineguns, since the National Firearms Act of 1934, only two have ever been used in a unlawful homicide. (And one of those was by a police officer.)

Moreover, as a practical matter, even illegally possessed machineguns have historically been no more deadly than non-machineguns in crimes committed. For example, in the 1994 robbery of a Bank of American in North Hollywood, California, the two robbers fired over 1,300 rounds using three fully automatic rifles. Seventeen police officers and citizens were injured. The only fatalities were the two robbers.

By comparison, 32 people were killed and numerous others were injured during the Virginia Tech massacre last year – the lone murderer was armed only with handguns, and fired about 175 rounds.

(The big difference between these two incidents, of course, is that in the first instance there was armed resistance (the LAPD), and in the latter, there wasn’t.)

My point is that a machinegun is not some kind of dark-magic death wand. In the Army, the standard issue weapon is the M4 carbine, which has selective-fire capability, meaning that it can be fired either on semi-auto (one shot per pull of the trigger) or burst (three full-auto shots per pull of the trigger). However, we are almost never allowed to fire the weapon on burst, because in the vast majority of situations, semi-auto one-at-a-time aimed shots are a lot more effective.

Full-auto fire is mostly reserved for the guy with the belt-fed machinegun, a 20-30 pound beast which main purpose is to lay down sufficient volume of sustained fire to keep the enemy distracted so that the riflemen can move to assault the objective. But this use requires a great deal of training and teamwork to be effective.

It actually takes more skill to use full-auto fire effectively than it does to use semi-auto fire. Indeed, I have personally seen individuals not so skilled try to use fully-automatic weapons, and aside from a great deal of noise, the results are not impressive – most of their shots do not find their mark.

All this to say that the possible consequences of loosening some of the federal regulations regarding the manufacture, sale, and possession of machineguns are not so dire as a lot of people (especially those whose practical knowledge of machineguns is mainly limited to television, movies, and video games) seem to think it is.

Therefore, when examined more carefully, the “machinegun issue” doesn’t have a lot of substance.

My criticism of the pro-DC Heller amicus brief filed by fifteen professional historians regarding this particual matter is equally applicable to those in the legal community.

For the History News Network article, see: http://hnn.us/articles/47238.html

PREAMBLE
The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”

What is really needed is a definition, and sever limitation on, the interstate commerce clause. That has become a catch all that Congress has used to circumvent the plain meaning of the Constitution.