DonL
02-09-2008, 00:06
Heller's attorneys had this to say about machineguns in their brief that was just recently filed with the Supreme Court in the D.C. case.
The Solicitor General greatly overstates the D.C. Circuit decision's implications for laws governing machineguns. Courts understand that the decision below striking down the handguns, not machine guns." Somerville v. United States, 2008 U.S. Dist. LEXIS 412 at 4(W.D. Mich. Jan. 3, 2008). And unlike the laws at issue here banning handguns, federal law does not ban the private possession of machineguns, of which approximately 120,000 are in lawful civilian possession. Bureau of Justice Statistics, Selected Findings: Guns Used in Crime 4 (July 1995), http://www.ojp.usdoj.gov/bjs/pub/pdf/guic.pdf (240,000 registered machineguns are in civilian use) (citing BATF, Statistics Listing of Registered Weapons, Apr. 19, 1989).
"ATF's interest is not in determining why a law-abiding individual wishes to possess a certain firearm or device, but rather in ensuring that such objects are not criminally misused." Testimony of Stephen Higgins, BATF Director, in Hearings on H.R. 641 and Related Bills, House Judiciary Committee Subcommittee on Crime, 98th Congress 111 (1986). To that end, federal law subjects machinegun possession to the same stringent regulatory regime considered in Miller. 26 U.S.C. Sec 5801, et seq.; 27 C.F.R. Secs. 478.98, 479.84, et seq. These regulations work: "it is highly unusual-and in fact, it is very, very rare," that legally owned machineguns are criminally misused. Higgins, supra, at 117.
Had Miller possessed a machinegun, this Court would presumably have had little trouble finding that the weapon had militia utility. The Court might nonetheless have held that machineguns fall outside the scope of the Second Amendment's protection as they were not "in common use at the time" such that civilians could be expected to have possessed them for ordinary lawful purposes. Miller, 307 U.S. at 179
And even if this Court had accepted that some machineguns are protected by the Second Amendment, their current tight regulation under federal law could well pass any level of scrutiny devised by this Court for the regulation of protected arms. Of course, Respondent's simple revolver is no machinegun, and the types of restrictions imposed by the National Firearms Act - including an FBI background check, $200 tax, authorization from one's local chief law enforcement officer, and a statement of "reasonable necessity" - would be inappropriate to apply to a common handgun.
But this case is not about what regulations ought to govern machineguns. The question is whether the arms at issue - including handguns - are protected at all. They are.
From Congress' Amici Curiae Brief
The Second Amendment refers to the right to "keep" arms (such as at home) as well as to "bear" arms (meaning to carry them). Protected arms include commonly-kept firearms that one can keep and carry for lawfull pruposes, such as ordinary rifles, handguns, and shotguns, and not crew-served or heavy weapons.
The Solicitor General greatly overstates the D.C. Circuit decision's implications for laws governing machineguns. Courts understand that the decision below striking down the handguns, not machine guns." Somerville v. United States, 2008 U.S. Dist. LEXIS 412 at 4(W.D. Mich. Jan. 3, 2008). And unlike the laws at issue here banning handguns, federal law does not ban the private possession of machineguns, of which approximately 120,000 are in lawful civilian possession. Bureau of Justice Statistics, Selected Findings: Guns Used in Crime 4 (July 1995), http://www.ojp.usdoj.gov/bjs/pub/pdf/guic.pdf (240,000 registered machineguns are in civilian use) (citing BATF, Statistics Listing of Registered Weapons, Apr. 19, 1989).
"ATF's interest is not in determining why a law-abiding individual wishes to possess a certain firearm or device, but rather in ensuring that such objects are not criminally misused." Testimony of Stephen Higgins, BATF Director, in Hearings on H.R. 641 and Related Bills, House Judiciary Committee Subcommittee on Crime, 98th Congress 111 (1986). To that end, federal law subjects machinegun possession to the same stringent regulatory regime considered in Miller. 26 U.S.C. Sec 5801, et seq.; 27 C.F.R. Secs. 478.98, 479.84, et seq. These regulations work: "it is highly unusual-and in fact, it is very, very rare," that legally owned machineguns are criminally misused. Higgins, supra, at 117.
Had Miller possessed a machinegun, this Court would presumably have had little trouble finding that the weapon had militia utility. The Court might nonetheless have held that machineguns fall outside the scope of the Second Amendment's protection as they were not "in common use at the time" such that civilians could be expected to have possessed them for ordinary lawful purposes. Miller, 307 U.S. at 179
And even if this Court had accepted that some machineguns are protected by the Second Amendment, their current tight regulation under federal law could well pass any level of scrutiny devised by this Court for the regulation of protected arms. Of course, Respondent's simple revolver is no machinegun, and the types of restrictions imposed by the National Firearms Act - including an FBI background check, $200 tax, authorization from one's local chief law enforcement officer, and a statement of "reasonable necessity" - would be inappropriate to apply to a common handgun.
But this case is not about what regulations ought to govern machineguns. The question is whether the arms at issue - including handguns - are protected at all. They are.
From Congress' Amici Curiae Brief
The Second Amendment refers to the right to "keep" arms (such as at home) as well as to "bear" arms (meaning to carry them). Protected arms include commonly-kept firearms that one can keep and carry for lawfull pruposes, such as ordinary rifles, handguns, and shotguns, and not crew-served or heavy weapons.