Post Heller there has been some people floating ideas about potential ways to get (or simply giving up on) machine guns back into general circulation. Yesterday I received an email which, in essence, is an idea for achieving this. Basically it shows the “in common use” argument leads to an absurdity:
From: Tom Locker
Sent: Sunday, July 20, 2008 6:21 PM
Subject: A thought
Let’s see if I can make this point in a sensible, understandable manner – in many people’s minds the SC seems to give a tacit OK to the machine gun ban as they are not “in common use,” Scalia also used the term “unusual and dangerous.”
But, as many have noted, in the US, machine guns were pretty effectively banned (by using tax powers) fairly early in their developmental history. I think the Thompson was one of the first truly portable machine guns when it came out in 1921. The ban was instituted in 1934.
This gives the government a trump card over all future improvements in self-defense technology. As soon as a new, more effective method of self-defense is developed, it can be banned, as it is not “in common use.”
As a thought experiment, imagine that Heller was decided around 1500, just as firearms were coming into military use in Europe. In this scenario the decision would give citizens the right to use swords, knives and archery equipment for self defense, but not the “uncommon, unusual and dangerous” firearms.
Where would self-defense be then? And where are we now? Should the government have exclusive access to all future improvements in self-defense technology?
Sebastian has suggested that we might be able to demonstrate that anything the police uses is “in common use” and hence is protected by the 2nd Amendment. One might hope to stretch this line of reasoning to anything the military uses (Hey! It’s common in the military!) but that is a big stretch goal.
My line of thought is that “uncommon, unusual and dangerous” shouldn’t be a difficult hurdle to get full autos over. After all there are tens of thousand of machine guns in circulation and they aren’t inherently more dangerous than any other gun of similar caliber in the hands of the same person. The “uncommon, unusual and dangerous” is more appropriately applied to biological, chemical, nuclear, and perhaps explosives based weapons. Perhaps the justices had machine guns in mind when they agreed to that criteria but that doesn’t really matter because that wasn’t the question before the court. If it had then briefs would have been submitted showing machine guns are not uncommon, unusual and dangerous. It could just be my optimistic nature but I would like to believe what I read in Scalia’s opinion is very careful wording that let the anti-gun people hear what they want to hear and gathered the required votes for a victory but are actually open gates for us to drive trucks through.
Other possibilities surely exist. What are your ideas?