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?
I thought that the select fire ak was THE gun in common use. How many were made?
As a machine gun owner, I’m biased, but from my point of view machine guns are common. Every one that can be owned by a civilian in the US is. I know lots of people that also own them. Last I heard the NFA list includes somewhere between 100K and 200K (The BATF isn’t quite sure) legally owned machine guns in civilian hands.
Every cop shop I know of has them.
Every military force has them.
In fact, I suspect that world wide, full-auto firearms outnumber semi-only firearms.
It’s not a great logical hurdle to overcome, but the hurdle is going to be that the federal courts don’t want to do it, no matter how convincing our arguments are. I’m even doubtful they will want to incorporate the second amendment. It’ll take another Supreme Court ruling to get incorporation. Truth be told, I’m becoming more convinced Heller is going to end up being a debating point for a while, and not of much practical significance. The best we can hope for is that the Supreme Court rules on incorporation soon, and a number of other issues. I think we have a strong 5 justice majority, but all it takes is Kennedy or Scalia, who are both over 70, dropping dead one day and it’ll be over for the second amendment.
Yeah. The more I think about it I realize the problem isn’t the logic it’s going to be public acceptance. We need to do a lot of PR work first. Maybe I should having full-auto Boomershoots…
There is a difference between a Machine Gun and an automatic rifle or automatic pistol.
A machine gun is inherently a belt fed, crew served weapon system.
An automatic rifle is fed by a magazine and it is an individual weapon system. The difference between an m249 SAW and an M16A1 is that the SAW can only be fired full auto while the M16 has a selector switch for semi-automatic mode of operation. The SAW is a light machine gun, which means that it doesn’t require a crew, but can benefit from an AG.
Let’s make the fight first for Automatic or Select Fire Rifles. In the spirit of the Militia, every man brings his own weapon. It is only fitting that Select Fire Rifles be fought for because they are an individual weapon.
This is also in line with the Miller decision that firearms used by the military have “militia protection”. Unfortunately the Justices didn’t do their homework, because the Military at that time had used multiple versions of short barreled shotguns.
Since the US Military uses select fire M4’s and M16’s it makes sense that these need to be available to the Militia as well.
After this victory we can work on the belt fed machine guns.
My ignorance is showing! Thank you, Jim, for enlightening me.
I like Jim’s thoughts on this and we do have our PR work cut out for us. Educating the public at large on these distinctions may be a tough row to hoe.
I think the only way to get rid of this ban is to get new people involved in shooting sports and firearm self defense. “No Autmoatic Weapons” seems to be a cultural indoctrination that must go away by chipping at the foundation of the prohibition.
Joe you play an enormous part in chipping away at these notions simply by having Boomershoot. Myself, I try to do my part by reaching out to the folks who were vehemently against any type of gun being around them by slowly brining logic into their lives. I am almost to the point where I can open carry around some of these people. When I get people onto the range, I feel I have done my part and I bask in the euphoric self defense epiphany these people have.
Anybody with a blog, anybody writing a book, anybody who is has joined the NRA, our first and foremost goal is getting new shooters on the range. All other aspects of cultural change are inefficient, even if they seem like a quick and easy fix.
I’ve been leaning towards the view that legalizing automatic weapons could come from the political process in the legislature rather than through the courts. Whatever the meaning of “in common use,” most judges appear unwilling to extend 2A protection to automatic weapons, and that personal reluctance is going to be hard to overcome. If we continue to solidify gains in the courts based on Heller, and continue to recruit shooters into the gun culture, then repealing laws on automatic weapons in reverse order becomes a long term possibility. (But we’re not going to get anywhere by starting with the 1934 law.)
All of this is conjecture from what I’ve read elsewhere, I don’t have any unique experience or insight.
One possibility for the courts would be not to depend solely on “in common use except for the ban,” but also the argument that the 1934 law was passed as a tax by Congress because they explicity recognized that an outright ban would have been unconstitutional. This came up in testimony before Congress, I think by the Attorney General at the time. But to the extent that the process of collecting the tax fee actively discourages machine gun ownership it amounts to an unconstitutional ban. The hard part would be finding someone with standing, a law-abiding sympathetic defendant who genuinely tried to use the process but failed. And this would require the same kind of scholarly groundwork that paved the way for Heller, published books and papers on this topic before the case were ever filed.
“…machine guns were pretty effectively banned – fairly early in their developmental history.”
Well, there was the Colt Automatic Machine Gun, Model 1895. And we can’t forget the BAR, designed in 1917 in John Browning’s private shop– a true “personal” automatic rifle, which came on-line in 1918, some 16 years before the unheralded passage of the NFA.
“(by using tax powers)” A deliberate run around the Constitution. A dirty trick, justified in part by the violence that inevitably resulted from Prohibition.
Today’s “War on Drugs” keeps that legacy alive and well. We all should understand, and (reflect that understanding in our dialog) that making a substance, or a thing, illegal does not remove it from society. Far from it. Instead it creates a government enforced monopoly on that product, reserved exclusively for the most aggressive criminals. Automatic firearms are not “banned” in any practical sense. Rather, they are reserved in certain situations for criminal’s use only. Certain drug profits are not eliminated– they are reserved for criminals, crime gangs, and hostile foregin governments.
It wouldn’t be much of a stretch to say that what we are up against (in addition to the aforementioned PR issue) is a multi-billion dollar crime industry. An industry that will not simply shut up and go away just because we want.
That industry has two sides– the criminal syndicates on one side and the enforcement agencies on the other. They need each other. The crime syndicates need the prohibition to maintain their monopoly, and the enforcement side needs the prohibition for its continued existence.
It is for that reason that I have in the past advocated (John Ross first said something similar, though in a different context) handsome federal severance packages for, say, BATFE employees and the like, if and when the time is right. Slaves did sometimes buy their own freedom.
In my opinion, it has to start with education. Machine guns and automatic rifle or pistol per Jim, have not and never have been banned and we need to get away from using that language. NFA 1934 restricted the sale of them, required that they be registered so that could be taxsed, an end run around the 2nd amendment, “we’re not restricting ownership of firearms, we’re just taxing certain classes of firearm”. One can argue that the $ 200 tax stamp effectively banned them in 1934, as the cost of the tax stamp ofent exceeded the cost of the firarm, short barreled rifle, sawed-off shotgun, supressor, etc.
Today, the $ 200 tax stamp is a fraciton of the cost of the firearm but probably equals or exceeds the cost of the supressor (that’s a guess as I’ve never priced out supressors but the materails involved are relatively inexpensive and available, I’d think the majority of the cost is the labor involved in machining and assembling the parts). With the closure of the registry in 1986, supply became restricted, demaind increased as new shooters entered the market along with “eeeevil speculators looking in to cash in on the skyrocketing prices”, and the price increased in response. (yeah, I’m preaching to the converted probably)
What didn’t increase, and what has not changed since NFA 1934 was enacted, is the crime rate involving NFA registered weapons. From what I’ve been able to find, there have been one or two crimes involving the use of a NFA registered weapon. That is, the Hughes Amendment was an answer in search of a problem. One or two crimes out of 200,000 (I’ve seen that number estimated to be as high as 220,000, but as previously stated, even the ATF isn’t sure of how many full autos are in the registry. And, one could argue that the current prices of NFA weapons effectively ban private ownership, with the exception of those already in private hands.
In other words, start educating people about the NFA 1934. Educate them about the Hughes Amendment and its “effectiveness” in reducing crime the same way you educated people about efficacy of the “Assault Weapons Ban”, without that educational effort, I have no doubt that it would not have been allowed to sunset. With the intarwebz, this is an educational effort that can succeed. It won’t be fast and it won’t be easy, but it will be faster and easier that it would have been 20 or even 10 years ago.
(http://www.nationmaster.com/encyclopedia/Thompson-machine-gun)
Civilian ownership in the United States
Due to the perceived popularity of submachine guns such as the Thompson with gangsters in the 1920s and 1930s, the United States Congress passed the National Firearms Act in 1934. Among its provisions, all owners of any fully-automatic firearm were required to register them with the predecessor agency of the modern Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). The law also placed severe restrictions on the possession, transfer and transport of the weapons. This article or section does not adequately cite its references or sources. … M2 machine gun An automatic firearm is a firearm that will continue to load and fire ammunition as long as the trigger (or other activating device) is pressed or until it runs out of ammunition. … ATF (BATFE) Seal The Bureau of Alcohol, Tobacco, Firearms and Explosives is a United States federal agency; more specifically a specialized law enforcement and regulatory organization within the United States Department of Justice. …
All prospective buyers had to register with the government and pay the $200/item transfer tax. Registration required the prospective buyer to declare a reasonable need for owning the weapon, to supply a citizenship certification, photographs and fingerprints. In addition, a certification from state or local law enforcement or court officers the buyer is not under investigation for a crime and possession of the weapon will not violate state or local law is required. Once the paperwork was submitted to the ATF, the FBI performs a thorough background check. Only after the purchase had been cleared (a process normally taking at least four months), may the new owner take possession.
Owners are forbidden to move the gun out of their state of residence without obtaining prior permission from the ATF. The owner is required to keep the weapon within their exclusive control and may not loan it without their immediate supervision to anyone, including family members. Thompsons, as well as all other kinds of fully automatic weapons, are under a legal ban in at least nine states and the District of Columbia. …
There are several U.S. made semi-automatic variants. These are less regulated at the federal level but are still banned in several states because of their resemblance to their full auto cousins.
Notwithstanding the legality of ownership, hundreds, if not thousands, of these and other weapons of World War II are in the possession of veterans as “bring back” items. With the number of veterans decreasing rapidly these weapons fall into the possession of the families as illegal weapons, usually unbeknownst to them. Current law does not allow any of these weapons to be registered. Congress is considering an amnesty law which would permit “bring backs” to be registered and thus save these historic and valuable arms. A pristine M1A1 Thompson sold at auction in August 2006 for $28,000.
the first step to getting the NFA shredded is to challenge the CLEO signature requirement.
because CLEO’s are not required to sign if the applicant meets all other criteria, this violates the “arbitrary and capricious” language as a licensing scheme.
it also violates the equal protection clause because processes that may be 100% feasible for one person may not be doable at all for a resident of another county.
we can build from there i would imagine, but that is the best place to start.
I have to disagree on this. Last in first out is, in my opinion, the best way to go. It can be shown without fear of contradiction that the Hughes Amendment has done absolutely nothing to reduce crime in the exact same way that the “Assault Weapons Ban” did absolutely nothing to reduce crime. Yes, the CLEO sign off is “arbitrary and capricious”, but I think that the way to go after the NFA is the last in first out route, as we’ve been dealing with the NFA and the CLEO sign off for 74 years, the registry has only been closed for 22.