After my initial reading of Scalia's Heller decision, I found what I consider to be a large problem -- Scalia apparently feels that the Second Amendment does not protect our right to keep weapons that operate fully automatically. I can't follow his logic (and possible double-speak).
The first part appeared o.k. until I considered what 'in common use' might mean with regard to machine guns. The only reason that they are not 'in common use' is that they are mostly illegal. This is like saying "machine guns are not protected arms because they are banned." Circular reasoning. He goes on to say:We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)).
How useful would a machine gun be in a riot / looting situation? I think they would be 'typical' if they were legal. Who wouldn't own a select fire weapon if they had the option? The price is the same. Increased firepower is a necessity to defend against superior numbers. A few quick triplets would be a nice tune to play. And how could I ever be part of a 'well regulated' militia if I am denied the right to keep and bear proper small arms?Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding of the scope of the right, see Part III, infra.25
I don't see what's wrong with the People having the right to keep whatever small arms may be used by common soldiers -- in order that the militia be well regulated and most effective. Scalia's whole line of thinking seems defective. Does the Second Amendment now protect the right to keep and bear whatever arms are not illegal? What a useless right....
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
What am I missing? What if in the colonial era, muskets were only legal for the King's soldiers and the people had the right to keep and bear slingshots and rocks? What use would the militia be?