akhimark

Don't forget, Scalia could only stretch as far as Kennedy would agree. I suspect Scalia wanted to be more specific and liberal (in the correct sense of the word), but Kennedy would have bolted.

ccw9mm

Yup.

As with a car that can carry a couple extra people on those occasions you need it to, having a gun that can fire full-auto if need be seems a tremendous feature. If I were to have a 9mm, 5.56mm or 7.62x39mm semi-auto SBR (< 16" bbl), I certainly would want to to be an SMG (full-auto) as well. One need only think of situations like the post-Rodney King riots, a violent home invasion, or needing to protect a larger property to imagine how useful that could be under the right conditions.

__________________
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SelfDefense

My point was that an unthinking implementation of rights, such as not punishing libel and slander, is an anarchy that imperils a civilized society. I really have no opinion on whether machine guns should be something that should be free of any restrictions. I know that I would never buy one (and hopefully never need one.) I think Scalia's point was that since the technological advances have made the individual's contribution to a militia virtually meritless that some arms (such as nuclear) are not protected by the Second. This is somewhat similar to the Miller decicion in some roundabout way.

I am not arguing against automatic weapons. I can understand and respect a view that it is not a common firearm, even if were readily available and accessible.

Hopyard

I would not likely ever buy one, though I think it would be a hoot to rent one for the fun of it.

I agree that unfettered implementation of "rights" can lead to anarchy that imperils society. So too can restrictions on rights imperil society. There will always be an inevitable tension, and I think the founders intended that.

With regard to this particular issue, machine guns, do we know what laws were passed early on, say when the Gatling was first invented? Never mind what Chicago or IL might have done. Did Colorado (for example only) prohibit private ownership of machine guns during the late part of the 19th century or early part of the 20th?

I'm trying to scope out what earlier lawmakers thought of this issue.

stanislaskasava

Are you interpreting Heller to say that 'because a citizen militia could never repel a real army, then the Second Amendment does not protect the keeping of fully automatic firearms'? This is inside out and upside down. It is the bans on military style arms that create the disconnect between the prefatory and operative clauses of the Second Amendment. Bans are also the sole reason that automatic weapons are not 'in common use'. Which, once again, is the mechanism Scalia mentions to imply that they are unprotected.

I guess you are not aware of the huge number of AR-15s, et al, owned across the country? And perhaps are also not aware that automatic weapons normally have the ability to fire in semi-automatic mode with the flip of a switch? Autos have more uses, not less. This is why they are the preferred weapon for military and law enforcement.

Purposely buying a semi only version of a rifle when the automatic version is available at the same price makes about as much sense as seeking out a plugged magazine for your pistol in preference to a hi-cap. It would be more logical that semi-auto versions would be special order or DIY only because it would be cheaper to only mass produce one type. The parts do not cost more for full auto.

They would most definitely be common, if they were not banned.

Why would Scalia quote Nunn v. State in Heller if he did not agree with its interpretation of the operative clause?

Libel and slander are descriptions of illegal speech, not illegal means of speech. A ban on machine guns is like a ban on printing presses. Both machine guns and printing presses can be used for either legal purposes or illegal purposes. Murder will always be illegal regardless of whether machine guns are banned or not.

I am not aware of any nuclear weapons which would be considered arms in the context.

SelfDefense

No, that is not my opinion. I was providing my understanding of Scalia's opinion. The Court opinion is a bit tortured as it is difficult to reconcile the Miller opinion with the Heller opnion unless one is willing to accept some of the rationale Scalia wrote. Whether he wrote that so as to convince Kennedy to concur will always be up for debate.

OK, OK, I get it. I will concede that automatic weapons would be common if they were readily available.

I'm still not impressed with this argument. Either a right is unfettered or it is subject to reasonable restrictions. Libel and slander restrict the right to free speech. Limiting certain weapons restrict the right of keeping arms.

No, but it is certainly not out of the realm of possibility that hand held devices that deliver nuclear weapons will be created. Nuclear weapons don't kill people, people kill people. Still, I don't think it is a good idea to allow unrestricted access to nuclear weapons.

The nuclear weapons argument is good to demonstrate that a line should be drawn. Drawing that line is a matter of politics.

To respond to one of your first points, the fact that a citizen militia could never repel a 'real army' is a negative argument. That is, the first and second clause of the Second no longer fits as it did at the time of the Founding. Whatever conclusion that is developed from that must stand on its own merit.

stanislaskasava

It is worth mentioning that the ubiquitous AR-15 can be easily converted to select-fire with a drop in parts kit at a ballpark price of $200.

While libel and slander may be crimes, the possesion of printing presses is not banned. Do you think banning printing presses is a reasonable restriction of free speech? The right to keep arms is restricted to those arms which are 'in common use at the time' and 'for lawful purposes such as self defense.'

Nuclear weapons are not 'small arms' regardless of whether they may in the future be 'hand held devices'. Nor would they conceivably be used in 'defense of person and home'.

I think this may be what the 'degree of fit' comment was referring to. Scalia was saying that "arms that are useful for defending 'person and home' " (these are the arms that the Second Amendment protects) are not useful to militiamen. I had quite a bit of trouble understanding the comment because he is wrong. A machine gun or short barreled shotgun is not only 'useful' but advantageous. Their advantages make them the preferred weapons that police or military might use to clear a house or building. So there is still a substantial degree of fit between militia small arms and the arms that the Second Amendment protects.

I think the line will draw itself. With the way things are, we're having to 'work our way up the chain' one step at a time and I don't see personal nukes ever even being on the table.

My conclusion is that it is totally irrelevant whether a citizen militia could theoretically repel a modern army. The operative clause is not dependent on the prefatory clause -- in Scalia's words:

Modern conflicts sometimes boil down to small arms by necessity.