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Flawed Oral Arguments in DC v. Heller

The press has been heralding the apparent agreement by the majority of supreme court justices in the recent oral arguments to DC v. Heller. that the Second Amendment confirms an individual right to keep and bear arms. This is good news, but I think that at least two crucial points were missed in the oral arguments.

The arguments made by Mr. Gura, in my opinion, were a disservice to American gun owners and "the militia at large". (Which consists of all male citizens age 17 to 45, per US Code Title 10, Section 311.) Gura discounts any Second Amendment protection for machineguns, because he claims that the Second Amendments protects only those guns "in common use" as suitable for individuals to bring from their homes, for their personal use in service with the militia. Gura stated:
"They wished to preserve the ability of people to act as militia, and so there was certainly no plan for, say, a technical obsolescence. However, the fact is that [US v.] Miller spoke very strongly about the fact that people were expected to bring arms supplied by themselves of the kind in common use at the time. So if in this time people do not have, or are not recognized by any court to have, a common application for, say, a machine gun or a rocket launcher or some other sort of ..."

That was a specious argument. What he overlooked is the fact that machineguns are not presently "in common use" only because 74 years ago, Congress effectively banned them, by placing a confiscatory tax and onerous fingerprinting and background check requirements upon purchasers. It is a tax of $200 per machinegun transfer. That might not sound "confiscatory" these days, but in 1934, $200 was nearly two months wages for the average working man! For comparison purposes, in 1934 that same $200 was more than the purchase price of a used Thompson submachinegun, 10 times the purchase price of a used M1911 pistol, and 20 times the purchase price of a used M1898 Krag service rifle. Clearly, only the very wealthy could afford to pay this tax. Hence, the potential market share and large scale production ("economies of scale") of privately owned machineguns was never allowed to develop. This was a glaring error that should have been caught by the court justices. Granted, shoulder-fired machine guns were fairly expensive in 1933 since they were a fairly recent technological development, but they became prohibitively expensive in 1934, after enactment of the National Firearms Act (NFA). The bottom line is that in 1933 your grandfather could have walked into your local gun store or hardware store and bought (or had them place special order) a Thompson submachinegun, and walk out with it, sans any paperwork. But in 1934 that became impossible. Hence, shoulder-fired machineguns were never allowed to come into "common use" by civilians.

In my opinion, Gura also stumbled badly when he stated: "At the time that -- even at the time Miller was decided, the civilian arms were pretty much the sort that were used in the military. However, it's hard to imagine how a machine gun could be a "lineal descendent," to use the D.C. Circuit's wording, of anything that existed back in 1791, if we want to look to the framing era."

I beg to differ! The US Springfield Armory designed and produced nearly all of the shoulder-fired arms for the US infantry from 1777 to the 1950s. You can follow the "lineal descent" of those rifles directly from flintlock muskets, to caplock rifles, to the Trapdoor Springfield, to the M1898 Krag, to the M1903 Springfield, to the M1 Garand, (semi-auto) and finally to the M14. Each of these iterations display some quite distinctive design features that are carried on from its immediate predecessor. Some design features are almost continuously-used (such as bayonet lugs and butt traps for cleaning equipment), but others (like stacking swivels) were eventually dropped, as military doctrine changed. It is notable that the pinnacle of this unbroken lineal descent was the M14 and it is fully automatic! The only distinct "lineal break" came when Defense Secretary Robert McNamara forced adoption of the Colt M16. But, again, the selective-fire (semi-auto and full auto) M14 pre-dated that lineal break. And, coincidentally, M14 rifles (now equipped with plastic stocks) are still in service with the US Army in limited numbers in the present day, as designated marksman's rifles.

Justice Kennedy hit the nail on the head when he stated: "It seems to me that [US v.] Miller, as we're discussing it now, and the whole idea that the militia clause has a major effect in interpreting the operative clause is both overinclusive and underinclusive. I would have to agree with Justice Ginsburg that a machine gun is probably more related to the militia now than a pistol is. But that -- that seems to me to be allowing the militia clause to make no sense out of the operative clause in present-day circumstances."

Clearly, the Second Amendment secures both an individual right and a collective right. The NFA of 1934 and all subsequent Federal firearms laws should be struck down as unconstitutional!

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