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UPDATED: Why treat machine gun ownership differently than other guns, arms are arms under the 2nd Amendment

In reading some of the comments on Sarah’s Garrecht Gassen’s column today in the Arizona Daily Star, a few absolutists chimed in that the 2nd Amendment is very specific, it prohibits ANY limitations on arms ownership.

Which got me to thinking, the 2nd A does not define arms. Arms have evolved over the years. At the time of the 2nd A’s writing, all personal arms were single shot muzzle loaders.

If the absolutists are correct, then we should be able to possess any portable arm, sub-machine guns (my favorite is the BAR, which also happened to be the preferred weapon of Clyde Barrow), RPGs, M203 grenade launchers, mortars, or even the greatest gun of them all, the Ma Deuce, the M2 .50 caliber machine gun.

Turns out, you can own those kinds of weapons, but the laws governing their purchase and ownership are very strict:

Among other things, federal law:
1. Requires all machine guns, except antique firearms, not in the U.S. government’s possession to be registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF);
2. Bars private individuals from transferring or acquiring machine guns except those lawfully possessed and registered before May 19, 1986;
3. Requires anyone transferring or manufacturing machine guns to get prior ATF approval and register the firearms;
4. With very limited exceptions, imposes a $200 excise tax whenever a machine gun is transferred;
5. Bars interstate transport of machine guns without ATF approval; and
6. Imposes harsh penalties for machine gun violations, including imprisonment of up to 10 years, a fine of up to $250,000, or both for possessing an unregistered machine gun.

Plus, there are very strict ATF rules for the ownership and use of rockets and grenades. While you can own an RPG launcher, buying and using the grenades for it is a bit cumbersome (actually, more than a bit).

The above all sound like very sensible laws (though the one barring purchasing of new weapons would have to amended) and since the NRA presumably has acquiesced to them (no court challenges to them that I could find online) and they are arms just like an AR-15 or .45 semi auto are, then perhaps the Congress should simply adopt and apply the rules for machine guns and grenade launchers to all firearms. No one’s right to own any firearm would be restricted.

By having rules for one type of arms but not others implies there are differences in the lethality and the danger to the public from weapon to weapon and therefore differences in what the 2nd Amendment would define as “arms.” Therefore, a reasonable society can impose restrictions in ownership and use of those weapons, depending on their defined use and lethality.

If that’s not the case, then the limitations on ownership of machine guns and rocket launchers is as unconstitutional as it is for assault rifles, hand guns, extended clip magazines, and so on.

The Adam Lanzas and Jared Loughners of the world should be legally allowed to own not just an AR-15, but an M-16. What’s the difference other than the rate of fire?

However, if we agree as a society that some arms are different than others and require different regulation, than we should be able to draw the line in different places as circumstances warrant. Right now, the line seems to be drawn a little too high, allowing unregulated ownership of arms with considerable lethality. Perhaps it’s time to lower the line?

Or perhaps we should take the side of of the absolutists and the Constitutional originalists, who assert the Constitution is not a living document, does not change with the times and means exactly what it says. Since the Founders did not know of breech loading or repeating firearms at the drafting of the 2nd Amendment, we should assert that only the personal “arms” known to them at the time can be possessed without regulation – single shot muzzle loaders. You can own as many as you want. All others are subject to restriction and regulation.

I find it hard to believe that any of the Founders, if alive today, would look at Sandy Hook or Aurora, or the 10,000 homicides a year in this country, then look at the 2nd Amendment, and say, “Well, that’s the price you have to pay for liberty.”

If they had known what guns would become, I think they might have written the amendment a little differently.

UPDATE: A friend told me I should re-read the SCOTUS District of Columbia vs. Heller ruling, penned by none other than Antonin Scalia, that there was an argument in there similar to mine above. From the Cornell Law School summary of the ruling:

   2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose:  For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. Pp. 54–56. http://www.law.cornell.edu/supct/html/07-290.ZS.html

Here’s the text of the ruling the summary draws from:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16Ala. 65, 67 (1849); English v. State, 35Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

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.

In terms of my argument, the key phrase from the above is “historical tradition of prohibiting the carrying of dangerous and unusual weapons.” It seems it’s time for the country to have a rational debate about which weapons should be defined as “dangerous and unusual.”

And, in case you want to argue what the 2nd Amendment “really” means, your opinion doesn’t matter, only the opinion of the Supreme Court of the United States matters. And the court says the right is not unlimited. We just need to figure out what the boundaries of the limits are.

Considering the wholesale slaughter via firearms in this country, it would seem the boundaries are too broad.

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