-------- Original Message --------
Subject: [Volokh] Eugene Volokh: California Court of Appeal Upholds Ban
on .50-Caliber Rifles Against Second Amendment Challenge:
Date: Wed, 3 Jun 2009 00:19:39 -0400
From: [email protected]
To: [email protected]
Posted by Eugene Volokh:
California Court of Appeal Upholds Ban on .50-Caliber Rifles Against Second
Amendment Challenge:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1244002752
The case is [1]People v. James, just decided today. Here's the core of
the analysis:
[As Heller holds, âthe right secured by the Second Amendment is not
... a right to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.â Rather, it is the right to
possess and carry weapons typically possessed by law-abiding
citizens for lawful purposes such as self-defense. It protects the
right to possess a handgun in oneâs home because handguns are a
âclass of âarmsâ that is overwhelmingly chosen by American societyâ
for the lawful purpose of self-defense.
As the courtâs discussion makes clear, the Second Amendment right
does not protect possession of a military M-16 rifle. Likewise, it
does not protect the right to possess assault weapons or .50
caliber BMG rifles. As we have already indicated, in enacting the
Assault Weapons Control Act of 1989 and the .50 Caliber BMG
Regulation Act of 2004, the Legislature was specifically concerned
with the unusual and dangerous nature of these weapons. An assault
weapon âhas such a high rate of fire and capacity for firepower
that its function as a legitimate sports or recreational firearm is
substantially outweighed by the danger that it can be used to kill
and injure human beings.â (§ 12275.5, subd. (a).) The .50 caliber
BMG rifle has the capacity to destroy or seriously damage âvital
public and private buildings, civilian, police and military
vehicles, power generation and transmission facilities,
petrochemical production and storage facilities, and transportation
infrastructure.â (§ 12275.5, subd. (b).) These are not the types
of weapons that are typically possessed by law-abiding citizens for
lawful purposes such as sport hunting or self-defense; rather,
these are weapons of war.
I can't speak to the wisdom of a .50-caliber ban, but this seems to be
a sensible interpretation of Heller's test for what "arms" are
protected. Moreover, as I argue in my forthcoming [2]Implementing the
Right to Keep and Bear Arms in Self-Defense article, this is also
consistent with a sensible interpretation of the right to keep and
bear arms in self-defense. In my article, I argue that Heller's
"typically possessed by law-abiding citizens for lawful purposes" test
is flawed. But, among other things, I argue that the right to bear
arms for self-defense shouldn't be seen as infringed by restrictions
that don't materially interfere with the right to self-defense; and a
ban on .50-caliber rifles doesn't materially interfere with
self-defense (see PDF pages 12-19 and 48, as well as PDF pages 37-42
for the discussion of interpreting the scope of "arms" post-Heller).
This doesn't speak, of course, to the right to keep and bear arms for
other reasons, such as deterrence of government tyranny and the like.
But I leave that questions to others (much as the Court did in
Heller); writing 100+ pages on the right to bear arms in self-defense
is enough for me.
References
1. http://www.courtinfo.ca.gov/opinions/documents/C057995.PDF
2. http://www.law.ucla.edu/volokh/2am.pdf
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