Posted by Eugene Volokh:
District Court Upholds Ban on Machine Gun Possession:
http://volokh.com/archives/archive_2008_12_07-2008_12_13.shtml#1228842374
See [1]U.S. v. Hamblen (M.D. Tenn. Dec. 5):
At the same time it recognized a Second Amendment right for an
individual to bear arms, the Heller Court limited the scope of that
right within the context of its own opinion:
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.
* * *
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.
We also recognize another important limitation on the right to keep
and carry arms. United States v. Miller, 307 U.S. 174 (1939), said,
as we have explained, that the sorts of weapons protected were
those �in common use at the time.� We think that limitation is
fairly supported by the historical tradition of prohibiting the
carrying of �dangerous and unusual weapons.�
Thus, the Heller Court made clear that the Second Amendment right
it recognized did not include possession of weapons by certain
categories of individuals, or possession of weapons in certain
places, or possession of certain types of weapons. The Court
specifically discussed the types of weapons that were not protected
by the Second Amendment in distinguishing the Miller case:
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 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....
The conclusion that the Heller Court did not extend Second
Amendment protection to machine guns, in particular, is supported
by the lower federal courts that have addressed the issue. In
United States v. Fincher, 538 F.3d 868, 873-74 (8th Cir. 2008), the
Eighth Circuit held that the defendant�s possession of a machine
gun was not protected by the Second Amendment under Heller:
�Machine guns are not in common use by law-abiding citizens for
lawful purposes and therefore fall within the category of dangerous
and unusual weapons that the government can prohibit for individual
use.�
In United States v. Gilbert, 286 Fed. Appx. 383, 2008 WL 2740453
(9th Cir. July 15, 2008), the Ninth Circuit approved a jury
instruction that an individual does not have a Second Amendment
right to possess a machine gun or a short-barreled rifle. The court
explained that under Heller, �individuals still do not have the
right to possess machineguns or short-barreled rifles, as Gilbert
did ...� The Petitioner argues that the limitations placed on the
Second Amendment right to bear arms by the majority opinion in
Heller can not square with the Court�s earlier decision in Miller.
Whatever merit there is to that argument, however, this Court is
bound by the Heller opinion as written.
References
1. http://volokh.com/files/hamblen.pdf
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