imported post
Flintlock wrote:
Fascinating... Amendment II says to keep and bear arms.. Not to keep and bear common arms...
The Supreme Court's only real restriction as to their opinions is
stare decisis. Simply, there must be compelling reason to overturn a decision; they have only reversed themselves when logic does not offer any other choice but to do so.
Miller has long held that the test of a "protected" weapon is one that has accepted military purpose, and is of a type in common use by civilians. The idea was that when the Framers wrote the 2A, they envisioned it to protect the rights of civilians to keep a weapon that they could, if needed, take to war. At the time, a military weapon and a hunting/home defense weapon were the same thing, but as of
Miller, the advent of the machine gun and the autoloading rifle, neither of which were in common civilian use regardless of what gangster movies you've seen, had created a split between the types of weapons civilians kept and those that were effective for military purposes. Certainly by the time the GCA passed, that rift was substantial.
Firearms technology has changed very little since then (The U.S. have used the M-16 since Vietnam and our adversaries have used the AK-47 since before Korea).WhatHAS changed is that those weapons are becoming more desireable for civilian use, largely home defense (hey, if SWAT trusts the M4when resolvinga hostage situation, why not use it to prevent one?). However, the number of semi-automatic AR/AK variants is still a small percentage compared to other personal/home defense options.
So, back to
stare decisis, there is no compelling overarching reason to overturn
Miller and strike down the '86 ban; evidence points to the highutility of semiautomatic weapons even in military or paramilitary use, and thus banning automatic weapons leaves a very large board from which to pick your hunting, home defense, and/or personal defense weapons that even most gun owners would not call "infringing". One notable example is that the M4A1's fire selector options are safe, semi, and BURST, NOT full-auto. SomeM16s are full-auto, but the semi-automatic position is used more often as it is more ammo-efficient, which is the same reason burst was chosen over full auto when choosing the M4's receiver config, and the reason that semi is the first option on the fire selector as compared to the AK's. All of this says that even U.S. Army policy tends away from automatic fire for front-line grunts.
All that being said, (*taking a gargle of coffee to get the taste out of my mouth*), I think that there are good reasons one might have an automatic weapon, and as the BATFE has prosecuted more people for malfunctions of semi-automatic weaponsthan it has done for people intent on using an automatic weapon to commit a crime, there is little evidence of a compelling government interest to ban them as it has not resulted in a significant reduction in crime. However, the Court must be faithful to
Miller, and now to
Heller which has reinforced that test by applying it to a current case. As such, a challenge to the '86 ban or to any other measure would have to provide compelling evidence that Miller is in fact wrong. Barring a foreign military invasion of U.S. soil, the necessity of overturning Miller would not be easily demonstrated in terms that the average American, to say nothing of four leftist Justices, would find applicable toAmerican dailylife.
