On an assault weapon ban

[Bone]

@iiandyiiii

I would think an ordinary person would be a much better measure as to what is in “common use” – after all, ordinary citizens are far more “common” than soldiers. By that measure, semi-auto handguns, revolvers, hunting rifles, and shotguns are all in “common use”, I think, but automatic weapons are not.

Ok - do you have a basis for that construction of “common use”?

Below is my take on it, though I grant it is merely my opinion and in this post I venture into speculative territory.

The scope of the 2nd hasn’t been fully litigated so I think it could go either way. The way I look at the framework is that there are two paths by which a weapon can fall under the umbrella of the 2nd amendment.

Path 1: weapons that would be typical for a person in the military
This is consistent with Miller but this view has not been tested. As the prefatory clause announces a purpose of the operative clause, utilization in a military function seems to square with this understanding in Miller, and is not precluded by Heller.
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Path 2:** Weapons that are in common use, and are not both dangerous and unusual
Here a reasonable guide would be the bearable arms available to police. Their need for self defense is without question and anything that enhances the self defense of these persons should be available to all persons.

Here is what Heller says about my path 1:

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. 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 think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment ’s operative clause furthers the purpose announced in its preface. 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. That accords with the historical understanding of the scope of the right, see Part III, infra.25

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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.

From this, if it can be shown that law abiding citizens possess for lawful purposes select fire weapons, then I would argue they fall under the auspices of both #1 and #2 above. There are still near 500K machine guns, most of which are not allowed to be transferred. And since the rate of crime with those are virtually non-existent, I’d say they are in common use for lawful purposes. This also doesn’t count any select fire weapons in police use.

Note above doesn’t say that M-16’s may be banned - it says that “if they may be banned…”.

The full scope of the 2nd has not yet been resolved.