MNGunGuy wrote:Curious as to where you think that right stops (owning military arms). Hand grenades, claymores, chemical weapons, nuke's? What about armored vehicles, bombers or attack planes (fully armed)? All are considered or contain modern day arms but have limited rights to ownership. Are your rights being trampled on by not allowing you to hook an M203 to your AR? How comfortable would you feel with your neighbor having a cache of M67 hand grenades in his garage?
The supreme court addressed this is Heller, and found the following:
Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.”
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Although one founding-era thesaurus limited “arms” (as opposed to “weapons”) to “instruments of offence generally made use of in war,” even that source stated that all firearms constituted “arms.”
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The Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
Heller recognized that all firearms are considered arms, as well as any other type of weapon that a person can wear or carry for defense. However, they also stated:
Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.
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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.”
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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
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The final section of the brief recognized that “some courts have said that the right to bear arms includes the right of the individual to have them for the protection of his person and property,” and launched an alternative argument that “weapons which are commonly used by criminals,” such as sawed-off shotguns, are not protected.
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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.
I'm not a constitutional lawyer, but what this says to me is that all firearms, specifically "small arms" (rifles, pistols, etc) that an individual person can bear (carry and operate) are protected by the 2A. The main exception to this being weapons which *are not* commonly used for lawful purposes, and *are* commonly used by criminals.
As far as other types of weapons that are not "firearms", I have no idea. It currently *is* legal for an individual/corporation/trust to own a live hand grenade. They would need to have all the requisite paperwork and background checks, explosives licenses, an explosive storage facility, etc. so the barrier to entry is *extremely* high for such items. I'm sure Blackwater and other private security organizations have these types of things in their inventories, and have spent hundreds of thousands of dollars in the process. Are they protected by the 2A? I have no idea. They're way outside what I consider reasonable/affordable, so I don't waste much time thinking about it.
Personally, I think the further away you get from "small arms", the less likely it is that it will be protected by the 2A, but that all military small arms that are carried an operated by an individual soldier *are* protected. I also believe that a reasonable argument can be made that machine guns (M-16 etc) should be protected, as they are as common as the NFA currently allows, and the *vast* majority are used for lawful purposes. Unlike the 1920s-1930s (when Miller was heard), machine guns are no longer commonly used by criminals, and so would no longer fall under the Miller exception as not being protected.
Again, this is my understanding of what the Supreme Court determined in Heller, and my personal opinion about what the status of machine guns should be, but not being a constitutional lawyer I confess I might be wrong in my understanding.
I'm saving the link, Thanks!
