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Webleymkv · January 6, 2013, 01:29 PM

You have to look at all three Supreme Court Ruling on 2A. In 1939, SCOTUS ruled in United States v. Miller that the NFA was not in violation of 2A because the regulated weapons (in that particular case a short barrel shotgun) was not "in common use nor particularly suitable for use by the militia" and thus not subject to the protection of 2A. Furthermore, it is important that the NFA was not an outright ban, but rather heavy regulation and tax of said weapons.

Fast forward to Heller v. District of Columbia and SCOTUS ruled that a complete ban of firearms (in Dick Heller's case a handgun) was unconstitutional because 2A guarantees an individual, rather than collective right, to own firearms. Because SCOTUS ruled in Heller's favor, we can draw from the case that handguns, at least in the broadest sense, pass the "common use" test from Miller. In dicta, Justice Scalia noted that regulation or even bans of "dangerous or unusual" weapons would still pass constitutional muster, but he failed to elaborate on exactly what might constitute a "dangerous or unusual" weapon.

Now we get to McDonald v. Chicago in which SCOTUS ruled that 2A guaranteed the right to own a firearm not only at the federal level, but that the right was incorporated against state and local governments via the Due Process clause of 14A. This, in essence, says that if the feds can't ban it, neither can states or localities. This is not a pre-emption because there could possibly be regulations that the feds have simply chosen not to pursue that might still be constitutional at the state or local level. For example, I could see SCOTUS ruling that requiring a permit or license to carry a gun is constitutional even though the feds have no regulations on the matter outside of prohibiting it in gov't buildings.

So, it seems to me that the litmus test for what a state or local government could or couldn't ban would be the "common use" test from Miller. I very much doubt that a complete ban on all semi-automatics could survive a court challenge because semi-automatics are probably the most popular type of firearm in the country and have been in common use for over a century now. It would take some extremely "creative" reasoning to get around the fact that semi-automatic firearms are well-suited and widely used by both the organized militia (National Guard) and the unorganized militia (most everyone else).

Now, more specific bans such as those on "high capacity" magazines and "assault weapons" may or may not pass constitutional muster. Most of us would argue that because of their popularity amongst the unorganized militia (I've seen it quoted that AR-15 variants have been the best selling rifles in the country for a few years now) and their nearly exclusive use by the organized militia, that they should be considered "in common use" and thus bans of them are unconstitutional. That being said, SCOTUS doesn't always see things our way and I don't belive that their striking down an AWB is as sure a thing as we'd like it to be.

January 6, 2013, 01:29 PM	#5
Webleymkv Senior Member Join Date: July 20, 2005 Location: Indiana Posts: 10,446	You have to look at all three Supreme Court Ruling on 2A. In 1939, SCOTUS ruled in United States v. Miller that the NFA was not in violation of 2A because the regulated weapons (in that particular case a short barrel shotgun) was not "in common use nor particularly suitable for use by the militia" and thus not subject to the protection of 2A. Furthermore, it is important that the NFA was not an outright ban, but rather heavy regulation and tax of said weapons. Fast forward to Heller v. District of Columbia and SCOTUS ruled that a complete ban of firearms (in Dick Heller's case a handgun) was unconstitutional because 2A guarantees an individual, rather than collective right, to own firearms. Because SCOTUS ruled in Heller's favor, we can draw from the case that handguns, at least in the broadest sense, pass the "common use" test from Miller. In dicta, Justice Scalia noted that regulation or even bans of "dangerous or unusual" weapons would still pass constitutional muster, but he failed to elaborate on exactly what might constitute a "dangerous or unusual" weapon. Now we get to McDonald v. Chicago in which SCOTUS ruled that 2A guaranteed the right to own a firearm not only at the federal level, but that the right was incorporated against state and local governments via the Due Process clause of 14A. This, in essence, says that if the feds can't ban it, neither can states or localities. This is not a pre-emption because there could possibly be regulations that the feds have simply chosen not to pursue that might still be constitutional at the state or local level. For example, I could see SCOTUS ruling that requiring a permit or license to carry a gun is constitutional even though the feds have no regulations on the matter outside of prohibiting it in gov't buildings. So, it seems to me that the litmus test for what a state or local government could or couldn't ban would be the "common use" test from Miller. I very much doubt that a complete ban on all semi-automatics could survive a court challenge because semi-automatics are probably the most popular type of firearm in the country and have been in common use for over a century now. It would take some extremely "creative" reasoning to get around the fact that semi-automatic firearms are well-suited and widely used by both the organized militia (National Guard) and the unorganized militia (most everyone else). Now, more specific bans such as those on "high capacity" magazines and "assault weapons" may or may not pass constitutional muster. Most of us would argue that because of their popularity amongst the unorganized militia (I've seen it quoted that AR-15 variants have been the best selling rifles in the country for a few years now) and their nearly exclusive use by the organized militia, that they should be considered "in common use" and thus bans of them are unconstitutional. That being said, SCOTUS doesn't always see things our way and I don't belive that their striking down an AWB is as sure a thing as we'd like it to be.