Although I would hope that all of us in this community strongly support the Second Amendment, I get dismayed when occasionally I see posts that insist that it prevents the government from prohibiting individuals from having any kind of " arms" at all. The Heller decision of the Supreme Court, written by Scalia, finally resolved that the right to keep and bear arms applies to individuals rather than just in relation to service in a militia. The Court also squarely addressed the question of whether some " arms" can be banned and held that yes they may:
"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
——————
24As for the “hundreds of judges,” post, at 2, who have relied on the
view of the Second Amendment JUSTICE STEVENS claims we endorsed in
Miller: If so, they overread Miller. And their erroneous reliance upon
an uncontested and virtually unreasoned case cannot nullify the
reliance of millions of Americans (as our historical analysis has shown)
upon the true meaning of the right to keep and bear arms. In any
event, it should not be thought that the cases decided by these judges
would necessarily have come out differently under a proper interpretation of the right.
Cite as: 554 U. S. ____ (2008) 53
Opinion of the Court
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
We conclude that nothing in our precedents forecloses
our adoption of the original understanding of the Second
Amendment. It should be unsurprising that such a significant matter has been for so long judicially unresolved.
For most of our history, the Bill of Rights was not thought
applicable to the States, and the Federal Government did
not significantly regulate the possession of firearms by
law-abiding citizens. Other provisions of the Bill of Rights
have similarly remained unilluminated for lengthy periods. This Court first held a law to violate the First
Amendment’s guarantee of freedom of speech in 1931,
almost 150 years after the Amendment was ratified, see
Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and…"
The key point here is that firearms which are not " in common use at the time" meaning at the time then, and at the time now, may be restricted. So, as a practical matter, I believe that since AR 15s are presently commonly owned by individuals, a ban on them should not pass constitutional muster. But on the other hand, fully automatic weapons are not in common use and so they could be banned or restricted. It is I think useful to point out here that this post is meant to address the LAW, as it stands and as it is interpreted by our Supreme Court, rather than what any of us personally think.
I believe that those unwilling to accept the scope of our right to bear arms do a disservice to to cause of preserving the rights which we actually have