Machine Guns, Handguns

January 27, 1991

The Supreme Court has made it clear that the "right of the people to keep and bear arms" is strictly limited in this country, despite the National Rifle Association's interpretation of the Second Amendment to the contrary. The jurisprudence on this issue is so settled that the Supreme Court did not even feel the need to explain itself. It has approved without comment a 1986 law aimed at capping the number of machine guns in circulation by banning the manufacture, sale and ownership of new ones.

The court's silence was as loud and unmistakable as a fusillade. It upheld the law by approving a lower court's ruling that rejected Second Amendment as well as statutory claims. The NRA says this ruling is the first to allow gun bans that affect all citizens, rather than just felons and others deemed dangerous if armed. In fact, the Supreme Court long ago (1939) made it clear that some weapons have no Second Amendment protection regardless of who wants to own them. Since then, many lower courts have ruled that weapons must have "militia use" before Second Amendment arguments are considered. Owners of sawed-off shotguns and Saturday night specials need not apply.

That does not mean, as the NRA has long argued, that if a weapon has "militia use" the right of "law-abiding persons" to bear it is automatically protected by the Second Amendment. As the Center to Prevent Handgun Violence said in its brief supporting the law, that silly interpretation would mean potential militiamen have the right privately to own anti-tank and anti-aircraft missiles and weapons of mass destruction.

In upholding the 1986 law against this challenge, the U.S. Court of Appeals and now the Supreme Court have disposed of the constitutional roadblock to pending legislative efforts to curb the use of other dangerous weapons. With that obstacle out of the way, Congress promptly ought to take up the "Brady bill," requiring a national seven-day waiting period for police to check out would-be purchasers of handguns. After that priority goal is accomplished, Congress should consider a national ban on semi-automatic assault weapons.

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