From: [v--c--t] at [cad.gatech.edu] (Vincent Fox) Newsgroups: talk.politics.guns Subject: RKBA != personal nukes Date: 14 Jun 1993 03:01:16 -0400 About once every 2 weeks, some clueless newbie wanders in and asks "Don't you wacked-out right-wing murdering Right to Keep and Bear Arms proponents advocate everyone be required to own heavy weapons up to and including nuclear weapons?" The short answer is no. Environmental lawyer David B. Kopel had a good short section in his monograph "The Assault Weapon Panic: Political Correctness Takes Aim at the Constitution" from pages 44-45. Levinson is better but much longer. G. The Boundaries of the Constitution If "military" arms, such as the assault rifles carried by the federal standing army, are precisely what the Constitution protects, it may be asked where the upper boundary lies -- at grenade launchers, anti-aircraft rockets, tanks, battleships, or nuclear weapons. To begin with, the phrase "keep and bear" limits the type of arm to an arm that an individual can carry. Things which an individual cannot bear and fire (like crew-served weapons) would not be within the scope of the Second Amendment. Nor would things which bear the individual, instead of being borne by him or her. Thus, tanks, ships, and the like would be excluded. In addition, if a hand-carried weapon is not "part of the ordinary military equipment" (as the Supreme Court put it in _Miller_), then the weapon might not have a reasonable relationship to the preservation of a well-regulated militia; hence its ownership would not be protected. Since American soldiers do not carry nuclear weapons, such weapons would not be within the scope of the Second Amendment. Perhaps the Supreme Court will one day further elaborate the boundaries of the _Miller_ test. Soldiers do carry real assault rifles (namely M16s), and it would therefore seem that such weapons would fit within the _Miller_ test. In early 1991, the Supreme Court declined to hear a case involving the prohibition of machineguns produced after 1986.{227} Handgun Control, Inc. immediately announced that the Supreme Court had validated the ban, although the Court had done no such thing. As the Supreme Court itself has stated, however, a denial of review has no precedential effect and is not a decision on the merits.{228} As this Issue Paper is written, the Constitutionality of the 1986 federal ban is unclear. In the case that the Supreme Court declined to hear, the federal trial court had interpreted the relevant statute as not being a ban, but only a licensing requirement. The trial court had said that if the statute were to be read as a ban, it would be unconstitutional.{229} The 11th Circuit Court of Appeals reversed on the statutory interpretation issue, and did not address the Constitutional question. In the meantime, a federal district court in Illinois found the ban unconstitutional on the grounds that Congress' enumerated powers did not include the banning of firearms."{230} THE "ASSAULT WEAPON" PANIC 43 Even if the machine gun issue remains in a Constitutional limbo, the semiautomatic issue need not. The basis on which machine guns may be considered distinguishable from other guns is their capability of rapid, automatic fire. All semiautomatic firearms lack this capability, and according to the Bureau of Alcohol, Tobacco and Firearms, it is quite difficult to convert semiautomatics to automatic.{231} In fact, semiautomatic rifles may fire less rapidly than traditional pump action shotguns,{232} and there is no dispute that traditional pump action shotguns fall within the scope of the right to bear arms. 227. _Farmer _v. _Higgins, 907 F.2d 1041 (I Ith Cir. 1990), _cert. _denied, 111 S.Ct. 753 (199 1). 228. _Hopfman _v. _Connolly, 471 U.S. 459 (1985). 229. The statute prohibits manufacture of machineguns for sale to civilians except "under the authority of the United States." The federal district court, noting repeated Congressional statements of intent not to outlaw any firearms, found the phrase to require the Bureau of Alcohol, Tobacco and Firearms to issue manufacturing licenses to persons who were not otherwise prohibited from manufacture. 230. _United _States _v. _Rock _Island _Armory (C.D. Ill. May 2, 1991). 231. _See p. 8, _supra. 232. _See p. 8, _supra. -- "If everything had gone as planned, everything would have been perfect." -BATF spokesperson on CNN 3/2/93, regarding failed raid attempt in TX.