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.