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California Court of Appeal Upholds Ban on .50-Caliber Rifles Against Second Amendment Challenge:

The case is People v. James, just decided today. Here's the core of the analysis:

[As Heller holds, “the right secured by the Second Amendment is not ... a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” Rather, it is the right to possess and carry weapons typically possessed by law-abiding citizens for lawful purposes such as self-defense. It protects the right to possess a handgun in one’s home because handguns are a “class of ‘arms’ that is overwhelmingly chosen by American society” for the lawful purpose of self-defense.

As the court’s discussion makes clear, the Second Amendment right does not protect possession of a military M-16 rifle. Likewise, it does not protect the right to possess assault weapons or .50 caliber BMG rifles. As we have already indicated, in enacting the Assault Weapons Control Act of 1989 and the .50 Caliber BMG Regulation Act of 2004, the Legislature was specifically concerned with the unusual and dangerous nature of these weapons. An assault weapon “has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings.” (§ 12275.5, subd. (a).) The .50 caliber BMG rifle has the capacity to destroy or seriously damage “vital public and private buildings, civilian, police and military vehicles, power generation and transmission facilities, petrochemical production and storage facilities, and transportation infrastructure.” (§ 12275.5, subd. (b).) These are not the types of weapons that are typically possessed by law-abiding citizens for lawful purposes such as sport hunting or self-defense; rather, these are weapons of war.

I can't speak to the wisdom of a .50-caliber ban, but this seems to be a sensible interpretation of Heller's test for what "arms" are protected. Moreover, as I argue in my forthcoming Implementing the Right to Keep and Bear Arms in Self-Defense article, this is also consistent with a sensible interpretation of the right to keep and bear arms in self-defense. In my article, I argue that Heller's "typically possessed by law-abiding citizens for lawful purposes" test is flawed. But, among other things, I argue that the right to bear arms for self-defense shouldn't be seen as infringed by restrictions that don't materially interfere with the right to self-defense; and a ban on .50-caliber rifles doesn't materially interfere with self-defense (see PDF pages 12-19 and 48, as well as PDF pages 37-42 for the discussion of interpreting the scope of "arms" post-Heller).

This doesn't speak, of course, to the right to keep and bear arms for other reasons, such as deterrence of government tyranny and the like. But I leave that questions to others (much as the Court did in Heller); writing 100+ pages on the right to bear arms in self-defense is enough for me.

Tony Tutins (mail):

As the court's discussion makes clear, the Second Amendment right does not protect possession of a military M-16 rifle.

This would seem to be inconsistent with the holding in Miller, which, Heller assures us, is still good law, because an M-16 rifle is surely "part of the ordinary military equipment."
6.3.2009 12:31am
Brett Bellmore:
Heller assures us that it's still good law, while lying about it's holding. There some latin term for that?
6.3.2009 12:36am
Gavin Kovite (mail):
As I read it, Heller was an originalist opinion which based second amendment rights on the 18th Century militiaman's right to keep and bear arms of the sort required for militia service. If any American weapon is analogous to the Revolution-era musket, it is the M-16 assault rifle and variants: the basic, bare bones armament of today's infantryman.
The text of the amendment strongly suggests that it was meant to protect "weapons of war," not sporting goods or even home-defense weapons. Otherwise, the amendment might have said "efficient hunting of game" or "security of the home" rather than "security of a free state."
The weapon of a "well-organized militia" is whatever the standard infantry weapon of the day is; today it's an M-4 Carbine.
It's ok to think that's nuts policy-wise: I'd be in favor of amending or repealing the second amendment myself. But as it's written, if it protects anything, it should protect standard infantry assault rifles.
6.3.2009 12:38am
Mak:
I don't agree that this is at all sensible. What use is the right to bear arms, if I don't have the right to carry the same weapons as the government is allowed to carry? This is a recipe for tyranny, which would guarantee that the people are outgunned by those that they most need protection from.
6.3.2009 12:44am
Gaius Obvious:
[As Heller holds, "the right secured by the Second Amendment is not ... a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." Rather, it is the right to possess and carry weapons typically possessed by law-abiding citizens for lawful purposes such as self-defense.

Where does it stop? Are we now only allowed to possess small caliber handguns and shotguns since the only lawfully recognized use has now been deemed to be self-defense only? What about collectors? Target shooters? Hunters?
6.3.2009 12:46am
Kevin P. (mail):
Utter bullshit from the opinion:

assault weapons, like machine guns, are not in common use by
law-abiding citizens for lawful purposes

... and ...

Moreover, the .50 caliber BMG rifle has the capacity to take down an aircraft


These judges are divorced from any kind of reality. They are just making up facts from thin air.
6.3.2009 12:47am
Jon Roland (mail) (www):
The "in common use" standard is properly in common use by the military, not by civilians, and .50 cals are in common use by the military, including the infantry.

Militia is not just for self-defense or defense against tyranny. It is also for defense against invasion, insurrection, and law enforcement, and the .50 cal is a good choice for such purposes.

And if you ever find a suitcase nuke on a short countdown a .50 cal is just what you will need to disarm it, as I discuss in this lecture.
6.3.2009 12:54am
Jim at FSU (mail):

An assault weapon "has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings."


Wait a second. Heller said that owning weapons for self defense in the home was explicitly protected. Heller never said that the protected handguns had to be particularly suitable for "legitimate sports or recreation."

Additionally, the fact they "can be used to kill and injure human beings" isn't a constitutionally valid reason to ban them because those characteristics are what make them useful for self defense in the home.

The guns at question in Heller were not sports or recreational firearms, they were self defense arms suitable only for self defense at close range.

Even if we accept the court's faulty reasoning, the court is ignoring the fact that both the M16 and 50 caliber rifles are each widely used for marksmanship competitions in this country. The AR-15 is one of the most popular varmint hunting rifles in the country and the 50 BMG cartridge is used for large game hunting.

What they're doing is trying to set "assault weapons" apart for special treatment, but they're using the arguments that were used to sell the bans to the public 20 years ago. Unfortunately for them, those aren't constitutionally valid distinctions.
6.3.2009 12:58am
Harry Eagar (mail):
The fantasists are in full cry today. Funny, the slaughter rate in Hawaii, where the citizenry is virtually unarmed, turns out to be about a magnitude lower than in places like Alabama, where half the citizenry is armed.

Just the opposite of what we hear at VC all the time.

(I just thought I'd throw that in because I've been waiting for VC to address, in some fashion, the kill-rate study. [crickets])
6.3.2009 1:15am
Jim at FSU (mail):
Harry:
It's a cherry picked set of statistics that used a dubious method for calculating per capita gun ownership. If you look at the counties where the murder rate is the highest (and it's a very small number of very high murder rate areas), you'll see that they are mostly in areas with strict gun control and low legal ownership of firearms. Chicago, Detroit, DC, LA, etc.

The biggest single influence on gun violence has nothing to do with guns and everything to do with drugs. Where there are active drug gangs, there is high gun violence. Where there aren't drug gangs, there isn't violence. That's the single biggest factor by an enormous margin.
6.3.2009 1:29am
Gabriel McCall (mail):
When the Japanese were planning their attack on America during WWII, it was proposed that they skip Hawaii and move straight in on California. Admiral Yamamoto responded "You cannot invade the mainland United States. There would be a rifle behind every blade of grass."

The next country who's thinking about landing in California will have no such concerns to worry about.
6.3.2009 1:46am
Jim at FSU (mail):
You mean Mexico? I have bad news for you, Amigo...
6.3.2009 1:52am
BlackX (mail):
Is the objective to reduce us, the People, to the weapons available to the late 18th-century militia?
6.3.2009 2:16am
Eric Robinson (mail):
The Bill of Rights is a political document, and makes no mention of "self-defense", so it would seem to be logical that they founding fathers were talking about weapons of a politically significant type, regardless of what some judge or politician might opine. Judges, politicians and the like have been usurping rights from people since we invented the vermin, and today's examples are no exception. If governments, not the Bill of Rights, are allowed to dictate what rights the American people have, we will soon have none, and the truth in this assertion has been made more and more apparent since Mr. Obama took office.
6.3.2009 2:28am
Eric Robinson (mail):
I wish our government was as aggressive in its attacks on criminals and criminal organizations as it is on the right of their own law abiding citizens. Perhaps our "leaders" think it useful to have plenty of crime in the streets to "justify" their usurpation of our liberty, to "protect us".
6.3.2009 2:32am
Steve:
When the Japanese were planning their attack on America during WWII, it was proposed that they skip Hawaii and move straight in on California. Admiral Yamamoto responded "You cannot invade the mainland United States. There would be a rifle behind every blade of grass."

After spending enough time on the Internet, you develop the ability to spot apocryphal quotes without even bothering to look them up.
6.3.2009 2:38am
RKV (mail):
Pardon the repetition...

Article 1 Section 8 defines the three constitutional missions of the militia.

1) enforce laws
2) suppress invasions
3) repel invasions
6.3.2009 2:49am
OrinKerr:
Militia is not just for self-defense or defense against tyranny. It is also for defense against invasion, insurrection, and law enforcement,

I'm curious, Jon, do you have any authority for your view that the 2nd Amendment is for defense against law enforcement? Given that the modern concept of law enforcement officers is a 19th century idea, I'd be interested in how you derive that using originalist notions.
6.3.2009 2:52am
cirby (mail):
That "suppress insurrection" part is something that should be emphasized. I would consider an out-of-control US Government to be involved in an insurrection against the US Constitution...
6.3.2009 4:26am
Reasoner:

...the modern concept of law enforcement officers is a 19th century idea...

Haven't they had sheriffs for a long time? The Sheriff of Nottingham from the Robin Hood story comes to mind.
6.3.2009 4:29am
Matthew J. Brown (mail):
The stupid thing about this ban, of course (regardless of whether Heller applies) is that, like the assault weapon ban, it's more about cosmetics than functionality. Only the .50 BMG round and weapons that fire it are banned. Other weapons of similar power and caliber are permitted.
6.3.2009 4:58am
Reasoner:
Over all, the Heller decision was very positive because of its recognition of the right to arms. But a part of me was rather saddened by the decision, because all nine of the justices blatantly ignored the law and lied about its meaning. Ironically, the five in the majority were the most honest, and yet of the lies from both sides, the majority put forth the most absurd lie: The "in common use" standard. To give the obviously circular argument, that something can be banned because it's not in common use, when the only reason its not in common use is because it was banned, is strangest because it was totally unnecessary. They could have used the more obviously sensible "excessively dangerous" standard, where weapons which are excessively dangerous in the hands of private citizens can be banned. They could have added that arms in common use today are obviously not excessively dangerous. What explanation is there for this blatant disregard for the law? Did it really just not occur to them to use the excessively dangerous standard?

I would also add that the .50 BMG is also quite valuable to sailors for self-defense against pirates. I can't see justification for infringing the right of the militia on the mere possibility that such weapons might with great difficultly be used to shoot down an airliner, when they've never been used in a crime in the US.

Also, a reliable semi-automatic rifle with a large capacity detachable magazine is the best all around defense weapon if you're not going to carry it in public. Rifles have a much higher hit probability than handguns. They also have better stopping power and longer range. I guess you could say that hunting style semi-auto rifles are insignificantly less effective than military style ones, but then they're insignificantly less dangerous as well. It makes little sense to restrict a constitutional right based on the evil looks of one tool over the other.
6.3.2009 5:10am
Guy:
I suppose, from an Originalist perspective, it makes sense to argue that the Second Amendment protects the right to bear the sort of arms used by the military. But if this interpretation is taken too far, it protects the right to own bazooka's, SAM's, and nuclear weapons. I don't bring this up to present a strawman (obviously, virtually no sane person argues this), I'm just curious where people who hold this interpretation draw the line, and with what rationale? In particular, It's difficult to imagine that someone would be able to effectively protect themselves from tyranny by the U.S. government without possessing some serious military hardware.
6.3.2009 5:21am
Brett Bellmore:
The second amendment protects the right to own the guns commonly carried by infantry. That's where I draw the line: If the government thinks it isn't too dangerous for the average grunt to carry, then it's not too dangerous for me.
6.3.2009 6:15am
Guy:
Thanks, Brett. That's all I was wondering. I feel like I understand your position better now.
6.3.2009 6:32am
cboldt (mail):
-- Unfortunately for them, those aren't constitutionally valid distinctions. --
.
They are now, the Court said so.
6.3.2009 6:34am
Arkady:

The second amendment protects the right to own the guns commonly carried by infantry.


Even automatic grenade launchers?
6.3.2009 6:38am
Loren Heal (mail) (www):
The problem with the logic is circuity. What ordinary weapons a citizen would typically carry is exactly the issue at hand, that is, what it is legal for him to carry.
6.3.2009 6:39am
Brett Bellmore:
Yes, even automatic grenade launchers. I'd require a substantial backstop for practicing with them, though that would properly be a state matter.

As I've said before, the purpose of the 2nd amendment was to safeguard the ability to rapidly constitute a militia, even if the government had deliberately discontinued having one. To that end, it protects the right to own and carry the sort of weapons you'd be expected to show up with in a militia muster.

If the government doesn't want me to have the right to own a weapon, it can refrain from issuing it to it's troops.
6.3.2009 7:22am
Guy:
Brett, I'll admit to my ignorance here, but surely they only issue grenade launchers to soldiers who have been extensively trained in their use? Such a weapon would be incredibly dangerous in untrained hands. And I'm sure soldiers only have them when they're needed or may be needed for some purpose. You can't just check one out and take it wherever you want, right? And they're not standard issue to every soldier?
6.3.2009 8:46am
ruuffles (mail) (www):

Brett, I'll admit to my ignorance here, but surely they only issue grenade launchers to soldiers who have been extensively trained in their use?

Wouldn't the military apply that same logic to handguns and rifles as well? Why would they give those to soldiers not trained?
6.3.2009 9:00am
Mike M. (mail):
About 20% of infantrymen are issued grenade launchers.

Bear in mind that grenades are rather pricey, not to mention regulated under the National Firearms Act of 1934. $200 tax for each with explosive filling.
6.3.2009 9:09am
http://volokh.com/?exclude=davidb :
A friend (also a gun nut) and I recently were discussing the M-16 line in Heller. We have concluded that it must have been a vote-getting bone thrown into the opinion.
6.3.2009 9:09am
NickM (mail) (www):
Isn't it wonderful when a legislature makes up facts. A .50 caliber rifle has no higher rate of fire than any other semiautomatic firearm. The speed is simply how fast the shooter can make repetitive pulls of the trigger.
This deserves no more respect than the attempt to define pi as 22/7.

Nick
6.3.2009 9:09am
Houston Lawyer:
This law was clearly necessary to stop all those holdups that were happening with .50 caliber rifles. Just the other day, I saw a fourth grader whiz by with one across the handlebars of his banana bike. He had a six-pack of Bud and a carton of cigarretes with him that he must have stolen at the point of that gun.
6.3.2009 9:16am
Ian Argent (www):
Via Wikipedia on the US Marine Corps Table of Organization and Equipment

A fire team is the basic element of the Ground Combat Element. It consists of four Marines: the team leader/rifleman (M4/M16), one rifleman (M4/M16), one grenadier (M4/M16 with M203) and one light machine gunner (M249). The team leader is typically a Lance Corporal or Corporal.


Roughly 1 in 4 enlisted carry a grenade launcher. Another 1 in 4 carries a machine gun. All are trained to use in case of casualties. This is their basic equipment; IE, every time they're under arms they carry a GL.

An AUTOMATIC grenade launcher is a crew-served weapon, often found on a vehicular mount. That doesn't mean as much as you might think as a case against ownership - civilians can and do own the other common crew-served support weapon, the M2HB heavy machine gun (Ma Deuce).

As for training, most of military training consists of instilling mindset; marksmanship is trained, but it's fairly easy to hit what you aim at.

IMHO banning classes of weapons is a red herring - the guy who owns a nuke is in the situation of the guy who builds a boat in his basement; what's he going to do with it?
6.3.2009 9:24am
Melancton Smith:
Guy wrote:

It's difficult to imagine that someone would be able to effectively protect themselves from tyranny by the U.S. government without possessing some serious military hardware.


It's easy, if you try. The great strength of the militia is in its numbers. "Quantity has a quality all its own". Serious military hardware becomes useless in a domestic insurgency. Where will you bomb?
6.3.2009 9:27am
ctd:
As the court's discussion makes clear, the Second Amendment right does not protect possession of a military M-16 rifle. Likewise, it does not protect the right to possess assault weapons or .50 caliber BMG rifles.

To the conrary: Heller has a footnote observing that to ban M16s would require severing the first half of the 2nd Amendment entirely, which violates the axiom of not outright discounting verbiage which authors obviously made a point of including. It's a veiled (lest the sheep be scared) way of saying "you can't ban M16s".

Heller _does_ make it clear that what is common for home defense cannot be banned, and I can assure you (as one of the participating population) that there are a great many "assault weapons" owned and arranged specifically for home defense.

.50BMG, while demonized, is legally indistinguishable from any other rifle. Calibers vary, and it is simply the high end of the NFA-allowed caliber range. SOMETHING will be at the top of the range, no matter how that range is limited. The obsession with banning .50 cals fails to observe that there are in fact more powerful calibers of a smaller (and more efficient) size, such as the .408CheyTac. Save only that it is the "biggest-n-baddest" of federally legal calibers, that simple cost and size render it harder to come by, and wantonly prohibited without clear cause in some jurisdictions, there is nothing indicating it should not be protected by the 2nd Amendment.

The most popularly "extreme" is the Barrett M82 .50BMG, which is basically just a larger-caliber form of the extremely popular AR15, which by tiny law 922(o) alone is a semi-auto-only version of the M16, which is the mundane weapon for (and issued by the millions to) our military, which as the common arm of the day is exactly what the Founding Fathers had in mind for "the people" to have a right to "keep and bear" without infringement. (BTW: A top-end .50BMG costs about the same as 10 AR15s, not an outrageous price for a low-production large product.) Ergo, there is no rational basis for the court to conclude that the 2nd Amendment does not protect .50BMGs, M16s, or assault weapons; to the contrary, there is much to say it does.
6.3.2009 9:34am
ctd:
It's difficult to imagine that someone would be able to effectively protect themselves from tyranny by the U.S. government without possessing some serious military hardware.

Google the phrase "shoot twice and go home."
6.3.2009 9:36am
KR Training (mail) (www):
Heller specifically discusses self-defense as a justification for the right to keep and bear arms. The military M-4 carbine (updated M-16) was specifically designed for use by an individual fighting other armed individuals in an urban environment around non-combatants. Sounds like the definition of the civilian home defense "mission" to me.

Those that study interpersonal conflict from a technical and tactics perspective at law enforcement agencies and private sector firearm academies generally favor the AR-15/M-16 over the shotgun or pistol caliber carbine as a general purpose "defensive long gun" for a long list of reasons (low recoil, capacity, range, precision, lower risk of rounds going through multiple interior walls).

As usual in the firearms legal debate, emotion and distortion of technical characteristics of firearms are used to set public policy.
6.3.2009 9:45am
pintler:

In particular, It's difficult to imagine that someone would be able to effectively protect themselves from tyranny by the U.S. government without possessing some serious military hardware.


Just speaking from the historical record, guerrillas use their small arms to overrun a remote base and take the weapons there. Then they leverage those to capture armories, etc.

As the name suggests, asymmetrical warfare isn't about defeating the occupying army in a mano a mano slugfest - it's about keeping them from utterly defeating you, while costing the opponent as much as possible. You're a Yugoslav (Yugoslavian?) in WWII. Your choices are to submit, or fight the best you can. They chose the latter, and tied down German divisions throughout the war. More recently, the insurgents in Iraq were (mostly, hopefully) defeated not by overwhelming firepower, but by coopting their support base.
6.3.2009 9:48am
bluecollarguy:
"...An assault weapon "has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings."



Any wonder why lawyer jokes proliferate?
6.3.2009 10:13am
DennisN (mail):
Arkady:


Even automatic grenade launchers?


Prior to the Gun Control Act of 1968, it was perfectly legal for private citizens to own and shoot artillery. I remember seeing mail order ads for artillery ammunition, mostly light antitank gun rounds in the 20mm to 75mm range.

I know of no particular crime statistics showing how many cannon were used in crimes, but suggest that society as a whole never detected a problem.

As far as banning the .50 BMG round, there are already long range rounds with superior accuracy at longer ranges on the market, and long range heavy rifles capable of utilizing them.
6.3.2009 10:19am
bluecollarguy:
Fundamental rights are rights that are deeply rooted in this Nation's history and tradition. Do I have that correct?

If so it has now come to my attention that self defense is neither deeply rooted in America's history or tradition which would come as a big surprise to those colonists who practiced that right to keep that right.

While lawyers can be funny judges are sometimes hilarious.
6.3.2009 10:21am
Kevin P. (mail):

krtraining:
Heller specifically discusses self-defense as a justification for the right to keep and bear arms. The military M-4 carbine (updated M-16) was specifically designed for use by an individual fighting other armed individuals in an urban environment around non-combatants. Sounds like the definition of the civilian home defense "mission" to me.


Hi from another Austinite :-)

I keep a semiautomatic AR15 that comes close to the M4 in my safe with loaded magazines for this very reason. There are increasing numbers of other citizens who do the same.

But the published opinion says:

assault weapons, like machine guns, are not in common use by
law-abiding citizens for lawful purposes


Liars.
6.3.2009 10:31am
Kevin P. (mail):
For those who are unfamiliar with the realities of the .50 BMG round and the rifles that fire it, this article is very educational:

.50 Caliber Liars

Note that the lie in the opinion about the .50 caliber rifle being used to shoot down aircraft is addressed in this article.
6.3.2009 10:34am
DennisN (mail):
Just to expand on my last (and wishing there was an edit button) the reason the .50BMG was selected as a long range sniping round was not it's unique long range performance. It's good but not terrific. The reason was that the round is a common one in the US military. It's fired by the Machinegun .50 Caliber HB M2, the "Ma Deuce." This is a common, vehicle mounted heavy machinegun that has been around since about 1919. It was developed as an antitank weapon, just too late for WW-I. It was already obsolete in that role by WW-II, but had plenty of other uses shooting up vehicles and things. We probably issue more of them now, per capita, than we ever have.

Some wisearses in Vietnam, like Carlos Hathcock, started cobbing rifle scopes onto M2s, and using single shots to pick off enemy at 1,000 meter ranges. The market for the .50 sniper rifle was born.

Barrett and others developed their rifle around the calibre that was already in issue. Much better ballistic rounds have since been fielded, and they make rifles for those as well.

Even with a suitable rifle and ammunition combo, effective long range shooting takes considerable skill and experience. And money. It ain't a poor man's sport. The rifles and ammunition are expensive. Like most shooting sports, once you've added up the ammo bill, you can't find the rifle.
6.3.2009 10:37am
Jon Roland (mail) (www):
Eric Robinson:

I wish our government was as aggressive in its attacks on criminals and criminal organizations as it is on the right of their own law abiding citizens.

It is. But you need to understand that from the viewpoint of cops all civilians are presumed criminals.
6.3.2009 10:44am
Jon Roland (mail) (www):
RKV:

Article 1 Section 8 defines the three constitutional missions of the militia.

1) enforce laws
2) suppress invasions
3) repel invasions

(2) should be "suppress insurrections". But usurpations by officials can be described as insurrections.
6.3.2009 10:47am
Jon Roland (mail) (www):
OrinKerr:

Militia is not just for self-defense or defense against tyranny. It is also for defense against invasion, insurrection, and law enforcement,

I'm curious, Jon, do you have any authority for your view that the 2nd Amendment is for defense against law enforcement? Given that the modern concept of law enforcement officers is a 19th century idea, I'd be interested in how you derive that using originalist notions.

We can hope that when we get the new blog engine it will allow editing one's own past posts, so I could have inserted the missing "for" in that one.

However, as I and others have said, law enforcement officers, when they violate the law themselves, can be regarded as engaged in insurrection.
6.3.2009 10:51am
Jon Roland (mail) (www):
Guy:

... surely they only issue grenade launchers to soldiers who have been extensively trained in their use?

Civilians, as militia, are all supposed to be trained in the use of weapons, and if the government doesn't provide the training, they will have to train one another. That's what we in the constitutional militia do.
6.3.2009 11:02am
RowerinVa (mail):
I don't have a position on whether Heller permits the .50 to be banned. I do, however, have to contradict those of you who claim the .50 isn't an antiaircraft round. It was developed primarily as an anti-material round, not antipersonnel (it's way, way overpowered for personnel, and the gun is way, way to heavy to use exclusively in that mode; even the single-shot models commonly weigh over 25 pounds). In WWII, it was the primary American air-to-air and air-to-ground round, mounted both fixed in fighter planes and flexibly on bombers for defense. And it was indeed used in the ground-to-air defense role as well. A great YouTube clip of one mounting, ground-to-air, is . It was also used in a ground-to-air single-gun mount, air- or water-cooled, although that was less effective, having lower rate of fire.

Yes, all these applications were using the M2 air-cooled machine gun to fire the round, not a sem-auto rifle. But some of you are arguing for the M2 itself, and in any event, the point is that the round is absolutely an effective and commonly used antiair round at low aircraft altitudes. Remember, planes must land, ergo the .50 can be used against planes near airports.
6.3.2009 11:08am
RowerinVa (mail):
Dog gone it, the link didn't work. It's http://www.youtube.com/watch?v=wWDlr5LMVC4

And note, that discusses an improvement of the mount to be effective against jet aircraft, not just WWII prop planes.
6.3.2009 11:11am
Mikee (mail):
This seems an explicit example of a "rational" test against the 2nd Amendment.

So a .50 caliber rifle (perhaps even a replica of a Revolutionary War musket of .56 caliber?) is too dangerous for civilians to own?

By that logic, any scoped rifle is too accurate, and could be used for sniping, so they are outlawed.

Also, a single shot shotgun is easily sawed down into a concealable, illegal short-barreled gun so all that class of firearms can be banned.

Also, any handgun is easily concealed, hence is too small to be legal.

Also, any 22 semiauto rifle (one of the most popular guns in existence) has too high an ammo capacity and must be banned.

Any firearm can have such an illogical objection made to its legality, under a "rational basis" argument. So can any free speech issue, religious belief issue, assembly issue, press freedom issue. That, perhaps, is why destroying a constitutionally protected, inherent right usually gets at least intermediate scrutiny and more often strict scrutiny by courts.

This "too dangerous" stuff is an old anti-gun argument, often successfully refuted by pro-self defense and should and will be refuted and reversed by any court that has any respect for the US Constitution.
6.3.2009 11:14am
Don Miller (mail) (www):
When I read the 2nd amendment, I, like others, see it as protecting the weapons of the individual militia member.

During the Revolutionary War era, there were individual weapons that a militia member was expected to report with and crew-served weapons that the militia itself owned.

A militia member, depending on his job, would be expected to show up with at least a rifle. Maybe a handgun, bayonet or a sword.

The militia would own cannon and mortars. The militia would provide the ammunition and explosives (ie grenades) as needed.

A modern militia member following the same general rules, would report with an M-4 or M-16, a pistol and a bayonet.

The militia would own and provide crew-served weapons (machine guns, recoiless rifles, mortars, artillery, tanks) and ammunition (grenades, rockets, missiles, bullets, explosive shells).
6.3.2009 11:25am
PubliusFL:
OrinKerr: I'm curious, Jon, do you have any authority for your view that the 2nd Amendment is for defense against law enforcement? Given that the modern concept of law enforcement officers is a 19th century idea, I'd be interested in how you derive that using originalist notions.

Jon didn't refer to the 2nd Amendment, but the right to bear arms was widely discussed during the years surrounding the adoption of the 14th Amendment, often in the context of black militias in the South which frequently found themselves at odds with local sheriffs and police who covertly or overtly supported Klan operations against blacks.
6.3.2009 11:26am
Gordo:
Based upon the comments on this thread watch out, Professor Volokh, you appear to be straying from the second amendment absolutism reservation. You will no longer be an academic poster boy for gun extremists.
6.3.2009 12:11pm
pluribus:
Brett Bellmore:

The second amendment protects the right to own the guns commonly carried by infantry. That's where I draw the line: If the government thinks it isn't too dangerous for the average grunt to carry, then it's not too dangerous for me.

Dangerous for whom? The soldiers carrying the weapon, or the "enemy"? I suppose the Germans and the Japanese in WWII thought the weapons the infantry carried were dangerous enough. Ditto for the Civil War, where about two percent of the population of the entire country were killed dead, a lot by infantry weapons. When weapons are used by civilians, the "enemy" can be other civilians, innocent victims of crime, police officers, or, as many here argue, the government itself. Not dangerous to them?
6.3.2009 12:26pm
pintler:

Remember, planes must land, ergo the .50 can be used against planes near airports.


I believe the objections to the plausibility of shooting down 737s with Barrett rifles are:

1)Shooting skeet with a rifle is a very low probability event.

2)Even during WWII, the .50 was considered a little light for air combat. US forces continued with it because we were primarily trying to shoot down enemy fighters - very small aircraft chock full of vulnerable areas. Opposing forces, who were trying to shoot down bombers, were already trending towards calibers of 20mm and up. A 737 is a lot bigger than a B-17.

For a practical anecdote, I have a friend whose artillery unit was at Ft. Irwin. Once every couple of hours an A-10 would make a pass and the proctors would shout GAS! and deploy tear gas canisters. The soldiers got to spend the next hour schlepping 100 pound shells in MOPP suits in 110 degree heat. After several hours of this, my friend managed to use one of the MILES (laser simulator) equipped M2 Brownings (on a vehicle mount) and tag the A-10. They got to spend the rest of the day out of their MOPP suits, and my friend was the hero of the day, because making that shot was considered miraculous.
6.3.2009 12:38pm
DennisN (mail):
RowerinVa:


I do, however, have to contradict those of you who claim the .50 isn't an antiaircraft round.


The .50 machinegun was used as an antiaircraft round in WW-II, and subsequently. By 1940 a single .50 machinegun was generally considered ineffective as an AA weapon. It was somewhat used by the Army in quad mountings, both trailer mounted and vehicle mounted. The Navy pretty much dumped them except for small craft and aboard aircraft. It was our primary weapon for use aboard aircraft by all services.

By the end of WW-II, it was pretty much considered obsolete as an aircraft round, as it had insufficient power for use against large aircraft. This was confirmed by German practice, who preferred cannon in the 20mm - 30mm range with explosive projectiles for anti-bomber use.

So, yes, it can be used against aircraft, but I suspect it would be only marginally of more effectiveness than a .30 rifle round.

As a single shot weapon, it would take an extremely lucky shot to take down an airliner; probably requiring a hit to the pilot.

We lost helicopters in Viet Nam to hand thrown stones.
6.3.2009 12:39pm
Soldier of Fortune:
As part of the unorganized milita, every non-felon citizen should be able to possess whatever arms can be carried by an individual member of the infantry, such as the following: bayonet, M-4 Carbine, M-9 Pistol, M-16 Rifle, M203 Grenade Launcher, M240B Machine Gun, M-249 Squad Automatic Weapon, M-24 Sniper Weapon, M-40A1 Sniper Rifle, M-1014 Joint Services Combat Shotgun, MP-5 Submachine Gun, AT-4 Anti-Tank Weapon, Mk-23 pistol and all hand grenades.

All for personal defense, of course.
6.3.2009 12:42pm
PC:
Is the objective to reduce us, the People, to the weapons available to the late 18th-century militia?

Does that mean I can own a cannon? Sweet.
6.3.2009 12:42pm
Fact Checker:
As part of the unorganized milita, every non-felon citizen should be able to possess whatever arms can be carried by an individual member of the infantry

Can we have the same accounting too? Stored in central arms rooms when not in use. Issued by hand receipt with every bullet expended in training accounted for and immediate return to the arms room?

Heck, your average military member, especially those who live on base (which are "gun free zones btw"), live under gun control laws for private firearms that would kill you guys.
6.3.2009 12:53pm
rosetta's stones:

"...the point is that the round is absolutely an effective and commonly used antiair round at low aircraft altitudes. Remember, planes must land, ergo the .50 can be used against planes near airports."


Disagree that the .50 cal was ever an effective anti-air round, RowerinVa. In fact, even the 20mm and 40mm were basically ineffective against Japanese air attacks against naval forces during the Pacific War. All those puffs of smoke you see surrounding our fleets in those old pictures are basically nothing but an affront to Mother Gaia. These small weapons all had limited range and little fire control, and basically, the attackers could launch their weapons from outside that range, while exposing a very limited profile during attack. Sure, the defenders would pick up the odd "revenge kill", after the attacker had launched weapons and continued on his attack course into gun range before turning and exposing his underside, but that's about it. Or, in a kamikaze attack, wherein the pilot was forced to fly right through a clear fire zone, all the way to the target.

The 5" rapid fire could reach out and touch someone, particularly after they came up with proximity fuses late in the war, and that's what won the air defense battle. But I'd say the .50 cal was "useful" mostly because it was lighter and available for use up front. George C. Scott's video notwithstanding, the .50cal or Russky equal doesn't shoot down many planes today, it's all about the missile, and nobody around is planning on that changing over to small arms, not if they wanna stay alive.

The HMS Prince of Wales and HMS Repulse lie at the bottom of the sea off Malaya, because they had the crude and ineffective air defenses you're discussing, which the Japanese exposed early in the Pacific War. Quite a shock to old Winnie, the armchair admiral. Only another aircraft could truly defend against air attack in that era, in any event.

A single shot .50 cal, against an airplane? That wouldn't even do the damage of a single goose crashing into the thing, and the goose can fly over the perimeter fence and get real close, unlike our terrorist buddy.
6.3.2009 12:55pm
Soldier of Fortune:
Can we have the same accounting too? Stored in central arms rooms when not in use. Issued by hand receipt with every bullet expended in training accounted for and immediate return to the arms room?

How does having your weapon stored in a central arms room help in personal defense? It's like the requirement that handguns be kept locked in gun safes--not much use while you're being robbed if you can't get to your weapon. If you can't easily access your weapon to defend your home and loved ones, what's the point in having one?
6.3.2009 1:01pm
Bruce Hayden (mail):
RowerinVa

Yes, the M2 heavy machine gun was used throughout much of WWII for anti-aircraft use, typically at a high rate of fire, and often in dual, quad, or even hex configurations. By late in the war, it was mostly obsolete in that role, and our fighters carrying it were at a disadvantage by Korea when fighting planes with cannons.

But keep in mind that the aircraft versions of the M2 fired at a rate of between 750/850 (AN/M2) and 1,200 (AN/M3) rounds per minute (multiplied, of course, by the number of guns fired together). Even at 450-575 rounds per minute (each) firing from a 2, 4, or 6 gun HB AA configuration was formidable. In short, during WWII, the M2 was used in configurations that typically fired 1,000+ rounds per minute when used for anti-aircraft duty. Compare this to the handful of rounds per minute possible from the semiautomatics available to the general public. And, M2 machine guns used for AA use typically use tracers for correcting their aim, something else that is not available or practical with a semiautomatic rifle.

So, no, the semiautomatic or single shot versions are not really useful for shooting down planes.
6.3.2009 1:22pm
PubliusFL:
Fact Checker: Can we have the same accounting too? Stored in central arms rooms when not in use. Issued by hand receipt with every bullet expended in training accounted for and immediate return to the arms room?

Accounting procedures that may be reasonable for the government to use to prevent government property from being misappropriated by individuals don't make much sense for preventing one's personal property from being misappropriated by oneself.
6.3.2009 1:49pm
Kevin P. (mail):

Fact Checker:
Can we have the same accounting too? Stored in central arms rooms when not in use. Issued by hand receipt with every bullet expended in training accounted for and immediate return to the arms room?


LOL. This immediately tells me that you have not done much live fire training with real firearms in any realistic setting.

The bullet of course has been expended downrange, has partially or fully disintegrated, and is buried in the dirt somewhere.

I'll be charitable and assume that you meant to account for each "round of ammunition". The spent casing is ejected from a semi-automatic firearm, somewhere in the general direction of up and sideways. It is common for them to get thrown several feet. You can recover some spent casings, and others will get lost in the grass, dirt, mud, gravel and sand that is present on all outdoor ranges and field areas.

I reload my ammunition, and so have a financial incentive to collect all spent casings that I fire at my rifle range. The range has a concrete pad on which most casings land. In spite of this, my recovery rate is generally about 90%. 10% of the casings just get lost.

You are no better than the judges who wrote this opinion - you just make up your facts to suit your predetermined opinion. FactChecker indeed!
6.3.2009 1:51pm
wooga:

Rather, it is the right to possess and carry weapons typically possessed by law-abiding citizens for lawful purposes such as self-defense.


A sawed off shotgun, especially with a pistol grip, is an extremely useful home defense weapon. It allows for easy maneuverability indoors, and has a wide shot spread to make sure you get a partial hit regardless of lighting, movement, or nerves. If sawed-off shotguns were legal, they would very quickly become "typical" home defense weapons. I cannot square this interpretation of the right with Miller. I'll gladly take an interpretation of the right as "self-defense" oriented - since that is my own concern.

However, wasn't the purpose of a "well regulated" militia referring to a "skilled" militia? As in, we need to have an armed populace so that whenever they are called up into the militia, they will already be skilled with firearms? That interpretation would guarantee the individual right to even the scariest looking rifles. Restricting civilian use to semi-auto, and not full auto, would then be an acceptable compromise restriction.
6.3.2009 2:04pm
DennisN (mail):
Kevin P.:

Correct. The brass is generally policed up and turned in. It goes to Property Disposal, and is auctioned off. Much is lost in the grass.

When I was in, each soldier had to march past the Range Officer, come to Inspection Arms, and announce, "No brass, no ammo, sir." That's a real safeguard.

The early part of when I was in, during the late 60s, weapons were kept in open, unlocked racks in the center of the barracks. The storage of weapons in locked armories was later done in response to the theft of weapons, and the accounting done because the individual soldier no longer had any control over his weapon much of the time.
6.3.2009 2:05pm
ctd:
I am quartermaster of my own arms and ammo. Every item in my armory is allocated and accounted for to my satisfaction.
6.3.2009 2:06pm
Harry Eagar (mail):
Jim, cherry picking? In a gun debate? Say it ain't so!

Your explanation for the high kill rate sounds plausible, but cannot quite answer the question I pointed out.

The apparent disparity isn't trivial -- it's an order of magnitude.

But if you deconstruct the low figure (Hawaii), it appears that something over 80% of the kills were suicides.

I haven't tried to figure out what proportion of, say, Alabama's kills were suicides.

But it looks as if, at minimum, to get whatever benefit you guys claim from having an armed citizenry, you have to accept a big total of successful suicides that, otherwise, would have been mostly just attempts.

How desirable that tradeoff would be would be a value judgment, I suppose.
6.3.2009 2:08pm
ctd:
typically possessed by law-abiding citizens for lawful purposes

Not a valid argument when the reason it's not typically possessed is primarily because possession is a major felony and has been for decades.
6.3.2009 2:22pm
ctd:
Does that mean I can own a cannon?

Yes, you can! no licensing/taxes at all.
6.3.2009 2:30pm
LarryA (mail) (www):
These are not the types of weapons that are typically possessed by law-abiding citizens for lawful purposes such as sport hunting or self-defense; rather, these are weapons of war.
The big hickey in this argument is that if civilians, starting in the 1980s, hadn't developed .50 BMG rifles, and used them for sporting purposes often enough to interest manufacturers, and set up organizations like the Fifty Caliber Shooters Association to further popularize the firearms, the military and law enforcement wouldn't have had a "weapon of war" to adopt.
As a single shot weapon, it would take an extremely lucky shot to take down an airliner; probably requiring a hit to the pilot.
Plus, banning these rifles for law-abiding civilians just means the real terrorist will smuggle in a machinegun instead.
But it looks as if, at minimum, to get whatever benefit you guys claim from having an armed citizenry, you have to accept a big total of successful suicides that, otherwise, would have been mostly just attempts.
See: Japan. Tough gun control-high successful suicide rate.
6.3.2009 2:38pm
Tony Tutins (mail):

to get whatever benefit you guys claim from having an armed citizenry, you have to accept a big total of successful suicides that, otherwise, would have been mostly just attempts.

You don't believe people have the right to control what happens to their own bodies? Not a very progressive view.

The demographic most likely to kill himself is the elderly white male, who likely has rationally decided life is no longer worth living. People determined to kill themselves will find a way. For example, increasingly stringent gun control in California corresponds with an increase in the number of people jumping in front of commuter trains, traumatizing engineers, and making hundreds of people late for work.
6.3.2009 2:43pm
ctd:

As part of the unorganized milita, every non-felon citizen should be able to possess whatever arms can be carried by an individual member of the infantry, such as the following:
...
All for personal defense, of course.

Sarcasm presumed and rebutted:

bayonet: legal.
M4: should indeed be legal, being the modern common military national-defense tool issued in largest numbers to soldiers. Semi-auto version legal.
M9, Mk23: legal.
M16: marginally older, and legally indistinguishable, version of the M4. Pre-1986 M16s are legal (albeit collectably expensive). AR15, the semi-auto version, is legal and extremely popular.
M24, M40A1: legal. Practically &legally indistinguishable from standard hunting rifle.
M1014: legal.
MP5: depricated by M4. Semi-auto versions legal.
M203, M240B, M-249, AT-4, grenades: overpowered for home defense, but suitable for neighborhood defense (2ndA is not exclusively individual; neighbors can certainly pool resources for mutual defense in lieu of reliable gov't-provided protection).
6.3.2009 2:44pm
Soldier of Fortune:
ctd:

No sarcasm intended; if I was being sarcastic, I would have included Stinger missiles, for example. As you can see from the above discussion, many posters agree with me, that citizens should be allowed to possess such weapons, and not just the semi-auto versions. Just because federal law prohibits them now, doesn't mean the law is constitutional or correct, esp. with the new understanding by Heller.
6.3.2009 3:25pm
Matthew Carberry (mail):
Harry,

Remember that guns cannot be causally linked to suicide due to selection bias.

Basically, people <i>who have decided to commit suicide</i> use guns, if guns are easily available, because those are commonly perceived as the fastest and most certain method.

The folks who have decided to commit suicide in Hawai'i who had access to guns I'm sure used them. The rest chose the next best available method to them.

Since guns are more available to Alabamans they use them more, that isn't a "gun problem" that's simply rational choices made by the suicidal.

When guns aren't available people, whether in Hawai'i or Alabama, who have already decided to commit suicide don't "simply attempt" suicide, they choose the next best (perceived) available, equally lethal if done correctly, method available to them to complete the act.

Those folks who attempt suicide and fail need to be divided into groups to make any sort of analysis: they either tried and failed due to incompetence or ill(?)chance, tried and failed due to intervention prior to death, tried and changed their mind mid-act or (in my belief the majority of "attempted" suicides) they weren't <i>really</i> trying to kill themselves but rather using the (in a sense deliberately) failed attempt for psychological reasons.
6.3.2009 3:29pm
Kevin P. (mail):

Tony Tutins:
The demographic most likely to kill himself is the elderly white male, who likely has rationally decided life is no longer worth living. People determined to kill themselves will find a way. For example, increasingly stringent gun control in California corresponds with an increase in the number of people jumping in front of commuter trains, traumatizing engineers, and making hundreds of people late for work.


Gun control activists are quite happy to count suicides committed with a gun as a part of "gun violence". They seem little concerned about suicides committed with other means.

The reality about suicide is that no normal person picks up a gun and commits suicide on a whim. Most humans have a primal survival instinct that prevents them from doing so. Almost all suicides have a reason - a person decides that life is no longer worth living due to physical or mental illness or other grim circumstances. The decision to take one's own life usually takes months or years, and at that point, a convenient means of suicide is chosen and the attempt is made. If guns are not easily available, poison, sleeping pills, tall buildings, trains, police officers and other means are readily available. In the country where I grew up, people have committed suicide by setting themselves on fire.

America, overflowing with guns, has a total suicide rate that compares quite favorably with other nations, including gun-free Japan.

The way to reduce suicides with a gun is to work to reduce all suicides, period. And that is hard work.
6.3.2009 3:35pm
RowerinVa (mail):
Guys, guys, read my post about the .50 cal. I acknowledge that the antiaircraft .50 in WWII and Korea was used in a machine gun role and usually in a multigun role. Don't create a strawman -- I never claimed it was the equal of a Bofors 40mm ackack or a 5 inch antiair naval shell. But c'mon. In the Marianas Turkey Shoot, the most famous air victory in history, the US shot down 500-600 Japanese planes, and almost 100% of the air-to-air victories were done with .50 cal. Yes, machine gun and air-to-air, but .50 cal. Look, I don't necessarily like the California legislature either, but claiming that the antiair function of the .50 is "absurd" is overplaying your hand.

I take it that the debate here is no longer "this is not an antiair round" but "this isn't a very effective military round against modern aircraft."

I concede the latter. But terrorism isn't about militarily effective weapons, it's about destructive asymetrical weapons. The .50 cal is about perfect for the latter, used against planes. I feel creepy even discussing what it's capable of, but suffice it to say that a well positioned person with a .50 cal absolutely could hit a plane on the runway, or one taking off, and it wouldn't take a "miracle" to do it, and it wouldn't even take a miracle to cripple the plane (although it's probably less than 50% likely). I very much wonder if anyone making these claims has ever fired a rifle, shot skeet, or been near any of the many airports where planes fly within short distances of residential (i.e., unpatrolled) areas. The threat is very real. And again, I concede that the threat is not limited to .50 cal (even a .30-06 round goes right through a telephone pole, .458 is quite powerful, etc.) but you need to be serious for a moment and stop claiming that these aren't effective antimateriel rounds.

Once again, I have no position on .50 cal and Heller. I'm just talking about the physics of the round.
6.3.2009 3:40pm
ctd:
No sarcasm intended

Wasn't sure, so I thought I'd close the loop on it. It was your last line that made me wonder (AT4 for personal defense? [scratches head]). Gave me a chance to address specific military items which the anti-RKBA types here had a problem with, and also to point out that RKBA extends beyond my property line whereby my neighbors and I may pool resources for crew-served mutual defense (thus shattering the "crew-served not protected" theory).
6.3.2009 3:41pm
ctd:
claiming that the antiair function of the .50 is "absurd" is overplaying your hand

Thing is, the is/isn't argument is incomplete if you don't also acknowledge whether what's used is full-auto or not. A rock-and-roll M2 .50BMG is, yes, useful on fast-moving materiel (a 9-yard belt may get a few rounds on target). A bolt-action single-shot Barrett M99 .50BMG plainly isn't (one shot and you'll most likely miss). The problem is that the general public doesn't differentiate between the two, and the argument over .50BMG becomes obfuscated unto uselessness. In reality, the legal bolt-action &semi-auto .50BMGs are little different than their smaller counterparts, and the full-auto forms are already illegal; so where is the problem that must be solved by criminalizing a long-legal and historically harmless product?
6.3.2009 3:49pm
Kevin P. (mail):
RowerinVa:

Most - or all? - of the successful application of the .50 BMG against aircraft have been using heavy machine guns firing the round at a rapid rate.

A sniper using a single shot or semi-auto .50 BMG can reasonably get off only a few shots against a moving aircraft on the ground or in the air. I have fired a .50 BMG rifle lying prone on the ground. The recoil and concussion are tremendous and followup shots are not easy. Those shots would have to hit a critical system to cause the aircraft to crash. There is a lot of material and space in an aircraft where a single bullet could pass through without causing critical damage.

Here's a pic of an A10 Thunderbolt (admittedly a hardened aircraft) that took numerous hits and made it back to base safely.

While it is certainly theoretically possible to use a .50 BMG rifle to down an aircraft, it would likely have happened already if it were practical to do so.
6.3.2009 3:53pm
Harry Eagar (mail):
Matthew, Kevin and Tony, I know some of those arguments, but they don't address what seems to be the case: That people who attempt suicide, not really seriously, actually do kill themselves if they attempt with a handy firearm. whereas when they attempt with pills or a knife, they usually don't.

So, in that sense, suicide by gunshot is a form of gun violence.

The Hawaii totals suggest, strongly, that the substitution effect isn't anywhere near one-for-one.

(As I posted here long ago, my objection to firearms is linked to my growing up among hunters in the South. They all drank around guns, which it occurred to me was a bad idea. Whatever the constitutional arguments, I still think that, in the real world, guns and booze are dangerous.)
6.3.2009 3:55pm
cboldt (mail):
wooga: -- If sawed-off shotguns were legal, they would very quickly become "typical" home defense weapons. I cannot square this interpretation of the right with Miller. --
.

Read the Miller case with an emphasis on comprehension. i don't mean that in a derogatory way, the rhetorical construct is not super simple, and the legal jargon may stymie a legal neophyte. The Miller Court failed to reach a conclusion as to the constitutionality of the 1934 NFA, for want of an evidentiary finding. Had the Miller Court (or the District Court, on remand) made a factual finding that a shotgun with a barrel under 18" in length is any part of the ordinary military equipment or that its use could contribute to the common defense, it would have again quashed the indictment of Miller and again found that the 1934 NFA is unconstitutional in light of the 2nd amendment.
6.3.2009 3:55pm
Officious Intermeddler:
I tend to think that decisions like this shine a bright light on what I consider the principal defect of Heller, the "in common use" requirement. That would have been fine if the Court had been writing on a clean slate, but the simple reality of the situation is that what's "in common use" today is a reflection of seventy years of gun laws of doubtful constitutional validity. To say that the Second Amendment only protects arms "in common use" is to uphold any gun law that has reduced lawful ownership and use of a particular type of weapon. That's not an intellectually honest application of the Second Amendment.

(And, yes, FWIW, I think Scalia put it in there solely to preserve 18 USC 922(o). Results-oriented jurisprudence is as bad from conservatives as from liberals.)
6.3.2009 4:05pm
Kevin P. (mail):

Harry Eagar:
The Hawaii totals suggest, strongly, that the substitution effect isn't anywhere near one-for-one.


How does Hawaii compare demographically to the rest of the country? Hawaii has always had stricter gun control laws, so it isn't clear how you can calculate a substitution effect. When you get down to an individual jurisdication, you should be looking for a relevant historical event. E.g. On this date, gun laws were changed in a manner that could plausibly affect the suicide rate.

Another example: Prior to 1903, Great Britain had almost no gun laws and very little crime. A convicted felon could in 1903 buy and carry a machine gun without any law standing in the way! Over the 20th century, Britain's gun laws have been tightened to the point where all handguns are outlawed, long guns are stringently regulated, gun ownership has declined dramatically - and the crime rate has steadily increased.
6.3.2009 4:07pm
RowerinVa (mail):
I agree with most of the posts responsive to mine. .50 cal is much more dangerous in full auto, for example. But .50 will depressurize (or, rather, render impossible to pressurize) virtually any commercial aircraft out there, and an airliner without pressurization will have to land or it will suffer fatalities, period. QED.

The claim,

"While it is certainly theoretically possible to use a .50 BMG rifle to down an [modern commercial] aircraft, it would likely have happened already if it were practical to do so."

... is a logical fallacy [even inserting "modern commercial" before aircraft, as I just did]. It was practical to do a 9/11 attack [against at least one plane at a time] for years before it happened. It was practical to kill John Lennon with a handgun for years before it happened. Et cetera, ad naseum. No one now argues that either of those, in hindsight, was very tough to pull off. Arguing "it hasn't happened, therefore it won't" is a good way to end up with a lot of declining-value real estate, to take just the most recent famous example.

I am aware of only one airliner that has been shot in the US in recent years (a bullet through the horizontal stabilizer, i.e., tail), and there was no operationally critical damage, and it's not even clear that one was shot intentionally, but that doesn't mean it's not possible.

And again, I'm not arguing policy; I haven't thought through the correct policy. I'm just talking physics. And I don't enjoy the position of defending the otherwise often loony California legislature, so, having made my one narrow point, I'll sign off.
6.3.2009 4:29pm
Melancton Smith:
Harry Eager wrote:

Matthew, Kevin and Tony, I know some of those arguments, but they don't address what seems to be the case: That people who attempt suicide, not really seriously, actually do kill themselves if they attempt with a handy firearm. whereas when they attempt with pills or a knife, they usually don't.


Or could it be that those who are serious about suicide choose a more reliable means than those simply "calling out for help."
6.3.2009 4:29pm
New Pseudonym:

Haven't they had sheriffs for a long time? The Sheriff of Nottingham from the Robin Hood story comes to mind.


But he was primarily a judicial officer (the Shire Reeve).

And the Constable (Count of the Stable) and Marshall were around, too but they were senior military officers, having upgraded from looking after the horses.

On both sides of the issue, including previous threads, where does this idea that 18th Century Militia=Infantry come from? I believe every state had Cavalry troops and most (if not all) had Artillery batteries. Some even had Engineers (Sappers). Seems to me that limits the validity all the arguments about whether a Brown Bess Musket is the equivalent of (pick your poison) in discerning original intent.
6.3.2009 4:44pm
cboldt (mail):
-- But .50 will depressurize (or, rather, render impossible to pressurize) virtually any commercial aircraft out there ...I'm just talking physics. --
.
Show the calculations. How big is/are the hole(s)? What is the outflow rate? How much overhead capacity does the compressor have?
.
Not saying a 50 couldn't take out an airline, hell, 2 geese, properly aimed, can do so. I'm just not persuaded that holes produced by a 50 will result in catastrophic depressurization.
.
Even if it did, AFAIK, nearly all catastrophic depressurization incidents end w/o loss of life.
6.3.2009 4:45pm
pintler:

But .50 will depressurize (or, rather, render impossible to pressurize) virtually any commercial aircraft out there, and an airliner without pressurization will have to land or it will suffer fatalities, period.


Some grist for your mill:

1)Pressurization is something that happens at altitude. IIRC, cabins are pressurized to about 8000 ft altitude. As the aircraft descends through 8000 feet, the pressure is equalized with ambient - that's why your ears pop. Unless you're positing someone with a Barrett hitting an airliner at altitude, vs. in the landing pattern, pressurization won't matter.

2a)If pressurization did matter, a .50 makes a .50 hole. A .30 makes a .30 hole. Do you really think that is enough to make a difference?

2b)I recall a 747 pilot commenting during a discussion of arming pilots. He said that cabin pressure in a 747 was controlled by restricting an outflow orifice. According to him, the minimum setting was a few inches in diameter. You do want to change the air in the cabin, and changing the volume of a 747 once an hour takes a pretty good flow.

Airliners are carefully designed to avoid single points of failure, and to fly with substantial damage. Remember the (Aloha Air??) 737 that landed with something like a 10 by 10 foot hole in the cabin wall?

All of which is beside the point; you can't hit one anyway. Let's say you want to bag a plane. You park your van near an airport and start taking potshots. Lets be wildly optimistic and say you hit with 10% or your shots, and 10% of hits will cause the plane to crash. You would expect to fire 50 shots before causing a crash. Assuming air traffic isn't diverted away after the first hits, and a plane lands every 3 minutes, you'll be banging away for over two hours before getting lucky. What is your estimate of the likelihood you can bang away with a .50 for two hours near a US airport without anyone noticing?

Moreover, I wonder why Al Qaeda hasn't tried. I hear they can just pick up a Barrett at any gun show, no questions asked. Maybe they think it has a pretty low chance of success?
6.3.2009 5:19pm
Jon L.:
Incredible, Professor Volokh.

If the 2nd Amendment protects lawful self-defense, all we constitutionally need are .38 special revolvers.
6.3.2009 7:40pm
Jon L.:
But .50 will depressurize (or, rather, render impossible to pressurize) virtually any commercial aircraft out there, and an airliner without pressurization will have to land or it will suffer fatalities, period. QED.


Anything that goes through an aircraft's skin will depressurize it, and plenty of things can punch through aluminum skin. 5.56, 7.62, etc. Aircraft aren't armored.

And it would take a real-deal praise-the-virgin-mary-type miracle for someone to hit an aircraft in flight with a .50 BMG rifle, no matter the altitude or speed.

TL;DR: Plenty of things can depressurize an aircraft, and hitting an aircraft in flight is extraordinarily implausible.
6.3.2009 7:43pm
Kevin P. (mail):

Jon L.:
If the 2nd Amendment protects lawful self-defense, all we constitutionally need are .38 special revolvers.


Exactly. According to the logic of this ruling, every rifle can be banned as unprotected under the Second Amendment. After all, as the justices made stuff up discovered, rifles are not in common use for self defense.
6.3.2009 7:58pm
Brett Bellmore:

Or could it be that those who are serious about suicide choose a more reliable means than those simply "calling out for help."


That's certainly why this gun owner took a knife to his wrist. It's not like I didn't know how to kill myself reliably, to the extent I was thinking at all, I was hoping somebody would notice my wrists were bandaged up, and figure out why.

Hell is being suicidally depressed, and nobody noticing.
6.3.2009 8:22pm
Harry Eagar (mail):
There was an interesting study about people who survived jumping off the Golden Gate Bridge. (I would have thought the sample would have been very small, but not so.)

Although there may have been recall bias, as far as what they said goes, every one said that, on the way down, he or she thought to himself or herself, I shouldn't have done this. Hold that thought and apply it to firearms.

I think you guys are looking at the wrong end of the telescope.

Despite its low rate of firearming, Hawaii does not have high rates of suicide (by any means), home invasion robberies, armed robberies, but it does have a very high proportion of all its few gunfire deaths attributable to suicides.

If we were talking about a few percentage points, you could shrug it off. We're talking at least an order of magnitude.

So I think we can say, at the least, that the idea that the only thing standing between the law-abiding American citizen and his safe home and liberty is his shootin' arn is questionable.
6.3.2009 9:55pm
Hank Bowman, MD (mail) (www):
How does the court feel about 20mm rifles, vs. the 12.7mm/.50 BMG?


http://www.anzioironworks.com/20MM-TAKE-DOWN-RIFLE.htm
6.3.2009 10:00pm
Jon L.:

So I think we can say, at the least, that the idea that the only thing standing between the law-abiding American citizen and his safe home and liberty is his shootin' arn is questionable.


I've read this three times and have no idea how you came to this conclusion.

Its interesting that you never mentioned Chicago or Washington DC's crime rates. Tightly restricted firearms ownership, skyrocketing crime rates.

If you think Hawaii's crime rate is directly attributable to a lack of guns, then you can't explain Chicago. I'd wager that if you looked at the incidence of gang violence (et al) in Hawaii vs. Chicago, you'd find your answer.

And it won't be the guns.
6.3.2009 10:13pm
geekWithA.45 (mail) (www):
The Heller ruling, with help from Alan Gura, bent over backwards to prevent establishing a basis for overturning the heavy regulation on fully automatic arms, by adding to the Miller test of military efficacy the additional test of "common usage".

The semi automatic AR-15 rifle and variants is now, and has been for the last 10 or so years, the best selling rifle in America, fully qualifying itself to pass both the Heller and Miller tests.

In the few jurisdictions that legislatively create a category of arms called a "assault weapons" for additional regulation or outright prohibition, the definition inevitably includes the preferred, fully elaborated form of the AR-15.

Fully automatic arms fail the "common use" test only because they've been (illegitimately, if we were to post date the application of Heller to 1934) heavily regulated since 1934, thus chilling the exercise of the right of arms. This situation is further compounded by the closure of the machine gun registry to new guns in the mid 80's.

The fully elaborated, preferred form of the AR-15 *might* fail the Heller test *in*California* only because California has heavily regulated to the point of prohibition that form of the AR-15 rifle since (IIRC) the 1990's.

It is a perverse situation: the legislative prohibition or heavy regulation of a class of arms causes them to potentially become "uncommon", and thus, according to this ruling, loses the very protection that was to prevent that exact infringement.

Meanwhile, in the rest of America, military pedigreed arms of the AR-15, AK-47, and the like have been flying off the shelves in record numbers for *years* and *years*, reaching an unprecedented crescendo that has sustained since October, 2008.
6.4.2009 12:07am
cboldt (mail):
-- The Heller ruling, with help from Alan Gura, bent over backwards to prevent establishing a basis for overturning the heavy regulation on fully automatic arms, by adding to the Miller test of military efficacy the additional test of "common usage". --
.
As Brett Bellmore put it above, "Heller assures us that [Miller is] still good law, while lying about it's holding. There some latin term for that?"; and Officious Intermeddler after that said, "I tend to think that decisions like this shine a bright light on what I consider the principal defect of Heller, the 'in common use' requirement."
.
The Heller litigants and advocates (including Levi and Gura) are smugly satisfied with the Heller majority's topsy-turvy treatment of Miller, and I've run into very few commentators, anywhere, who recognize the Heller Court's read as application of Miller as the abomination that is is. In other words, I don't agree with Officious Intermeddler that a "bright light" is shining on the defective legal reasoning employed by the Heller Court.
"[ordinary military equipment useful in warfare are protected] would be a startling reading of the [Miller] opinion, since it would mean that the National Firearms Act's restrictions on machineguns (not challenged in Miller) might be unconstitutional." [And we can't let that happen! Even though that's exactly what Miller stands for in the first place]

I wouldn't be surprised if SCOTUS were to cast the Cruikshank/Presser cases exactly the same way that the Circuit Courts have; likewise for the REVERSE proposition that those cases actually elucidate.
.
The modern United States Supreme Court is as hostile to the RKBA as the Circuit Courts of Appeal; and in the area of second amendment jurisprudence, is equally corrupt.
.
I wonder if there is a single member of legal academia who dares to point out that the emperor has no clothes. I think not.
.
Heller ought to be seen as the equivalent of Dred Scot. I think it would have been better for the country if the dissent had carried the day; that event might have finally snapped the gun-rights lobby out of its servility to defective jurisprudence.
6.4.2009 3:13am
cboldt (mail):
Assuming a petition for cert is filed in the People v. James case, SCOTUS will deny cert., and if pressed for an answer, would point to Heller and say this is already decided. That's not true either, but that's what they'd say.
6.4.2009 3:17am
Ian Argent (www):
Heller was very carefully constructed to do one thing - render unconstitutional a ban on functional handguns in the home. It laid one stone in the foundation that needs to be built. We need to build out from there.
6.4.2009 9:29am
DennisN (mail):
RowerinVa:


I agree with most of the posts responsive to mine. .50 cal is much more dangerous in full auto, for example. But .50 will depressurize (or, rather, render impossible to pressurize) virtually any commercial aircraft out there, and an airliner without pressurization will have to land or it will suffer fatalities, period. QED.


This is based on either watching too many Hollywood dramas or faulty analysis.

A pressurized aircraft is not a bottle. It is more properly a flying leak. You blow air in, it leaks out through numerous vents, and the difference is the pressurization. An additional 1/2 inch hole wouldn't even cause the gauge to quiver.

In any event, pressurization only comes into play above 10,000 feet. It is utterly impossible to hit an airliner at that altitude with a .50 machinegun, even if the bullet can get that high.


Hank Bowman, MD:


How does the court feel about 20mm rifles, vs. the 12.7mm/.50 BMG?


The GCA of 1968 classifies any firearm, other than a shotgun, with a bore diamter greater than 0.500 inches as a Destructive Device, along with bombs, grenades and bazookas.

So not only is your 20mm Lahti antitank rifle controlled, so is your .600 Nitro Express elephant rifle. The 12.7mm is a 0.51 calibre IIRC, so it is out.
6.4.2009 11:12am
rosetta's stones:

Some grist for your mill:


Good grist, pintler. Catastrophic depressurization of an airliner couldn't come into play until the aircraft had climbed to an altitude where the pressure differential between the cabin interior and ambient exterior was great enough to cause that catastrophe, and that event could only occur at an altitude well outside .50cal range (and likely outside the 20mm and 40mm range, as mentioned previously).

Anything's possible, as you mention as your narrow point, and a .50cal round at low altitude could potentially hit and disable some unredundantable computer or hydraulic system, or some kid with a laser could shine it at the pilot's eyes, and cause a crash. Possible, yes.

I'd be more worried about shoulder-fired missiles, personally. That's what terrorists need, if they want to take down an aircraft. The single shot .50cal is a waste of their time, and Osama's pretty clever, I'd say.
6.4.2009 12:41pm
FWB (mail):
Sensible? reasonable? Just where are these words in the 2nd Amendment? Oh yes, they DON'T exist IN the document. These words only exist in the minds of those who wish to steal authority over the rest of us. They have those crystal balls that help them read between the lines and find all the really god stuff. Or maybe they just do some 'shrooms first?


Isn't there some "supreme Law of the Land" clause somewhere in the Constitution? Wouldn't the 2nd fall into that category since unlike the 1st, there is absolutely NOTHING in the 2nd to allude to its sole restriction of the fed? That sole restriction too is something pulled from dark recesses.

Tiochfaidh ar la!
6.4.2009 12:57pm
Nairda2000 (mail):
Prof. Volokh, I believe you have overlooked a couple of important points:

1) The case also upheld the "cosmetic features ban" component of the CA assault weapon law, which, at its core bans an entire class of firearms, namely, all semi-automatic rifles that have both a detachable magazine and a pistol grip (there are various other cosmetic features that are also banned under the statute, but since virtually all rifles that have the other banned features also have the verboten "pistol grip", the ban on the other features is essentially irrelevant).

2) In order to ban an entire class of arms, Heller provided that the arms must be both dangerous and unusual. The court used legislative history and findings that supported the argument that "assault weapons" as defined by the relevant statutes are dangerous. It was easy to find support for this position because all firearms are dangerous (they are, after all, firearms). The court however, provided no support for the argument that assault weapons as defined by the relevant statutes are unusual, in fact, the court merely asserted that this was the case. In actuality, semi-automatic rifles with detachable magazines and pistol grips are among the most popular rifles in America and are without question in common use across the country. It may be the case that as a result of a nearly decade long ban in CA, these rifles are less common in the state of CA, but surely this kind of bootstrapping (banning an arm that is in common use, and then later finding that the ban is constitutional because the arm is not in common use (as a result of the ban which made it a felony to use the arm)) is not permissible under the Heller test.
6.4.2009 1:01pm
LarryA (mail) (www):
That people who attempt suicide, not really seriously, actually do kill themselves if they attempt with a handy firearm. whereas when they attempt with pills or a knife, they usually don't.
Just the opposite. I've answered suicide hotline calls. People who "not really seriously" attempt suicide with a gun load it, cock it if necessary, then make the call for help. With that you have time to talk them down. People who "not really seriously" attempt suicide with pills tend to take them, then call. If they get the right number, that leaves you on a deadline, literally. Much greater chance for unintentional death with pills. A knife is even worse, as most folks think they have more time with slashed wrists than they really do.
But .50 will depressurize (or, rather, render impossible to pressurize) virtually any commercial aircraft out there, and an airliner without pressurization will have to land or it will suffer fatalities, period.
Well, not exactly. Pressurization isn't necessary until the aircraft is several thousand feet up. A holed airliner could easily fly to the next airport at 3,000 feet or so. (Presuming you'd want to avoid the location where you'd just been shot.)
Funny, the slaughter rate in Hawaii, where the citizenry is virtually unarmed, turns out to be about a magnitude lower than in places like Alabama, where half the citizenry is armed.
Hawaii is number eight on the gun laws scale. (PDF) Let's talk about crime rates in California and New Jersey.
6.4.2009 1:18pm
Harry Eagar (mail):
You're still looking through the wrong end of the telescope.

I' m not asking why other places are high. I'm asking why Hawaii is low.

Obviously, not because we keep our shootin' arns handy and hot.

Something else is going on.

The gun laws scale may not match the actual gun control facts.

We had a bench trial just last week in the county where a hunter who forgot to unload his rifle on the way home come pretty close to a 5-year stretch for violation of what Hawaii calls 'place to keep.'

I don't think any jurisdiction is as zealous about its gun control laws in fact as Hawaii is.
6.4.2009 1:32pm
pintler:

So I think we can say, at the least, that the idea that the only thing standing between the law-abiding American citizen and his safe home and liberty is his shootin' arn is questionable.


Sure. The odds are I will live a long and happy life whether or not I have a fire extinguisher handy, too.

Whether one looks a state data or country data, it is clear that crime rates and gun ownership rates are uncorrelated. Some people think that since you can't show a statistical benefit, they should be banned. Others think that since you can't show a statistical harm, they shouldn't be banned.


Despite its low rate of firearming, Hawaii ...[has]... a very high proportion of all its few gunfire deaths attributable to suicides.


So does everywhere else in the US - nationwide, approximately 2/3 of 'deaths due to gun violence' are suicides. What is curious is that people advocating restrictions based on those numbers advocate things like assault weapons bans and magazine capacity bans that don't seem like they would affect the suicide rate very much.

Waiting periods for your first gun, maybe. Mental health checks, maybe. But 50 cal bans, bayonet lug bans, etc?
6.4.2009 2:09pm
DennisN (mail):
LarryA:


Pressurization isn't necessary until the aircraft is several thousand feet up. A holed airliner could easily fly to the next airport at 3,000 feet or so.


FAA regulations require oxygen or pressurization if the aircraft is to fly above 10,000 feet. Pressurization is not required for physiological reasons until greater altitudes. I guess it should be no surprise that the regs have some factor of safety in them. And that's for pilot clear headedness, not asphyxiation. The pilots have independent O2 systems.

I have driven in an automobile to 14,000 feet, in Ecuador. I got short winded climbing a steep hill, but was otherwise completely functional. Climbers have done Everest without oxygen. Whats that 20,000 feet?

So the passengers would probably be viable at 20,000 feet. At 40,000 feet, cruising altitude, they'd die.
6.4.2009 2:17pm
Bill Wiese (mail):
This appears to be a 'bad gun case' which was apparently handled by a PD-type attorney not terribly familiar with guns/gun laws.

It's a 'bad' gun case because we already have a problematic, somewhat loopy client with RO [the apparent trigger for the whole situation] and thus RO violations from having *any* guns.

Gun cases are best when the judge doesn't have to hold his nose at the client (for example: Dick Heller, clean record, etc.) and the defended violation resolves only around the technical, without "color" (drugs, violence, fraud or other associated crime, felon/RO-in-possession, etc.)

The lawyer prob figured "throw the 2A at the case and see what happens" as a Hail Mary pass. It's her duty, though I'm sure a ton of RKBA lawyers would have loved to help.

One huge issue is that so-called 'assault weapons' are very very common, contrary to court's opinion.

In CA alone, there are ~150,000 registered "assault weapons' in CA; today, at least ~200,000 "off-list" rifles that have been legally sold in(to) CA and which are not legally considered AWs - but which differ only trivially in the configuration of the pistol grip or the magazine catch/ latch. [Calif. regulatory code in 11 CCR 5469, referred to by 12276.1PC AW statutes, defines what is a 'pistol grip', 'detachable magazine', 'thumbhole stock' along with several other 'evil features'. Generally speaking, semiauto centerfire rifles are legal in CA if they don't have regulatorily-defined 'evil features', or they have 'evil features' but use a removable-but-not-detachable magazine per regulatory definition.

Do remember in Staples case that Clarance Thomas said (paraphrased, don't have case at hand to quote), "Legal AR15 rifles are so common/ordinary that one would not expect it one to be a machinegun."

Nationally, the AR15 rifle as a sales category (i.e., sum of all manufacturers' models' yearly production and excluding rifles whose parts don't generally interchange with it even if design theme appreciably similar) has been a HUGE proportion of US gun sales over the last decade or so. Sales spikes in California in the 1990s also bear this out locally - especially in 1997-end of 1999, when folks were purchasing ARs and AKs in CA at an unprecedented rate.

I'd not be surprised if all ARs together form 15%-20% of the US long gun market. [We won't even talk about AR pistols here; "AK" semiauto rifles also form a significant but likely smaller block of gun sales over the last decade.]
Total US AR sales certainly outpace Remington 700s and Ruger 10/22s, which are probably the two top selling rifles. (I'm betting Remington 870 and Mossberg 500 are the top shotguns.) I will have better data this year after some research.

The judges also erred in assuming there's something especially evil or differentiating about Calif.-defined assault weapons than other nonprohibited rifles - including 'rate of fire' or 'firepower'. Numerous rifles sold today in CA gunshops or Big5 can fire the same calibers as banned AWs and at the same rate; the only differences between banned guns and non-banned guns are matters of cosmetic ergonomics.

As for "50BMG rifles": that's an arbitrary &capricious ban. Why is the 50BMG banned in CA, but not other calibers?
Where is "the line drawn" on a "good gun" vs "bad gun"? Can't be done: you're just as dead from a 50BMG as from a 338 Lapua.





Bill Wiese
San Jose CA
Vice Chair, The Calguns Foundation
6.4.2009 2:34pm
Seamus (mail):

The fantasists are in full cry today. Funny, the slaughter rate in Hawaii, where the citizenry is virtually unarmed, turns out to be about a magnitude lower than in places like Alabama, where half the citizenry is armed.



I' m not asking why other places are high. I'm asking why Hawaii is low.


One guess would be the ethic composition of Hawaii compared with that of, say, Alabama. Japanese-Americans tend not to be very trigger-happy, no matter where they live. (Not sure about Polynesian-Americans or Philippine-Americans, but I suspect they too are less bellicose than the average American.)
6.4.2009 2:46pm
Seamus (mail):

Prior to the Gun Control Act of 1968, it was perfectly legal for private citizens to own and shoot artillery. I remember seeing mail order ads for artillery ammunition, mostly light antitank gun rounds in the 20mm to 75mm range.

I know of no particular crime statistics showing how many cannon were used in crimes, but suggest that society as a whole never detected a problem.


When I was at the University of Virginia in the early 70s, a group of friends of mine were in the "University of Virginia Cannon Club." They owned what appeared to be a Civil War-era cannon (though it may well have been a reproduction), which they would take to Scott Stadium for football games. They'd set it up on the top of the slope next to Alderman Road, and fire it off (using blanks, I presume) every time the Cavs scored. (That didn't happen very often, so they also fired it at the end of each half.)

I've often wondered what ever happened to that cannon. (Owning it was probably illegal under the 1968 law, but I don't think anyone ever thought about that. Handguns would have seriously freaked people out, but artillery was just a neat toy.)
6.4.2009 2:57pm
DennisN (mail):
Muzzle loading cannon are not covered under the GCA. You can buy your own from Dixie Gun Works. Likewise, muzzle loading rifles, even modern, sophisticated ones, are not "firearms."

I had a neighbor in Washington State who had a 12 pounder Napoleon reproduction out behind his house. He would fire it off on occasion. There was a rumor that he would occasionally get drunk, shot it, and fire it in the direction of City hall. The fact that there were no reports of cannonballs falling from the sky in "The Valley" causes me to doubt this, but it's a good story, anyway.
6.4.2009 4:19pm
Harry Eagar (mail):
'Some people think that since you can't show a statistical benefit, they should be banned. Others think that since you can't show a statistical harm, they shouldn't be banned.'

Yeah, but I'm not one of either camp.

All I ever said was that I get scared when people mix guns and alcohol.
6.4.2009 9:30pm
Ian Argent (www):
People shouldn't mix cars and ancohol. This doesn't mean we ban having cars in parking lots of restaurants that serve liquor. (Or, in many cases, drive-through liqour establishments).
6.5.2009 8:14am
Kharn (mail):
"But .50 will depressurize (or, rather, render impossible to pressurize) virtually any commercial aircraft out there ...I'm just talking physics."
There's already a 12"-wide hole at the back of commerical planes, its the valve used to adjust cabin pressure (as the engines supply so much make-up air a sealed cabin would overpressurize). If a 0.5" hole appeared in the skin of the plane, the valve would automatically close a fraction of an inch and the flight would go on, abiet with a lot of wind noise.

Most strategic bombers since late-WWII have been designed with pressurized crew compartments, and many of them have returned to base after being shot with .50s or larger.

Seamus:
Muzzle-loading cannon are exempt from the 1968 GCA's destructive devices provisions.
6.5.2009 10:08am
TLove (mail):
It appears that most, perhaps unjustifiably, read into the 2d amendment a ban on the personal possession of atomic weapons (or more accurately, if we could revive the writers and pose the issue, they would amend their drafting to exclude the personal possession of atomic weapons).

If one buys into this, then it is an issue of line drawing. Revolver, ok, atomic weapon bad.

So where to draw the line? I would look to the military's rules regarding personal autonomy. That is, what weapons are customarily under the control of individual soldiers (and not crew served), without consultation with higher ranking authorities.

For example, bad guy shoots at me and I am authorized by the rules of engagement to shoot back - back with what? My 9mm, my M4/M16, fairly obvious. Bayonet, ok. 12 gauge, ok. Am I allowed usually to toss a grenade? Maybe. Probably. Fire an rpg? (hmmm). .30 cal machine gun - crew served (?) so no. 50 cal machine gun, definitely crew served so no.

Call in artillery - crew served and has a hierarchy, so no. Airstrike? definetly crew served, major hierarchy, so no. Drop an atomic weapon - um no.

So personal weapons would be ones operated by a single soldier, and without specific authorization each time they are used. Which more or less (with the exception of heavy machine guns) is what would seem to be the common understanding anyway.

This rule has the advantage of relying on an organization - the military - which has entirely separate motivations (indeed opposite) from popular civilian political meddling regarding what constitutes a personal weapon.

Appeal to authority: I am a pilot. Airplanes are mostly empty space, because their shapes are determined by the need to shape the airflow around them. So you can shoot them up a lot without causing any damage at all. Putting a bullet size hole in the pressure vessel of a large commercial aircraft will have no effect whatsoever, notwithstanding hollywood's views on the matter. The plane doesn't blow up because there's a hole in the side. Indeed, commercial aircraft have been hit with anti-aircraft missles and survived.

To bring down a big plane, you need to do something like fly into a level 5 thunderstorm at 35,000 feet at 500 knots just north of the equator on your way to paris from rio.
6.6.2009 1:36am

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