In one of those DUH! moments in constitutional law, the Ninth Circuit Court of Appeals has so held in United States vs. Henry (8/9/2012). And what a fine avatar of constitutional propriety Mr. Henry was. From the opinion:
On October 30, 2009, the Anchorage Police Department dispatched officers to a home after receiving reports of gunfire. Officers found numerous shell casings in the area. The Anchorage police executed a search warrant of the residence, seeking evidence of firearms and ammunition. Officers seized a loaded .308-caliber assault rifle and an empty magazine found under Henry’s bed. On October 31, 2009, Henry was arraigned in state court for discharging firearms while intoxicated. On December 7, 2009, the case was dismissed because the state declined to prosecute.
After Henry’s release, the Anchorage police received an anonymous tip that Henry had converted the .308-caliber rifle into a machine gun prior to its seizure. The Bureau of Alcohol, Tobacco, and Firearms (ATF) examined the rifle and determined that it had indeed been converted into a machine gun. The ATF obtained a federal search warrant, and, on June 14, 2010, discovered at Henry’s residence twenty guns, gun parts, firearms conversion instructions, and a machine gun auto-sear, which converts rifles to automatic weapons.
Henry argued that he had a Second Amendment right to possess a machine gun, an argument which was not actually foreclosed by the 5 alleged judges who decided
Heller v. DC. This having quickly failed, Henry moved on to his second argument which was that like the health care act, Congress exceeded its power when it outlawed private possession of machine guns. This likewise failed, otherwise I suppose Mr. Henry would soon be back among us converting rifles into machine guns.
There are a couple of other angles here, such as "what is a machine gun" that I think worthy of discussion.
To get some idea of what Mr. Henry and his lawyers would have let loose on us, let's have a quick look at these .308 rifles. These fire the .308 Winchester bullet, which according to Wikipedia has been around since 1952:
The relatively short case makes the .308 Winchester especially well adapted for short action rifles. When loaded with a bullet that expands, tumbles, or fragments in tissue, this cartridge is capable of high terminal performance.
Translation: At short range you can really rip up whatever you hit with the .308. And Mr. Henry chose well the .308 as the basis for his machine-gun hobby. Again, per the Wiki, the cartridge fired by the .308 was intended for machine gun use:
The exterior shape of the case was designed to promote reliable case feeding and extraction in bolt action rifles and machine guns alike, under extreme conditions.
The .308 round is similar to the
7.62/51mm NATO, widely used in various wars and rumors of war for many years, typically in a weapon such as the M-60 machine gun. Such a weapon, which can require a two-man crew to properly serve, is a much heavier and more powerful weapon than the AR-15. Here's an Army training film which gives you a pretty idea of the firing rate and lethality of such a weapon.
Amazingly there are a number of persons who believe that it the Second Amendment protects the right to own a machine gun. (See this thread, for example.) The NRA has kept mum on this, I assume its because so far at least the idea of free private possession of machines is so outrageous that even the NRA's poodles in Congress won't go for it.
But there is one other part of the Ninth Circuit opinion which bears watching, and that is that they felt constrained by the ruling of "judge" Scalia, in DC vs. Heller, that the Second Amendment would not protect "dangerous and unusual" weapons.
The machine gun was first widely used during World War I, where it “demonstrated its murderously effective firepower over and over again.” William Rosenau, Book Note, The Origins of the First Modern Weapon, TECH. REV., Jan. 1987, at 74, (reviewing John Ellis, The Social History of the Machine Gun (1986). A modern machine gun can fire more than 1,000 rounds per minute, allowing a shooter to kill dozens of people within a matter of seconds. See George C. Wilson, Visible Violence, 12 NAT’L J. 886, 887 (2003). Short of bombs, missiles, and biochemical agents, we can conceive of few weapons that are more dangerous than machine guns.
Now, because the legal definition of a machine gun is simply a weapon which discharges more than one round with a single pull of the trigger. A machine gun is NOT defined as a weapon which produces a high rate of fire, although obviously most machine guns do so.
But since private machine guns were pretty much outlawed for all practical purposes in 1986 under St. Ronnie the Blessed, our friends in the armament business have been busy as the proverbial beaver to design a weapon which will technically comply with the law but generate a high rate of fire.
One of these devices is a "slide fire" stock, which allows a high rate of fire while technically complying with the one round/one trigger pull rule. Look at this video and tell me if you think these weapons should be legal:
Watch out Bambi!
What I predict is that outside of a few lunatics, no one will actually say that machine guns should be made legal. But what will happen is that devices such as the slide fire stock and so forth will continue to be invented, thus raising the capability of weapons such as the (already quite deadly) AR-15 to approximate that of a machine gun in practical terms.
The Ninth Circuit ruling in United States vs. Henry, which focused on the rate of fire as the basis for why a weapon becomes outside the protection of the Second Amendment, may well be used by legislative bodies as a justification for making such devices illegal, should the political will do so ever arise.
Any legislative effort to restrict such devices will be resisted of course by the NRA, who represent the people who produce these things.