Pro-gun attorney David Hardy attended the oral argument in Heller, and he writes :
Joe Olson and I were out drinking with Alan Gura [an attorney representing the pro-gun side] last night, and he was getting a constant stream of emails from machinegun owners on his pda, denouncing his statement that full auto arms’ possession might not be protected by the 2nd Amendment.
I think EVERYONE associated with this case who knows anything about appellate argument — and I’ve talked to many in that class — agreed that if you cannot come up with a 2nd Amendment test that lets the government [regulate] full autos, you lose. . . . I was very relieved when the Court showed signs of taking the view that Heller is asking to own a .38, not a Thompson, so we can deal with the full auto issue if and when someone brings a case (which I hope will be about ten years down the road).
This is a very important issue in Heller – the Bush administration’s notorious brief argued that, under the test set up by the appeals court (basically, the Second Amendment protects colonial militia arms and their lineal descendants, so bans on those weapons are unconstitutional), judges would have to start striking down machine-gun regulations. I made the case in The American Spectator that this wasn’t so; machine guns are not in the category the appeals court’s Second Amendment protects. This category comprises more “normal” guns, which I argued were lineal descendants of colonial arms. In addition, machine guns are not and have never been in “common use,” another of the appeals court’s criteria.
I got a barrage of e-mails presumably similar to the one Gura got, as it seems gunnies love their full-autos and think they’re entitled to them. One good point they had, though, is that the firing mechanism of a semi-auto is more similar to that of a full-auto than to that of a colonial arm. It’s a reasonable position that if machine guns are categorically different, so are the very-common semi-automatics.
I’d still say the practical advantage of the full-auto makes it a different category (if you hold down the trigger, it lets loose a steady stream of lead), and there’s still the issue of common use. It’ll be interesting to see what the court comes up with. To keep the appeals court’s test, one has to draw a line between new guns and “lineal descendants” of old ones, with squiggles here and there to allow for “common use” – there’s no ruler to use, and the judicial system isn’t exactly well-equipped to craft one.