Many, many emails in response to the question I posted about the Bush Justice Department’s brief in the D.C. guns case. Several of them made the point (which Rick Brookhiser also made) that asking whether machine guns can be traced in some way back to the Founding era is a somewhat odd query. In my post I took no position on whether that is part of the appropriate test for deciding that the right to own a class of firearms is protected by the Second Amendment (or even whether the administration correctly characterized Judge Silberman’s holding to say that it is part of the appropriate test). I am skeptical that it is a useful inquiry, especially since one thing I took away from the bulk of my responses is that the test is easily manipulable by changing the level of abstraction at which one defines the category of weapons whose history is being traced.
Other people made the point that the federal government does not prohibit ownership of machine guns, although it is heavily regulated. And a strong contingent of readers argued that there is no plausible way of distinguishing between handguns and machine guns for Second Amendment purposes, and that the right to own both should be protected.
John Lott also wrote in.
Thanks for the posting on the Corner. While it is true that the brief “leaves open the possibility that the courts could find the D.C. gun ban unconstitutional,” the presumption is against that finding. The standard is clearly lower than it is for the rest of the bill of rights (clearly lower than for the first and fourth amendments), but in their view so much of how this falls depends on the view regarding gunlocks (see pages 30 and 31, section 3) and their view . . . is not encouraging. The key point here is that handguns can be banned if people are allowed some other gun that can be used in self-defense. This reasoning seems similar to that used by the 7th in upholding the Morton Grove handgun ban. Greenburg is obviously right that many don’t want to create a “new right,” but DOJ is asking to create a different standard for this one part of the bill of rights. Here is the concern. The brief clearly says that public safety is a reasonable reason for regulation and the threshold level of evidence they are asking for is clearly much below what was required to uphold campaign finance regulation. In addition, as I quoted in my piece, possibly the top law professor in the country on this issue also stated that “If the Supreme Court accepts the solicitor general’s interpretation, the chances of getting the D.C. gun ban struck down are bleak.” Unfortunately, he is not alone. The various lawyers involved in this case and other law professors have expressed similar concerns.