Jan Crawford Greenburg writes on the administration’s brief in the case, which gunners are criticizing. I think she characterizes the administration’s position more fairly than John Lott did on our site the other day. I don’t think the administration is saying, as Lott puts it, that “since the government bans machine guns, it should also be able to ban handguns.” I think it is saying that if the Supreme Court forbids laws against handguns, it should be careful to make sure that it does not do so on the basis of a rule that also forbids laws against machine guns. It leaves open the possibility that the courts could find the D.C. gun ban unconstitutional.
Still, I found the brief confusing. My confusion could reflect ignorance about guns. Judge Silberman ruled that the gun ban is unconstitutional, and the administration brief disputes part of his reasoning. Here’s part of how it characterizes Silberman’s holding:
The court of appeals adopted a two-part test, under which a particular weapon is a Second Amendment “Arm” if it (i) bears a “reasonable relationship to the preservation or efficiency of a well regulated militia,” and (ii) is “of the kind in common use at the time” the Second Amendment was adopted. . . . The court concluded that the handgun respondent sought to possess was covered under both of those prongs.
It goes on to question that test.
The court’s decision could be read to hold that the Second Amendment categorically precludes any ban on a category of “Arms” that can be traced back to the Founding era. If adopted by this Court, such an analysis could cast doubt on the constitutionality of existing federal legislation prohibiting the possession of certain firearms, including machineguns (emphasis in brief).
That’s what I don’t get. Do machine guns belong to a category of weapons that can plausibly be traced back to the Founding era?