Comment on SC Heller Decision

Let's see if I can make this point in a sensible, understandable manner - in many people's minds the SC seems to give a tacit OK to the machine gun ban as they are not "in common use,"Scalia also used the term "unusual and dangerous."

But, as many have noted, in the US, machine guns were pretty effectively banned (by using tax powers) fairly early in their developmental history. I think the Thompson was one of the first truly portable machine guns when it came out in 1921. The ban was instituted in 1934.

This gives the government a trump card over all future improvements in self-defense technology. As soon as a new, more effective method of self-defense is developed, it can be banned, as it is not "in common use."

As a thought experiment, imagine that Heller was decided around 1500, just as firearms were coming into military use in Europe. In this scenario the decision would give citizens the right to use swords, knives and archery equipment for self defense, but not the "uncommon, unusual and dangerous" firearms.

Where would self-defense be then? And where are we now? Should the government have exclusive access to all future improvements in self-defense technology?

Sebastian of "Snowflakes in Hell" had an interesting comment on this problem:

I think the courts are going to have to face this paradox they've created with Heller at some point. It's not a perfect construction of the amendment by any stretch, but I suspect the majority didn't hold for anything stronger.

What I think you can argue, within the framework the Supreme Court has laid out, is whether an arm is in common civilian use has to include whether it's in common police use. If there's no exception for police, then we can assume that such an arm isn't an individual arm useful for self-defense and thus wouldn't be protected. If there is a police exception, the question would be whether it's a part of ordinary police equipment. If the answer is yes, it's a protected arm.

That's not to say the federal courts would be willing to go this way, but it would be a way out of the paradox the Supreme Court has created. As new technology comes online, to the extent that they are useful for self-defense, the police will want to adopt it, so government will have a powerful incentive to not ban the technology for police work. I think the key is to get the courts to say when an arm is not in common use because of government regulation of the arm in question, the courts have to look at whether the arm is also in common police use.

It's not perfect, but it deals with the situation you describe. Whether the courts go for it is another question, and anybody's guess.