From what Scalia said, the 2nd both protects and doesnt protect our right to machine guns, sawed off etc, seeing as how 'they are in common military usage' so we'll see
The Heller decision says the 2cd amendment protects those types of weapons in common use by CIVILIANS, not weapons in common military usage.
Page 53 of the Heller decision: ”We therefore read Miller to say
only that the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens
for lawful purposes, such as short-barreled shotguns.”
Page 55: “But as we have said,
the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty.”
Page 51: ““weapons which are commonly
used by criminals,” such as sawed-off shotguns, are not
protected.”
dangerous and unusual weapons,' such as machineguns
,
Uhhh, that's not what the court said. That's what you wish they'd said!
Well, this is what the court said:
Page 55: “We think
that limitation is fairly supported by the historical tradition
of prohibiting the carrying of “dangerous and unusual
weapons.”
Page 52: “Read in isolation, Miller’s phrase “part of ordinary
military equipment” could mean that only those
weapons useful in warfare are protected. That would be a
startling reading of the opinion, since it would mean that
the National Firearms Act’s restrictions on machineguns
(not challenged in Miller) might be unconstitutional,
machineguns being useful in warfare in 1939.”
You can download a .PDF file of the decision here:
http://www.scotusblog.com/wp/wp-content/uploads/2008/06/07-2901.pdf
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Edited to add:
Thing is, Miller wanted the weapon to be in use in the military... We've got a contradiction here...
Well, the Miller decisions said weapons protected by the second amendment need to “have some reasonable relationship to the preservation or efficiency of a well regulated militia”. That does not mean in use by the active profession military. The militia (private citizens banding together for the common defense) uses the weapons civilians commonly keep in their homes for legal purposes. That is the weapons people have that are efficient for militia service are the ones protected by the 2cd amendment.
Page 55of the Heller decision: “It may be objected that if weapons that are most useful
in military service—M-16 rifles and the like—may be
banned, then the Second Amendment right is completely
detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens
capable of military service, who would bring the sorts of
lawful weapons that they possessed at home to militia
duty.”
Impossible to make MGs common because they capped the supply (I think there are somewhere around 100,000 of them in the registry).
The ATF would probably be pleased if they lifted the 86 ban (provided they are concerned with job security as opposed to just bullying and punishing innocent citizens). They'd have to hire dozens of new employees just to handle the storm of Form 1 and 4s that would come in.
