DOJ Brief in DC Gun Case Distorts the Truth About Machine Guns
In 1939, the Federal government perpetrated a fraud upon the Supreme
Court, and it led to bad law that undermined the Second Amendment. Last
week, they did it again.
In 1939 in US v. Miller, the Supreme Court ruled that because there was
no evidence that a short-barreled shotgun had any relation to militia
use, it was not protected under the Second Amendment. A Department of
Justice brief claimed that short-barreled shotguns weren’t used by the
military, when in fact they were. But because defendant Miller had
disappeared and was unrepresented by counsel, this fraud went
unchallenged, and became the foundation for the Miller decision
Now, the Bush Department of Justice (DOJ) has filed a brief with the
Supreme Court in the District of Columbia v. Heller case, which
overturned the DC handgun ban. The DOJ brief perpetrates another
critical misconception in an apparent attempt to protect a questionable
federal machine gun ban from Constitutional challenge.
Since 1934, machine guns have been heavily restricted, requiring
purchasers to submit to a rigorous background check including
fingerprints and a $200 tax. Since 1934, about 100,000 machine guns
have passed lawfully into civilian hands by this strict procedure, which
no one is proposing to repeal, even though it was upheld only by the
Constitutionally shaky Miller decision.
In 1986, a new federal law banned any more machine guns from ever
reaching the hands of ordinary, law-abiding citizens. That meant that
the existing collection of about 100,000 privately-owned machine guns
would be the only ones ever to be lawfully possessed. That’s well less
than one machine gun for every thousand American gun owners.
Under the 1986 federal machine gun ban, ordinary people will never again
own modern rifles of the type normally carried by troops in the
“standing army.” Over the generations, this collection of 100,000
legally “grandfathered” machine guns is becoming worn from use, and
functionally obsolete as firearms technology advances. Because of their
scarcity, these arms find their way into the hands of wealthy collectors
and museums, escalating their market price to extraordinary levels at
least ten times what they would be without the ban, compared to modern
The recent DOJ brief in Heller seeks to preserve this 1986 federal
machine gun ban through the back door, even though the issue has not
been litigated, and is irrelevant to the question before the court.
In the Heller opinion, the Court of Appeals ruled that banning one whole
category of arms (pistols) was as impermissible as banning all firearms.
The opinion pointed out that a government could ban all guns, and argue
that one still had the right to keep and bear some “arms” if one could
still lawfully own a saber. The DOJ brief worries that this prohibition
on banning whole categories of arms would be extended to overturn the
1986 machine gun ban.
The DOJ’s brief justifies its fears of machine guns in the hands of
law-abiding citizens only by unsupported references to “particularly
dangerous types of firearms,” and “types of firearms that are
particularly susceptible to misuse.” It raises the issue of whether a
type of firearm “poses specific dangers.” The brief states that the
federal machine gun ban is “carefully targeted to firearms that have
little or no legitimate private purpose,” and that “the government’s
interest in regulating firearms like the machine gun to protect the
public safety is paramount.
The apparent fear of the Bush DOJ is that we return to the 52-year era
from 1934-1986 when any law-abiding citizen that passed a rigorous
background check could purchase a new machine gun from any manufacturer
willing to sell to him.
So, just how dangerous was that era? The DOJ brief doesn’t offer a
shred of evidence that any lawfully-owned machine guns were misused, or
ever endangered public safety. The reality is that during the 52-year
period before the 1986 machine gun ban (when hundreds of thousands of
conventional firearms homicides occurred) there were exactly zero
homicides committed using these registered machine guns. Zero.
The DOJ brief perpetrates the misconception that lawfully-owned machine
guns are a danger, when in fact they represent by far the safest
category of firearms and owners. It would be a grave error if the
Justices were to be misled by the false fears raised by the DOJ brief,
and extended their ruling on the DC handgun ban to prop up the
Constitutionally questionable 1986 federal machine gun ban
The Constitutionality of the federal machine gun ban is in serious doubt
because it bans from private hands the arms most relevant to militia
service, and it undermines the benefit of an armed citizenry as a
bulwark against a standing army. But the Court should limit its ruling
to the case before it, and not be goaded by the DOJ to inject improper
dicta about a Constitutional question that deserves to be addressed only
after a proper hearing of the evidence.
In Miller, the Court ruled in the absence of proper evidence and
generated questionable law. That mistake must not be repeated .
The author is gun enthusiast and a patent and trademark attorney that
exclusively serves the firearms industry, and owns no machine guns,
because they are prohibitively expensive.