Machine Guns and the Common Use Test
An Interesting Point About Machine Guns Made by Plaintiff Counsel Erin Murphy, JD
The author of this piece was a guest on TRP Podcast last year, Dr. Stephen Halbrook, Ph.D., J.D.
Halbrook, in this Volokh Conspiracy article, narrates key points in the oral arguments recently over a challenge to the state’s new features-based ban on rifles:
“Judge McGlynn commented that when the Bill of Rights was ratified, hand-held and shoulder weapons were common, but "they weren't the type of weapons that could … quickly cause the death of 20 people." To [plaintiff’s counsel against the ban Erin] Murphy's statement that the state must craft laws to keep arms away from those who would misuse them, the judge commented that "the state has many options, but one option is not taking away guns from law-abiding citizens."
…The judge volunteered that, in 1963, Lee Harvey Oswald used a $19, Italian Carcano bolt-action rifle with a scope and six-round magazine, at a moving target 100 yards away, to assassinate President Kennedy. What if he had decided to remain on the 6th floor of the school book depository, the court asked, "to keep firing until they take me out, every minute if every third shot was a kill shot, every second shot was a serious wound and every third shot was a miss, in a minute and a half he's killed eight people with a gun that is perfectly legal under this law."
Wells [Gun-Control Lawyer] asked how often that was happening, but conceded that mass shootings have been perpetrated with guns that were legal.
The court next turned to the existence of "lawful gun owners who have committed no crimes, who never threatened anybody, who have a long history of owning firearms and never doing anything wrong facing a class three felony and you and I know what that means. Two to five years." Wells responded with the lame excuses that the law "requires knowledge" and that "we have prosecutors who are imbued with discretion."
But there may be hope outside of the woke Chicagoland parts of Illinois, as the following colloquy reveals:
The Court: Some of them [prosecutors] don't want to enforce this.
Mr. Wells: You're right. Some of them are suing us.
The Court: Sheriffs don't like it either apparently.
Mr. Wells: Sheriffs don't like it.
The exciting dialogue petered out after that. Wells worried that, if the ban is declared unconstitutional, persons convicted under the 1994 federal ban "are now going to be released?" Perish the thought.
Ms. Murphy had a few minutes left for rebuttal, but she summed it up best in one sentence: "The State seems to want to litigate this case as if Bruen never happened."
https://reason.com/volokh/2023/04/27/a-judge-who-understands-firearms/
Here’s a link to the transcript of the oral arguments: https://assets.nationbuilder.com/firearmspolicycoalition/pages/6708/attachments/original/1681588201/Barnett_v_Raoul_MPI_Hearing_Transcript.pdf?1681588201
One of the nuggets in these oral arguments is an insight of how the NFA’s regulation of machine guns comports with the common use test. Can the government decide what is in common use ? Or , does the market decide at the time ? The court here seems to side on the latter. That’s significant to pay attention to.
Here’s Dr. Stephen Halbrook, Ph.D., J.D., on The Republican Professor Podcast with Dr. Lucas Mather and guest co-host Mr. Tobin Hobbs, J.D. (fellow founding Board Member of Orange County Gun Owners with Lucas Mather).
