“The Supreme Court could grant an “assault rifle’’ ban cert petition, and clean up the mistakes made in Heller and NYSRPA v. Bruen, and US v. Rahimi. But I fear that if the Court does, it will simply poke more holes in the Second Amendment.”
In District of Columbia v. Heller (2008), the United States Supreme Court said that the Second Amendment does not protect the right to keep and bear “dangerous and unusual weapons,” it protects only arms in “common use.” In support of its conclusion, the Court cited the following authorities and case law:
United States v. Miller, 307 U. S. 174 (1939), at 179. 4 Blackstone 148-149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271-272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383-384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).
Neither the Heller opinion nor any of the cited authorities and case law support that conclusion. Most of the Court’s citations are circular, but all invariably point to English common law and statutes that preceded the adoption of the Second Amendment.
Moreover, had the Court bothered to read its own citations, which in turn cited English common law and statutes, it would have discovered that England did not ban “dangerous and unusual weapons.” England’s prohibitions on the bearing of dangerous and unusual weapons (the citations point to body armor) did not prohibit the possession of those arms. What was prohibited was bearing those arms in public except for certain limited exceptions, such as quashing riots and stopping affrays (e.g., street fights).
By Charles Nichols
