There are certainly 2nd amendment specialists. They work for organizations like the NRA, GOA, state affiliates of the NRA, local lobbying groups like SCOPE. Uncommon yes, but they are out there, and I did not say they were in one place... I said I spoke to them. The phone and email are wonderful things. My cell phone bill for the month is shot because I get around 3 hours of peak usage time and was on it for around 6 hours today alone. If you are curious, I work in politics and most of my friends are lobbyists and attorneys that deal in regulatory compliance and the like, that is how I come into contact with so many of these guys.
As long as you're not going to pretend the folks at the ATF are Second amendment specialists, I'll let it slide. But seriously, does the NRA have lawyers who actually specialize in the Second Amendment? I thought everyone over there specialized in fiundraising.
This decision went to lengths to say it did not overturn Miller. Miller defined in common use as that in use by the military. While they may or may not be the same thing, an argument could be made that since Heller was not overturned and specifically maintained, that militia arms are those in common use by the standing army... which would include M16s.
I think you're misreading the opinion. What Scalia was actually saying is that
Miller does not mean that the Second Amendment protect arms based on their common use by the military; it only protects those commonly owned by civilians for lawful purposes. What he said specifically was that "We... 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." Op. at 53 (emphasis added).
Scalia assumes that the NFA was fine and dandy, and that machineguns are not covered: "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."
Scalia didn't so much go to lengths to say that Miller was not overturned as to say that
Miller would not be an impediment to banning the stuff regulated under the NFA.
The bottom line is when machine guns were invented they were available by mail order and for a pittance. The only thing which kept them from being more wide spread was the initially the $200 tax stamp - enough to buy a car back then. Today the $200 is irrelevant, the artificial inflation which turned a $2 auto sear into a $10,000 registered NFA item is what keeps them from being commonly used now. Cost alone would not be the problem, you don't have a right to be able to AFFORD an M16. However, since they are legal, you have the right to be able to buy one if you meet the stated legal criteria. Problem is they have restricted how many exist, effectively denying you of your right. Furthermore, the CLEO sign off is really no different than DC refusing to issue permits and register pistols. There is however an end run in that you can incorporate or form a trust to end run the CLEO approval. This is of course moot if the market is prevented from meeting your demand. Saying that you can own one, if you can find one, while making it increasingly harder to obtain one is a de facto ban.
I think the bottom line is that the Court made a point of saying that its decision wasn't going to upset the applecart of federal regulations, and specifically that the feds could ban machineguns.
I suspect that this was in response to the
amicus brief filed by our "friends" in the Bush administration arguing that although the Second Amendment confers an individual right, it should not be read as interfering with the govenment's power to abridge that right whenever it sees fit, with machineguns being the primary example cited in the brief. (To quote one of the headings in the Bush administration's amicus brief: "Congress Has Authority To Prohibit Particular Types Of Firearms, Such As Machineguns.")
But the real bottom line is that the feds have for all practical purposes banned ordinary people from owing machineguns for almost 75 years, and no one except a few of us more extreme gun nuts have complained. The courts are going to have no problem at all in saying that machineguns are "dangerous and unusual weapons" that are not of the type “in common use at the time,” and are therefor not entitled to Constitutional protection.
Like I said, I don't see the 34 ban going away. I don't see tax stamps going away. I see the 86 ban on current manufacture going bye bye, I see CLEO approval going bye bye, and I see state bans going bye bye via incorporation.
I'd love to see the 86 ban go away too, but it jut ain't happening.
