An 8th Circuit Appeals Court decision was rendered yesterday (U.S. v. Fincher) regarding a Washington State Militia fellow who was convicted last year of possesion of some fully automatic .308 1919s and 9mm Stens. (Machineguns, for those of you new to the specific vocabulary of gundudes.) Regardless of what you think about guys like this, the relevent point here is that although he didn't even cite Heller in his appeal, the court just couldn't resist using it against him/us,...and here's what the 8th Circuit said.
"Accordingly, under Heller, Fincher’s possession of the guns is not protected by the Second Amendment. Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use. Furthermore, Fincher has not directly attacked the federal registration requirements on firearms, and we doubt that any such attack would succeed in light of Heller. Accordingly, because Fincher’s possession of guns is not protected by the Second Amendment, the district court did not abuse its discretion in preventing him from arguing otherwise to the jury."
Here are some thoughts;...
Hmm...... I thought that the select fire Ak 47 was the most common gun in the world. How many tens of millions were made?
Machine guns can be illegal because they're not commonly owned because they're illegal? (Yes, I'm aware there are a limited number in circulation which it's legal to own, a number too small to make them "commonly owned".)
It's a recipe to halt progress in civilian firearms in it's tracks: No new innovation can start out "commonly owned", hence the government can ban every new firearm.
How many machine guns must be owned by citizens and used for lawful purposes to make it "common"? There are about 177,000 "transferable" machine guns in the National Firearms Registry. Some folks own more than one, and some folks only have one. No matter how you do the math, there's more than a few people who own these things for "lawful purposes". And what the hell does "commonly owned" have to do with anything anyway? I really think that Heller has the potential to be a big negative for registered machinegun owners. This is absurd since National Firearms Act weapons are (in my opinion) exactly the sorts of thing the 2nd Amendment contemplates us owning.
If there weren't an unconstitutional tax on NFA firearms (one that was quite oppressive when first passed in 1934) who's to say what would and wouldn't be "common" today. Never mind the 18USC922(o) ban in 1986 which today has rendered machine gun ownership nearly a rich man's privilege.