"I should be able to have full-auto!" says a local "card-carrying member of the Libertarian Party" radio host. He argues against the current legal restrictions on "machine guns"--a position popular with some in the Second Amendment (2A) community, but politically a non-starter with most of the general population. To the former, it's simply a matter of "rights." To dissenters from this position, it's also a matter of reality and impact (we'll see that word come up often here).
In this issue of THE DAILY FUDD, I will explain the matter.
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To understand our modern Right to Keep and Bear Arms (RKBA), we must look at that right in the whole context of our Anglo Common Law tradition. The truth is, such a right was never construed as extending beyond what we'd call today, "small arms." Not cannon, not catapults or trebuchets, and not bombs or chemicals. The 1688/89 English Bill of Rights' provision on the matter was widely interpreted as simply guaranteeing a peasant a blunderbuss to ward off burglars. Provisions or customs prior to that were little different.
When settlers came from the Mother Country to the Colonies, the blunderbusses were largely exchanged for full-size matchlocks and muskets, as they knew they would be fighting off French and Indians and whoever, and hunting for their food. Also, armed travel became a norm (as reflected in the "bear" point of 2A). But cannon remained the province of government and the leading aristocracy--big land owners, ship owners, small communities fighting off the aforementioned French and Indians and whoever. There was no thought of Farmer Brown being guaranteed a cannon he could put on a hill overlooking the town and then go Festivus on them: "I got a lot of problems with you people!" There was no need to "ban" him from having it, though, as there was no imaginable way he'd ever be able to afford one. That was simply not what RKBA or 2A was about on the private side, insomuch as the Founders even considered the matter.
We can see in the use of language from the time that "arms" could be seen as distinct from what we'd call, "artillery." In the Articles of Confederation, which was the governing document of the United States of America at the time the original Constitution was being conceived and written, the States are said to need to maintain "field pieces"--artillery--as well as "arms and ammunition." Artillery ("field pieces") are distinct from "arms." Thus, that latter term does not necessarily include ALL things that might be called "weapons."
ARTICLES OF CONFEDERATION: Article 6, Paragraph 4:
The basic distinction between the (small) "arms" of the time and artillery is impact. Small arms are "singular use=singular impact." Oh, sure, a lucky shot might take out a second target, or a shotgun with birdshot might wound a third, but the essence is that one-for-one result (if that much). Artillery, on the other hand, is "singular use=mass impact." A house can be taken out by a single cannonball. A swarm of assaulting troops can be wiped out by a discharge of grapeshot. And a city can be set afire by an explosive shell.
The critic defender of a "right to keep and bear howitzers" would argue, though, that those "field pieces" are not man-portable, and that 2A protects anything a single individual could readily carry--that is, "bear." The flaw here, notwithstanding the legitimate point that "bear" means BEAR in 2A, is things like MANPADS: "Man-Portable Air Defense System"--e.g., Stinger missiles for downing aircraft. Such a system is clearly in the artillery realm, despite its relative portability. Farmer Brown could do much more with a Stinger than that cannon. (Similar arguments could be made regarding weaponized anthrax.)
In addition, there is the practical/political reality: I know there are supposed purists who would hold a Stinger to be 2A-protected. But such folks are self-defeating, as such a policy position forced to the mainstream of pro-private RKBA would result in an overnight repeal of the Amendment.
To use a science fiction analogy: Think of the Star Trek phasers Kirk and Janeway (I was a bit of a "Voyager" fan) ran around with. Those things could do everything from stun a child with no permanent harm to darn your socks with the right setting. And they could take out buildings--just like a Revolutionary War cannon.
Now, compare that to an identical phaser capable for the user of only STUN, maybe KILL, and perhaps a drilling/sawing function so someone could cut their way out of a crashed spaceship. It would have a vastly different (lower) impact level--i.e., "singular use=singular impact." The former held by Kirk and Janeway, though: "Singular use=mass impact." And all despite each being an arm readily "borne" by an individual in the normal course of a day.
Which brings us to fully-automatic fire. Viewed tactically and in terms of impact, full-auto is much more like artillery in the original RKBA concept than (small) "arms." One thing that matchlocks, flintlocks, cap-and-ball, breach-loaders, manual-action repeaters, and even semi-automatic arms have in common that sets them apart from their full-auto cousins is that they all have that "singular use=singular impact" characteristic. Full-auto, on the other hand, with one pull of the trigger can unleash a grapeshot-type effect--"singular use=mass impact."
I mentioned before the Star Trek phaser analogy, To put that two-phaser contrast in a more real-world setting: The M14 rifle in military use was selective-fire--that is, capable of semi- or full-auto fire. However, a little secret is that the rifles generally issued to troops were "permanently" set to semi-auto, meaning that the end-user had no real full-auto option. In the event the weapon was to be put into the M14E1/M14A1 Squad Automatic Weapon (SAW) configuration, that would be altered to give the user the selective-fire option. The former was "singular use=singular impact"; the latter was "singular use=mass impact"--the very intent of a SAW over a standard-issue rifle.
It's the difference between a Glock 17 and a (full-auto) Glock 18. Only one Glock difference (I know--it's called a joke), but a major difference in impact. (Why the Glock 18 Might Be the Most Deadly Gun on Planet Earth | The National Interest https://nationalinterest.org/blog/the-buzz/why-the-glock-18-might-be-the-most-deadly-gun-planet-earth-25982
No matter how many rounds a weapon can hold, no matter how fast it can be reloaded, and no matter how fast one can manually pull a trigger, there is a reasonably definable and objective line that can be drawn between full-auto and other (lower) firing modes. It's a line that can form a backstop to enable a judge to adjudicate a given "assault weapon" (I use the legal term, though in quotes--AW hereinafter) to be indeed 2A-protected without having to worry about the logic used forcing an extension to actual machine guns (or weaponized anthrax). It's a line in full congruence with the Heller case's explicit exception of "M16s and the like" from 2A protection. (More on Heller in a future installment hopefully.) And it's one readily explained to the general population in a way engendered to persuade them on guaranteeing the one (semi) while not having to change their opposition on the other (full).
Personally, I would support a more general legality for full-auto--a permit scheme with requisite basis provisions. That does not, though, affect whether or how they would fall under strict 2A protection. I have laid out here an originalist argument that upholds in general terms our society's legal restrictions on full-auto while actually strengthening arguments for AWs and the like. And that is the best overall for the efficacy of the general civilian 2A Militia, and RKBA as a key part of our national heritage.
To the purist, I say, "Be objective and realistic." It's that, or we lose it all.
