Heller jurisprudence does not include SBRs under 2A protection, as they are not in "common use" in the civilian arena, and non-NFA carbines (16-inch barrel, 26-inch overall) are readily capable of such defensive use--"a blunderbuss to ward off burglars." (They are also suitable for law enforcement assistance.)
Pre-Heller 1939 Miller jurisprudence, on the other hand, set up a case FOR including them, according to one circuit court. In the 1942 Cases decision:
At any rate the rule of the Miller case, if intended to be comprehensive and complete would seem to be already outdated, in spite of the fact that it was formulated only three and a half years ago, because of the well known fact that in the so called "Commando Units" some sort of military use seems to have been found for almost any modern lethal weapon.
(Quoted from CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT INTERPRETATIONS OF UNITED STATES V. MILLER AND THE SECOND AMENDMENT (guncite.com))
Compare that in reference to a submachine gun's use in war to the M4 carbine, with its 14.5-inch barrel, being in very "common use" in the modern American military. If the former could be seen as 2A-protected due to its demonstrable military value and use, so could the latter--that is, a SBR.
The court simply decided that following the Miller line of thinking would be bad, so they didn't. That does not change the logic of it.
The only counterargument there would be pre-Miller holdings that the Right to Arms involved regular military rifles, not "criminal" contraptions and such. (This is briefly discussed in TDF 17.) SBRs might be classed as such, though the M4 factor might "pull a Cases" on that.
But whether other arguments might be made against 2A protection for, in that case, SMGs or not--e.g., some SBRs being considered "specialty" arms, rather than "general"--the jurisprudential thinking pointed to their protection.
The court simply decided that following the Miller line of thinking would be bad, so they didn't. That does not change the logic of it.
The only counterargument there would be pre-Miller holdings that the Right to Arms involved regular military rifles, not "criminal" contraptions and such. (This is briefly discussed in TDF 17.) SBRs might be classed as such, though the M4 factor might "pull a Cases" on that.
But whether other arguments might be made against 2A protection for, in that case, SMGs or not--e.g., some SBRs being considered "specialty" arms, rather than "general"--the jurisprudential thinking pointed to their protection.
UPSHOT: SBR NFA restrictions will be upheld by SCOTUS (of course), true to the Heller decision.
As for an objective opinion:
- Narrow, "full Militia" view: SBRs are probably mainstream enough to pass muster.
- General "protected unless" view: Almost certainly pass muster (though Short-Barreled Shotguns could still fail as "too criminal").
FUDD POSITION: Non-NFA carbines fit the bill called for, and thus SBRs would be low on the Essential Scale. Legitimate to raise a challenge, but not tactically worth much risk.
