During oral argument in DC v. Heller, the Justices asked many questions about whether the Second Amendment protected machine guns. Alan Gura, who argued on behalf of Dick Heller, conceded (to the disappointment of many gun-rights supporters) that machine guns “are not appropriate to civilian use” as they are not “commonly in ordinary use.”

Justice Kennedy: That are not appropriate to–

Mr. Gura: That are not appropriate to civilian use.

Justice Ginsburg: For example?

Mr. Gura: For example, I think machine guns: It’s difficult to imagine a construction of Miller, or a construction of the lower court’s opinion, that would sanction machine guns or the plastic, undetectable handguns that the Solicitor General spoke of.  . .  .

Justice Ginsburg: But why wouldn’t the machine gun qualify?

General Clement told us that’s standard issue in the military.

Mr. Gura: –But it’s not an arm of the type that people might be expected to possess commonly in ordinary use.

Every Court of Appeals to have considered the constitutionality of bans on machine guns has agreed with these sentiments from all parties in Heller. Most recently, the 9th Circuit joined the 3rd, 6th, and 8th in so holding.

Heller did not specify the types of weapons that qualify as “dangerous and unusual,” but the Court stated that it would be “startling” for the Second Amendment to protect machine guns. Since Heller was decided, every circuit court to address the issue has held that there is no Second Amendment right to possess a machine gun.

But what is interesting about the 9th Circuit’s analysis is its focus on how dangerous machine guns are.

We agree with the reasoning of our sister circuits that machine guns are “dangerous and unusual weapons” that are not protected by the Second Amendment. An object is “dangerous” when it is “likely to cause serious bodily harm.” Congress defines “machinegun” as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” The machine gun was first widely used during World War I, where it “demonstrated its murderously effective firepower over and over again.” A modern machine gun can fire more than 1,000 rounds per minute, allowing a shooter to kill dozens of people within a matter of seconds. Short of bombs, missiles, and biochemical agents, we can conceive of few weapons that are more dangerous than machine guns.

I don’t think I have ever seen a court translate the dangerousness of a weapon to a body count. This certainly paints a very visceral image of what machine guns can do, and illustrates its dangerousness.

Though, I wonder if this is a meaningful standard to assess “dangerousness.” The burden of proof of how many victims a person wielding such a weapon could kill is somewhat perverse. I won’t delve into this too far, but try to think of what proofs would have to be adduced by the government and the defendant to satisfy this burden.

Of course, the “dangerousness” element of the test is more meaningful than the “unusual” aspect test. Machine guns have been illegal in this country for decades–long before Heller. Of course any weapons banned for decades will be unusual, and not in common use. Though, perhaps it was banned because of its dangerousness. But, this occurred before the Second Amendment was justiciable. Anyway, the “dangerous and unusual” standard  is somewhat circular.

H/T Ian Milhiser.