Easterbrook on “Weapons not Typically Possessed by Law-Abiding Citizens for Lawful Purposes” Under Heller

January 27th, 2015

Among the many questions left unresolved by Heller, and ignored by the Court in the six years since, has been what weapons are or are not in the scope of the Second Amendment. Citing United States v. Miller, Justice Scalia sketched out what kinds of weapons would, and would not be covered. In short, those weapons “typically possessed by law-abiding citizens for lawful purposes” are protected.

We may as well consider at this point (for we will have to consider eventually) whattypes of weapons Miller permits. 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 inMiller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller‘s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U.S., at 179, 59 S.Ct. 816. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P.2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6-15, 252-254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore 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. That accords with the historical understanding of the scope of the right, see Part III, infra.

The majority decision then lists a few types of guns that can be banned, including those that are “dangerous and unusual” and “M-16 rifles and the like.”

There is a circularity to the Court’s reasoning. If the government has banned a certain type of gun before Heller, it cannot be typically possessed–because they aren’t on sale–and thus is outside the scope of the Second Amendment. But if a gun was not banned before Heller, and it was typically possessed, it is within the scope of the Second Amendment. Thus it cannot now be banned.

Justice Breyer addresses that fact in his dissent:

According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun. On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous self-defense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so.  In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.

Another reason why 3D-printed guns are such a hot topic.


Fully-automatic guns have been heavily regulated through taxes (not banned as you may think) since the 1939 National Firearms Act. There are very, very few in civilian possession today. Contrast that with the semi-automatic AR-15, which has long been legal, and is one of the most popular rifles sold. The former, under the Court’s reasoning would be out of the scope of the Second Amendment because it is not typically possessed. The latter (I would argue) is in the scope, because it is typically possessed.

During oral arguments in the 7th Circuit concerning Highland Park’s ban on so-called “assault weapons” and high-capacity magazines, Judge Easterbrook probed the depths of what weapons are, are not covered. Courthouse News has this summary:

    “The Supreme Court made it clear in Heller that law abiding people have a core constitutional right to keep commonly owned firearms in their homes.”
But U.S. Circuit Judge Frank Easterbrook cut him off abruptly: “What if somebody decides to possess a bazooka?”
“It’d fall into a longstanding prohibition,” Vogts replied.
“No, there’s no such prohibition; they were only invented recently. It was once perfectly legal to own automatic weapons like Tommy guns.”
“But that dates back 80 years ago.”
Easterbrook was not convinced. “Yes,” he said, “but the Second Amendment dates back to the 18th century. Why does that matter? I don’t see how you can say fully automatic weapons are okay to ban because some states banned them in the 1950s. How is it rational to distinguish a ban laid down 150 years after the Second Amendment from one laid down 200 years after?”
Vogts stuck to his position. “The firearms here are without question some of the most commonly used. One out of nine guns sold since the invention of AR-type rifles is an AR rifle.”

Easterbrook’s comments highlight the weakness of Heller’s reliance on Miller. Only those weapons that were not banned before Heller can realistically be in common sue after Heller. Later Easterbrook made this point quite clear:

Later, probably trying to curry favor with Easterbrook, he added: “You can’t have a bazooka.”
The move backfired. “Why not?” Easterbrook demanded.
“They’re not commonly owned,” Wilson said.
The judge chuckled: “They’re uncommon because they’re illegal. At the time of Heller, handguns were not common in D.C.”

This is the circularity of Heller.

Finally, Easterbrook said what is on all of our minds–why have the Justices not taken any cases!

  Easterbrook ended the day bemoaning the lack of a clear standard to decide the case. “We have no idea what ‘scrutiny’ means here. Any speculation about why the Justices declined to specify it?” he asked, before mentioning that the Supreme Court had declined certiorari on several such cases.
“I have no insight into their reasoning on that,” Vogts shrugged

Easterbrook is frustrated. Join the club.