> framework that should help deal with the slippery slope
> argument (i.e., if "arms" are constitutionally protected,
> then why can't Joe Blow go and pick
> up his own 60 mm mortar launcher, etc.).   Also, as you'll
> see, it builds in
> a sort of "fluid" factor under which the decisions by the
> government are important.
>
> I use as my starting point the decision in US v. Miller,
> which I read in a manner nearly identical to Kleinfeld's
> dissent today.  Several truisms come
> from the case:   (1) the 2nd amendment right is an individual
> one; (2) it
> protects weapons particularly apt for use by "militia"; (3)
> it also protects the type of arms useful in preparing and
> training; and (4) most importantly, the decision there was
> based on the defendant's failure to supply evidence that the
> weapon that had been regulated could meet the constitutional
> purposes, and not a determination by the courts that such a
> weapon could never meet the constitutional purposes.
>
> Anyway, without further ado, here's my test:
>
> FIRST:   Is the weapon sought to be protected from regulation
> comparable (in
> terms not only of caliber, firepower, functionality and
> features, but also appearance and ergonomics) with the
> weapons that federal, state and local authorities regularly
> and customarily deploy (i.e., make available), or have
> traditionally deployed, including reasonable equivalents, to
> INDIVIDUAL local, state or government actors (i.e., single
> individuals) for purposes of either possible application to
> the domestic population or, in the case of standing armed
> forces, for defensive application upon US soil as against
> invaders or enemies of the state?  If so, then the "arm" is
> presumptively one which the framers of the 2nd Amend.
> intended to be available for citizen ownership (i.e., "keep")
>  and use (i.e., "and bear") in order to, inter alia, ensure
> citizens will have an equal footing with the government
> actors who  must act by and for the population, but with
> their consent.
>
> The first element casts the net of protection, and casts it
> broadly -- although the government has the power to narrow
> the scope of protection by itself eschewing certain
> classifications of weapons from the realm of "individual
> issue."  This has the effect of adding an organic element to
> the test, such that increases in technology don't lead to
> unending escalation of arms (i.e., the technology slippery
> slop).  So, for example, if someone invents a plasma cannon
> for issuance to individual infantrymen and which vaporizes
> any target on contact, the government can elect NOT to deploy
> these to its individual soldiers and to restrict deployment
> to federal, state and local law enforcement officers, thereby
> keeping the weapon out of the "net" cast by my test.
>
>
> SECOND ELEMENT:
>
> Does the weapon's function, technical limitations, practical
> effects and proportional sphere of influence result in a
> situation in which the citizen of average proficiency can be
> expected to reasonably yield and employ the weapon in a
> sufficiently "discriminate" manner as to comport with both
> the citizen's responsibilities as a part of the militia and
> with notions of individual constitutional responsibility?  
> (Think, here, of the first amendment speaker's
> "responsibility" not to yell fire in a crowded theatre; of
> the newspaper publisher's responsibility to act without
> actual malice and to evaluate words so as to avoid libel; of
> the search and seizure proponent's responsibility to take
> steps so as to have a reasonable
> expectation of privacy.   Think of this aspect of the test as
> the limitation
> that flows from the prefatory clause as to a "well regulated
> militia" all sort of rolled together with the notion of  
> "ordered liberty" in the Court's other cases).
>
> As you can surmise, the second element is the gate keeper and
> is intended to check the "why can't I have my own flame
> thrower, RPG, howitzer, abrams tank, or mortar" slippery
> slope problem.  Once the first element is met, the second
> element decides the type of scrutiny to be applied to regulation.
>
> Thus, If a weapon meets the first test, and ALSO meets the
> second test in that it proves capable of use in a
> sufficiently discriminate manner to comport with ordered
> liberty and the constraints of a citizens' militia, then it
> is both presumptively protected and may be regulated only
> upon satisfying the strict scrutiny test as that test has
> been formulated in the
> realm of free speech:   The government must show a compelling
> governmental
> interest for the regulation, and that the regulation is the
> least burdensome means of reaching the proffered interest.  
> As with free speech, I envision that the "prior restraint"
> type of regulation (e.g., outright bans) will be difficult to
> justify given the availability of point of sale regulation
> and registration.  In other words, even if the government
> establishes a compelling interest in addressing the use of
> machine guns in racketeering and organized crime, the
> outright ban of such weapons may fail to meet the narrow
> tailoring requirement if registration and tax stamp treatment
> ala the original gun control act would suffice to meet the
> criminal use issue. While a registration regime might freak
> out some pro-gun proponents, my sense is that this is only
> because the courts have not firmly established individual gun
> rights.  Registration is not so frightening if the courts say
> that while the government may regulate, it cannot confiscate.
>
> Failure of the second element does not in my estimation give
> the government
> unlimited authority.   If a weapon is presumptively protected, but is
> incapable of use in a manner fitting to a militia or that
> would comport with individual constitutional responsibility
> and ordered liberty, it may be regulated under intermediate
> scrutiny or possibly even rational basis analysis.  This is
> interesting, because in my view all of this nonsense
> cosmetic-based gun regulation (does it look scary?) would
> fail even the rational basis test.
>
> Finally, if a weapon is not even presumptively protected
> under the first element, then it may certainly be regulated
> under the rational basis test.
>
> As noted, non-ban non-confiscatory prior limitations, such as
> registration, might be constitutional, depending on the
> interplay between the chilling effect they might have on gun
> ownership weighed against the interest being
> served.  (Example:   the $200 tax stamp required for civilian
> ownership of
> "full auto" machine guns probably is OK).    As to my second
> element, please
> consider that the issue here isn't whether the guns are
> inherently dangerous; indeed, we already know that (as did
> the founders).  Instead, the "sufficiently discriminate"
> aspect of the test really asks the question: Can the average
> citizen be expected to employ this weapon without taking out
> large number of innocents who are not targeted?
>

> Anyway, watch how this plays out....  Here are some examples
> of how various weapons fare under my test:
>
> Example 1:   Traditional Revolver:
>
> First Element:  The revolver of pistol caliber firepower has
> long been a staple of local, state and federal law
> enforcement.  At times in our history, it was also a military
> issue arm.  It has been traditionally issued to individuals
> for purposes of domestic application of law, and for the
> common defense.  Its presumptively protected.
>
> Second Element:    Function:   A revolver takes a conscious
> act of the user
> to discharge each projectile, and therefore, gives the
> citizen the ability to consciously exercise free will as to
> each shot fired (you'll see where
> I'm going with this below).  Technical limitations:   Limited
> ammo capacity;
> small arms cartridges therefore short range;  Practical effects and
> proportional sphere of influence:   Single projectile with
> each round, and
> they're non-explosive so no need to consider "casualty
> radius."    In sum, I
> think it easily meets the second test.  Its the type of
> weapon we can expect our citizens to employ as part of a
> militia in a sufficiently discriminate manner as to comport
> with constitutional responsibility and ordered liberty.
>
> Example 2:   60 mm Tube Mortar
>
> First element: I don't' t think this weapon even meets the
> first element.  A mortar and shells is not  regularly or
> customarily employed by federal, state or local law
> enforcement at all; and in the military, its not an
> "individual issue" type of weapon.  Usually there are mortar
> crews.  There's
> no need to get to 2nd element of test, but if you got there:  
>  Its clearly
> NOT capable of "discriminate" use tempered by individual
> constitutional
> responsibility, by its very design.   As a long range "blast"
> weapon with a
> large casualty radius, it is indiscriminate by nature.
>
>
> Example 3:   M203 Grenade Launcher   (These strap onto
> existing weapons).
>
> First Element:   I'm not aware of any law enforcement agency
> local, federal
> or state, that issues these for application against the
> domestic population; however, they are issued to the
> military.  These are ALSO issued to
> individuals.  As a result, there is presumptive protection.  
> However...
>
> Second Element:   A 40mm grenade has a range of 400 meters,
> at which it will
> kill everything in a radius of 10 to 20 feet.  Its a blast
> weapon.   Its
> designed to be less discriminate than well placed small arms
> fire.  I'd argue its incapable of being employed by the
> citizen of average proficiency
> in a sufficiently discriminate way.    So, regulate under intermediate
> scrutiny or rational basis analysis.   (as an aside, the very
> reasons the
> weapon is not sufficiently discriminate are probably the same
> reasons an outright ban on civilian ownership and use would
> always pass even intermediate scrutiny).
>
>
> Example 4:   AR-15 Semi-Automatic Rifle (semi-auto first to
> show nuances of
> test)
>
> First Element:   The AR-15, even in semi-automatic configuration is a
> frequently deployed law enforcement long-arm - especially
> with high capacity magazines.  The rifles deployed to
> military personnel also allow semi-auto fire.  My test would
> presume that if the government has and employs these,
> including as against the domestic population for ordinary law
> enforcement, then the citizenry should be entitled to keep
> and bear them too.
>
> Second Element: It's a single-round per trigger pull, very
> accurate firearm.
> Again, each projectile sent downrange requires a conscious
> decision.   This
> is key, in my opinion.   You make the decision to shoot each
> and every shot.
> As a military style weapon chambered for our national defense
> forces' cartridge, it is particularly suited for use by the
> citizens' militia due to availability of spare magazines and
> ammo.  In my view,  it therefore meets the second element.
>
>
> Example 5:   M16 or other Fully Automatic Machine Gun
>
> First Element:   Yes, the full auto machine gun - for better
> or worse - is
> an arm that is frequently deployed for domestic law
> enforcement, and is also the weapon of choice for issue to
> individual infantrymen.  Under the notion of equal footing
> between the citizens and their government envisioned by the
> founders, such weapons are presumptively protected and meet my first
> element.       However...
>
> Second Element:   Is a fully automatic weapon - by virtue of
> its sphere of
> influence and operation under which successive rounds are
> fired without a new conscious decision by the operator, a
> weapon that is capable of being deployed with in a
> sufficiently discriminate manner so as to justify its use
> in a militia and comport with ordered liberty?   It's a close
> call, but
> ultimately I would argue that it fails the test here and is
> therefore an appropriate subject for regulation by
> legislation which includes findings as to why the arm is not
> sufficiently capable of discriminate use.  This begs the
> question as to what kind of regulation, of course, but we
> have a long history under the National Firearms Act
> suggesting that registration regulation at every point of
> sale is probably good enough, and that an
> outright ban may be too much.  Who knows, however.   know a
> lot of people
> who would say that fully auto small arms can be used
> discriminately enough to pass my test.  The idea of this test
> isn't to make either side particularly happy, but to try and
> envision a framework that the courts would feel comfortable applying.
>
>
> Example 6:  Flame Thrower:
>
> First Element:   Not deployed by domestic law enforcement,
> but has been in
> the military.
>
> Second Element:   Probably not discriminate enough.
>
>
> Scope Equipped Bolt or other Action "Sniper" Rifle:
>
> First  Element:   Probably presumptively protected.
>
> Second Element:  Passes, in my view.
>
>

Quoted:
That is brilliant piece of work. But I agree that we already have the right to bear arms. Nobody said right to "duck hunting"