Of course, but Burger's was the majority view at that time he said it and virtually all time before that.
Burger wasn't on the Court when he published this opinion. In Verdugo-Urquidez the year before Burger the citizen published his opinion the Court noted that the 2nd, like the 4th,
And yet that is precisely the argument I hear from gun nuts who think it is a violation of their 'rats' if the government dares to restrict high capacity magazines, or "bump stock" or even automatic rifles. I mean if you agree that the amendment doesn't provide unfettered right to own any kind of gun, then that's good. We agree. But then you have to wonder, where is the line drawn? If the Constitution doesn't explicitly state anything about gun types, then what's to prevent the government from prohibiting anything more powerful than a .22 caliber?
“The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008), and that this “ Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010). "
Caetano v Massachusetts, 2016.
SCOTUS has affirmed that the Second Amendment protects all "bearable arms" (Caetano v Massachusetts) "in common use for lawful purposes" (DC v Heller) or having a "reasonable relationship to the preservation and efficiency of a well regulated militia" (US v Miller) , and incorporates those protections against the states (Chicago v McDonald).
But that obviously isn't the case otherwise automatic weapons would be legal.
Heller was decided in 2008. Scalia noted that "long standing restrictions" would still be considered to be Constitutional, and Kavanaugh's dissent in Heller II concurred. Where we are now in 2022 is that all bearable arms in common use for lawful purposes are protected, which includes, according to the terminology in Caetano, AR-15s and every other type of firearm typically included in "assault weapons" bans.
NFA 1934 was a blatantly unconstitutional act, as the federal government wasn't granted any powers over the arms of the people.
In 1934, there had been no SCOTUS decisions where the federal government had successfully defended a federal law infringing the the right of the People to keep and bear arms. SCOTUS in Cruikshank had noted "The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence" and limited the applicability of the Second Amendment to the federal government. Regardless of the ability of the states to regulate firearms, SCOTUS had affirmed that the federal government had no Constitutional authority to do so.
In McCulloch v Maryland (1819), Chief Justice Marshall insisted that "should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal . . . to say that such an act was not the law of the land." In United States v Darby, Justice Stone wrote: "Whatever their motive and purpose, regulations of commerce which do not infringe some constitutional prohibition are within the plenary power conferred on Congress by the Commerce Clause."
Since at the time of the passing of the NFA 1934 the right to keep and bear arms for lawful purposes had been affirmed by SCOTUS, any law which infringed that right using the Commerce Clause was unconstitutional, and not a power entrusted to the government, and thus not the law of the land.
Interpretation: The Commerce Clause | The National Constitution Center
constitutioncenter.org
And what is the Constitutional basis for determining who is and who isn't worthy to own a gun?
That I don't know off hand; that's a new topic for research. "What is the Constitutional basis of 18 USC 922g?
Thanks for those references, I'll look into those.
I exist but to serve. And argue.
www.brennancenter.org
