If the conservative Supreme Court determines the Second Amendment grants an absolute right to “keep and bear” arms, it will turn the nation into a free-fire zone.
No state or federal law would stand, and that could put machine guns and automatic weapons back in the hands of average citizens to carry at will in public.
There was a time before 1934 when machine guns were legal and the nation was flooded with them. Most were surplus weapons from the First World War.
They were commonly used in crime and were vividly romanticized in movies of that era about gangsters like Baby Face Nelson, Machine Gun Kelly and Al Capone.
In 2002, the Tom Hanks movie, “Road to Perdition,” revisted that millieu. Set in 1931 during the Great Depression, the movie featured Hanks playing a machine gun toting hit man out for revenge against a gangster who killed his family.
By 1934, the public had enough with the escalating use of machine guns and other military weapons. Congress passed the National Firearms Act of 1934 (NFA), the first federal regulation of the manufacture and transfer of firearms.
The NFA restricted the sale, ownership, use, and transport of short-barreled rifles and shotguns, machine guns, silencers and suppressors and destructive devices like modern artillery, rocket launchers, and military explosives.
The law, however, did not ban any of those weapons; it just restricted them, a bit of legalese that has kept them out of circulation and off the streets, but still around.
Currently 37 states allow residents to buy and own a machine gun. Thirteen other states, including California, New York, New Jersey and Massachusetts, have banned the weapons under state law.
If the Supreme Court takes an absolute view of the Second Amendment, those state laws would be ruled unconstitutional. Machine gun ownership would not only be legal, but states would be unable to prevent anyone from carrying one on the street.
Right now, buying a machine gun requires an extensive background check and outside of one exception must be purchased from a Class III licensed dealer.
Very detailed paperwork, fingerprinting and providing a pair of passport photos, are also required as well as a $200 fee, which is the tax for the transfer.
The Firearms Owners’ Protection Act of 1986 (FOPA) loosened some ownership restrictions, but prohibited civilian ownership or transfer of machine guns made after May 19, 1986.
But that process could be struck down as well.
At the heart Supreme Court deliberations is an appeal by two gun owners and the New York affiliate of the National Rifle Association (NRA).
They are seeking to overturn a New York law that requires residents to show a “proper cause” for carrying concealed handguns – including an actual, rather than speculative, self-defense need.
The gun owners are seeking an unrestricted right to carry concealed handguns in public.
New York Attorney General Letitia James argued before the Supreme Court in the case New York State Rifle & Pistol Association v. Bruen.
“While communities across the nation continue to suffer senseless gun violence, the burden of protecting Americans from mass shootings falls on states,” she said in a statement.
“New York has some of the strongest gun laws in the nation, but guns do not stop working as they cross the threshold of another state’s border, which is why our gun licensing laws are necessary. “
The nation has already seen over 600 mass shootings this year and more than 37,000 individuals have died as a result of gun violence.
“Hundreds of years of history support New York’s efforts to limit gun violence and protect public spaces. This is about protecting New Yorkers’ lives,” James said.
But the implications go beyond that because the case sets the stage for the high court to make a definitive ruling on gun owner rights under the Second Amendment.
It the court rules the right is constitutionally derived, it could ban any state or federal regulation.
The Supreme Court’s 6-3 conservative majority is considered sympathetic to an expansive view of Second Amendment rights, despite high levels of gun violence and a proliferation of illegal guns nationwide.