Guns not protected by the Second Amendment are generally those classified as "dangerous and unusual," particularly firearms primarily used by individuals intending unlawful harm, rather than for common lawful purposes like self-defense. This category notably includes machine guns.
The Second Amendment protects the right to keep and bear arms, but this right is not unlimited. The Supreme Court has clarified that certain types of weapons fall outside the scope of this protection. This distinction often hinges on whether a weapon is suitable for the common, lawful purposes of self-defense and militia service, or if it is instead primarily designed for unlawful activities or possesses extraordinary destructive capabilities.
Criteria for Unprotected Firearms
The core principle for excluding certain weapons from Second Amendment protection revolves around their nature and typical use. Weapons are generally not protected if they are:
- Dangerous and Unusual: This refers to firearms that are not commonly possessed by law-abiding citizens for lawful purposes. Instead, they are typically associated with nefarious intent or capabilities far exceeding what is needed for self-defense.
- Primarily Used for Unlawful Harm: If a firearm's predominant use is by those intent on committing crimes or inflicting widespread harm unlawfully, it is less likely to be protected.
Examples of Unprotected Firearms
The most prominent example of a firearm explicitly identified as outside Second Amendment protection is the machine gun. Machine guns are considered a "paradigmatic weapon" in this context. The Supreme Court has affirmed that machine guns can be banned because they are not typically possessed by citizens for lawful self-defense and are largely used by those who are intent on doing harm unlawfully.
| Category | Description | Key Characteristics |
|---|---|---|
| Dangerous and Unusual | These are weapons that are not in common use by the public for traditional, lawful purposes such as self-defense. Their design or destructive capacity often sets them apart as tools primarily for illegal activity or military applications. | Not commonly owned for self-defense; primarily used for unlawful acts or military operations; possess extraordinary destructive power beyond what is reasonably needed for personal protection. |
| Example: Machine Guns | Machine guns are the quintessential example of a firearm not protected by the Second Amendment. Capable of fully automatic fire, they are widely considered too dangerous and unusual for civilian ownership, especially given their capacity for rapid, indiscriminate, and widespread harm. The Supreme Court has upheld bans on these weapons, recognizing their distinctive threat. | Capable of continuous automatic fire with a single pull of the trigger; high rate of fire; generally not suitable for individual self-defense in a civilian context; associated with military combat or criminal enterprise rather than lawful civilian use. |
It is important to understand that the scope of the Second Amendment is continuously interpreted by courts, and laws vary by jurisdiction. However, the fundamental concept remains that the right to bear arms does not extend to all weapons, particularly those deemed dangerous and unusual and primarily suited for unlawful harm.
For further information on the interpretation of the Second Amendment, resources such as the Legal Information Institute at Cornell Law School provide extensive analysis.
