We have heard a lot lately about the gun control versus gun rights debates, and also about a well-regulated militia versus arming the citizenry. Some gun control advocates have argued that tanks, artillery, and nuclear weapons are not being debated as arms, but this has not been very effective in changing the minds of the staunch Second Amendment supporters concerning semi-automatic firearms, or as some have called it, the assault weapon.

But what about the machine gun?  We have all seen the movies and documentaries about how the Tommy Gun was used during the prohibition days of Al Capone and the Untouchables, but we do not hear an uproar today to own fully automatic firearms as well. Why is this and was there an outcry when they were banned? Were there protests against the government for trying to take away everyone’s guns at that time as we have seen today?

It would seem that the machine gun or fully automatic firearm is just one step above semi-automatic firearms in their capability, so if there was not a major outcry with the banning of fully automatic firearms, one could easily be confused with the outrage shown by the gun rights advocates and their thinking the government is coming to take ‘all’ of their guns, even though only semi-automatic weapons are being discussed.

To add to the confusion, the term ‘Assault Weapon’ has been a cause of many disagreements between the two opposing groups. Unfortunately, the definition for an assault weapon changes depending on which group is defining it.

There are many Second Amendment gun rights advocates that believe the term should be used only to arms that are capable of fully automatic fire, such as those used by the military and law enforcement. The terms ‘tactical rifle’ and ‘modern sporting rifle’ are preferred when describing semi-automatic civilian firearms.

Gun control advocates believe semi-automatic firearms, like the civilian AR-15, should also be designated as assault weapons that could be used on the battlefield, because of their ability to rapidly kill as many enemy soldiers as possible. Also, they believe this includes semi-automatic rifles that have detachable magazines and military features including pistol grips, flash suppressors, and collapsible or folding stocks.

Thompson SMG M1921 Wikimedia Commons
Thompson SMG M1921 Wikimedia Commons

In 1934, the National Firearms Act was passed, and this was the first attempt to regulate the use of fully automatic firearms, along with some other types of weapons, such as the sawed-off shotgun. Here is the description of the NFA according to the Bureau of Alcohol, Tobacco, Firearms and Explosives or ATF:

The NFA was originally enacted in 1934. Similar to the current NFA, the original Act imposed a tax on the making and transfer of firearms defined by the Act, as well as a special (occupational) tax on persons and entities engaged in the business of importing, manufacturing, and dealing in NFA firearms. The law also required the registration of all NFA firearms with the Secretary of the Treasury. Firearms subject to the 1934 Act included shotguns and rifles having barrels less than 18 inches in length, certain firearms described as “any other weapons,” machine guns, and firearm mufflers and silencers.

On February 14, 1929, the mob-style gang violence across the country finally came to a watershed moment with the St. Valentine’s Day Massacre where several men, under orders from Chicago gangster Al Capone, mowed down, with Tommy Guns and dressed as policemen, seven men associated with his enemy, the Irish gangster George “Bugs” Moran.

Sawed off winchester shottie, Wikimedia Commons
Sawed off winchester shottie, Wikimedia Commons

Also, on February 15, 1933, there was an assassination attempt, in Miami, Florida, by Giuseppe Zangara, an Italian immigrant and unemployed bricklayer, that missed President Franklin Roosevelt, but Chicago Mayor Anton Cermak was killed by the gunfire.

The shocking violence shown during the St. Valentine’s Day Massacre and the attempted assassination of President Roosevelt were contributing factors that helped him get the support he needed from Congress to pass the National Firearms Act. Other contributing factors were the rash of kidnappings, such as the Lindbergh baby kidnapping in 1932, and also the wave of violence from gangsters like John Dillinger and his bank robberies in 1933 and 1934.

Franklin Roosevelt, Wikimedia Commons
Franklin Roosevelt, Wikimedia Commons

In President Roosevelt’s ‘Statement on Signing Crime Bill‘ on May 18, 1934, he wrote:

These laws are a renewed challenge on the part of the Federal Government to interstate crime. They are also complementary to the broader program designed to curb the evil-doer of whatever class.

In enacting them, the Congress has provided additional equipment for the Department of Justice to aid local authorities. Lacking these new weapons, the Department already has tracked down many major outlaws and its vigilance has spread fear in the underworld. With additional resources, I am confident that it will make still greater inroads upon organized crime.

I regard this action today as an event of the first importance. So far as the Federal Government is concerned, there will be no relenting. But there is one thing more. Law enforcement and gangster extermination cannot be made completely effective so long as a substantial part of the public looks with tolerance upon known criminals, permits public officers to be corrupted or intimidated by them or applauds efforts to romanticize crime.

Federal men are constantly facing machine-gun fire in the pursuit of gangsters. I ask citizens, individually and as organized groups, to recognize the facts and meet them with courage and determination.

I stand squarely behind the efforts of the Department of Justice to bring to book every law breaker, big and little.

Surprisingly, there was not much controversy with the enactment of the NFA, but at this time, the NRA did not have the lobbying power that they do today.

Five years later, a case was brought before and decided by the Supreme Court called “United States vs. Miller” overturning the decision of the U.S. District Court for the Western District of Arkansas. That judgment declared that Section 11 of the NFA was unconstitutional.

The Supreme Court decided, “In the absence of any evidence tending to show that possession or use of a shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well-regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.”

So with this case, it was determined that some arms, such as the sawed-off shotgun, are not guaranteed under the Second Amendment in preserving a well-regulated militia.

 In April 1986, the NRA was able to get enough support to force the Firearms Owners’ Protection Act legislation onto the floor for a vote, because this bill would remove, due to complaints from gun owners, some provisions in the 1968 Gun Control Act, enacted after the assassinations of John F. Kennedy, Robert F. Kennedy and Martin Luther King, that concerned the restrictions on the purchase of out-of-state rifles and shotguns.

NRA Commemorative Coin
NRA Commemorative Coin (Photo credit: formatted_dad)

In the article on NPR called “The Decades-Old Gun Ban That’s Still On The Books” by David Welna, what happens next as the bill was about to come to a final vote in the House is explained:

But just as the bill was about to come to a final vote in that tumultuous House session, New Jersey Democrat William Hughes introduced an amendment. It would forbid the sale to civilians of all machine guns made after the law took effect.

Welna states that New York Democrat Charles Rangel, who was the presiding officer, called for a voice vote instead of a roll call vote on the machine gun ban, and since there were enough Democrats to pass the amendment, no one objected. Welna continues:

Former NRA lobbyist Richard Feldman, who has since parted ways with the organization, tells NPR that Wayne LaPierre, currently NRA’s executive vice president, was willing to let the machine gun ban go forward if it meant the larger bill it was attached to would pass.

“I remember very well having dinner … with Wayne LaPierre on the big victory after it passed the House,” he says. “And we weren’t too concerned about the machine gun issue, but it came back to haunt Warren Cassidy.”

Warren Cassidy was the Executive Vice President and Chief Executive Officer of the National Rifle Association from 1986 to 1991.

Wayne LaPierre became the executive vice president of the National Rifle Association after Cassidy, and in this case with the 1986 Firearms Owner’s Protection Act, the NRA was willing to compromise making machine guns illegal for civilians to buy or sell to get the legislation passed.

If the NRA was willing to compromise then, it is curious that the NRA has taken such an uncompromising stance today with the question on semi-automatic firearms. After their compromise then, the Second Amendment has not been repealed and everyone still has their guns, except, of course, the machine gun.

In regards to the staunch gun rights advocates, the fear is palpable and it is real. There is truly a fear that the government is coming to take everyone’s guns, but in reviewing the history of the machine gun becoming unavailable to buy or purchase, it can be proved that the Second Amendment did indeed survive the perceived infringements, by some, from gun control legislation that have been passed so far in our history.




5 thoughts on “Musing on the Second Amendment and the machine gun

  1. This is great historical commentary and should be read by those on “both sides” and all of us in between. I was particularly fascinated by the issue of taxation in the NFA legislation. Personally, it seems to me a compromise with gun enthusiasts should be increasing taxes on all guns and a huge tax on semi-automatics (100% of the price seems to me quite logical). Higher taxes is wholly justified here. We aren’t able to fund the health, education, security, training, and safety requirements of our armed nation. Good job here Jon. I appreciate this history immensely.

    1. Thanks David. Once I learned the history, I asked myself why some gun rights advocates were so adamant with saying the government is coming to take all their guns. I liked the tax idea as well.

  2. David Biddle, I though Jim Crowe style laws went out of style about 80 years ago. Good to see you two keep thing the memories alive. Taxing a right any right is wrong.

    1. Robert, I wasn’t discussing Jim Crowe segregation, but gun legislation. Do you dispute the history of the 1934 National Firearms Act that taxed certain weapons, and also the 1986 legislation history?

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