Is this the exchange in question?
JUSTICE KENNEDY: But you were about to tell us before ae course of questioning began about the other purposes that the amendment served. I'm -- I want to know whether or not, in your view, the operative clause of the amendment protects, was designed to protect in an earlier time, the settler in the wilderness and his right to have a gun against some conceivable Federal enactment which would prohibit him from having any guns?
MR. GURA: Oh, yes. Yes, Justice Kennedy.
The right of the people to keep and bear arms was derived from Blackstone. It was derived from the common-law English right which the Founders wanted to expand. In fact, the chapter in which Blackstone discusses in this treatise, his fifth auxiliary right to arms is entitled --
JUSTICE BREYER: That brings me back to the question because Blackstone describes it as a right to keep and bear arms "under law." And since he uses the words "under law," he clearly foresees reasonable regulation of that right. And so, does the case not hinge on, even given all your views, on whether it is or is not a reasonable or slightly tougher standard thing to do to ban the handgun, while leaving you free to use other weapons? I mean, I notice that the militia statute, the first one, spoke of people coming to report, in 1790 or whenever, with their rifles, with their muskets, but only the officers were to bring pistols. So that to me suggests they didn't see pistols as that crucial even then, let alone now.
MR. GURA: Well, certainly they saw --
JUSTICE BREYER: What's your response to the question?
MR. GURA: Well my response is that the government can ban arms that are not appropriate for civilian use. There is no question of that.
JUSTICE KENNEDY: That are not appropriate to --
MR. GURA: That are not appropriate to civilian use.
JUSTICE GINSBURG: For example?
MR. GURA: For example, I think machine guns: It's difficult to imagine a construction of Miller, or a construction of the lower court's opinion, that would sanction machine guns or the plastic, undetectable handguns that the Solicitor General spoke of.
The fact is that this Court's Miller test was the only guidance that we had below, and I think it was applied faithfully. Once a weapon is, first of all, an "arm" under the dictionary definition -- and Webster has a very useful one -- then you look to see whether an arm is meant to be protected under the Second Amendment.
And we apply the two-pronged Miller test, and usually one would imagine if an arm fails the Miller test because it's not appropriate for common civilian applications --
JUSTICE GINSBURG: But why wouldn't the machine gun qualify? General Clement told us that that is standard issue in the military.
MR. GURA: But it's not an arm of the type that people might be expected to possess commonly in ordinary use. That's the other aspect of Miller.
Miller spoke about the militia as encompassing the notion that people would bring with them arms of the kind in common use supplied by themselves. And --
CHIEF JUSTICE ROBERTS: Is there any parallel --
JUSTICE GINSBURG: At this time -- I would just like to follow up on what you said. Because if you were right that it was at that time, yes; but that is not what Miller says. It says that the gun in question there was not one that at this time -- this time, the time of the Miller decision -- has a reasonable relationship to the preservation or efficiency of a well-regulated militia. So it's talking about this time.
MR. GURA: That's correct. The time frame that the Court must address is always the present. The Framers wished to preserve the right to keep and bear arms. They wished to preserve the ability of people to act as militia, and so there was certainly no plan for, say, a technical obsolescence.
However, the fact is that Miller spoke very strongly about the fact that people were expected to bring arms supplied by themselves of the kind in common use at the time. So if in this time people do not have, or are not recognized by any court to have, a common application for, say, a machine gun or a rocket launcher or some other sort of --