IMO, this is a very important point. But the contradiction and circular argument are set up by the fact that Justice Scalia tries to argue first from logic and fact (which supports the individual right), but then tries to temper it with unsupportable restrictions (the PC thing to do, a la the Bush Administration).
Nor is it at all clear to me how the majority decides which loaded “arms” a homeowner may keep. The majority says that that Amendment protects those weapons “typically possessed by law-abiding citizens for lawful purposes.” Ante, at 53. This definition conveniently excludes machineguns, but permits handguns, which the majority describes as “the most popular weapon chosen by Americans for self-defense in the home.” Ante, at 57; see also ante, at 54–55. But what sense does this approach make? According to the majority’s reasoning, if Congress and the States lift restrictions on the possession and use of machineguns, and people buy machineguns to protect their homes, the Court will have to reverse course and find that the Second Amendment does, in fact, protect the individual self-defense-related right to possess a machinegun. On the majority’s reasoning, if tomorrow someone invents a particularly useful, highly dangerous selfdefense weapon, Congress and the States had better ban it immediately, for once it becomes popular Congress will no longer possess the constitutional authority to do so. In essence, the majority determines what regulations are permissible by looking to see what existing regulations permit. There is no basis for believing that the Framers intended such circular reasoning.But America will continue to drink the Kool-Aid, believing that the Second Amendment is just fine if we have "reasonable" restrictions, and that the Framers intended us to use just hunting rifles to protect ourselves against government tyranny.
Of course, if M-16s were fully legal and unrestricted, I have no doubt they would be in common possession at home--and thereby protected. (The "dangerous and unusual weapons" argument he gives holds no water, IMO, since as far as I can see, the "dangerous and unusual weapons" retriction is far beyond what was in use to fight an abusive government. Admittedly, though, I don't have Blackstone in the 1769 edition! :-)
