OK, incorporation is coming, but it hasn't happened, so federal laws it is, then...
I think the Hughes post-86 machine gun ban is in danger of being overturned. The
Appeals court said that if it's an "arm" it is not open to the government to ban it, and an M-16 is an arm.
The opinion of the court:
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
Putting a happy switch on an AR-15 doesn't make it "sophisticated" does it? The ban is the only "modern development" which has made the AR-15 common in civilian hands and the M-16 scarce.
The antis and the solicitor general were worried that the SC ruling in Heller might endanger the post-86 ban. I think they may have been right. :D
And what about the NFA? The opinion of the court:
Obviously, the same (rational basis) test could not be used to evaluate the extent to which a legislature may regulate a specific, enumerated right, be it the freedom of speech, the guarantee against double jeopardy, the right to counsel, or the right to keep and bear arms. (footnote 27)
If that's how the Court views the second amendment, the next question would be, can you have a regulatory tax like the NFA on a right which stands alongside freedom of speech? The Miller decision held that the NFA was OK, citing Sonzinsky v. United States and various narcotics cases. In
Sonzinsky, the court held that the NFA was within the power of Congress to tax, but they didn't mention the second amendment at all. I think the NFA could now be attacked on the same grounds as poll taxes.