My guess is that if there somehow were a case vaguely about this on SCOTUS (civilian ownership of, like, pure weapons of war)
You can see here how he immediately backpedals to try to frame his comment as something more reasonable than what he said.
A constitutional challenge to 18 USC 831-832 would not go very far in any court. There is quite a bit of precedent holding permissible efforts to ban the ownership of "dangerous and unusual" weapons. Really discredits the Fifth Circuit to suggest there's a 20% chance they'd get this wrong
In what way did I backpedal? Everything in the first post is still my opinion and everything in the second post is still my opinion. A second post where I explain things in more detail will always be less pithy than a first post, but I don't think that one backpedals at all. (Especially since the 'deserves' in my first post was much more about my own opinions about fairness than my own opinions about law.)
Anyway, challenges to the National Firearms Act have mostly died down since the 1930s, but those challenges established that the act does not cover 'ordinary military equipment'. Courts have upheld prohibitions on 'dangerous and unusual weapons' -- which is a very ancient prohibition, going back to 1700s-era common law in England rather than anything that the US came up with -- but these are prohibitions against
carrying such weapons or menacing others with them, and generally not merely
possessing them:
Moore v Madigan, 702 F.3d 933, 936 (7th. Cir. 2012)( Some weapons do not terrify the public (such as wellconcealed weapons), and so if the statute was (as it may have been) intended to protect the public from being frightened or intimidated by the brandishing of weapons, it could not have applied to all weapons or all carriage of weapons. Blackstone's summary of the statute is similar: "the offence of riding or going armed, with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land." Commentaries on the Law of England 148-49 (1769) (emphasis added).) State v. Dawson, 159 SE2d 1, 7 (N.C. 1968)( Blackstone states that `the offense of riding or going armed with dangerous or unusual weapons, is a crime against the public peace, by terrifying the good people of the land; and is particularly prohibited by the statute of Northampton, 2 Edward III, ch. 3, upon pain of forfeiture of the arms, and imprisonment during the King's pleasure.'
Hawkins, treating of offenses against the public peace under the head of `Affrays,' pointedly remarks, `but granting that no bare words in judgment of law carry in them so much terror as to amount to an affray, yet it seems certain that in some cases there may be an affray, where there is no actual violence, as where a man arms himself with dangerous and unusual weapons in such a manner as will naturally cause a terror to the people, which is said to have been always an offense at common law and strictly prohibited by many statutes.') footnotes deleted; U.S. v. Greeno, 679 F.3d 510, 519 (6th Cir. 2012)( At common law, the right to keep and bear arms was not unlimited. For example, there was a historical tradition prohibiting the possession of dangerous or unusual weapons.)
(The bolded part, I think, is kind of a stretch but could certainly be read in a way that implies the Statute of Northampton put forward by King Edward prohibited private nuclear weapon ownership, although the article I'm quoting is actually arguing that the statute is misquoted and King Edward never intended to ban any kind of weapons and the whole thing is a misreading by early 1700s law dictionaries.)
There is not actually a vast amount of modern case law that I have been able to find on what counts as 'dangerous or unusual'; the 18th-century case law seems to be about weapons intended to cause terror (...which, fair, one could reason that the goal of simply possessing nuclear weapons as a private individual is to terrorize your enemies). As interpreted by the FBI,
unusual weapons mostly seem like ones that a reasonable person might not recognize
are weapons. I don't know that there's a great deal of modern law about what counts as a 'dangerous' weapon -- as opposed to a 'deadly weapon', the more common modern phrasing -- except that SCOTUS ruled in
Caetano that this does not cover stun guns.
The Caetano case challenged the constitutionality of a Massachusetts law that prohibited the possession of stun guns, thereby raising questions about the definition of Arms in the Second Amendment. Jaime Caetano, the petitioner, had been convicted of possessing a stun gun, which she carried for self-defense purposes. The Massachusetts Supreme Judicial Court upheld her conviction, reasoning that stun guns were not the type of weapons that the Second Amendment was intended to protect, in part because they were nonexistent at the time the Second Amendment was enacted. The Supreme Court, however, vacated the Massachusetts court's judgment, expanding the legal meaning of "bearable" arms. Though short and unsigned, Professor Charles explains that the Caetano decision has significant implications for Second Amendment jurisprudence, highlighting that even modern weapons can qualify for constitutional protection.
Anyway, there is not an obvious reason that nuclear weapons should be excluded from Second Amendment protection beyond public policy, but the public policy case is strong enough that my guess is that maybe two-thirds of conservative federal judges would probably join an opinion ruling that nuclear weapon possession is not protected. I think that an argument that nuclear weapons are 'unusual' in the way that this word is normally used by the FBI is kind of silly, but the idea that they're 'dangerous and unusual' in the way this expression was used at 18th-century common law is kind of a stretch but not an
impossible one.
There are different degrees to which judges will or will not ignore public policy considerations when interpreting law, but I think basically any judge willing to entertain them at all would find a reason to say that nuclear weapon ownership is not protected.
