I’ve probably mentioned this before . .
But I don’t know where. I wanted to be real clear regarding my position on the Second Amendment. It is not about duck hunting. There is matter of factly an individual right to arms. Anyone who chooses to believe otherwise is either:
1) intellectually dishonest and has developed a conclusion first, then worked back from that conclusion to get the results they want. There is no collective right literature prior to the 1940s that anyone has found (that I know of). If someone were to state that there is a right to arms they just don’t think it’s a good idea, I could respect that. At least it’s honest; idiotic, but honest.
or
2) an idiot.
Now, one point of contention that always pops up is the tired old argument that if you believe that, then you would advocate private ownership of nuclear bombs. Anyone who thinks people should own nukes is an idiot. They are a consistent idiot, but still an idiot. It is worth noting that the first naval forces in the US before Adams commissioned a navy were privately owned ships fitted with privately owned canons. The question remains:
Where do we draw the line at what arms citizens can keep and bear?
I think that honestly this is the biggest point of contention currently. Even though the Assault Weapons Ban does not ban rifles but features, some folks choose assault weapons as the level in which we should ban guns. Look at all the presidential candidates. This doesn’t stand up to legal scrutiny since in the SCOTUS case of US v. Miller, the court opined:
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. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.
So, in my humble non-expert opinion, the guidance we have in the law is a weapon that is any part of the ordinary military equipment or that its use could contribute to the common defense.
Therefore, any standard military weapon issued to an infantryman is likely protected. A nuke is not standard issue nor is a rocket launcher. An automatic rifle with a barrel length of 11.5 to 20 inches, a bayonet lug, a collapsible stock, flash hider and a 30 round magazine is. As such, the Assault Weapons Ban is specifically unconstitutional as is the 1934 NFA tax on automatic weapons (taxing a right is illegal). I don’t oppose registration and therefore do not oppose registering NFA weapons with the BATF. People will opine that evil automatic weapons are being used in deadly crime but it is worth noting that only one Class 3 weapon has been used in a deadly crime. That crime was committed by an off duty policeman.
So, there you have it. Prove me wrong.
Update: One other thing, there are some people who argue that since the second amendment is assumed to be in place to repel invasions and resist tyranny in government, that it is irrelevant in the current context. After all, a ragtag band of hillbilly insurgents may be able to repel an invasion but that same band is likely incapable of stopping the US military. I can respect this position as well because it is honest and logical. I do, however, disagree with it.
Just because a right may not have the desired effect, it is not rendered irrelevant. For example, there were massive protests against the Iraqi invasion. These protests had almost no effect on the chain of events that lead to the invasion and did not stop it. Therefore, that right was irrelevant in that context. Still, these people have a right to protest to their hearts’ content and I applaud them for it.
Another Update: Rick offers the following in comments:
Let me state first of all that I agree with you regarding the limits of the second. I think that is a totally reasonable line to draw. I also have one other test that goes something like this. The power to conduct foreign policy rest solely with the federal branch of the government and some weapons are interments of foreign policy buy virtue of that fact that if used against another nation that nation could reasonably assume that the attack was by the government of the nation of origin.
Example, a nuke, a fully armed battleship, a jet fighter. If a private citizen were to get there hands on one of these and attack the military personell in another country, our excuse that this person was private citizens acting of their own accord would not hold a lot of water and wouold thus effect said FP. Therefor any weapon that has the ability to affect foreign policy could be restricted. Now this is just a personal idea that I have hashed around but it makes the same point.
Interesting stuff, I think. It seems to me that people largely agree that a line must be drawn legally and are developing how to draw that line, though it is, as Rick opines, extra constitutional.
Thoughts?
December 3rd, 2003 at 1:53 pm
Anyone who thinks people should own nukes is an idiot.
Now you are just being mean. Are you the most bitter CPA on earth? 🙂
December 3rd, 2003 at 1:57 pm
Hehe. None of my stress seems to come from work, surprisingly.
December 3rd, 2003 at 2:46 pm
Let me state first of all that I agree with you regarding the limits of the second. I think that is a totally reasonable line to draw. I also have one other test that goes something like this. The power to conduct foreign policy rest solely with the federal branch of the government and some weapons are interments of foreign policy buy virtue of that fact that if used against another nation that nation could reasonably assume that the attack was by the government of the nation of origin.
Example, a nuke, a fully armed battleship, a jet fighter. If a private citizen were to get there hands on one of these and attack the military personell in another country, our excuse that this person was private citizens acting of their own accord would not hold a lot of water and wouold thus effect said FP. Therefor any weapon that has the ability to affect foreign policy could be restricted. Now this is just a personal idea that I have hashed around but it makes the same point.
But here is the problem. All of this is purely extra constitutional and as such, you are on dangerous ground philosophically unless you buy the idea that prevailing realities are fair game for constitutional interpretation. Those who ratified the constitution never envisioned Nukes, Battleships, and Intercontinental Ballistic Missiles. So what we are doing here is making some rational speculations on what those ratifiers might have though if that had had the chance to consider it.
If in the other hand you are Scalia and feel that originalisum is the only valid method of constitutional interpretation then im afraid that all of this is just mental gymnastics. The constitution says arms, there were no weapons at the time that were excepted and nukes are fair game. Of course you could always invoke the compelling states interests test and if there was ever a compelling state interest, keeping nukes out of the hands of my across the street neighbor is certainly one. But in doing so you also open up the idea that hand gun registration or other restrictions could be cited as such an interest as well. It makes it much tougher to argue that your ides about the unstated limits on the 2nd are more right then someone else’s. For myself I don’t think much of originalisum, but I’m more of a philosopher and there is more then a little evidence that the founding fathers didn’t either.
December 3rd, 2003 at 2:53 pm
Rick DeMent:
Out with you! Such a well-reasoned and well-thought-out post has no place in the blogosphere! Begone!
(You realize, of course, that I’m kidding…)
December 3rd, 2003 at 3:02 pm
Rick, you make excellent points.
The notion that the founding fathers did not envision nukes etc. doesn’t hold muster, IMO. Taking my revolution post up a notch, they neither envisioned the Internet nor TV so can we then restrict speech on the web, TV, radio, etc.? I would think not. Or infrared that can see through walls thereby in many cases bypassing fourth amendment protections. Do we ban the government’s use of them? Etc.
I do rather like your notion about foriegn policy weapons. It is interesting and seems a reasonable basis for drawing the line. But it ends up in roughly the same league as my military purpose reasoning, with the possible exception of rocket launchers.
It does seem to me that we are in agreement that a line must be drawn legally because as it stands there is no guidance. From a purely constitutional perspective, it seems one could own nukes. But that is a bit ludicrous.
December 4th, 2003 at 10:32 am
Uncle,
Yeah, don’t get me wrong, my comments are more to address the idea of original meaning that some seem to use in a fairly slippery way. Your comments about new technology are well taken.
December 4th, 2003 at 2:53 pm
As a libertarian, I’m opposed to restrictions on firearm ownership. As a practical person, I’m aware that completely unrestricted weapons ownership is…well…impractical. As a result, I concur with the rule of thumb that individuals should have access to the same level of weapons that would place them roughly on par with the typical infantry.
We often overlook the example of the classic militia, the ones that the founding fathers literally had in mind when they drafted the 2nd Amendment. That example would be the Minutemen. This example is so firmly entrenched that the current day National Guard, which claims to inherit the status of the militia, uses the armed Minuteman as part of its symbol.
The Minutemen were equipped with rifles, pistols, and even small cannon in order to achieve rough parity with the British Army. The British didn’t like this, and in fact the April 19, 1775 conflict was triggered when the British marched to Concord to seize those weapons.
But getting back to the National Guard for a moment, there’s one further point about the “milita” that is frequently overlooked. Gun control advocates won’t mention it, and unfortunately gun rights advocates too often forget it. And it explains why the National Guard cannot possibly be the “real” militia.
On that April morning in 1775, when the Minutemen stood their ground against the British army, if there was a flag flying above the Concord green it wasn’t the stars and stripes, it was the Union Jack. Massachusetts was British territory that morning, and the Minutemen were operating outside the law and not as a part of the government. In short, they were private citizens who had armed themselves on a rough parity with the army that they feared.
When the founding fathers wrote the 2nd Amendment, it was (like the other nine amendments in the Bill of Rights) a method of keeping a limit on the power of the new design for a central government. Although the members of today’s National Guard have served with courage and distinction, they cannot possibly fill the role of “the militia” because they are a part of the government, and that makes them unable to serve as a check against the abuses of government power.
December 4th, 2003 at 3:26 pm
Thanks for the comments and history lesson, rick!