Hugh Hewitt and Newt Gingrich discussed the “assault weapons” ban yesterday, and both agreed that the 2nd Amendment doesn’t permit individuals to own high powered military weapons. While I sympathize with their desired policy, the cold hard Constitutional fact is … they’re wrong.
A couple of years ago I wrote a detailed research piece for a law school class on firearms law. I went way back and looked at sources like the transcripts of the debates during the Constitutional Convention, the constitutions of various states, letters and speeches by the Founding Fathers, and I discovered what they thought about keeping and bearing arms. They understood the 2nd Amendment to allow the private ownership of military weapons. All military weapons. Period.
Here’s a summary of my research:
Everyone knows that rifles, pistols, and shotguns are “arms,” but what about other weapons like clubs, knives, swords, artillery, bombs, missiles, or weapons of mass destruction? Although this question sounds silly at first, Larry Arnn of the Claremont Institute once remarked that if the courts interpreted the Second Amendment as they do the First Amendment, we would all have the right to own nuclear weapons. Some scholars think this kind of reading of the Second Amendment means that “individuals may keep and bear . . . whatever ‘arms’ they desire.”
So does our Constitution recognize your neighbor’s right to park a brand new M-1 Abrams main battle tank in his driveway? Should we permit gun shops to hold tent sales offering great low prices on military-grade flamethrowers and nerve-gas-tipped artillery shells? Must the U.S. Government allow you to carry a “suitcase nuke” to avoid violating your fundamental Constitutional rights, even if you might trip while carrying it and level a city block?
Part I of this article summarizes the recent Fifth Circuit Court of Appeals decision that acts as the point of departure for this journey into the “what-ifs” of the right to keep and bear arms.
Part II looks at the decision’s inconclusive treatment of what “arms” means, and explains why the “textualism” school of constitutional interpretation should control the search for the meaning of “arms,” instead of the “living document” or “framer’s intent” schools.
Part III explains what the Founders and their informed contemporaries understood “arms” to mean in their day: that the Second Amendment guarantees an individual’s right to keep and bear any and all weapons, no matter how destructive.
Part IV brings that definition forward to modern times and identifies the unacceptable social risks posed by private citizens’ possession and use of today’s most powerful weapons.
Part V makes some tentative and preliminary suggestions for a Twenty-Eigth Amendment limiting individual access to excessively destructive weapons that threaten society, while preserving the common-sense meaning of the individual right protected by the text of the Second Amendment.
Read the whole thing and then tell me that “arms” doesn’t include a .50 caliber machine gun or an M-1 tank. You probably won’t like it (I don’t completely like it myself), but unless you’re willing to let the courts twist the meaning of the Constitution in whatever way they want, you’ll have to agree with my conclusion.
Update: I just unearthed a somewhat similar take on the definition of “arms.”
Update 2: Publicola asks some pointed questions.