Introduction

The Second Amendment to the U.S. Constitution reads in its entirety,

Today, the gun control debate has bogged down into verbal trench warfare, with opposing camps firing sound bites, infomercials, and lawsuits across no-man's land and not having much to show for it. Interestingly, few people focus much attention on just what they are fighting over. Fortunately, a recent court case seems to have resolved the debate in favor of individual rights view of the Second Amendment, and stands some chance of adoption in other jurisdictions. Assuming that this view becomes the law of the land, a new hot-button issue seems likely to emerge: what do we mean when we speak of the "arms" we are guaranteed the right to keep and bear?

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?¹ 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.² Some scholars think this kind of reading of the Second Amendment means that "individuals may keep and bear ... whatever 'arms' they desire."³ 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.

¹ Nuclear, chemical, or biological weapons.

² Larry Arnn, The Right of the People, Precepts (Claremont Inst., Claremont, Cal.), June 26, 1997, at 1.

³ Kevin D. Szczepanski, Searching for the Plain Meaning of the Second Amendment, 44 Buff. L. Rev. 197, 203 (1996). The argument holds that since "the exact scope of the individual right is not self-evident, and is not expressly defined in the Constitution," but that under the individual rights interpretation "the federal and the state governments may not infringe on the right," the logical conclusion is that an individual may keep and bear any weapons desired.