Tuesday, July 24, 2012

Should the Right to Bear "Arms" Include Military Assault Weapons?

"A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." - 2nd Amendment, U.S. Constitution.

Ever since the founding fathers came up with the above-referenced comma-riddled phrase in 1791, America has debated its meaning with little success.  The Supreme Court, which is the final referee on the meaning of all things Constitutional, made two landmark rulings recently which define the 2nd Amendment.  In 2008, the Supreme Court ruled in D.C. v. Heller that the 2nd Amendment grants each citizen the right to own a gun for self-defense purposes regardless of whether or not they are associated with a state militia.  In 2010, the Supreme Court ruled in McDonald v. Chicago that the Heller rule -- which only applied to the federal District of Columbia -- also applies to all 50 states.  So that debate is settled; now we know once and for all that we can ALL own a gun without being in a state militia.  Great.  But the real question is this: when you say that we can all own a gun...what exactly do you mean by the word "gun"?  After all, one woman's gun is another woman's hand cannon.
Samus Aran from the Nintendo game "Metroid" is known for her hand cannon

If you are an "Originalist" when it comes to Constitutional interpretation (as many conservatives are) then you believe that the word "Arms" should mean to us today what it originally meant to the founding fathers in 1791.  On the other hand, if you believe that the Constitution is a "Living Document" (as many liberals do) then you believe that the word "Arms" should change with the times as the nation evolves.  Here's the irony on this issue: when it comes to the 2nd Amendment, conservatives become liberals and liberals become conservatives.  In other words, conservatives should believe that the word "Arms" means a musket type of rifle and/or a pistol because muskets and pistols are what existed in 1791 when the founders drafted the 2nd Amendment.  Conversely, liberals should believe that the word "Arms"  has evolved with the times so as to include all technological advances in weaponry that have developed since 1791.  Neither side takes their normal ideological positions on this issue.  In fact, when it comes to guns, for some strange reason they both adopt the opposite view. 

Nevertheless, the question still remains: should the right to bear "arms" include such things as the AR-15 assault rifle, one of several weapons of choice employed by the recent movie theater shooter in Colorado which uses a 60-round magazine (or a 100-round drum) and is capable of firing 800 rounds in a single minute?  Is such a weapon somehow critical to our 2nd Amendment rights as civilians?  Is it necessary to use this particular weapon to protect our homes or to go hunting?

AR-15 Assault Rifle
Legally speaking, we don't have an answer to these questions yet.  Both Heller and McDonald made it very clear that laws which seek to place a ban on handguns (revolvers, pistols, etc.) are unconstitutional.  But it made no ruling about the constitutionality of laws which seek to ban weapons like the AR-15.  In Heller, Justice Scalia, writing the majority opinion for the Court, said this in passing:
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." 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.  - District of Columbia v. Heller, 554 U.S. 570 (2008).
In other words, Scalia took the "Living Document" approach to the Constitution -- which he never does -- and said "hey, man, times have changed; people may need to own M-16's today instead of muskets, but even if they do we're not gonna rule on that in this case."

Since the Supreme Court has taken no position on whether weapons like the AR-15 are essential to our 2nd Amendment right to bear "arms," we are left to debate the following question among ourselves (and, more importantly, communicate the answer to this question with our elected representatives):

Should the Right to Bear "Arms" Include Military Assault Weapons?

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