Nevertheless, a significant gray area remains. Are the current federal restrictions on the sale of machine guns permissible? Can a state limit access to so-called “assault weapons” without violating the incorporated right? Can, per Scalia’s own example, the government prohibit private ownership of rocket launchers? These are serious constitutional questions — questions that, as an inevitable consequence of wading into the debate around an amendment that was left largely untouched for two centuries, the court will ultimately be required to address. This, remember, is a constitutional issue. It is not a political one. Contra the zeitgeist, “constitutional” and “unconstitutional” are not synonyms for “things I like” and “things I don’t like,” but statements of legal fact. If the Constitution does prevent Congress from prohibiting rocket launchers, and if this is deemed by a supermajority to be ridiculous, then the Second Amendment can be changed via the usual channels. Until that time, it remains in force and it must be upheld as it was written.
Scalia is by no means outré when he contends that machine guns or rocket launchers may fall on the protected side. A favorite, albeit cheap, argument of gun-control advocates is that “when the Second Amendment was written, there were only muskets!” Conservatives customarily react to this by pointing out that, while true, the jab relies for its power upon an absurd standard that doesn’t apply to anything else. (The First Amendment, for example, quite obviously applies to the Internet and to speech broadcast over the radio.) But the better way to look at this question is not to compare the personal weapons that the citizenry owned at the time of the Founding with the more powerful personal weapons available to the citizenry now, but to compare what personal weapons the citizenry had access to at the Founding with what personal weapons the military
owned at the time of the Founding.
If we grant that the Second Amendment covered muskets — which pretty much everybody does — we are granting that the Second Amendment originally applied to the top-end personal military weapons of the time, and that the authors of the Constitution were happy for free Americans to own the same personal weapons as did the government. Sure, they may be “just muskets” now. But at the time? George Orwell, who recognized the importance of all this, explained in his essay “You and the Atom Bomb” just how powerful citizens with muskets had been — and how that dynamic was changing:
The great age of democracy and of national self-determination was the age of the musket and the rifle. After the invention of the flintlock, and before the invention of the percussion cap, the musket was a fairly efficient weapon, and at the same time so simple that it could be produced almost anywhere. Its combination of qualities made possible the success of the American and French revolutions, and made a popular insurrection a more serious business than it could be in our own day.
If we are supposed to apply the “musket” principle today, as the Left insists we must, we should be expanding, not contracting, the list of personal weapons that the people may own. Instead, because the Second Amendment refers solely to discriminating, bearable weapons that can be borne by a militia, great swaths of the U.S. Army’s arsenal will remain unprotected by the Second Amendment. But machine guns, powerful rifles, and, yes, rocket launchers may well not be in that group. Scalia is right: The next big question is “What are the People allowed?” The Court may decide that the scope is limited, and it may decide that it is not. But it will decide. And no amount of historical illiteracy, obtuse outrage, or scurrilous accusations that its members are “not right in the head” will prevent it from doing so.
— Charles C. W. Cooke is a staff writer at National Review.