reader
asks: "I have a question about your recent NRO article, "Guns
in Court." You state that the Second Amendment only protects
the right of individuals to own weapons that can be used in a militia.
Does the law specify which weapons can be used in a militia? Can a
militia use assault rifles or hand grenades? May individual citizens
own every type of weapon currently in use by the National Guard?"
Here's the
answer:
The dominant
line of nineteenth-century interpretation protected ownership only
of weapons suitable for "civilized warfare." This standard
was adopted by the U.S. Supreme Court in the 1939 United States
v. Miller case. There, the Court allowed defendants who never
claimed to be part of any militia (they were bootleggers) to raise
a Second Amendment claim. But the Supreme Court rejected the trial
court's determination that a federal law requiring the registration
and taxation of sawed-off shotguns was facially invalid as a violation
of the Second Amendment. Rather, said the Miller Court, a
weapon is only covered by the Second Amendment if it might contribute
to the efficiency of a well-regulated militia. And the Court could
not take judicial notice of militia uses for sawed-off shotguns.
The case was remanded for trial (at which the defendants could have
offered evidence that sawed-off shotguns have utility in a militia
context), but the trial was never held, since the defendants disappeared
during the pendency of the government's appeal of the dismissal
of their indictment.
A minority
line of nineteenth-century arms-rights analysis — adopted in the
twentieth century, for example, by the Oregon Supreme Court — goes
further. This analysis protects not just militia-type weapons, but
also weapons which are useful for personal defense, even if not
useful in a military context. Thus, the Oregon state constitution's
right to arms was held to protect possession of billy clubs and
switchblades — weapons which were pointedly excluded from protection
by the civilized warfare cases. State
v. Delgado, 298 Or. 395, 692 P.2d 610 (1984)(switchblades);
State
v. Blocker, 291 Or. 255 (1981) (billy clubs).
With the civilized-warfare
test as the constitutional minimum, efforts to ban machine guns
or ordinary guns that look like machine guns (so-called "assault
weapons") appear constitutionally dubious. These rifles are
selected for prohibition because gun-control lobbies claim that
the rifles are "weapons of war." This claim, if true,
amounts to an admission that the rifles lie at the core of the Second
Amendment.
Today, once
people understand that "assault weapons" are firearms
that are cosmetically threatening but functionally indistinguishable
from other long guns, they are willing to accord these arms a place
within the right to keep and bear arms. Machine guns, in contrast,
really are functionally different. Machine guns are rarely used
in crime; and lawfully possessed machine guns, which must be registered
with the federal government, are essentially absent from the world
of gun crime. Nevertheless, even many people who consider themselves
strong Second Amendment supporters cannot bear the thought of a
constitutional right to own machine guns.
Attorney Stephen
Halbrook, suggests that, "artillery pieces, tanks, nuclear
devices and other heavy ordinances are not constitutionally protected"
arms, nor are "grenades, bombs, bazookas and other devices
… which have never been commonly possessed for self-defense."
(Steven Halbrook, What
the Framers Intended: A Linguistic Interpretation of the Second
Amendment, 49 L. & CONTEMP. PROB. at 153 (1986).)
But the Halbrook
test sidesteps the fact that militia uses, not just personal-defense
uses, are part of the core of the Second Amendment. Moreover, the
Halbrook test could allow governments to ban new types of guns or
weapons, since those weapons, being new, "have never been commonly
possessed for self-defense." The test could allow Second Amendment
technology to be frozen, as if the government claimed that new communications
devices are unprotected by the First Amendment because they have
never (heretofore) been commonly used for speech.
Just as the
civilized-warfare test protects firearms that many persons want
excluded from the Second Amendment, the test also excludes firearms
that many persons want to be included. The civilized-warfare cases
protected large handguns, but in some applications excluded small,
highly concealable handguns. This would suggest that modern bans
on small, inexpensive handguns might not violate the Second Amendment.
On the other hand, small handguns such as the Colt .25 pistol were
used by the United States military during the Second World War.
(See Charles W. Pate, "Researching the Martial .25 Colt Pistol,"
Man at Arms, Jan./Feb. 1995, 20-29.) (Of course, anyone using the
civilized-warfare test to make such an argument must also accept
the flip side of the civilized-warfare coin: "Assault weapon"
prohibition is plainly unconstitutional.)
The nineteenth-century
minority theory, however, would recognize small, relatively inexpensive
handguns as highly suitable for personal defense, and accord them
Second Amendment protection regardless of their militia utility.
Twentieth-century constitutional law reflects a special concern
for problems of minorities and the poor that was not present in
nineteenth-century law. Since a small handgun may be the only effective
means of protection that is affordable to a poor person, and since
the poor and minorities tend to receive inferior police protection,
modern equal-protection analysis might find some problems with banning
inexpensive guns, even if one sets aside the Second Amendment. (Note,
Markus T. Funk, The
Melting Point Case-in-Point, 85 J. CRIM. L. & CRIMINOL.
764 (1995).)
But under the
main nineteenth-century line of cases, opponents of banning small
handguns must overcome the presumption in those cases that small
handguns are not suitable militia weapons; perhaps the frequent
and successful use of small handguns in twentieth-century partisan
warfare against the Nazis and other oppressive regimes offers one
potential line of argument.
Twenty-first
century jurisprudence might update the civilized-warfare test by
changing the focus from the military to the police. The modern American
police, especially at the federal level, resemble in many regards
the standing army that so concerned the founders. While the American
army is geared toward overseas warfare, the police are oriented
toward the type of internal-order functions (e.g., suppression of
riots), which were among traditional militia duties. Accordingly,
the twenty-first century question, "What are suitable militia-type
arms?" might be answered, "Arms that are typical of, or
suitable for, police duty." By the modernized test, high-quality
handguns (both revolvers and semiautomatics) would lie at the core.
Smaller, less expensive handguns (frequently carried by police officers
as back-up weapons, often in ankle holsters) would also pass the
test easily. Ordinary shotguns and rifles (often carried in patrol
cars) would also be protected. Machine guns and other weapons of
war are not currently ordinary police equipment, although they are
becoming common in special attack units.
Finally, we
need to remember Noah Webster's American Dictionary of the English
Language, originally published in 1828. That dictionary, which
is closer to the origin of the Second Amendment than any other American
dictionary, defines "arms" as follows:
"Weapons
of offense, or armor for defense and protection of the body ...
A stand of arms consists of a musket, bayonet, cartridge-box
and belt, with a sword. But for common soldiers a sword is not necessary."
Webster's definition
offers two useful insights. First, the distinction sometimes drawn
between "offensive" and "defensive" weapons
is of little value. All weapons are made for offense, although they
may used for defensive purposes (i.e. shooting someone who is attempting
to perpetrate a murder), since the best defense sometimes really
is a good offense.
Second, Webster
reminds us that "arms" are not just weapons. "Arms"
also include defensive armor. This suggests very serious constitutional
problems with proposals to outlaw possession of bullet-resistant
body armor by persons outside the government.
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