How is the Second Amendment confusing or badly written?
The right to keep and bear arms has nothing to do with the Constitution or the government. It is one of the inalienable rights to which Thomas Jefferson referred when he penned the Declaration of Independence. It was considered to be fully equal to the right to speak freely, to worship as one wished, and to peaceably assemble.
In the Supreme Court’s ruling in United States v. Cruickshank (92 U.S. 542) Chief Justice Morrison Waite wrote of the right to keep and bear arms, “This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”
By the time of the debate over the necessity of a bill of rights, the idea of a militia being composed of citizens with personally owned and possessed weapons had been a part of the British and American colonial heritage for about 800 years, since the reign of Alfred the Great in the late 9th Century.
It’s important to remember that militias were not limited to defense against invaders. They helped to preserve order and assisted in the pursuit of fugitives and other civil functions.
Since the decree issued by King Henry I in 1181, citizens subject to call for militia duty were supposed to possess weapons suitable for combat with regular military forces. Even serfs were required to possess a spear and dagger. It was even prohibited to use the weapons as surety for a loan, such as with a pawnbroker.
This is echoed in the requirements established for the various colonial militias. Pikemen was required to have a specific set of items, officers were required to supply their own swords, and musketeers and riflemen had to possess firearms that fits within a certain pattern. Depending on the rules for a specific militia, they were also required to have at least a certain measure of powder, a minimum number of bullets, and sometimes even a bayonet.
This would be analogous to a requirement that the members of the modern-day militia, as defined in 10 USC Chapter 12*, possess firearms chambered for the 5.56x45 cartridge, a set number of 5.56x45 cartridges that conform to military standards (fully jacketed without exposed lead) and perhaps even a bayonet
But nothing in those rules ever said that citizens could own only those weapons. In fact, citizens were free to acquire whatever weapons their purse could accommodate. Nor was the use of those weapons limited to official duties. It was assumed that the weapons could be used to defend a life, a family, or a home from attackers.
The architects of the United States’ new federal government did not like standing armies. This government was to be controlled by the people and the states and its powers were to be limited to those specifically granted.
So the militia remained important. However, based in everything they knew from their British heritage, militias were composed of citizens armed with personally owned weapons.
Therefore, in order for there to be a militia, well-regulated or otherwise, there had to be an armed populace from which the militia could be drawn. Those arms had to be protected from government whims, a lesson the Founding Fathers had learned from the English Parliament, which could extend or withdraw rights pretty much at will.
So here’s how it works:
- A militia is necessary to the security of a free state,
- In order to have a militia, we need to have armed citizens because everything we know about militias says they are made up of citizens armed with their own halberds, swords, spears, daggers, pistols, muskets rifles, and cannons.
- We know that other governments have armed and then disarmed their citizens. We also know that governments have allowed whoever was popular at the moment to have weapons but didn’t allow unpopular people (such as Catholics) to have them. That’s a really bad idea.
- So in order to have an armed populace so that we can have a militia, we need to forbid our new government from saying that the citizens cannot own the weapons of their choice.
- And that’s exactly what they did.
*It should be noted that the Snopes interpretation of the Dick Act, aka the Militia Act of 1903, is incorrect. It fails to account for the 1939 Supreme Court ruling in United States v. Miller (307 U.S. 174) which specifically states that the Second Amendment protects the ownership of military-style weapons.
“In the absence of any evidence tending to show that possession or use of a “shotgun having a barrel of less than eighteen inches in length” at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense.” In support of the opinion he wrote, Associate Justice James McReynolds cited Aymette v. State, (2 Humphreys (Tenn.) 154, 158).
McReynolds’ opinion applied only to shotguns with barrels of less than eighteen inches. Had Jack Miller and Frank Layton been caught with a Tommy Gun, another favored gangster weapon, McReynolds would have had to either say those were exempted from the National Firearms Act of 1934 or come up with another reason for their regulation. That’s because the Thompson submachine gun was part of the ordinary militia equipment and had been since the 1920s.
It wasn’t until the late Antonin Scalia wrote the majority opinion in District of Columbia v. Heller that there was some clarification of the legality of special regulations for automatic firearms. Contrary to myths floating around the Internet and in the minds of ban fans, Scalia didn’t say anything about firearms such as the AR-15 and AK-47. Scalia specifically mentioned the M16 rifle (and by extension, the M4 carbine) because those particular guns meet the federal definition of a machine gun. The AR-15 doesn’t meet that definition because it is semi-automatic fire only. Again, as McReynolds did in the Miller case, Scalia delivered an opinion on the subject of automatic weapons which has become accepted case law but could be overturned in the future because it sets up a nifty legal conundrum: A ban on semi-automatic firearms and restrictions on possession of automatic firearms cannot be constitutional because such a ban conflicts with the Miller and Heller rulings.
Bolt-action, lever-action, and pump-action rifles are not standard-issue firearms in the National Guard or regular U.S. military forces. Bolt-action rifles are used for special assignments such as snipers. Even Squad Designated Marksmen, whose assignments are centered on engaging designated targets at longer ranges, are issued a semi-automatic rifle, including the new SMD-R, a version of the Heckler & Koch G28 chambered in 7.62x51 battle rifle round in use since the 1950s.
(As the old saying goes, be careful what you wish for.)