If there is one thing that sets the United States apart from every other industrialized western nation, it is the incorporation into its constitution of a provision which guarantees—or, at least, may be interpreted to guarantee—its citizens the right to privately own firearms. How this provision should be interpreted has, for several decades, been one of the most polarizing issues in American public debate, with activists on both sides of the issue producing extensive amounts of "fact sheets" (see, for example, the Brady Campaign and the Violence Policy Center on one side; the NRA-ILA and Guy Smith's "Gun Facts" on the other), larded with statistics supposedly refuting the other side's "myths" and presenting the reader with the ostensible "truth," and with neither side willing to concede even a minor point to the other. The most salient question on which either side refuses to compromise is whether the Second Amendment provides an individual or a collective right; that is, does it (as gun ownership advocates contend) guarantee the right of individual citizens to own arms, or does it instead (as proponents of restricting gun ownership assert) enable state governments to stockpile arms with which to equip militias regulated by those governments? I believe this to be a false dichotomy. For ease of reference, I will cite the text of the Second Amendment:
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.
The first half of the amendment is often referred to as the "justification clause," while the second half is known as the "operative clause"; gun ownership advocates emphasize the latter while ignoring the former, while gun ownership restriction proponents do the opposite. For my own part, I believe it is wrong to do either. The "gun nuts" correctly argue that the term "the people" as used elsewhere in the Bill of Rights (Amendments I, IV, IX and X) cannot mean anything other than the individual members of the citizenry, lest it lose all useful meaning, and that it would be strange indeed if it meant something else in the Second Amendment alone; thus, the Second Amendment does guarantee an individual right. However, the discussion does not end there. The Second Amendment is remarkable in being the only amendment in the Bill of Rights to contain a "justification clause," and having used the similarities with other amendments to support my earlier point, I cannot in good faith ignore this obvious disparity*. In an earlier post, I contended that the origins of the American legal code lay in pre-Christian Germanic tribal code (the basis of the Common Law system), which the Founding Fathers augmented with elements borrowed from Roman and Greek (particularly Athenian) law. To a student of history, this pattern is as evident in the Second Amendment as it is anywhere.
The backbone of the Athenian army consisted of the heavy infantry, the hoplites; these were citizens with the right to vote who, in return, were obliged to provide military service to the (city-)state in times of emergency. As these were men generally wealthy enough to own property and/or slaves, they were required to provide their own weapons, armor and equipment, the so-called panoplia (from which the English word "panoply" is derived). Similarly, centuries later, the Saxon fyrd required military service from every able-bodied freeman, and required him to supply his own weapons, armor and equipment. The Second Amendment reflects this tradition: it guarantees the individual right (per the operative clause) to keep and bear arms, to serve a collective purpose, namely to provide the state (acting on behalf of the populace) with a pool of citizen-soldiers, in possession of their own weapons and (presumably) the skill to use them effectively. This interpretation does carry with it certain implications which are likely to be ill-received by hard-line advocates of either one side of the issue or the other, even both.
First, if the purpose of private ownership of firearms is to provide "for the common defence," those weapons must be capable of serving a military purpose. What this means very much depends on the state of military technology at any given time, and changes in technology can invalidate existing statutes and jurisprudence. The National Firearms Act of 1934 (NFA) famously forbids unlicensed private ownership of machine guns (any firearm capable of firing more than one round with a single pull of the trigger), rifles with a barrel shorter than 16 inches (40 cm), shotguns with a barrel shorter than 18 inches (45 cm), and "destructive devices," meaning explosive weapons such as grenades and devices made to launch grenades. At the time, this was not inconsistent with the interpretation of the Second Amendment outlines above; the personal weapons in use with the armed forces at the time were predominantly the Springfield M1903 bolt-action rifle and the Colt M1911A1 semi-automatic pistol, and while pump-action shotguns were also quite common, these tended to have barrels of 20 inches in length. When in 1939, one Jack Miller asserted that the NFA was unconstitutional on the grounds that it infringed upon his "right to keep and bear" a sawed-off double-barrelled shotgun, the Supreme Court ruled (in my opinion, correctly at the time) against Miller, stating that "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." It should be noted that the reason this was not brought "within judicial notice" was because Miller fled trial and thus failed to present a defense. There are some gun ownership advocates who assert that Miller's sawed-off Stevens did have a legitimate (para)military purpose, and that if Miller had argued his case, the Supreme Court would have ruled in his favor and the body of American law pertaining to privately owned firearms would look very different today. I am far from convinced of this, and evidently, so was Jack Miller.
Sixty-odd years later, however, one of the most common personal weapons in use by American forces is the M4 carbine, a selective-fire weapon (i.e. a "machine gun" under the NFA) with a barrel length of 14.5 inches (37 cm). A common accessory to the M4 is the "Master Key": a pump-action shotgun with a 10-inch barrel mounted under the carbine's forestock, and used primarily for "breaching" (i.e. opening doors by shooting off the lock or the hinges). Another common configuration mounts an M203 40mm grenade launcher in the same location. In and of itself, the M4 presents a twofold violation of the NFA, and with the "Master Key" or M203 added, a threefold one; nevertheless, since it currently serves a well established military purpose, I contend that it should be not be illegal for an individual citizen to own such a weapon.
Now, I'm not the first person to make this argument, and I have often seen it met with a response intended to be a reductio ad absurdum, along the lines of "by your logic, private citizens should be allowed to own nuclear weapons." There may be some extreme libertarians who would indeed argue just that, but in the real world, certain types of weapons are subject to international arms control treaties. If the purpose of the individual right to keep and bear arms is to provide for the common defense, it follows that an armed private citizen is a potential state actor, and he is thus subject to the same restrictions as the state he may be called upon to serve. Weapons of mass destruction, but also conventional "heavy weapons" (such as armored fighting vehicles, large caliber artillery systems, combat aircraft, attack helicopters, warships, missiles and missile launchers) and "Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects" (as the Convention on Certain Conventional Weapons puts it) are the subject of various international agreements, and there is a case to be made that, for the sake of ensuring compliance with such agreements, the government may legitimately restrict private citizens to owning small arms, and possibly light crew-served weapons such as machine guns and mortars. There is, however, no legitimate reason to restrict certain weapons on the basis that they have "no sporting purpose." The justification clause makes it evident that the Second Amendment does not exist for the purpose of guaranteeing citizens access to weapons for the purpose of recreation or acquisition of food (even though the weapons in question might be used for those purposes as well).
By extension, however, it follows that weapons which are suitable only for sporting purposes are not necessarily covered by the Second Amendment. There is little use for an over-under double-barrelled shotgun or a .22 LR target pistol (of the kind with elaborately shaped anatomical grips, adjustable weights, electronic triggers and whatnot) on the modern battlefield. Certain hunting rifles might be pressed into service as sniper rifles, but no army can consist entirely of snipers. Article I, section 8 of the Constitution grants Congress the power "to provide for organizing, arming, and disciplining, the militia"; thus, the federal government has a legitimate role in dictating the types of weapons it considers suitable for militia service, and to determine the calibers of ammunition such weapons must be capable of firing. In the event of a national emergency requiring the mustering of state militias, some or all of those bodies are liable to be in the field long enough to require their ammunition to be resupplied. For ease of logistics, it would be necessary that the militias' weapons required only a limited number of different calibers, preferably ones which the federal government already has in stock. At present, the small arms used by the American standing armed forces use a limited range of calibers: 9x19mm and .45 ACP for sidearms and submachine guns; 12 gauge for shotguns; 5.56x45mm, 6.8x43mm, 7.62x51mm and 12.7x99mm for rifles and machine guns. For the sake of compatibility, militia members' weapons should also use these calibers. It is not helpful to the common defense if the militia shows up with a bunch of weapons in esoteric (i.e. non-government-issue) calibers which would excessively strain the governmental acquisitions and logistics system to keep resupplied, especially during a state of emergency. Conceivably, then, the government might legitimately outlaw the ownership of any weapons not in these calibers. Whether doing do would serve any useful purpose, however, is another matter. From the point of view of one who advocates gun control (ostensibly) in the interest of public safety, it should matter little if a gun owner keeps weapons which do not conform to "militia-suitable" specifications in addition to weapons which do, especially if the former are no more lethal than the latter. There is little point in prohibiting the sale and/or ownership of SKS rifles to prevent private citizens from potentially using them for criminal ends, in a situation where those same citizens have constitutionally guaranteed access to bona fide assault rifles (in the correct sense of that term) with which they might commit those potential crimes instead, possibly with greater effect.
In concluding this first installment, I should make it clear that what I have argued thus far reflects what I believe to be a correct interpretation of the Second Amendment; that, in principle, it guarantees the right of private citizens to own firearms, including ones might call "military-grade," but that it also grants the federal government a measure of authority to regulate the time, place and/or manner in which arms may be kept and borne. This is not to say, however, that I necessarily consider this to be a desirable state of affairs, but what I—or anyone else—would like the law to say and what it actually says are two different things. This, and other issues (such as the putative right to self-defense), will be addressed in forthcoming installments.
* - I am familiar with professor Eugene Volokh's 1998 testimony to the Senate Subcommittee on the Constitution, in which he argues that justification clauses may be readily found in other legislation of the period. Compelling as this argument may seem on its face, it is ultimately irrelevant, as it does not alter the fact that justification clauses do not appear anywhere else in the Bill of Rights. It is also less than impressive that the example he cites to illustrate his point is from 1842, over fifty years after the adoption of the Bill of Rights; this is hardly "contemporaneous."
