So now that the President has repeated the whole “you can’t fight the federal government without fighter jets and nukes” line that has become increasingly popular with the gun control crowd, I’ve seen a lot of folks offering up their version of the Second Amendment and why it doesn’t apply to “military weapons”.
These people are, of course, talking out of their ass, but we’ll get to that.
Misreading the Second Amendment is almost a religion to some people; no matter how you explain it to them, no matter how carefully you break it down, or set it in historical context, or simplify the language, they will insist that their reading is the only correct reading.
Having said that, I will now discuss why their interpretation of the amendment is wrong and mine is the only valid reading.
“The Second Amendment allows the establishment of a state militia, so if you want to carry a gun you should join the National Guard!”
This one I can… kinda understand, to a limited extent. After all, the amendment does have that bit in it about a well regulated militia (which doesn’t mean what you might think, but we’ll get to that later), but the fact remains that it is not a correct reading.
The simplest reason as to why it’s wrong is found by just reading it. It doesn’t say “the right of the people to join the militia shall not be infringed”, it says to the right of the people to keep and bear arms shall not be infringed. Yes, it mentions a militia, but the right is conferred to the people.
The exact phrasing of the amendment renders the prefatory clause (well regulated militia) irrelevant to the right in question, because it is not granted to the state. John Paul Stevens argued that the amendment could be… amended, adding the phrase “when serving in the militia”, but the fact that he even made the statement underlines the point that, as written, membership in the militia is not a requirement for firearms ownership.
“It says a well regulated militia, so we can regulate certain types of firearms out of existence!”
That may be what it says, but that’s not what it means, because you don’t understand what “well regulated” means.
A well regulated militia is one that meets and trains on a regular basis, that has a defined command structure, not one that sails across an ocean of paperwork and red tape in order to own firearms. It defines the difference between some sort of emergency call-up of every male capable of bearing arms (what we might consider a “militia” these days) and what the framers of the Constitution decided would be the model for the federal and state governments to have a standing military force.
Which is to say that they wouldn’t have one.
The Constitution is actually very particular in this matter regarding the federal government. Congress was granted the power to keep and maintain a navy, but only the power to raise an army. Not to have one around at all times.
It’s one of those things we’ve let fall by the wayside because after the Second World War it became rather obvious that the age of raising an army was pretty much over, since by the time you got to that step you could have German tanks rolling into Paris.
“The Second Amendment was intended to apply only to weapons used for hunting!”
There’s literally nothing in the amendment itself or the historical context surrounding it that offers any credence to this reading, it is therefor bad and you should feel bad for repeating it.
“You weren’t allowed to own cannons during the Revolutionary War, so you can’t own an assault rifle today!”
People did not, as a general rule, own private cannon because that shit was expensive, and aside from foment insurrection there wasn’t a whole hell of a lot the average citizen could do with one.
Privateers, on the other hand, owned a hell of a lot of cannon and put them to use on a regular basis. Cannon were an investment for people who sailed around and engaged in state-sanctioned piracy. Doing so without cannon was a risky endeavor at best, since as a general rule you’d want to make sure that the merchant vessel you were sailing up on wasn’t inclined to offer resistance, and one guy with a swivel gun on the rail could make your life miserable and/or relatively brief if there wasn’t an imbalance of power once you got in position to board.
Private militias of the day also owned cannon, when sufficiently funded, and the fact that the average individual simply lacked the means to do so should not be taken as a restriction on the rights of those that did.
“The Second Amendment only applies to the federal governments; states can restrict the right to bear arms in any way they see fit!”
This one is trickier, because it runs face-first into a much broader range of issues regarding supremacy of federal vs state laws, conflicts of competing rights, and the question of whether some rights are simply beyond the reach of any state to infringe upon.
Incidentally, anyone who uses US v Cruikshank as an argument for why state governments can regulate firearms can piss up a fucking rope as far as I’m concerned. It would be akin to using Dred Scott v Sandford in a modern legal opinion, something I think we can all agree would be absolutely odious.
Recent Supreme Court decisions have functionally established the right to bear arms as a fundamental right, something that the current administration should be both aware of, and wary of, given that it means bringing potentially significant gun control legislation before the Court at this time presents the danger of a more encompassing precedent regarding what constitutes infringement, because the key part about fundamental rights is that they are considered by the court to apply to every level of government, from federal to local.
So no, the states cannot regulate away the Second Amendment.
“The right to bear arms is irrelevant in the face of overwhelming federal power, and as such you should just give up your guns and submit.”
This one exists in a special place of its own.
Because this one is dangerous.
This argument undermines the foundational principles of the United States itself. The British Empire was literally the embodiment of overwhelming power compared to the fledgling United States, after all.
This argument is also a crock of shit for reasons that anyone who studies asymmetric warfare is well aware of.
The average citizen may not have “F-15s and nuclear weapons”, but despite the tacit threat by our President to nuke insurrectionists, in the real world you’d have a hard time making the Army fight against American citizens, and even if you did, you’d have a remarkably difficult time enforcing your will when every time one of your appointed officials went out the door they risked getting shot.
California passed the Mulford Act because the Black Panthers were making police nervous, after all.
Armed insurrection may not be capable of defeating overwhelming military force in the open field, but that doesn’t mean it is not effective in rendering a people functionally ungovernable.
Unarmed insurrection, on the other hand, is substantially easier to quell.