Why the Sec­ond Amendment pro­tects the AR-15

The ri­fle is the modern equiv­a­lent car­ried by the Framers’ ‘well reg­u­lated mili­tia’

The Washington Times Daily - - OPINION - By David Dem­ing David Dem­ing is pro­fes­sor of arts and sciences at the Univer­sity of Ok­la­homa, and is the au­thor of “Sci­ence and Tech­nol­ogy in World His­tory” (McFar­land, 2016).

For decades the fed­eral ju­di­ciary has been try­ing to in­ter­pret the Sec­ond Amendment out of the Constitution. It is, as San­ford Levin­son has termed it, an “em­bar­rass­ment” to an elite class of le­gal schol­ars that finds firearms to be un­usual and re­pul­sive ob­jects. Now the 4th U.S. Cir­cuit Court of Ap­peals has de­clared that the semi-au­to­matic AR-15 ri­fle is not cov­ered by the Sec­ond Amendment, de­spite that fact that is the most com­mon ri­fle sold in the United States. This ex­e­crable de­ci­sion is the lat­est out­rage in a long se­ries of disin­gen­u­ous ju­di­cial con­tor­tions.

The courts have never come to terms with the fact that any in­tel­li­gi­ble read­ing of the Sec­ond Amendment re­quires an in­ter­pre­ta­tion that ac­knowl­edges and rec­on­ciles its two clauses. The op­er­a­tive clause speaks of the “right of the peo­ple,” while the prefa­tory clause jus­ti­fies the op­er­a­tive clause by pro­fess­ing that a “well reg­u­lated mili­tia” is “nec­es­sary to the se­cu­rity of a free state.”

Prior to the Heller de­ci­sion by the Supreme Court (2008), for 60 years or more the fed­eral ju­di­ciary al­most unan­i­mously ruled that the Sec­ond Amendment did not guar­an­tee an in­di­vid­ual right. The mili­tia men­tioned in the prefa­tory clause was taken to be the Na­tional Guard. Thus, the right de­scribed in the op­er­a­tive clause was in­ter­preted to be the right of states to main­tain mili­tia. This in­ter­pre­ta­tion was never cred­i­ble be­cause it ex­cised the Sec­ond Amendment from its con­tex­tual and his­tor­i­cal un­der­pin­nings.

In the Heller de­ci­sion, the Supreme Court stated un­equiv­o­cally for the first time that the Sec­ond Amendment pro­tects an in­di­vid­ual right. But Heller was badly flawed. Re­vers­ing decades of prece­dent by lower courts, the Supreme Court read the prefa­tory mili­tia clause out of the Sec­ond Amendment and in­ter­preted the op­er­a­tive clause to pro­tect a per­sonal right. While find­ing that peo­ple have a right to keep a hand­gun at home for the pur­pose of self-de­fense, the court noted in pass­ing that “dan­ger­ous and un­usual weapons” were not cov­ered by the Sec­ond Amendment. But they failed to ex­plain what these might be. The Heller court went so far as to sug­gest that “weapons most use­ful in mil­i­tary ser­vice — M-16 ri­fles and the like — may be banned.” Al­though the Heller de­ci­sion es­tab­lished an in­di­vid­ual right, it also opened the door for lower courts to up­hold any statute that banned “dan­ger­ous” weapons or those that might be use­ful “in mil­i­tary ser­vice.” The flaw is ob­vi­ous when one rec­og­nizes that vir­tu­ally all weapons are po­ten­tially dan­ger­ous and use­ful in mil­i­tary ap­pli­ca­tions.

Thus, we ar­rive at the 4th Cir­cuit de­ci­sion that even though AR-15 ri­fles are com­mon­place, they may be banned be­cause they are “like” M-16s and “use­ful in mil­i­tary ser­vice.” As the dis­sent­ing judges noted, this cu­ri­ous logic would have made it pos­si­ble to ban the mus­kets and ri­fles used by cit­i­zen mili­tia dur­ing the Revo­lu­tion­ary War. But why stop there? Hand­guns are stan­dard-is­sue mil­i­tary weapons. Shot­guns and bolt-ac­tion ri­fles have been em­ployed by the U.S. mil­i­tary. At one time or place, vir­tu­ally every weapon has been used by the mil­i­tary, in­clud­ing knives and tom­a­hawks. The ir­re­sistible con­clu­sion is that the Sec­ond Amendment pro­tects noth­ing.

The Sec­ond Amendment has never been re­con­dite, it is only the judges who have been ob­tuse. An in­tel­li­gi­ble in­ter­pre­ta­tion of the Sec­ond Amendment emerges the in­stant one rec­on­ciles the prefa­tory and op­er­a­tive clauses. In other words, the “mili­tia” de­scribed in the prefa­tory clause is a mili­tia com­posed of a peo­ple with a right to keep and bear arms. What type of arms? In 1939, the Supreme Court spoke ex­plic­itly to this. At the time the Sec­ond Amendment was adopted, men sum­moned to mili­tia duty were ex­pected “to ap­pear bear­ing arms supplied by them­selves and of the kind in com­mon use at the time.” The Amendment not only pro­tects weapons that might be use­ful in a mil­i­tary con­text, ar­guably it only pro­tects those weapons use­ful in mil­i­tary ser­vice. Thus, the 4th Cir­cuit Court was ex­actly and com­pletely wrong.

What weapons are ex­cluded? Those not in the com­mon us­age by an in­di­vid­ual cit­i­zen, such as poi­son gas or large ar­tillery pieces. The phrase used in Heller, “dan­ger­ous and un­usual,” is prop­erly un­der­stood to re­fer to weapons of mass de­struc­tion. For those who worry that this in­ter­pre­ta­tion would al­low the sale and pos­ses­sion of ma­chine guns, take note: There are cur­rently about a half-mil­lion reg­is­tered and trans­fer­able fully au­to­matic weapons owned by in­di­vid­u­als in the United States. Yet these are vir­tu­ally never mis­used.

Judge Neil Gor­such has re­cently re­minded us that good judges of­ten reach de­ci­sions they don’t like. Fed­eral judges have found in our Constitution rights to both abor­tion and gay mar­riage, sub­jects that never ap­pear. Per­haps they should con­sider ex­tend­ing the same lat­i­tude to an an­cient right that is ex­plic­itly pro­vided for.

What weapons are ex­cluded? Those not in the com­mon us­age by an in­di­vid­ual cit­i­zen, such as poi­son gas or large ar­tillery pieces. The phrase used in Heller, “dan­ger­ous and un­usual,” is prop­erly un­der­stood to re­fer to weapons of mass de­struc­tion.


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