Today, I wanted to take a look at this article from the Washington Post. They are attempting to make the case that the Second Amendment allows for the banning of the AR-15, because it isn’t a weapon “that ordinary people carry on an ordinary basis for self-defense.” This article is as dishonest as usual when discussing the Second Amendment. What they have done here is said that the Second Amendment applies to weapons that the militia would carry, then twisted it to say that the modern interpretation doesn’t apply to any gun that you can’t carry concealed, meaning that you can’t carry hand grenades and rocket launchers, or AR-15s.
Logically, it should also exclude AR-15s, which are not commonly carried for self-defense.
Washington Post
Of course, the Heller decision never said that “common use” was restricted only to weapons that were carried for individual defense. It said used for common defense. That decision also glossed over what we are supposed to do when a law creates its own “common use” restriction. That is, what if a weapon isn’t in common use because an otherwise unconstitutional law has eliminated that weapon from being in common use? For example, machine guns might very well be in common use, if it weren’t for the fact that they have been restricted for a century, and outright banned for the past 37 years. It’s this sort of circular argument that the Bruen decision is addressing: Would the founding fathers have banned machine guns? I don’t think that they would have. After all, there were cannons and even entire warships that were in private hands at the time of ratification.
What’s really interesting about the Post article is that it signals a shift in anti-gunner philosophy. It looks as though they are finally giving in to the SCOTUS decisions. Sure, they take the time to trash talk the decision:
Modern gun rights jurisprudence began in 2008, when Justice Antonin Scalia wrote a Supreme Court opinion called District of Columbia v. Heller. That opinion featured the astonishing act (astonishing for an originalist, at least) of reinterpreting the original meaning of the Second Amendment. This took some jurisprudential jiu-jitsu. Scalia discounted the introductory clause that explains the purpose of amendment as ensuring a well-regulated militia. He shifted the meaning of the right to bear arms to personal self-defense.
Along the way, Scalia made up a new limitation for the newly created right.
Washington Post
The point here is that they are beginning to recognize that they have lost this part of the fight. What’s funny is that they go on to claim that the right doesn’t apply to hand grenades or tanks. I beg to differ. The law permits the private ownership of armored vehicles. We see them every day: they deliver money to your local grocery store. Granted, those are not armed with cannons and belt fed coaxial machine, guns, but they are currently owned.
I would argue that hand grenades would be permissible to own. I could easily see that using a hand grenade in a crowded subway would be just as illegal as emptying an entire handgun into a crowd. After all, indiscriminate weapon use that strikes six innocent people in order to hit one mugger is a bit ridiculous. However, using that same tactic against four armed men in your downstairs living room that are waiting to ambush you as you come down the stairs could easily be justified.
Similar cases can be made for owning a Javelin AT missile. There aren’t many cases where one would be useful to use in self defense, but that is a different story than simply owning one. It is important that we not conflate owning a weapon and actually firing it. Just as there is a difference between owning a 1911 and firing one at someone, a similar distinction exists for nearly any weapon, whether that weapon is a single shot .22, a missile launcher, or a hand grenade.
I would argue that the Second Amendment as it is written also permits nuclear weapons. If only there was a way that we could rewrite the Constitution to account for new technology… Perhaps a way to modify it. We could call it an Amendment. Perhaps we could, say, get a 2/3 majority of both houses of Congress and 3/4 of the state legislatures, and we could amend the Second Amendment to say: “shall not be infringed, but in no case will this permit the private ownership of nuclear weapons.”
But then, several decades from now, the left will be arguing that the AR-15 is actually the same as a nuclear weapon.
