I’m allergic to carrying out social policy arguments through the medium of Constitutional law, and a skeptic about “originalist” theories of Constitutional interpretation. Still, all Americans ought to acknowledge some sort of allegiance to the deal embodied in the founding document, and textual analysis must have some relevance to determining what that deal meant.
The meaning of the Second Amendment is controversial largely because of the underlying quarrel about gun control. At a textual level, though, the dispute revolves around the meaning of the introductory subordinate clause about “a well-regulated militia.”
The gun controllers would like “militia” to mean “state-sponsored reserve troops,” or what we now call the National Guard. The gun-rights folks would like it to mean what it seems to have meant in 1791, which is the whole body of (male) adult citizens, privately armed but available for collective defense.
If the latter is the right interpretation, then the “right of the people to keep and bear arms” as part of the militia would be an individual right, and a ban on private gun ownership, however desirable socially (for my doubts on that issue, see here), would face a Constitutional bar.
Let me assume, arguendo, that the gun-rights people have the rights of this textual issue. There remains the question of what arms an individual militia member may lawfully keep and bear. Not, presumably, a nuclear weapon, a tank, or a batch of anthrax spores.
The following argument occurred to me; having checked it out with a Second Amendment scholar on the gun-rights side of the question, who did not collapse in uncontrollable laughter, I offer it to the world, or at least to the blogosphere, for what it may be worth. As usual, I write under the correction of those who know more than I on this topic, and will pass their wisdom along to my readers. Here goes, then:
A militia member fights as a soldier, with whatever arms are conventional at the time, and fights lawfully according to the laws of war at the time.
A side-arm is not a weapon of war, because it lacks the range to strike the enemy. No private soldier carries one. Side-arms are for officers, to threaten, or if need be to shoot, disobedient subordinates. The rank-and-file carry long guns.
Moreover, to be lawful, a weapon must be carried openly. A concealed weapon is carried by a spy or an assassin, who can be executed as an “unlawful combatant.”
Ergo, a handgun is not a militia weapon, and in particular a concealed handgun is not a militia weapon.
Ergo, the Second Amendment provides no guarantee of an individual right to own handguns, or to carry them concealed.
Now this proves way too much for the comfort of the gun controllers; under this theory, a fully automatic AR-15 or a rocket-propelled grenade launcher would be militia weapons, as would the fabled “assault rifles.” But, if valid, the argument suggests that handgun controls are likely to pass constitutional muster. And of course it’s handgun controls, and especially rules about concealed carry, that are now at the center of the political argument.
Of course, even if this argument shows that handgun controls, or even a ban on any handgun ownership by individuals, would face no Constitutional bar, it can’t show (what may in fact be false) that any given control measure would improve public safety. But it does suggest that if the National Rifle Association wants to defend the Second Amendment, it ought to remember the meaning of the term “rifle.
Dwight Meredith of P.L.A. provides a link to his post reviewing the scholarly literature on the general Second Amendment question, with several links, including one to a piece by Glenn Reynolds in his law-professor hat. Meredith argues that Supreme Court recognition of an individual right to keep and bear arms would be good for the gun control forces, because:
1. The right, if construed as Reynolds construes it, in terms of an individual right to keep and bear that exists primarily for the purpose of militia service, would be subject to any reasonable restriction that did not amount to disarming the people. This, says Meredith, would allow the gun controllers anything they could reasonably want, and much they wouldn’t even thing about asking for.
2. A Supreme Court decision would, he says, help de-mobilize gun rights advocates politically by giving individual gun owners assurance that their weapons could not be confiscated. (This instantiates one of Eugene Volokh’s proposed solutions to the generalized “slippery slope” problem.)
The article by Reynolds asserts that the right to keep and bear is limited to weapons ordinarily used by soldiers, and points out that “assault rifles” are therefore squarely protected. But he doesn’t directly address the hand gun/long gun distinction.
More to come, no doubt.
SECOND UPDATE AND CORRECTION
Glenn Reynolds responds. It seems we more or less agree, though he suggests that one could plausibly distinguish (as Tennessee jurisprudence apparently does) between “military” and “criminal” handguns. Again, if Reynolds and Meredith are right, such a distinction would be good news politically for the gun-control forces: if in fact a Constitutionally protected right to keep and bear would weaken the gun-rights groups politically, a finding that the right existed but didn’t apply to handguns would undo that benefit.
It is therefore, perhaps, fortunate (from the viewpoint of gun controllers) that I seem to have been wrong about the military use of handguns. I was aware that officers and MPs carry sidearms, and that privates and non-coms are issued sidearms for self-defense while carrying out either non-combat assignments in or near combat zones or combat assignments (as combat engineers, tank crews, those operating crew-served weapons) where long guns would be in the way. None of those seem to me relevant to the notion of a militia, thought of as a group of ordinary citizens assembling ad hoc for local defense.
But there are also, several correspondents inform me, significant numbers of cases in which ordinary combat soldiers need, and use, handguns as offensive weapons (in house-to-house or tunnel fighting, for example.) One reader reports:
I carried a sidearm, as a mid-level enlisted man, just last year in Central Asia. It was there in those cases when I could not carry a rifle. I was issued both, BTW, and I chose which to bear according to the situation.
That being the case, the handgun/long gun distinction can’t be made to do the work I proposed for it.
On the other hand, the concealed weapons idea seems to be on firmer ground. (One reader pointed out that a resistance unit might need concealed weapons, but such forces are not, in general, lawful combatants, however much we admire the work they do.)
Thanks to my correspondents for improving my state of knowledge.