With the author's blessing, I share the following piece here-- including its catchy title!
Another thread reminded me of a question that I have long pondered and been unable to answer. I view the National Firearms Act as clearly unconstitutional and a partial abridgment of the right to bear arms. It reduces the right to bear arms to the right to bear some arms. But the distinction between permitted and prohibited arms is seemingly arbitrary and without a connection to any real objective standard. How does a 14” barreled shotgun differ from a 18” barreled shotgun? If manufacturing a firearm that is compact and maneuverable is unlawful, then why can we still have handguns? If the power factor is the difference, then why can we have bullpups?
And yet there is something within the NFA that somehow seems reasonable to me. The Second Amendment was written as an absolute right, whereas the Fourth Amendment was written as a restriction against unreasonable searches and seizures. But—perhaps as the result of a faulty assumption within my worldview—I still wish to accept reasonable limits on the right to bear arms. Before ya’ll start looking for a length of rope, allow me to give some examples. I believe that it is reasonable to prohibit the civilian ownership of biological weapons such as ricin or anthrax. I believe it is reasonable to prohibit the civilian ownership of nuclear missiles. And yet these are arms, and we have a right to arms. If you view defense against a tyrannical government as a reason for possessing arms, then support for a right to own RPGs and nuclear submarines may be supportable. If you focus exclusively upon defense against street criminals, then the need for such weaponry falters.
Personally, I fear my government much more than street thugs. I have heard several liberal gun-grabbers bolster their argument for banning small arms by asserting the “futility of defense” theory, i.e. that our government is now so powerful that we can’t reasonably expect to defend ourselves with small arms anyway, so there is no real defense-against-tyranny support for the RKBA. I cannot completely dismiss this argument. But, rather than accepting their desire to confiscate everything, it just makes me think that we need more and bigger guns.
Somewhere between the pellet rifle and the Patriot missile, we must draw the line. What arms are reasonable? I first came to this question because I realized that I want hand grenades. Everyone scoffs at that. The most ardent defenders of the RKBA throw back their heads in laughter. It is viewed as an insane position. But why? What makes hand grenades different?
Discrimination. I have been told that it is because hand grenades are not discriminatory. That is incorrect—used properly, hand grenades are discriminatory. Soldiers don’t simply drop grenades everywhere they go. Grenades are chosen because the enemy is behind cover and otherwise unkillable. They are used only when they can be used to eliminate the enemy and simultaneously not present a threat to friendly troops. Used improperly, rifles are not discriminatory.
Training. I have been told that it is because it takes too much training to use a grenade. That is absurd. You first make sure that you are in a safe position from which to throw a grenade; that you have good cover so you don’t catch any of the shrapnel. Then you pull the pin and throw. That’s it. You have to know how far you can throw a grenade. How do you figure that out? Simple—grab a dummy and practice. Training is a red herring; just as much so for grenades as for CCW.
Danger. I have been told that grenades are just too dangerous. So what? Sharp sticks are dangerous. Guns are dangerous. A negligent discharge with a rifle can kill an innocent well over a mile away. A moron with a grenade presents virtually no danger to anyone one-hundred yards away. And what is the danger in doing nothing? What is more dangerous: lobbing a grenade or allowing the bad guy to continue shooting at me from around a corner?
The entire population of the free world seems to agree that my position on this issue is crazy. So please help me. What is the difference? What are the guiding principles that distinguish a grenade from a rifle? Why is the grenade not a legitimate tool of defense against both criminals and tyrants?
To help formulate a position on this issue, I have looked at a variety of stances on the RKBA that have predominated throughout the history of our nation. This is my own work, and I have created these categories based upon the inferences and presuppositions that can be read into the works of various statutes, court documents, judicial decisions and scholarly articles covering the subject. If you are unable to locate other authors who have treated the subject in similar fashion, it is because I may be the first to have done so.
I have divided the dominant schools on the RKBA into six categories: 1) Civilized Warfare, 2) the 19th Century, 3) Miller, 4) the Police Model, 5) the NRA Model (also called the Modern View), and 6) Halbrook. The Civilized Warfare model recognizes a RKBA for the purpose of calling forth an armed militia to wage war upon a battlefield. The 19th Century Model is complete laissez faire; the RKBA exists for the militia, for defense against bandits or tyrants, for sport, for pleasure or any other lawful purpose (although in practice it was denied to minority groups). The Miller model is based upon a strict reading of the judicial decision handed down in U.S. v. Miller. The Police Model regards the RKBA from the position of personal defense from non-governmental criminals. The NRA model is merely representative of the “popular” or “modern” perspective upon the RKBA, and is based solely upon the majority approval it receives and not upon any principled set of criteria. The Halbrook model is based upon the support for the RKBA that is presented by a significant set of constitutional scholars, including the notable Stephen Halbrook. The ideology that supports each model is reflected in the types of arms that are protected under each model.
I also divided the subject arms into various categories, some of which will seem rather benign to you and some of which may disturb your conscience. The nine categories of arms that I considered are: 1) crew-served machineguns, 2) single infantryman machineguns, 3) assault weapons, 4) hunting rifles, 5) full-size handguns, 6) small or inexpensive handguns, 7) sporting shotguns,
.22 rifles and pistols, 9) grenades, bombs, mines and artillery. This list is not comprehensive and my definitions are very broad. Some groups are representative of guns that would not ordinarily fall within the strict categorization. As an example, a short-barreled shotgun would be viewed in like fashion with an assault weapon by all models except the NRA model (which is the only model which reflects popular opinion rather than demonstrable criteria).
The simplest and most permissive model is the 19th Century view. All of the categories of arms are allowed in this model. Anything goes. Men are responsible for their actions, but there are no prior restraints upon the ownership of any firearm or weapon.
The Civilized Warfare view (similar to the theory put forward by Saul Cornell) provides a RKBA only for arms that have a place in war. Small, inexpensive handguns have no place on a modern battlefield, and therefore can be regulated or prohibited at will by the legislature. The same applies to sporting shotguns. No one would choose to go to war armed with a Browning Citori and a Beretta Jetfire, therefore the 2nd Amendment wasn’t intended to protect these arms.
(Note: Unprotected arms may still be allowed by the Congress. The fact that the 2nd Amendment does not provide a right to possess an arm does not preclude the Congress from choosing to extend a privilege to own such arms. Additionally, all of these models presume a positivist position of the law—the idea that the 2nd Amendment creates a RKBA rather than merely recognizing a pre-existing and inalienable right.)
The Miller model is the most surprising to those with an introductory knowledge of Second Amendment jurisprudence. The Miller case is probably the most often mis-cited and misrepresented case in the Supreme Court’s history. It is lauded as the case which affirmed the federal government’s authority to regulate firearms. But the holding of the case is much more narrow than that which is normally cited. The majority decision, issued by Justice McReynolds, held only that the government was free to regulate those firearms which were “not part of any ordinary military equipment” and “could not contribute to the common defense.” U.S. v. Miller, 307 U.S. 174, 177 (1939). The firearm in question was a short-barreled shotgun. At the District Court, the judges took it under judicial notice that short-barreled shotguns had a military application. Those judges were veterans of the Great War, and had seen shotguns used to great effect in the trenches. The Supreme Court however was not comprised of men of valor. Justice McReynolds unilluminatingly states that there was “an absence of any evidence” that such an arm had an application to the military. (Id.) What the record fails to disclose was that no attorney represented the defendants in oral argument or in brief to the Supreme Court! There was no evidence in support of the defense because only the State put on any evidence. This is damning enough in and of itself, but even in this kangaroo court Justice McReynolds specifically limited the authority of the federal government to regulate those arms which had no relation to the military. This means that under Miller, as under the Civilized Warfare model, the government would be free to tax, regulate or (possibly) prohibit engraved double guns and Olympic target pistols, but that the people retained the right to any guns which had a place in warfare. This is still good precedent in the U.S., and logically should support ownership of M-16s, M-249s, M-2s, SAMs, grenades and any other item in the full complement of arms that our soldiers have to choose from. The Miller model may or may not protect the right to possess .22 rifles and pistols. Because these firearms are sometimes used to train troops, they may be protected.
The Police model embraces protection for those arms that can be effectively used to prevent crime. An individual infantryman’s machinegun would probably be protected (many agencies issue the M-16), but not a crew-served machinegun because it isn’t useful in a civilian police role (they are too cumbersome to be used for reactive defense). Unlike Miller or the Civilized Warfare models, the Police model recognizes a right to possess small or inexpensive handguns. But it still does not recognize a right to sporting shotguns or grenades/bombs/mines/artillery. The police model may require further refinement of the definitions, because it would actually support the ownership of flash-bang grenades, but would not protect fragmentation grenades. However, current federal law does not distinguish between the two.
The NRA model simply reflects the current assumptions. Machineguns—both individual and crew-served—are not protected. Grenades, et al, are not protected. Assault weapons must be further defined in this model. Guns that are merely cosmetically different from sporting rifles, but which have been modified so as to limit themselves to a reduced (semi-auto) rate of fire, are protected. But true military rifles which retain the ability to fire fully-automatic are not protected. Additionally, this model accepts the arbitrary barrel length determination of the NFA. A 16” barreled rifle is fine, while a 16” barreled shotgun is morally culpable. Unlike previous models, the NRA model or Modern view places great importance on the right to possess sporting arms which have no utility in war or defense. Firearms are lauded for their beauty and are protected for their ability to entertain us rather than to defend us.
The Halbrook model is closest to the NRA model, but reaches somewhat further in that it still looks to a military/defense use for arms, limiting this role though to an individual infantryman’s arms. The right to a machinegun is recognized, but not a crew-served machinegun. Additionally, unlike the NRA model, the protection of assault weapons would likely include short-barreled rifles and shotguns. Despite a connection being drawn to the individual infantryman, the Halbrook model still dismisses a right to grenades and explosives, despite the fact that these are standard kit for an infantryman.
There are currently no serious constitutional scholars supporting an inalienable right to bear arms that is inherent in man and which cannot be erased by legislative or judicial decree. Only a few of us Christian lunatics cling to this idea.
It may be that none of the models listed here are representative of your outlook. But you must be aware of your worldview and prior assumptions when you are addressing this question. Have you simply adopted the logically-inconsistent NRA view? If you base your support for the RKBA upon the Civilized Warfare or 19th Century model, then how can you not support a right to own grenades? If you believe that you have a right to own that high-polished, over-under quail gun, do you base that in a 19th Century view or the NRA view? In a country whose food problem is in having too much of it, can we distinguish the value of a sporting shotgun from that of a bicycle or racecar—aren’t they all just toys that we amuse ourselves with rather than tools which are necessary for sustenance or freedom?
Virtute et Armis,