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.
• 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).