In any given debate on the 2nd Amendment between the Right and Left, the unfortunate truth is that those arguing in favor of drastically heightened or “comprehensive” gun control tend not to know their history or anything about guns generally, and they find it difficult to articulate why a blanket ban on all guns wouldn’t be more productive than simply outlawing certain rifles.
But for a much more nuanced discussion of the unalienable right to keep and bear arms, you’re doing yourself a disservice if you’ve never heard a debate between dissenting Right-wing voices. Typically, this will materialize between a libertarian (arguing for as little government as possible) and a conservative (defending natural rights while attempting to maximize freedom through limited yet necessary order).
For purposes of this breakdown, my goal is to simply and briefly present the case for each of these two camps, not to argue in favor of one or another. Again, when two parties hold such similar worldviews, any disagreements will depend on greater levels of nuance than simply “you can’t own a gun” vs. “you can own all the guns.” As such, this might not be the best introduction to the topic, nor would it be very productive to share with your Left-leaning friends. But if you’re a libertarian or a conservative and wish to iron out where you stand on the 2nd Amendment and the appropriate regulation of firearms, then I hope you’ll find this discussion profitable.
(For more background on the 2nd Amendment generally, listen to this episode of The New Guards Podcast wherein I describe the Founders’ views on the right to bear arms.)
Like any right, the right to keep and bear arms must be respected and upheld, but that doesn’t mean it’s absolute. In general, the appropriate standard for small, justifiable restrictions on rights is the maximization of freedom through the proper response to public safety issues.
For instance, free speech doesn’t apply to those who demonstrate a clear and present danger, specifically one involving a call to action that involves intent, likelihood, and imminence. Religious freedom does not protect female genital mutilation, suicide bombings, or human sacrifice. Regarding taxation in general, citizens are required to “cede to [the government] some of their natural rights in order to vest it with requisite powers.”
The 2nd Amendment is no different, and early lawmakers and Founding Fathers understood this. William Blackstone and James Wilson both supported 14th-Century English precedent which asserted, “Riding or Going Arm’d with dangerous and unusual Weapons to the Terror of the People, is an Offence at Common Law, and Prohibited by Statute” — or, as Wilson specifically noted, “[carrying] dangerous and unusual weapons, in such a manner, as will naturally diffuse a terrour among the people.”
This standard was upheld in Justice Antonin Scalia’s majority opinion in D.C. v. Heller, along with 1939’s United States v. Miller precedent, that “the traditional militia was formed from a pool of men bringing arms ‘in common use at the time’ for lawful purposes like self-defense.”
In other words, the 2nd Amendment may be curbed in small ways to ensure the public safety, to avoid diffusing terror among the people, and to limit its protection to weapons in common usage. Herein we find the justification for banning nukes, tanks, RPGs, grenades, and fully automatic weapons like AK-47s and M-16s, which present more of a hazard to public safety than a reasonable check against tyranny.
Another check in favor of public safety is federal background checks, which is a small grievance compared with the extreme risk posed by granting violent felons unlimited access to firearms.
Finally, while the undeniable purpose of the 2nd Amendment is to secure the right of the people in order to stand up against a tyrannical government, this can be done without the aid of such extreme measures. If the War on Terror, Vietnam, and most importantly the Revolutionary War have taught us anything, it’s not to count out the little guy.
Not all libertarians are anarchists. #NotAllLibertarians. There’s nothing wrong with reasonable restrictions such as those mentioned for free speech, religious liberty, and minimal taxation.
But the phrase “dangerous and unusual” is entirely subjective. Arguably, all firearms are dangerous, and depending on experience, training, and even video game history, a gun that is unusual to some might be perfectly normal to others.
Furthermore, the “common use” test is so slippery that could readily increase dangers to the American public and needlessly restrict natural rights. A gun should not be banned simply because it is has fallen out of style or is ahead of its time, any more than free speech should no longer apply to MySpace, telegrams, and rotary phones. Who deems a commodity “common”? And what of gun collectors, whose trade relies precisely on obtaining that which is not common? Are they no longer entitled to keep their uncommon arms?
Nuclear weapons have nothing to do with this conversation. The purpose of the 2nd Amendment is for the people to adequately defend itself against a tyrannical government. There is no instance in which the people could use nukes against the government without incurring devastating casualties among civilians.
Fully automatic weapons and explosives are a different story. The Founders knew of and sanctioned early automatic weapons such as the Belton flintlock, Puckle gun, and Girandoni air rifle. In 2013, Ben Shapiro erroneously claimed that the 2nd Amendment didn’t extend to owning cannons, but James Madison recognized this very provision in 1812.
Modern semi-automatic rifles are undeniably protected under the 2nd Amendment despite being far more advanced than muskets. Wouldn’t it then stand to reason that an AR-15 is to a musket as an M-16 is to a Belton flintlock or as an RPG is to a cannon?
There is no public safety without the ability to confidently stand against a tyrannical government. Such an occasion is unlikely, but should it become necessary, that’s not the kind of thing to leave to chance. The American people must be suitably armed.
Bring it back in:
This is a compelling debate that I don’t quite know how to settle, and it’s not my intention to do so now. And in all honesty, given that millions of Americans and half the Supreme Court want a total gun confiscation anyway, this is pretty much just a hypothetical exercise in debate rather than a serious referendum on realistic policy.
At the very least, it’s a good space to practice consistency in your constitutional argumentation, so enjoy the practice!