Does the Second Amendment include the right to own Military-type Firearms?
This question arises from time to time in debates on gun control. Recently, the topic was raised in conjunction with a court case “casting doubt” on Maryland’s new assault weapons ban. The Washington Post has the story. An appeals court panel of judges found (2 to 1) that the Maryland law “significantly burdens the exercise of the right to arm oneself at home”.
But proponents of the law argued that the Second Amendment does not include the right to bear the type of arms used in military conflicts. The Maryland Attorney General said: “I think it’s just common sense that the Second Amendment does not give people a right to own military-style assault weapons”. And the lone dissenting judge wrote: “Let’s be real: The assault weapons banned by Maryland’s [law] are exceptionally lethal weapons of war”, and therefore, he concluded, are not protected by the Second Amendment.
Which side is right? Perhaps we should actually look at the wording of the Amendment itself:
“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
I. First, I notice that the amendment begins by referencing the military use of arms: “a well-regulated militia”. One reason for this amendment is so that the people will have firearms in their possession, which can be used in defense of the freedom of the nation. In many conflicts in past centuries, soldiers brought their own weapons to the battle. The second amendment proposes that, if the people keep arms, they can potentially use those arms in warfare on behalf of the state.
And this idea was particularly relevant in the case of the newly-formed nation of the United States, since we had to fight for our freedom against British soldiers. Before the United States existed, how could we depend on a standing army to defend us? The standing army was the British army, our opponents in the American Revolution. So then, where did our soldiers get their weapons in that war? Often, they used their own firearms, which they had been using for hunting and self-defense.
Now you might say that we no longer need to keep arms, so as to bring them from private ownership to war on behalf of the nation. But the rise of terrorism, in which citizens of the United States have been repeatedly attacked, and may at any time or place be attacked again, by a non-State group hostile to our way of life, represent a type of warfare — as people often say: the war against terrorism. Terrorist groups and individuals are making war against us by terrorist acts, using weapons of war. And we cannot have a sufficiently large and omnipresent military force, within our own nation, to defend against this threat. Lawfully armed citizens fulfill one purpose of the second amendment: to own firearms that may be used to defend the nation.
II. A second reason for the militia clause is found in the phrasing “well-regulated”. The troops are well-regulated when they know how to use their weapons effectively. The phrase speaks to the competency of the soldiers. If the people keep and bear arms, then when there is a war, they will already know how to use firearms. Their familiarity with firearms makes the nation better able to raise an army, in times of war, with competent soldiers.
And that is still true today. If there ever again is a war we must fight to save the nation from destruction or subjugation, what will happen if by then we have become a nation of gun-phobic pacifists, who have no experience with firearms? We will not be able to win that war. One of the reasons for the militia clause is so that the general population will include many persons who know how to use the types of weapons used in war.
Yes, the same types of weapons used in war should be owned by some members of the general population, so that our nation is better able to defend itself from threats within and without.
III. Third, the second amendment uses the term “arms”, which was typically used to refer to the weapons used by soldiers. It is a military term. If the founders of this nation intended military arms to be used only by soldiers on active duty, they would not have used the term “arms”, or they would have put that restriction in the amendment.
IV. And the fourth indication that the Second Amendment includes the right to own military-type weapons is found in the very last phrase: “shall not be infringed”. Other amendments prohibit denying (9th amendment) or violating (4th amendment) a right. But the second amendment prohibits even an infringement, which is a lesser degree than outright denial. Thus, if the people are permitted to keep and bear only a limited subset of firearms, such as only non-military type weapons, the right is not denied, but it is infringed.
So the Second Amendment to the Constitution does specifically give citizens the right to keep and bear military-type firearms.
By – Thoreau
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