Thursday, August 14, 2003

Shea's on the Gun-Control Warpath Again!

I love Mark Shea a lot, but one of the things that grits my teeth about the guy is his perplexity over my God-given and indubitable right to own assault rifles, grenades, sawed-off shotguns, Claymore mines, machine guns, and similar recreational equipment. Lately, Mark's been asking "Does the Second Amendment let people shoot down passenger airliners?" (That's not Mark's actual question, but I like pulling his leg). Joyce Malcolm, a distinguished scholar of early constitutional history who has no interest in gun ownership per se, has written a very intelligent and well-sourced book called To Keep and Bear Arms: The Origins of an Anglo-American Right. (Cambridge: Harvard University Press, 1994). Dr. Malcom marshals the historical evidence regarding the concept of a "militia" as the term is used in the Second Amendment, and concludes that the term means (my quotations) "the people, acting for the defense of the common good." The militia is not the Army, not the National Guard, and not the police. It is the people, acting for the defense of the common good. I'd point out that the United States Code accepts the same idea:
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are -
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
-- 10 U.S.C. § 311
Whether the militia is "well-regulated" depends largely on what society is willing to accept as regulation. In the 19th Century this involved regular drill, practice of military tactics, etc. Today one might argue that laws relating to gun-ownership (safety training, etc.) provide the same function.

What possible difference does that make? Well, the Constitution makes a sort of interesting and implicit distinction between the arms borne by the militia and other kinds of arms. The Constitution grants the power to maintain navies and armies solely to Congress. Art. I, § 8. This raises an interesting question whether the peoples' militia-based right to bear "arms" automatically entitles them to possess and maintain any weapons which are appropriate to the strategic and tactical war-fighting abilities of navies and armies. See, e.g., United States v. Miller, 307 U.S. 174 (1939) (upholding a conviction for possession of a short-barreled shotgun under the National Firearms Act of 1934 because there was no evidence in the record that such a firearm had "some reasonable relationship to the preservation or efficiency of a well regulated militia"). I don't know that the Second Amendment was ever interpreted to allow individuals to own and operate frigates or fortresses and, although artillery pieces were maintained by state militias, it's worth noting that (a) the "militia" conception behind the Second Amendment isn't identical with armed forces organized and maintained by any state; and (b) the Constitution forbids states from organizing military and naval units unless expressly authorized by Congress. (Art. 1 § 10). I haven't explored this line of thinking in any great detail, but it seems pretty well dispositive of silly arguments that the NRA ought consistently to lobby for private ownership of tanks, supersonic fighters, JDAMs, and atomic weapons.

It seems to me that the Second Amendment guarantees, at the very least, an individual right to own such arms as are conducive to the nature of a militia -- preserving public order, resisting tyranny, and presenting a hasty defense to incursions and insurrections while the army and navy mobilize. To this end I think it's quite permissible and even advisable to include machine guns and assault rifles (real ones, not the fakes Charles Schumer and Bill Clinton took such inordinate credit for "banning"), and grenades. To the question at hand I adopt Mark's anticipated reply: "Yes, it does! You got a problem with that?" Go ahead and make fun, Mark -- but bear in mind my remarks about what it can mean for a militia to be "well-regulated."


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