Is There a Second Amendment Right to Own a Machine Gun?
27 Responses to Is There a Second Amendment Right to Own a Machine Gun?
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DSP says:
The Bill of RIGHTS protects principles not particular, contingent, time-bound applications of those principles. The founders had no way of anticipating many developments. Consider electronic communications. The founders had no way to anticipate them. Does that mean the US federal government has unlimited power to wiretap? Ridiculous. Wright has a nice, substance-free talking point to fool the stupid.
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Mark in LA says:
There must be if the National Firearms Act of 1934 only made them controlled through a taxing scheme. Why didn’t Congress just outlaw them and wait for a Supreme Court challenge?
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Chris Mallory says:
Yes, next question?
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libfreak48 says:
Is there a 2nd amendment right to own an RPG?
Is there a 2nd amendment right to own a bazooka?
Is there a 2nd amendment right to own a tank?
Attack helicopter?
Fighter-bomber?
Howitzer?
Nuclear weapon?Logic ad absurdum…
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George DeBaby says:
No. The only right is the right to bare arms for the militia. That was the intent. Beyond that, the morphing of the 2nd Amendment is out of control.
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Mr. Patrick says:
Mr. Wright is pitifully weak, obviously jarred by emotion. On the other hand, Mr. Sullum is absolutely wrong in his history surrounding the right to bear arms in the Founders’ time. Not because he is more radical than the founders in supporting the private ownership of machine guns, but because he posits any limit whatsoever to the Second Amendment after deleting its first (sequential) clause.
The “shot heard round the world” was fired at British soldiers attempting to secure an armory that belonged to a town militia at Concord, Mass., not the Crown, which contained privately owned artillery pieces. So there is no reasonable “original intent” limit to non-crew served weaponry portable by a single man. Of course, because an squad automatic weapon (MG) is usually served and its components, including extra barrels and ammo, carried by a pair of men, the point is fairly moot in that a machine gun is itself a crew-served weapon and if Mr. Sullum regards his own criteria seriously, he ought to be opposed to its private ownership.
Mr. Sullum and “original intent” proponents who insist on ignoring the concept of a regulated militia subject to military discipline, including training, screening, and a legal obligation to obey civil and military authority as embodied in the actual text of the Second Amendment, do not have any logical brakes to apply to the right of weapons ownership. Nothing, according to Mr. Sullum’s logic when placed in actual historical context while simultaneously stripping out the first clause, should be illegal for private ownership, from automatic rifles up to and including thermonuclear devices.
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Mike MacLeod says:
Sure. I adhere to the POV that the Second Amendment is worded specifically to allow civilian ownership of whatever the State feels it needs to protect itself, as last-ditch political control on the State’s behavior.
For starters, what is the biggest US military weapon under the control of a single man? My first thought is the 30 mm autocannon on the A-10 Warthog.
By this standard Dubya could have his own Hog to strafe the javelinas and vinegaroons of rural Goliad county.
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Goatherd says:
If we are talking specifically about the second amendment and not about other parts of the Constitution, it sounds to me like a well-regulated militia has the right to a machine gun or any other weapons neccessary for the defense of the state.
I think this is different than saying a private individual has such a right, outside the aegis of a militia.
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Robin Pettit says:
I assume all here know the wording of the 2nd Amendment, I will not repeat all of it here. I’ve read it many times myself. When I read it, coupled with wording in Article 1, Section 8, “To raise and support Armies, but no Appropriation of Money for that Use shall be for a longer term than two years: To provide and maintain a Navy; To make rules for Government and Regulations of the land and naval forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; … In Article II, Section 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;
This, coupled with the wording of the 2nd Amendment, “A well regulated Militia, being necessary to the security of a free state, it is clear to me that the 2nd Amendment must be considered in context with the larger document of the Constitution, i.e., that Congress and the Commander in Chief have a lot of authority as to how a militia, which is the operative justification in the 2nd Amendment, is armed and also the people. Insofar as Congress and the Commander in Chief don’t regulate, the states are free to regulate. A right to bear arms is not the same as a right to bear any arms.
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Matthew says:
“…well regulated…”
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libertarian jerry says:
One would have to be blind not realize that America is degenerating into a Police State. That our Rights are either being eliminated or watered down to the point of being meaningless. One of the the last Rights that citizens have is the Right to own firearms. Owning firearms means more then just the right of hunting,target shooting or protection against criminals. The Right to own firearms is to protect yourself from your own government and from the tyrants that government may spawn. This means possessing the same firearms that a standing army soldier in the field might possess including machine guns. Mr.Wright is like all Progressives(socialists) who have been working to implement their agenda for the last 100 years. He believes that all laws that are passed,especially tax laws, even though they may not be in the best interests of citizens and may be blatantly unlawful must be obeyed without question. Any resistance to the thousands of laws,lawful or unlawful must be blindly obeyed or else. A government monopoly on firearms must be pursued in order to make sure that there is no resistance to Mr.Wright’s collectivist agenda. Mr. Wright is purposely blind to the illegal and unlawful actions that have been taken by government over the last several years as long as his Progressive Agenda is enforced. Mr.Wright is the height of hypocrisy and arrogance held by most Leftists today. His only role is that of a useful idiot to the political elitists who wish to rule us.
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Patty H. says:
Does the Second Amendment give me the right to own my own H-bomb?
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JLF says:
The notion that the Second Amendment protects Americans against an over-reaching government is . . . quaint. The Constitution itself was written and ratified precisely to quash such silliness, and its effectiveness demonstrated just three years after the Second Amendment was ratified when Washington led 15,000 militia into Western Pennsylvania to enforce the excise on whiskey against about 700 armed farmers. Lincoln’s task some three score and seven years later took considerably more effort, but the military result was never seriously in doubt. Still, drug-like fiction such as “Red Dawn” courses through the veins of the NRA faithful, freeing their minds from the harshness of reality.
And who is the “evil” government coming to pry their guns from their cold, dead fingers? The heroes of Iraq and Afghanistan. The military these same dreamers have armed to the teeth with weapon systems that don’t even need a human presence to be deadly. They are the soldiers the pollsters tell us are more likely than not to vote for the same Republican politicians and belong to the same organizations as they, including the NRA.
There may be sound arguments why individuals should have access to small arms, sport and self-protection among them. But to cling to the fantasy that an armed American citizenry can defeat its elected government is delusional at one level and treasonous at another.
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Thymoleontas says:
From what I understand, banning all rifles with a semi-automatic reload is on the table, including the M1 Garand and its decedent the M1A, and any automatic feed system shotguns such as the Remington 1100 or the Benelli M4. This is not just about “machine guns”.
Both of the above mentioned guns have legitimate uses (such as home defense and hunting).
And here is the real reductio ad absurdum:
Soon, we’ll be reduced to flint-locks, bayonets, and sabres, while the real villain will have a Tec-9 at his disposal…
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Joe the Plutocrat says:
yes, but not really. it has been established that all rights are subjective; can’t scream “fire” in a crowded theatre. same sex couples do not enjoy the same rights as heterosexuals. the Japanese-Americans who were rounded up and placed in internment camps enjoyed no “due process” and never accused/convicted of any crime. do I hope AR-15s and AK-47s remain legal in the hands of responsible, intelligent Americans? the answer is yes. do I understand why banning high capcity “clips” and battlefield weapons is worthy of consideration? the bottom line is the Second Amendment says nothing about what type of “arms” are to be “beared”. a twelve gauge pump or .357 revolver, are “arms”. the devil is in the details; what constitutes “high capacity”? 10 rounds, 15 rounds? and what makes a weapon an “assault” weapon? is auto-loading shotgun with a 10 round capacity an “assualt weapon”? in either “doomsday” scenario (civil unrest with roaming bands of canibals; or government gone mad) John Q. Public will never be able to protect his family and property in the face of superior numbers; regardless of what the “bad guys” are packing.
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DJT says:
This is awful. Very poor on both accounts. So, what did George Mason, the author of the second amendment, have to say about who comprised the militia? He said, “I ask, sir, what is the militia? It is the whole people, except for a few public officials.” (George Mason, in Debates in Virginia Convention on Ratification of the Constitution, Elliot, Vol. 3, June 16, 1788). One would think that the author of the amendment would understand its terminology. Quotes from other founders also make it clear that the object of the militia, which is to say all able-bodied men in the country able to bear arms, was not only to guard against invasion, but also and perhaps primarily in the case of Patrick Henry, to guard against a tyrannical government arising in the United States. “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined” (Patrick Henry, Virginia’s U.S. Constitution ratification convention June 5, 1788, reported in Elliot, Debates of the Several State Conventions 3:45.).
Mr. Wright keeps referring to “the militia” as if it was, for example, the North Carolina National Guard. The militia, as referred to by the framers, was not an organization that you went and joined. It was defined as the whole of able-bodied men existing in society. Today, you could say able-bodied persons if that makes you feel better, but the point is not lost. You belong to the militia whether you like it or not, if you are “able-bodied” you are de facto part of the militia. Surprise Mr. Wright, you’re a militia man! But, perhaps you are not able. Or maybe Mr. Wright will say that he is not “well-regulated,” but in the parlance of the framers, this meant little more than the expectation of forming into companies and battalions under the orders of an appointed officer in war time. It did not entail the onerous nature of regulation that we expect today.
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jamie says:
“One would have to be blind not realize that America is degenerating into a Police State.”
If the government has police on every corner, you live in a police state. If you find that, for safety, you must hire security guards to stand on every corner, you merely live in a different kind of police state.
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Richard M says:
I enjoyed David Kramer’s recent post on LRC concerning our inalienable personal rights to own firearms, since to own a firearm to the colonists was no different than “to own a knife and fork.”
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Alan (@SlackerInc) says:
JLF, that is an extremely eloquent point, probably the best I’ve ever seen on this issue. Do you have a blog?
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TomB says:
It seems to me that the concepts of moderation and reasonableness in interpretation should and indeed must play a large part in considering the Second Amendment, but that cuts just as much for vigorous defense of its core as it does against any extreme interpretation of it such that it allows machine guns.
And this is no different than is the case with the other Amendments, and ought to be pointed out.
For instance, if not expressly argued at least the subtext of the exhortations to ignore the Second is that we simply cannot take it literally, because the alternative is machine guns. (Or grenades or whatever.)
But the rejoinder is that such folks are not then in favor of essentially ignoring the First Amendment, despite the monstrous difficulties its literal reading imposes.
After all, read literally, there can be no libel or defamation suits, shouting “fire” in a crowded theater is perfectly okay, there can be no such things as “fighting words,” no regulation of commercial speech, and on and on and on.
Despite this however and so as to avoid such ridiculous consequences we have very willingly employed the concepts of moderation and reasonableness in interpreting the First Amendment, even though that has essentially meant putting up with an absolute impenetrable, rolling mess of a First Amendment jurisprudence.
We have lived with a machine-gun ban for a long time and I don’t think that has proven the end of the Republic. On the other hand even putting aside the Second Amendment the Constitution has been held to protect “fundamental” rights generally, and it’s plain to me that if this does not include the right of self-defense then it means nothing. And of course where that right becomes most acute is in the instance of riots and civil disturbances, so that quite non-hypothetically one can no doubt find any number of Korean grocers in LA, for instance, who can speak to the positive need for large capacity magazines to have anything near a credible defense in such circumstances.
Moderation and reasonableness is thus the key, I think, not just to divining how the Framers probably wanted their words looked at, but how our citizenry likely demand they be looked at anyway.
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JLF, it may be “quaint,” but certainly not delusional or treasonous – and it also happens to be exactly what the authors of the 2nd Amendment said. We may not have the government today that will turn to tyranny, but the future is never a guarantee. I am a veteran of Iraq and Afghanistan (not an NRA member or even a hunter), and I have no intention of carrying out such a thing, but I will only in the military for a few more years. There will be a great amount of turn over in the years to come. Suggesting that either tyranny cannot happen here or that an armed population cannot overthrow their government does not hold against the pattern of history. It has happened before, it will happen again.
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Pete says:
Even if we accept (only for the sake of argument) DSP’s contention that the Bill of Rights “protects principles” and not “timebound applications” of those principles — and each amendment, as DSP implies, to the same extent and with the same unquestionable level of success as every other — it still doesn’t follow that the 2nd amendment holds that Americans may simply have any kind of firearm they wish under any circumstance. That’s because that’s not what it says in the first place, unless you conveniently ignore the first half of it.
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Pete: No one is saying anything anywhere (felons with machine guns in hospitals). It’s a straw man.
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So are criminally insane maniacs like Adam Lanza “Able-bodied” members of the militia? Do you think that the Minutemen would have wanted his crazy ass on the firing line next to them, or do you think they might have well-regulated him into a position elsewhere?
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Paul T says:
jamie, “if you find that, for safety, you must hire security guards to stand on every corner”, neither courts nor your neighbors will turn a blind eye when you extort wealth from neighbors and passersby to finance your “different kind of police state”. In fact, your “security guards” are likely to be shot at in self-defense and retribution, and rightly so.
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Christopher Buyers says:
The right to bear arms, but where does it say ammunition?
Wait, what?
Except for the folks who live in a few States that forbid ownership, any citizen with a clean-ish record can fill out the required paperwork and send that and $200 to the ATF and get a permit to own a machine gun