Here are two examples, from Justice Scalia’s majority opinion in District of Columbia v. Heller, of the kind of thinking that has long bothered me in the line of Supreme Court cases that have interpreted the Second Amendment:
“the sorts of weapons protected are the sorts of small arms that were lawfully possessed at home at the time of the Second Amendment’s ratification, not those most useful in military service today, so ‘M-16 rifles and the like’ may be banned . . .”
“ It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.”
While the Court, in Heller, did do us all the favor of ruling that the right to bear arms is not limited to the bearing of arms as a member of a “militia” (despite the infamous prefatory wording of the Amendment), the Court, as you can see, wasted little time in accepting the argument that the right was limited to certain types of weapons and dismissing the suggestion that it was not. I must confess, I have always been bothered by the legitimacy of that limitation and wondered whether the issue could not be addressed once again – and with full briefing and argument and with a proper utlization of the “militia” clause.
When you think about the reasons why the colonists eventually formed militias – to resist the British and to resist an American federalist government if it grew tyrannical – your mind wanders. (Mine does, anyway.) I mean, what if China, having ramped-up its quiet campaign to achieve naval domination of the South China Sea and political control of the governments of most of the Pacific Rim nations, mounted an armed invasion of the continental US? What about Iran, after destroying Israel, threatened to attack or nuke the US? What if President Obama continued in his campaign to balance the budget by eviscerating our military? Rather than having George Washington leading his rag-tag volunteers with muskets, wouldn’t you rather have 100 million guerilla-style American militia-people armed with the latest in digitized weaponry, rockets, and missiles in order to repel the invaders? In what way would that militia be different from the “militia” contemplated by our Founders? You need a militia? Why not a militia sufficiently armed to have a fighting chance to succeed?
For that matter, remember President Obama’s notorious “private army” statement: “We’ve got to have a civilian national security force that’s just as powerful, just as strong, just as well-funded,” as the U.S. military. What if the President created the “Ready Reserve Corps” mentioned in an obscure provision (Section 5210) of the Obamacare law and, despite all the pooh-poohing of conspiracy theorists who were alarmed by that provision, the President went ahead and established just such a force? How would that be materially different from the actions of the British that led to our forming (and arming) a militia to resist tyrannical government, whether from without or within the country? Don’t you suppose China’s, Iran’s, or the President’s military would use sophisticated weaponry?
I have always thought the Second Amendment cases erred in this regard, and I was distressed to see Justice Scalia in 2009 add further weight to this unfortunate precedent. To me, all of this stuff represents judicial activism by professed Conservatives who present themselves as “original intent” addicts but are not above the occasional bending of the literal terms of the Constitution. I would not want to know what anyone thinks the Second Amendment drafters had in mind when they were drafting, I would only want to know what the words they wrote would have been generally understood to mean at the time they wrote them. In this case, though, I see little difference: the point was to ensure that the citizens, as distinct from their government, should be able to throw off any government – their own or that of another country – that behaved oppressively.
I would not want to believe that the Obama administration wants to disarm us so as to make us more easily controllable in the event of perceived governmental-overreach, but I am not ready to relinquish my Second Amendment rights in reliance upon their assurances of benign intent