3

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.

As mentioned in the title, that tells me in 2019 that someone who can squeak through Army Basic Combat Training (aka boot camp) must be allowed to own the small arms currently used by the military.

What am I misunderstanding?

(States with strict gun control laws should love this, because they could greatly raise the bar on gun ownership, while pointing to how well they're following it.)

Improve this question
9
  • 5
    You're misunderstanding the existence of case law (both federal and state) and how that has been legislated as an interpretation of the constitution and therefore regulates firearms, such as fully automatic weapons.
    – BlueDogRanch
    Oct 20, 2019 at 22:14
  • 2
    Case law needs a Constitutional basis. What am I missing that existing case law and legislation are Constitutional, and my interpretation (which seems a lot like the Swiss model, and would probably anger the NRA) wrong?
    – RonJohn
    Oct 21, 2019 at 0:42
  • 1
    Has SCOTUS actually ruled on the question of whether a fit non-criminal who has passed the checks and has a license can own Title II weapons for the purpose of national defense?
    – user6726
    Oct 21, 2019 at 0:51
  • 1
    @user6726 "I'm just trying to understand what question you're asking." Why hasn't the 2A been interpreted as "people who can qualify to be in the Militia (now known as the National Guard) can own the weapons used by the Militia, and all other firearms can be prohibited?"
    – RonJohn
    Oct 21, 2019 at 1:47
  • 1
    @SJuan76 no rights are limitless, even free speech.
    – RonJohn
    Oct 21, 2019 at 13:02

1 Answer 1

Reset to default
15

The Supreme Court considered and rejected some related interpretations in District of Columbia v. Heller, 554 U.S. 570 (2008). The entire opinion, and the dissents, are well worth reading, if you wish to get a clearer understanding of how the Court has most recently interpreted the Second Amendment.

A few specific comments:

  • "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia" (p. 1).

  • The Court does not agree that "militia" should be understood as synonymous with "National Guard":

    The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. (p. 2)

  • The Court, citing U.S. v. Miller, 307 U.S. 174, holds that the weapons protected are "those in common use for lawful purposes". There is some discussion on pages 55-56, in which the majority seems to explicitly deny that the Second Amendment grants a specific right to possess military weapons. Instead, they reason that historically "the militia" would have reported for duty with the sort of firearms they normally had at home, whether or not those were the preferred weapons for fighting a war, and so therefore the Second Amendment protects the right to bear "household" weapons, not military weapons. They seem to agree that laws banning "dangerous and unusual weapons" are constitutional, even if those weapons are in military use. They specifically mention M-16 rifles as a type of weapon that can be banned.

Improve this answer
2
  • I would add that the core holding of Heller is that the Second Amendment's purpose is to protect the "natural right" of self-defense of one's person, home and family, rather than the political theory capacity to carry out an insurrection theory that the language arguably suggests. Since military weapons aren't necessary for personal self-defense, the right does not extend to military weapons.
    – ohwilleke
    Jun 29, 2022 at 21:04
  • Note that the federal government, under the congressional militia clause, very well could require people to go through basic combat training. And I am not sure such authority is actually denied to the states. But that has nothing to do with the second amendment.
    – SoronelHaetir
    Nov 1 at 18:21

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .