Right to Bear (Some) Arms

The "civilized-warfare" test excludes firearms that many persons want to be included.

By Dave Kopel of the Independence Institute. This article is based in part on Mr. Kopel's 1998 article in the BYU Law Review, "The Second Amendment in the 19th Century."

National Review Online, June 7, 2001 10:40 a.m. More by Kopel on prohibition of certain types of firearms.

A reader asks: "I have a question about your recent NRO article, "Guns in Court." You state that the Second Amendment only protects the right of individuals to own weapons that can be used in a militia. Does the law specify which weapons can be used in a militia? Can a militia use assault rifles or hand grenades? May individual citizens own every type of weapon currently in use by the National Guard?"

Here's the answer:

The dominant line of nineteenth-century interpretation protected ownership only of weapons suitable for "civilized warfare." This standard was adopted by the U.S. Supreme Court in the 1939 United States v. Miller case. There, the Court allowed defendants who never claimed to be part of any militia (they were bootleggers) to raise a Second Amendment claim. But the Supreme Court rejected the trial court's determination that a federal law requiring the registration and taxation of sawed-off shotguns was facially invalid as a violation of the Second Amendment. Rather, said the Miller Court, a weapon is only covered by the Second Amendment if it might contribute to the efficiency of a well-regulated militia. And the Court could not take judicial notice of militia uses for sawed-off shotguns. The case was remanded for trial (at which the defendants could have offered evidence that sawed-off shotguns have utility in a militia context), but the trial was never held, since the defendants disappeared during the pendency of the government's appeal of the dismissal of their indictment.

A minority line of nineteenth-century arms-rights analysis — adopted in the twentieth century, for example, by the Oregon Supreme Court — goes further. This analysis protects not just militia-type weapons, but also weapons which are useful for personal defense, even if not useful in a military context. Thus, the Oregon state constitution's right to arms was held to protect possession of billy clubs and switchblades — weapons which were pointedly excluded from protection by the civilized warfare cases. State v. Delgado, 298 Or. 395, 692 P.2d 610 (1984)(switchblades); State v. Blocker, 291 Or. 255 (1981) (billy clubs).

With the civilized-warfare test as the constitutional minimum, efforts to ban machine guns or ordinary guns that look like machine guns (so-called "assault weapons") appear constitutionally dubious. These rifles are selected for prohibition because gun-control lobbies claim that the rifles are "weapons of war." This claim, if true, amounts to an admission that the rifles lie at the core of the Second Amendment.

Today, once people understand that "assault weapons" are firearms that are cosmetically threatening but functionally indistinguishable from other long guns, they are willing to accord these arms a place within the right to keep and bear arms. Machine guns, in contrast, really are functionally different. Machine guns are rarely used in crime; and lawfully possessed machine guns, which must be registered with the federal government, are essentially absent from the world of gun crime. Nevertheless, even many people who consider themselves strong Second Amendment supporters cannot bear the thought of a constitutional right to own machine guns.

Attorney Stephen Halbrook, suggests that, "artillery pieces, tanks, nuclear devices and other heavy ordinances are not constitutionally protected" arms, nor are "grenades, bombs, bazookas and other devices … which have never been commonly possessed for self-defense." (Steven Halbrook, What the Framers Intended: A Linguistic Interpretation of the Second Amendment, 49 L. & CONTEMP. PROB. at 153 (1986).)

But the Halbrook test sidesteps the fact that militia uses, not just personal-defense uses, are part of the core of the Second Amendment. Moreover, the Halbrook test could allow governments to ban new types of guns or weapons, since those weapons, being new, "have never been commonly possessed for self-defense." The test could allow Second Amendment technology to be frozen, as if the government claimed that new communications devices are unprotected by the First Amendment because they have never (heretofore) been commonly used for speech.

Just as the civilized-warfare test protects firearms that many persons want excluded from the Second Amendment, the test also excludes firearms that many persons want to be included. The civilized-warfare cases protected large handguns, but in some applications excluded small, highly concealable handguns. This would suggest that modern bans on small, inexpensive handguns might not violate the Second Amendment. On the other hand, small handguns such as the Colt .25 pistol were used by the United States military during the Second World War. (See Charles W. Pate, "Researching the Martial .25 Colt Pistol," Man at Arms, Jan./Feb. 1995, 20-29.) (Of course, anyone using the civilized-warfare test to make such an argument must also accept the flip side of the civilized-warfare coin: "Assault weapon" prohibition is plainly unconstitutional.)

The nineteenth-century minority theory, however, would recognize small, relatively inexpensive handguns as highly suitable for personal defense, and accord them Second Amendment protection regardless of their militia utility. Twentieth-century constitutional law reflects a special concern for problems of minorities and the poor that was not present in nineteenth-century law. Since a small handgun may be the only effective means of protection that is affordable to a poor person, and since the poor and minorities tend to receive inferior police protection, modern equal-protection analysis might find some problems with banning inexpensive guns, even if one sets aside the Second Amendment. (Note, Markus T. Funk, The Melting Point Case-in-Point, 85 J. CRIM. L. & CRIMINOL. 764 (1995).)

But under the main nineteenth-century line of cases, opponents of banning small handguns must overcome the presumption in those cases that small handguns are not suitable militia weapons; perhaps the frequent and successful use of small handguns in twentieth-century partisan warfare against the Nazis and other oppressive regimes offers one potential line of argument.

Twenty-first century jurisprudence might update the civilized-warfare test by changing the focus from the military to the police. The modern American police, especially at the federal level, resemble in many regards the standing army that so concerned the founders. While the American army is geared toward overseas warfare, the police are oriented toward the type of internal-order functions (e.g., suppression of riots), which were among traditional militia duties. Accordingly, the twenty-first century question, "What are suitable militia-type arms?" might be answered, "Arms that are typical of, or suitable for, police duty." By the modernized test, high-quality handguns (both revolvers and semiautomatics) would lie at the core. Smaller, less expensive handguns (frequently carried by police officers as back-up weapons, often in ankle holsters) would also pass the test easily. Ordinary shotguns and rifles (often carried in patrol cars) would also be protected. Machine guns and other weapons of war are not currently ordinary police equipment, although they are becoming common in special attack units.

Finally, we need to remember Noah Webster's American Dictionary of the English Language, originally published in 1828. That dictionary, which is closer to the origin of the Second Amendment than any other American dictionary, defines "arms" as follows:

"Weapons of offense, or armor for defense and protection of the body ... A stand of arms consists of a musket, bayonet, cartridge-box and belt, with a sword. But for common soldiers a sword is not necessary."

Webster's definition offers two useful insights. First, the distinction sometimes drawn between "offensive" and "defensive" weapons is of little value. All weapons are made for offense, although they may used for defensive purposes (i.e. shooting someone who is attempting to perpetrate a murder), since the best defense sometimes really is a good offense.

Second, Webster reminds us that "arms" are not just weapons. "Arms" also include defensive armor. This suggests very serious constitutional problems with proposals to outlaw possession of bullet-resistant body armor by persons outside the government.

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