Conservative Index Add
pagetitle

Saturday, June 6th, 2020Last Update: Wednesday, May 6th, 2020 02:21:47 PM

Why the Second Amendment Protects AR-15s

By: David Deming

For decades the Federal Judiciary has been trying to interpret the Second Amendment out of the Constitution. It is, as Sanford Levinson has termed it, an “embarrassment” to an elite class of legal scholars that finds firearms to be unusual and repulsive objects. Now the Fourth Circuit Court has declared that the semi-automatic AR-15 rifle is not covered by the Second Amendment, despite that fact that is the most common rifle sold in the US. This execrable decision is the latest outrage in a long series of disingenuous judicial contortions.

The courts have never come to terms with the fact that any intelligible reading of the Second Amendment requires an interpretation that acknowledges and reconciles its two clauses. The operative clause speaks of the “right of the people,” while the prefatory clause justifies the operative clause by professing that a “well regulated militia” is “necessary to the security of a free state.”

Prior to the Heller (2008) decision by the Supreme Court, for sixty years or more the federal judiciary almost unanimously ruled that the Second Amendment did not guarantee an individual right. The militia mentioned in the prefatory clause was taken to be the National Guard. Thus the right described in the operative clause was interpreted to be the right of States to maintain militia. This interpretation was never credible because it excised the Second Amendment from its contextual and historical underpinnings.

In the Heller (2008) decision, the Supreme Court stated unequivocally for the first time that the Second Amendment protects an individual right. But Heller (2008) was badly flawed. Reversing decades of precedent by lower courts, the Supreme Court read the prefatory militia clause out of the Second Amendment and interpreted the operative clause to protect a personal right. While finding that people have a right to keep a handgun at home for the purpose of self-defense, the Court noted in passing that “dangerous and unusual weapons” were not covered by the Second Amendment. But they failed to explain what these might be. The Heller Court went so far as to suggest that “weapons most useful in military service–M-16 rifles and the like–may be banned.” Although the Heller (2008) decision established an individual right, it also opened the door for lower courts to uphold any statute that banned “dangerous” weapons or those that might be useful “in military service.” The flaw is obvious when one recognizes that virtually all weapons are potentially dangerous and useful in military applications.

Thus we arrive at the Fourth Circuit decision that even though AR-15 rifles are commonplace, they may be banned because they are “like” M-16s and “useful in military service.” As the dissenting judges noted, this curious logic would have made it possible to ban the muskets and rifles used by citizen militia during the Revolutionary War. But why stop there? Handguns are standard-issue military weapons. Shotguns and bolt-action rifles have been employed by the US military. At one time or place, virtually every weapon has been used by the military, including knives and tomahawks. The irresistible conclusion is that the Second Amendment protects nothing.

The Second Amendment has never been recondite, it is only the judges who have been obtuse. An intelligible interpretation of the Second Amendment emerges the instant one reconciles the prefatory and operative clauses. In other words, the “militia” described in the prefatory clause is a militia composed of a people with a right to keep and bear arms. What type of arms? In 1939, the Supreme Court spoke explicitly to this. At the time the Second Amendment was adopted, men summoned to militia duty were expected “to appear bearing arms supplied by themselves and of the kind in common use at the time.” The Amendment not only protects weapons that might be useful in a military context, arguably it only protects those weapons useful in military service. Thus the Fourth Circuit Court was exactly and completely wrong.

What weapons are excluded? Those not in the common usage by an individual citizen, such as poison gas or large artillery pieces. The phrase used in Heller (2008), “dangerous and unusual,” is properly understood to refer to weapons of mass destruction. For those who worry that this interpretation would allow the sale and possession of machine guns, take note: there are currently about half-a-million registered and transferable fully-automatic weapons owned by individuals in the US. Yet these are virtually never misused.

Judge Gorsuch has recently reminded us that good judges often reach decisions they don’t like. Federal judges have found in our Constitution rights to both abortion and gay marriage, subjects that never appear. Perhaps they should consider extending the same latitude to an ancient right that is explicitly provided for.

About David Deming

David Deming is a geophysicist and professor of arts and sciences at the University of Oklahoma. His book, Black & White: Politically Incorrect Essays on Politics, Culture, Science, Religion, Energy and Environment, is available for purchase on Amazon.com

Other Articles By David Deming

Social Justice and....Fried Chicken?

Since an infamous 2015 incident involving members of the SAE fraternity chanting racial epithets,...

Why an OU Presidency Failed

David Boren was a hard act to follow. But James Galloglys appointment as President of the...

Is the University of Oklahoma a Racist Institution?

The University of Oklahoma is apparently becoming infamous as a hotbed of racism. In 2015, a video...

A Tale of Two Professors

In the Fall 2018 issue of the Oklahoma Constitution, I related the persecution of OU law professor...

Conservative Christians Unwelcome at OU

The nation was transfixed by the smear campaign launched against judge Brett Kavanaugh. In a...

OU President Galloglys Challenge

When he assumed office on July 1, OU President James Gallogly found a full plate. But foremost among...

Should We Surrender on Bump Stocks?

In the aftermath of the October 1, 2017, mass shooting in Las Vegas, the US Justice Department has...

Other Constitution Columnists

Ron McWhirter

Covid-19 Impacts the 2020 Oklahoma Conservative Index
We believe the most important product of this publication is our annual Oklahoma Conservative Index...

Steve Byas

Jim Inhofe
Perhaps another person could take his place and do an even better job than Jim Inhofe, but I...

Linda Murphy

Oklahoma Education, Covid and Global Control
Since Spring Break, the public schools have been closed due to COVID 19, bringing children and their...

Charlie Meadows

Evaluating the Governor and Legislature under Covid-19 and the Medicaid Expansion
My article in the Winter edition evaluated Governor Stitts performance after a year in office. This...

Tim Bakamjian

Mult-Trillion Dollar Tragedy
In late March, Congress passed and President Trump signed into law the $2.3 Trillion Coronavirus Aid...

Shane Smith

A Self-Inflicted Apocalypse
Youve really got to hand it to COVID-19; in a matter of weeks it has accomplished what the War on...

Theodore King

The Federal Page
This is a noteworthy column. It is my 81st column. I began writing for The Oklahoma Constitution...

David Deming

Social Justice and....Fried Chicken?
Since an infamous 2015 incident involving members of the SAE fraternity chanting racial epithets,...

Richard Engle

In this Time
I remember hectic times. I remember busy days. I remember missing appointments because of crazed...

John Michener

Time for Executive Orders
Do we have any mighty men of faith who will establish justice in the midst of the current crisis?...

In The News

Constitution Staff

Oklahoma Presidential Primary Election
Oklahoma was among14 states holding Presidential Primary Elections on March 3, 2020 in what is known...

Constitution Staff

Statewide Races and Congressional Seats on Ballot
In 2020, the Oklahoma candidate filing period was April 8-10. Due to the COVID-19 pandemic, ...

Constitution Staff

Republicans Will Retain Control of Legislature
The candidate filing period for the Oklahoma Legislature this year was April 8-10. Due to the COVID...

Constitution Staff

Legislature Considers Bills
The Oklahoma Legislature went into its annual mid-session recess on March 18, which coincides with...

Constitution Staff

Gov. Stitt Unveils Plan to Reopen Oklahoma
On April 22, Gov. Kevin Stitt announced the Open Up and Recover Safely (OURS) plan to start...

Constitution Columnists

Ron McWhirter

Covid-19 Impacts the 2020 Oklahoma Conservative Index
We believe the most important product of this publication is our annual Oklahoma Conservative Index...

Steve Byas

Jim Inhofe
Perhaps another person could take his place and do an even better job than Jim Inhofe, but I...

Linda Murphy

Oklahoma Education, Covid and Global Control
Since Spring Break, the public schools have been closed due to COVID 19, bringing children and their...

© 2001 - 2009 The Oklahoma Constitution, all rights reserved.
Contact the Oklahoma Constitution by calling 405-366-1125 or emailing okconsti@aol.com
Content Management System (CMS) provided by WebTeks CMS.