Sunday, June 26, 2016

The Second Amendment and the Right to Own Warships

The Second Amendment and the Right to Own Warships
by Stephen W. Houghton II

Those who favor gun control often try to paint the National Rifle Association as extremists advocating a misinterpretation of the Second Amendment to allow private ownership of “Assault Weapons.” Far from favoring a broad and radical interpretation of the Second Amendment, the NRA is viewed in the gun rights community as moderate and compromising, when it comes to our Second Amendment rights.
 To discover which characterization of the NRA is correct, it is important to ask what does the constitution mean when it says, “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.” To do so it is important to remember the legal principal that one can only understand a part if one understands the whole, that is to say, that provisions of the constitution must be understood in relation to the whole text.   

The obvious place to start is with Article 1, Section 8, Clause 16 granting congress power, “To provide for organizing, arming, and disciplining, the militia” This clause was interpreted by the Second Congress of the United States in the second Militia Act of 1792 which required all free able bodied male citizens age 18-45 to acquire a musket and bayonet, so that they could defend the republic. The musket and bayonet were the standard infantry combat arms of their day, equivalent to the M-16 rifle used by the Army or the similar though semi-automatic AR-15 that is the most popular rifle with citizens today.

Though the obvious place to start, the militia clauses are not the only place to look when trying to understand the Second Amendment. For example Article 1, Section 8, Clause 11 grants congress power “To … grant letters of marque and reprisal..” For those who don’t know, a letter of marque was a license for privately owned warships to capture enemy shipping and sell it for profit. If follows of necessity that the constitution assumes that private citizens can own warships. It is a matter of the historical record that such private warships were armed with as many as 20 cannons.

 If one can own a ship full of cannon, then it would follow that one can own a cannon not mounted on a ship. Cannon are a form of field artillery. This category would include weapons such as rockets, mortars, howitzers and similar weapons. Obviously by the rule that a greater right includes the lesser, then the private ownership of machine guns and rocket propelled grenades could also be inferred. If one can own artillery mounted on a boat, presumably you can own artillery mounted on a car, which would be a tank.

Does the National Rifle Association make any such argument about the constitutions implicit assumption, that warship, combat aircraft, armor and artillery may be privately owned? It doesn’t. Instead they speak of people’s undoubted right to defend themselves, their right to engage in the sport of hunting, their duty to aid the civil power in time of crises and to resist usurpation. These are goals that all Americans, liberal conservatives and liberal progressives alike can support.

That does not mean that the argument that the constitution assumes the private ownership of weapons of war from machineguns to warships is wrong, it just shows how moderate the NRA really is. It also shows how un-American interests such as the slave power in the 19th century and the progressive movement in the in the 20th have distorted the true understanding of our founding documents.  Of course as Justice Scalia wrote in Heller, even essential rights can be regulated, for the protection of the rights of all. So laws requiring that field artillery and the like to be kept in public armories when not in use, maybe constitutional.

But what is not by any reasonable stretch of the imagination constitutional are laws advocated by gun control extremists that seek to deprive law abiding citizens of the right to own pistols, rifles, and shotguns for the defense of themselves and the state.

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