The 2nd Amendment Right to the Open Carry of Swords and Shoulder Launched Missiles

As everyone knows the Second Amendment is not about guns. The objects of the right it constitutionalizes are “Arms.” Swords, bayonets, and hatchets, as well as muskets, were the arms of the Revolutionary War. Current arms of individual use include body armor, hand grenades and shoulder rockets.

The fact that shoulder rockets are a tad dangerous and of little socially approved private use surely has some bearing on their constitutional status. A frank recognition of this fact will show the supporter of the open carry of large clip semi-automatics that his mode of constitutional interpretation is not so different from those who contend that the carry of said semiautomatic, and perhaps also of a Saturday night special, is outside constitutional protection.

Although the NRA supported restrictions on the open carry of guns when the target was the Black Panther Party, the most aggressive of gun rights enthusiasts now proclaim a Second Amendment right to the open carry of both long guns and pistols.

What about attaching bayonets to those openly carried AR-15s or strolling with a rocket launcher slung across your back or grenades on your belt? I suspect that most open carry proponents would feel some hesitation in contending that the open carry of these weapons is constitutionally protected. If so, they will need an argument to distinguish the protected from the unprotected weapons of individual use. Is there one?

(Of course, those who seriously believe that the Second Amendment exists to enable ordinary citizens to overthrow the federal government would be delighted with the proposition that the bayonet, hand grenade, and rocket launcher are just as thoroughly protected by the Constitution as were the swords and muskets of the militia age sons of the 1789 Congressmen. Indeed insurrection against the US military, one guesses, would require weapons somewhat more lethal than AR15s and rocket launchers.)

Framer expectation: Interpretations of the Constitution of the intent family are overwhelmingly the most popular. So let's start there, even though intents are not voted upon, may be ambiguous or vague, may be inconsistent across the body of intenders, and, in addition to these definitional defects, may offer the interpreter only thin or manipulated evidence.

In you are inclined towards this mode of interpretation, you can be reasonably confident that Madison and the House Select Committee on Amendments did not anticipate shoulder fired rockets. So they had no intent to constitutionalize their being carried. Of course, they also did not expect or intend their exclusion from protection, but it seems reasonable at first blush for an intent theory to place beyond the reach of the elected legislators only what is so intended with reasonable specificity. So we can, I think, for the moment at least, conclude that intent theories will exclude the shoulder rocket. The same line of thought, however, would fail to protect the large clip semi-automatic while protecting the open carry of bayonets and swords. So let us look farther.

Ratifier expectation: (A slightly more plausible interpretive theory so far as political legitimacy goes, but with yet greater inconsistency and evidence problems.) Ratifier expectations with respect to swords, semi-automatic weapons and shoulder rockets were, presumably, pretty similar to those of the framers, and so again fail to help draw the distinction as desired.

If you think we are leaving intent a little too quickly, fear not; aspects of it will keep popping up.

Historical linguistics: Looking to the meaning of the actual language enacted I have argued elsewhere in this blog is a sounder interpretive approach. Will it permit the constitutionalized carry of pistols, but not bayonets or grenades?

The phrase “right to keep and bear Arms” and its very close relatives first appeared in the constitutional ferment of late 18^th century America. It is not a phrase of ancient pedigree in the common law. It was not technical language the meaning of which the town lawyer could confidently explain to a ratifying voter.

Justice Scalia argued against the linguists' brief in Heller, that “bear Arms” meant “carry arms,” rejecting, despite the militia clause, the widely evidenced idiomatic meaning tied to military service. The linguists have much the better case on this. Let us, for arguments sake however, follow Scalia and take “bear Arms” to mean “carry Arms.” We still have the problem that the “Arms” that are kept and carried are, in the eighteenth century meaning, as today “weapons and armor,” and the militia clause at the very least shows that military weapons were not to be excluded. So bayonets, hand grenades, and shoulder rockets are in, or so it might seem.

Shared background knowledge – England in 1689: Even if the words of the amendment, with their eighteenth century meanings, appear to protect bayonets and shoulder rockets, there might be something right next door to the meaning of the words that will do the trick of excluding from constitutional protection shoulder rockets while including AR-15s – shared collateral knowledge that was in nearly everyone's mind when the amendment was formulated and voted upon. Turning our interpretive attention in this direction is a partial move back towards drafter/ratifier expectations. Expectations and intentions, however, can be quite secret. We have been told by a Senator, and former presidential candidate, that he sponsored an immigration bill neither intending nor expecting nor hoping that its provisions would become law. Knowledge generally available at the time is public in a way that intentions are not.

I doubt not that Madison was well acquainted with the English Bill of Rights of 1689. It has been suggested that one could not be a Congressman or ratifying voter, a century after that document was passed by Parliament an ocean away, without being so familiar with it as to guide one's understanding of “the right to keep and bear Arms.” I am not sure that the historical evidence on the latter point is all that good, but let us suppose that it were.

The relevant provision of the English act reads: “That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law.” Notice, that this language is not very close to that of the Second Amendment. The bail and punishments provision of the English Bill of Rights, by contrast, was copied almost word for word into the Virginia Declaration of Rights of 1776 and from thence into what became our Eighth Amendment.

The phrase that has received special interpretive notice is “for their defence.” That the English right discriminated against Catholics in favor of Protestants, that it was class relative (“suitable to their condition”) and that it was limited “as allowed by law” are not much emphasized. Of course, these attributes of the 1689 act did not make it into the Second Amendment, but then neither did “their defence.” Pennsylvania's Declaration of Rights had “for defense of themselves and the state” but that language was not drawn upon by Madison or Congress.

Perhaps, the framers chose to forego language that was ready to hand for constitutionalizing self defense because everyone understood that the right protected by the amendment was identical to that enshrined in the English act – identical except, of course, not exclusively benefiting Protestants, not graduated by “condition,” and not limited by, but instead limiting, other law. So understood, does an interpretation of the Second Amendment based on the English Bill of Rights meet the goal of granting constitutional protection to inexpensive handguns and semi-automatics but not to grenades and bayonets?

No. Recall that the shared collateral historical background for those who drafted and passed the English act were the misdeeds of James II. We know that to a certainty because those misdeeds are recited in the many divisions of the whereas clauses of the act preceding the statement of rights. It is clear that the sort of self defense that the Parliament was promoting was not that against highwaymen or burglars, but against the Catholics whom James had “armed and employed contrary to law.” As Blackstone commented, the evil addressed here was that of “oppression.” The canon defending the manor of the Protestant lord was doubtless protected by the act. Dueling, having been proscribed, was not “allowed by law.” This casts a shadow on the standing under the act of at least some handguns. In short, the English Bill of Rights delineates a right to be armed that would leave the bayonet, grenade, and shoulder rocket protected, and the anti-burglar handgun in limbo.

Implications of the militia clause: “A well regulated Militia, being necessary to the security of a free State, . . .” Those expressing the strongest attachment to the Second Amendment, usually de-emphasize this prefatory clause. The NRA redacts it from the amendment as emblazoned on the wall of their headquarters lobby. (They also fail to give “Arms” its upper case. I am not so suspicious as to think that they do so to let the reader's eye move more swiftly across a word that they belief should really be “firearms.” Doubtless, they simply believe in a living constitution when it comes to upper case practice.)

But perhaps it was a tactical error for the NRA to ignore the militia clause. We can distinguish swords from guns on the basis of the change in military technology. First the hatchet, and then the sword, fell out of the armory inventory, and with that, by implication of the militia preamble, they fell outside Second Amendment protection.

Of course the problem with this argument is obvious and insurmountable. It fails to exclude from protection the bayonet and the shoulder rocket. The one has remained an armory staple, while the other is a new addition. Some will find it a yet more serious problem that this interpretive move would exclude from protection those cheap handguns that were the chief beneficiaries of Heller, and are the weapons that new carry laws will permit onto college campuses, and, presumably, into fraternity parties.

God given rights: The amendment's right is denominated with the definite article, “the right,” and the operative words are “shall not be infringed.” This suggests,albeit gently, that the right in question might be a pre-existing right, rather than one created by the ratification of the amendment. It might be one of those inalienable rights of which we declared, with our independence, that we are endowed by our Creator. The right to use deadly force in defense of self, of family, and of one's state or nation have seemed to some to be divinely promulgated.

(Aside on a right of deadly defense promulgated by the Christian God: It has not proven difficult for Christians to claim the authority of Jesus for such a right, despite his counsel to turn the other cheek and his famous rebuke of the disciple who used a sword against those arresting him.The early Christians seem to have been committedly, even obstinately, pacifist, which gives some interpretive support to the natural reading of these gospel passages. [See https://lawrencecrocker.blogspot.com/2018/07/was-jesus-pacifist-first-generation-of.html.] The church later, however, developed a more nuanced way of reading the words of Jesus to permit Christians to kill in circumstances they deemed appropriate. This reading developed about the time of the conversion of Constantine, when the exercise of serious military might became a possibility for the first time for the followers of Jesus. Among the earliest victims of this new reading were other Christians who had the “wrong” understanding of the trinity.)

So the Second Amendment might codify a corollary of a God given right of individual, armed, self defense. Alternatively, we can take out the theology, while leaving perhaps a Platonic moral ontology, and call it a “natural right.”

Returning to the language of the amendment, this interpretive move must disregard the fact that it is the “free state” that is the amendment's expressed beneficiary, not selves, families, or property. That the amendment is about self defense must be conceded to be at best “implicit.” If the self defense right pre-existed, however, it was there to be called upon implicitly. The rough picture would be that when an amendment was drafted in the general neighborhood of self defense, it latched onto the right. (Think of a causal theory of reference on which ancient people succeeded in talking about whales even though their literal words translate as “big spouting fish.”)

You may, if you like, again put this into a drafter or ratifier intent framework. Natural reason, or perhaps individual revelation, made it clear to everyone, or nearly everyone, that the preexisting and obvious right of armed self defense lay behind and gave implicit content to the right to keep arms.

There are, of course, difficulties in identifying and delineating in detail the content of God given or other natural rights. Let us pass by that for now, to return to the matter of content shortly.

When it comes to the defense of self and family, hand grenades are terrible weapons for most householders; bayonets are only slightly more suitable; and shoulder rockets are the worst. So if the Second Amendment right was exclusively a right to weapons for self and family defense, it would be easy enough to find constitutional protection for handguns but not swords, bayonets, grenades, or rockets.

Scalia suggested in Heller that there is constitutional protection for the possession of guns for other “lawful purposes.” Put aside the question what purposes are and are not lawful when the amendment's own force will make some things lawful by striking down the statutes prohibiting them. One thing I hope we can agree upon is that God did not endow a distinct natural right of target shooting or antique weapon collecting. Probably, I regret to say, not even the biathlon enjoys divine sponsorship or is revealed by natural reason to be a basic human right, and any constitutional right to shoot skeet is going to have to rely upon another argument.

In addition to its failure to shore up the other uses of guns that Scalia hinted at in Heller, the natural right argument will not exclude military weapons. True, hand grenades are not well adapted for use against burglars, but even if the Second Amendment picks up a right to defense of self and home, there is no reason to think the amendment has no other legs. The militia clause makes it clear as clear can be that at least some of “the people” had a right to keep weapons for the purpose of turning out for a militia call.

So at this stage, under our assumption that God given or natural rights lie behind the Second Amendment, we might get protection for Saturday night specials, but have not yet excluded those swords, bayonets, grenades, and shoulder rockets.

A right to things more or less as they were: Perhaps, intent neighborhood again, the framers and ratifiers thought that the right they were being guaranteed was pretty much the right they already had. (This too is congenial with “the right . . . shall not be infringed,” independent of whether the way things were corresponded to a God given or natural right.)

Outside the cities there was hunting for the sport of the rich and for subsistence of many others. There were requirements in some states to keep in good working order militia appropriate weapons, an obligation spottily enforced by occasional inspections. Guns could not be fired within some cities, but there were few restrictions on the use of weapons, other than using to kill, injure, or intimidate. Also very largely unrestricted was the ownership and transfer of weapons – except, of course, when it came to ownership by or transfer to slaves, Indians or free blacks. Registration requirements for firearms were rare, but not unknown, and that firearms had in Maryland been denied to Catholics for a time was well remembered by parts of the population.

I think it is pretty clear that no one, including the pro-gun anti-shoulder-rocket contingent, wants to identify “the way things were” with the constitutional right. A complete and accurate description of the way things were in 1790 would have nothing to say about weapons easily carried by one person, and capable of killing dozens in a minute. It will not help those who want to draw a line between large magazines (in) and shoulder rockets (out).

Getting the right right: So why, in the end, is it that many would draw a line putting all handguns, hunting rifles, shotguns, and semi-automatics on one side and bayonets, hand grenades, machine guns, and shoulder rockets on the other? Surely this line drawing is an exercise of weighing the justifiable uses of a particular weapon against the risks that accompany its being kept or carried. The justifiable uses one may have for carrying grenades on one's belt are not non-existent, at least to the philosophical imagination, but they are not too numerous in the everyday world. The risks to innocent persons in having grenades around in the normal commerce of life, however, are obviously pretty high. For the shoulder fired missile, the number of justifiable occasions of use are even fewer, and if the risks of accident are perhaps lower than for hand grenades, the risk of use by the deranged must be about the same and the harm potentially much greater.

In reasoning along these lines the supporters of a weapons regime that is broadly permissive, but not universally permissive, are following what is roughly the correct course. Starting with the language that gave constitutional standing to a right, they bring facts and values to bear to try to get the right right.

Their conclusions do not follow syllogistically from the expectations or intents of framers or ratifiers, from then accepted legal definitions, from the history of the English Bill of Rights, or from the way things then were.

It does not make much difference to the way they reason whether they think that the constitutional right, or rights that underlie it, are God given or natural, or have any of the other sorts of being that meta-ethicists have come up with. Values have to be argued and so do facts.

This means of course, that there will be room for sincere and principled disagreements. Pediatricians might well draw the line to exclude from constitutional protection inexpensive handguns, and the recently announced handguns shaped to look like cell phones. They would be drawing upon their experience with and knowledge of the statistics of firearm death and injury among children. The militia clause might be cited in support of this interpretation in that Saturday night specials are of no military use.

(Indeed it would be possible to craft a textual argument that only military grade weapons of individual use are within the farthest reach of the Second Amendment, the open question being which of those weapons are within the right and which outside because of a poor ratio of dangerousness to justifiable use. Ultimately I reject this military weapons only argument for reasons set out in my post of 7/20/16. My desire now, in any event, is only to show that, among those who think that the Second Amendment does constitutionalize an individual right, the two extremes on weapon policy must both, in the end, make normative and factual arguments about the extent and structure of the right.)

What I argue here will remind some readers of Dworkin's well known view that legal interpretation should make the law the best that it can be, given the whole body of the law and normative political theory. Dworkin's Judge Hercules construction, I think, properly cautions us that answering specific questions as to the outer limits of legal rights may be difficult, requiring, inter alia, a subtle appreciation of conflicting values and empirical facts. I also would be happy to second Hercules on the proposition that the task is not impossible or arbitrary. We need not concede the field to moral relativism or, certainly, to the private and partisan predilections of judges. (There are points at which I would diverge from Dworkin with respect to treatment of the text and of precedent, but these specialist concerns need not detain us here.)

Some will also be happy or appalled to find in my argument a “living constitution” view. I do not, however, endorse one popular living constitution formulation: that the meaning of the constitutional text changes with time and circumstances. The meaning is a matter of the public language at the time of enactment. When it expresses the establishment of a right, meaning provides the framework for working out the contours of the right in changing circumstances. Linguistic meaning, however, as everyone recognizes, is of finite content, and cannot possibly give all the answers in advance. What the constitutional text requires of later generations is to avoid punishments that are cruel, process that falls short of what is due, and restrictions that infringe the right to keep weapons – on our best understanding of what is cruel, what is due, and what, given intersecting rights and interests and current circumstances, is the extent of the right to keep weapons.

I have here argued that recognition of the line drawing problem for “Arms” should lead to recognition that no simple or mechanical method of interpreting the Second Amendment will lead to a satisfactory account of the right it enacted. Those who would put the Saturday night special outside constitutional protection will be looking to the same sorts of considerations that more permissive, but still sane, gun rights partisans will cite in excluding shoulder rockets. Where the best linguistic-normative-empirical theory will draw the line is a matter for serious debate.

Essentially the same argument could be advanced by focusing on “the people” who are the beneficiaries of the right. We are sure that the expectations of the framers and ratifiers got the right wrong with respect to race. Where is the line to be drawn for those who have committed violent felonies, non-violent felonies, misdemeanor assault, domestic abuse? Does it make a difference whether parole has been successfully completed? Just what sorts of psychiatric diagnoses deprive one of the right? Does a law prohibiting a 12 year old from possessing a firearm infringe the right? Is the right lost by a statement (no other conduct) in support of ISIS or a Nazi group?

Like line drawing as to which weapons are constitutionally protected, line drawing as to rights holders is a serious normative and empirical undertaking. It does not come tumbling out of some purportedly simple interpretive method. Once we appreciate the inevitable role of changing facts and competing values in delineating the right, the claims of “originalism” or strictness of construction, so often made by the friends of broad gun rights, must be largely discounted. 

 

See also “The Purpose of the Second Amendment Failed Long Since,” https://lawrencecrocker.blogspot.com/2015/11/?m=0; "The Second Amendment: Not One or Two but Three Rights," http://lawrencecrocker.blogspot.com/2016/07/the-second-amendment-not-one-or-two-but.html;  “Guns don’t kill people, true – in exactly the same way ricin and hand grenades don’t kill people,”   https://lawrencecrocker.blogspot.com/2019/09/guns-dont-kill-people-true-in-exactly.html.