This will be my last gun-related post for a while--I hope.  But I've been repeating myself a lot lately, and when I find myself repeating myself a lot, it's nice to be able to put my thoughts all down in one place (like this blog post) which I can link to and reference.

As the gun control discussion heats up here in the U.S., politicians who are in favor of various types of gun bans keep assuring me that they won't infringe on the rights of hunters.  They tell me that they just want to ban and/or confiscate "military-style" weapons but will not make it harder to own "sporting" weapons.

I think these politicians are a little confused.  See, while I am a hunter, and while I appreciate their assurance that my Marlin .35 won't be made illegal, I know that the Second Amendment was not written to protect the rights of hunters.  The preservation of gun ownership for the purposes of hunting and target shooting is a nice by-product, a perk, but it's not the function nor the purpose of the Second Amendment.

So what is the purpose of the Second Amendment?  Why does it say that citizens should have the right to bear arms?
I'm an English teacher, so my first response to questions like these is to go back to the text.

1) "A Well-Regulated Militia"

Here is the actual text of the Second Amendment to the U.S. Constitution.

It's important to recognize the reason for this amendment--and for the other ten amendments that make up the Bill of Rights of the Constitution.  The Founding Fathers were concerned about the abuses of power that they had suffered at the hands of the British government.  They were focusing very hard on making a system of government which could not inflict such abuses on its citizens.  The First Amendment was established because the British government had limited the free speech and ability to assemble of colonial citizens; the Third Amendment was established because the British government had quartered its troops in the homes of colonial citizens, etc.

The Second Amendment was no exception.  As tensions in the colonies rose, the British government had taken steps to disarm the colonies.  Before the war, as dissenting Americans formed their own militias (in opposition to the Loyalist militias), Parliament established an embargo on firearms and ammunition on the colonies.  The first shots of the Revolutionary War, fired at Lexington and Concord, were sparked by an attempt of the British Regulars to seize and confiscate a cache of arms from a local militia.

It's also worth noting that the Constitution would not have been ratified were it not for the addition of the Bill of Rights.  Anti-Federalists were concerned that the Constitution gave too much power to a central federal government and did not leave enough power for the state governments.  The amendments of the Bill of Rights were a way of placating the Anti-Federalists, limiting the abilities of the federal government.

So, why does this amendment say that the people should get to own weapons?

It specifically says that it's because "a well-regulated militia" is "necessary to the security of a free state" (Emphasis mine).  That is, should the government of the United States ever become tyrannical, or should the United States ever come under threat of foreign invasion, the Founding Fathers wanted average citizens to be able to resist, the way they themselves had resisted in colonial militias.

Noah Webster confirmed this when he said,
"Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States."

Similarly, James Madison spoke of "the advantage of being armed" as the reason the people need never fear their government. 

The Second Amendment isn't about hunting.  It's about the right of the people to defend themselves against a hypothetical future tyrant.

2)  Who is in the Militia?

"Ah," you may say.  "But it specifically mentions militias.  So if citizens want to own firearms, they should have to join the National Guard."

Not quite.  There are two more laws I'd like to look at, as well as two Supreme Court Rulings.  What it comes down to is that the definition of "militia" is more fluid than many people realize.

The first militias under the new government were akin to the "posse" of Western movies: law enforcement officers such as sheriffs were often underarmed, and in the event that greater force was needed, they rallied a bunch of armed citizens to help enforce the law.  This changed with the Militia Acts of 1792, which established state militias and set rules for their use.  The second Militia Act of 1792 was actually an act of conscription: it declared that the militia consisted of every "free able-bodied white male citizen" between the ages of 18 and 45, with the exception of those in certain occupations.  All such citizens were responsible for owning and maintaining their weapons (a musket, a bayonet, gunpowder, 24 bullets, etc.)

These militia acts were replaced by the Militia Act of 1903, which re-organized the militia into a federally-funded body, the "organized militia" (the National Guard).  But this act did not fully do away with the earlier definition of "militia."  It still allows for the "unorganized militia," which consists of:

• All able-bodied males between the ages of 17 and 45
• All retired members of the armed forces up to the age of 64
• All female citizens who are also members of the National Guard

To put it simply, if you fall into these categories, you already are a member of a militia--whether you know it or not.

(Not that gun ownership is limited to these militia members.  The Supreme Court has ruled that firearm ownership is not contingent upon membership in a militia--even with such a broad definition of "militia" on the books.  In 2008 the Supreme Court ruled in a fascinating case known as District of Columbia v. Heller, in which the constitutionality of Washington D.C.'s handgun ban was challenged.  In the Court's ruling, the majority opinion interpreted the Second Amendment as being linked to the idea of the unorganized militia, but not contingent upon it: The first part of the Amendment is its purpose, but the second part is not limited by the first part: "...the right of the people... shall not be infringed.")

As a member of the unorganized militia, I actually have a responsibility to defend my country, whether against outside invasion or against unjust internal tyranny.

3)  What kinds of firearms should the unorganized militia have access to?

It has been said facetiously, by some proponents of gun control, that if the Second Amendment guarantees the right to bear arms, the only types of arms covered by this guarantee should be those arms in existence at the time of the Second Amendment's drafting: namely, flintlock muskets.

This is, of course, patently ridiculous, and the Court ruling in D.C. V. Heller explains why.  "We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding."

This is not to say that every kind of weapon should be available to the average citizen.  I would not advocate that non-military citizens, whether militia members or no, should have the individual right to own smart bombs, predator drones, or bunker-busting missiles, by any means!

The National Firearms Act of 1934 was passed in response to criminals using weapons superior to those policemen had available.  Who doesn't associate the 1920s gangster with any other weapon than the Tommy-Gun (Thompson Sub Machine gun)?  Fitted with a drum mag, this fully-automatic weapon was the bane of policemen for years.  So, Congress passed a law strictly regulating ownership of machine guns, silencers, grenades, and short-barreled shotguns.

I have no problem with such a law--that makes perfect sense.  But here's where it gets interesting. 

In the Supreme Court case United States v. Miller, a man was prosecuted for transporting a short-barreled shotgun in violation of the National Firearms Act.  His defense was an appeal to the Second Amendment.  But the prosecution (the U.S. Government) tried to argue that the Second Amendment didn't count here specifically because the shotgun had no military purpose, and "The Second Amendment protects only the ownership of military-type weapons appropriate for use in an militia"!

That's almost the opposite of what gun-control advocates are arguing now.

Anyway, the Court upheld the NFA in Miller.  The Second Amendment does not apply to all kinds of weapons.  It is not a violation of the Second Amendment for the government to restrict certain kinds of weapons.  However, there is the strong implication that it *does* protect private civilian ownership of weapons appropriate for the military, because of the broad-based definition of "militia."  The court ruled that Miller was not guaranteed the right to own a sawed-off shotgun because such a weapon had no military application for the public defense.

In the Court's later ruling in Heller, the majority opinion commented on Miller's ruling:
"We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machine guns (not challenged in Miller) might be unconstitutional, machine guns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” ...The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.”

So, that being said, what kind of firearm should we expect the unorganized militia to be able to own?

Average soldiers in modern militaries are armed with Assault Rifles--select-fire automatic rifles with detachable magazines, such as the AK-47 or the M4A1.  However, civilians generally cannot purchase, import, or manufacture such a weapon: ownership of fully automatic weapons is very strictly regulated.  I don't think the unorganized militia or the average citizen should be able to privately own Assault Rifles.

But neither do I think the unorganized militia should be limited to bolt-action and lever-action rifles.  If the purpose of the unorganized militia is the final defense of our nation in the face of invasion or tyranny, perhaps even going toe-to-toe with a standing army, they are at a disadvantage to begin with (in terms of training, resources, etc.).  Limiting such a militia to manually-cycled actions seems to violate what the Court's ruling in Miller seemed to consider the purpose of the Second Amendment.  In Miller, the Court seemed to expect citizens to be able to purchase firearms that had a military application: "military-style rifles" or what we now call "assault weapons."

So I would argue that, in light of the Militia Acts, in light of Miller and Heller, in light of the way that the Supreme Court seems to agree that the Second Amendment should be interpreted, it does not make constitutional sense for the federal government to be able to restrict the ownership of semi-automatic rifles with detachable magazines--which are among those firearms which are "one and the same" with those currently "used in defense of person and home."  Semi-automatic rifles are among the most common forms of rifle, even for purposes such as hunting.  And semi-automatic rifles make an excellent weapon for a militia member--practical for field use as well as defense, while not being what the Supreme Court considered "highly unusual" for civilian possession.

4)  In Summation:

So while it is very nice of my governor to assure me that he supports the Second Amendment by supporting hunting, that's not what the Second Amendment is about.

The Second Amendment is about the ability to defend oneself against a variety of threats.
The Second Amendment is about resisting tyranny and invasion.
The Second Amendment is about not being afraid of one's own government.
The Second Amendment is about, even as a civilian, helping to provide for the common defense.

And in light of all that, I feel that these proposed bans of "military-style" weapons or semiautomatic rifles violate the spirit of the Second Amendment.

Further Reading:
The complete ruling of District of Columbia v. Heller, 2008
The Wikipedia article on the U.S. Militia