Why the Second Amendment protects the AR-15

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 4th U.S. Circuit Court of Appeals 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 United States. 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 decision by the Supreme Court (2008), for 60 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 decision, the Supreme Court stated unequivocally for the first time that the Second Amendment protects an individual right. But Heller 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 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 4th 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 U.S. 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.

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