You’ll notice I don’t spend a lot of time so far covering the legal wording of the 2nd amendment. Yes, it’s useful, but the point I’m trying to make, one that Ivan Throne brings up very explicitly in his recent post, is that these are natural rights. To argue the law in any context but “no, that’s not what it says” is to accept that changing the law removes our rights. The 2nd amendment is an expression of a philosophy and grants us nothing.
That said, why did the founders write what they wrote? There are a lot of partial answers regarding the preamble portion regarding militia. Most of them are rooted in the ideas that the founders did not want a standing army if it could be at all helped, and knew that threats, especially in those frontier days, could come at any time, and with too little warning to suddenly manufacture and ship a bunch of guns, and train people how to use them.
We may not have a frontier, but we still have decentralized threats in the form of criminals (and criminal govt officials, but shooting them is still a bad idea even if justified), and have added an increase in the occasional wannabe mass murderer as well as terrorists. And we have a government and academia and media more and more determined to tell us if we’re even allowed to make a living.
Wherever there are people, there are those who wish to take from and control those who cannot oppose them.
Regardless of why, the second half is entirely self evident. and not dependent at all on the first. There’s nothing about crime or hunting that would even implicitly limit things to small self-defense weapons. If anything, the second half renders invalid any understanding of “militia” than being drawn from or comprised of all the people, and it requires special pleading to believe that “the people” in this case means something different than it does for the other amendments, as written by very careful wordsmiths after months of debate.
If anything, the “militia” clause requires us to take the opposite tack from banning “assault weapons”, and actually encourages full-up military hardware.
What’s interesting to me though is that this is one very explicitly unlimited amendment. I think that’s because it’s not an amendment about what to do with the weapons, relying on common law/etc. for “don’t murder”.
Think about it.
Stupid “fire in a theater” arguments aside, it’s pretty easy to think of categories of speech that should not be defended as “free speech”. Giving an order to murder somebody, for example. You can’t go “sorry judge but I’m entitled to say those words in that order because free speech” when you tell a subordinate, family member under your charge, etc., to do something illegal.
The whole point of the 1st amendment and “free speech” such as it is is to ensure that there’s a means to discover the truth, or an optimal solution to a problem, by making it more difficult to suppress truth simply because it is unpopular. That of course leads to its greatest weakness, because a lot of bullshit can be cloaked as “free speech”. And without a reliable way to predict what’s true, especially given the fallen nature of mankind and the tendency of psychopaths to seek control over others and bureaucracies to become corrupt, there’s no way to pre-define truth for all time.
But we can, and do, prosecute for things like lying under oath, making false claims regarding what someone will get when negotiating with them, libel, etc. I’d even consider at this point that we may need to find ways to tighten them down more, make it easier to get someone nailed for libel, and such. but when the ones ruining your life over your desire for freedom of association, freedom of thought, I’m not certain that handing the government more of that power is advisable.
On the other hand, if they do not wish to let us speak, we certainly do not owe them that consideration except where it benefits us.
In short, there are limits on speech, intrinsically. Even without the deadly and deceitful conflation of words as “action” and attacks by the left to promote the concept of “hate speech”.
What about guns?
A prisoner has given up his rights, under due process, but leaving aside the question of “who defines the crime”, is even the most fervent gun nut going to hand a .50 cal to a prisoner in supermax?
So as a matter of sense we already recognize some limits – though I personally am absolutist enough that once they’re out and “paid their time” they should have their rights restored. Maybe not to vote – that’s a privilege and a responsibility, and it will take years even after prison to prove they have that, but why should a free man not be able to defend himself?
Insanity – at least the kind with violent action tied to it – is another thing to consider. I don’t know if it should be a law – again, look at the USSR and how simply distrusting communism was proof you were crazy.
Age – we don’t let kids drive until a certain age. Or sign contracts. Or join the military. Or buy lethal weapons unsupervised. Since they are juveniles, then they cannot, as Heinlein would put it, exercise responsibility. Much like learners permits in many states, maybe we should shift to a guardian-permitted model for driving under 18 or another outright, and for firearm possession, and so forth, so that there’s a common “adult” age for drinking, driving without parental consent, contracts, and so forth. Peter Grant recently had some thoughts on that, and related topics. No, he hasn’t gone lefty on us.
I don’t have a good answer – but the fact is some practical limits do exist as to who, and largely these would be based on the capacity to responsibly use them, differentiate friend from foe, and legitimate self defense from a psychotic meltdown.
None of which requires us to limit what a responsible citizen decides is needful to keep on hand.