Anti-gun politicians, activists, internet trolls, and the usual suspects in the mainstream media often smugly ask whether supporters of the right to arms believe people are entitled to have AR-15s, fully-automatic rifles such as M16s, and nuclear weapons. The answer is “yes” to the rifles and “no” to nuclear weapons, and it is important to understand the reasons for both answers.
People have the right to AR-15s and M16s because, as explained here, the Framers of the Bill of Rights understood the right to keep and bear arms as the right of the people to be armed sufficiently to defend against tyranny, insurrection, and invasion, and to protect themselves against everyday criminals and engage in all other activities that were lawful when the amendment was adopted. The National Shooting Sports Foundation may pretend that an AR-15 is a “modern sporting rifle,” but it is instead a weapon designed and intended for the protection of life, liberty, and the pursuit of happiness which, like bows and arrows, javelins, and numerous martial arts, some people press into service for sports.
Since the right to arms existed before the Constitution was adopted, therefore before the Supreme Court was created, our rights do not depend on the blessing of the court. However, we take friends where and when we find them. In U.S. v. Miller (1939), the court indicated that the right to arms, as it applied to firearms, included the right to those that are “part of the ordinary military equipment.” For that proposition, it cited the decision of the Tennessee Supreme Court in Aymette v. State (1840), which said:
“As the object for which the right to keep and bear arms is secured, is of general and public nature, to be exercised by the people in a body, for their common defence, so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority.”
M16s are certainly “ordinary military equipment,” because they are the standard issue rifle in both the active-duty military and the National Guard, which, under federal law, is part of the Militia of the United States along with all other able-bodied males of age, and for the viability of which the Second Amendment protects the right of the whole people to keep and bear arms. Thus according to the standard indicated in Miller, based upon Aymette, such rifles are within the scope of the right to arms. And, as the Supremes went to great length to explain in District of Columbia v. Heller (2008), that right is not limited to people serving in the militia.
Unfortunately, Heller deliberately mischaracterized Miller and laws against brandishing weapons to justify the 1986 ban on the purchase of newly-manufactured fully-automatic firearms by private individuals. One solution might be to exclude “ordinary military equipment” rifles from the National Firearms Act of 1934, and to have a less-activist Supreme Court overturn Heller’s glaring error. Of course, the latter would hinge upon the reelection of President Donald Trump and a Republican Senate that will approve the president’s nomination of Seventh Circuit Court of Appeals Judge Amy Coney Barrett or another confidence-inspiring judge to the Supreme Court to fill a vacancy at the first opportunity.
A nuclear weapon is an “arm,” of course, but it is not within the scope of the right protected by the Second Amendment, because such a weapon would give an individual the ability to change the political trajectory of the country all by himself or herself. Just as no one person has the political power to decide elections, at least not since a South Texas political boss stole the 1948 Senate election for “Landslide” Lyndon B. Johnson, the Framers believed that the people would be able to defeat tyranny not because of one heavily-armed individual, but because the arms necessary to prevail would be distributed among the citizenry.
In The Federalist No. 46, James Madison wrote, “Let a regular army . . . be at the devotion of the federal government. . . . [A]n army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million of citizens with arms in their hands.”
And in The Federalist, No. 29, Alexander Hamilton wrote, “[The] army cannot be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow citizens.”
In essence, the Framers would not have agreed to one person armed with a nuclear weapon, but they would have wholeheartedly endorsed the widespread ownership of M16s and AR-15s, the latter the most commonly purchased rifle in America.