Tuesday Talk*: What Does The Second Amendment Protect?

President Biden, in the midst of inflation, potential recession and a stock market that will make you sad, twitted what might appear to be a surprising, and silly, position.

That this is his position is hardly surprising, even if one might wonder when a more serious discussion will put an end to the “assault weapons” characterization of common semi-automatic weapons that are black and scary looking. What might be surprising is that President Biden raises it now, presumably to gather momentum with the same voters who are energized to vote in the midterms due to the Supreme Court’s overruling Roe in Dobbs.

Congressman and former con law prof Jamie Raskin argues in an op-ed that the belief that the Second Amendment exists to enable citizens to take up arms against the government should the United States become a tyranny is constitutionally baseless.

This purported right to overthrow the government means that the people must enjoy access to weapons that are wholly unnecessary for hunting or self-defense, such as military-style assault weapons. As Representative Chip Roy, a Republican, argues, the Second Amendment was “designed purposefully to empower the people to resist the force of tyranny used against them.”

The issue here isn’t whether the Second Amendment exists, or whether it protects people’s right to hunt or defend themselves and their homes, but whether it’s also a bulwark against the government. Raskin points to some of the lesser intellects in Congress as being champions of the Insurrectionist Theory of the Second Amendment.

Representative Lauren Boebert declared that the Second Amendment “has nothing to do with hunting, unless you’re talking about hunting tyrants, maybe.”

While Boebert’s idea of “tyrant” might not conform with that of most people who can spell the word, does that make the notion wrong? Clearly, the Constitution prohibits insurrection, as would any government charter that wasn’t bent on self-destruction.

The Constitution treats insurrection and rebellion as political dangers, not protected rights. Article I gives Congress the power to “provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions.” The guarantee clause in Article IV tells the United States to guarantee a republican form of government to the states and protect them “against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened) against domestic violence.” These provisions followed Shays’ Rebellion, an armed uprising in Massachusetts in the 1780s.

After the Civil War, the 14th Amendment disqualified from public office anyone who had sworn an oath to support the Constitution but then participated in “insurrection or rebellion” against the United States.

Of course, the winner of an attempt at insurrection, just as the winner of a war, gets to frame the effort as negative. But just as the founding fathers took up arms against King George, giving birth to this nation whose Constitution treats “insurrection and rebellion as political dangers,” what if, say, a president decides to steal an election for real and uses the military, led by Felon Flynn, to back him up? Does the citizenry shrug and mutter, “well, the Constitution [which has now been undermined] is against insurrection, so we just have to go with it”?

In other words, while Raskin speaks to the January 6 Insurrection, what if it went the other way and the tyrant to be deposed wasn’t Joe Biden, but Donald Trump? Does the Second Amendment protect the right of citizens to rise against someone who has seized power or engaged in tyranny as a reminder to those who would do so that the people might take to the streets with more than pussy hats if the government goes too far?

No, I have no idea how to define “too far,” and as we learned on January 6th, it’s too easy to manipulate the easily deluded into being the pawns of tyranny rather than democracy’s savior. This notion of the Second Amendment protecting insurrection is as risky a proposition as can be, but is it a legitimate justification or the rationalization of malcontents and fools?

*Tuesday Talk rules apply.

48 thoughts on “Tuesday Talk*: What Does The Second Amendment Protect?

  1. Mike

    It wouldn’t be so laughable if we didn’t spend a gazillion dollars on supersoldiers and machines of war for the standing army.

  2. hal

    The answer to the question in the headline, “What does the Second Amendment protect?”, is actually pretty simple. It protects “the right of the people to keep and bear arms”, that is to own and carry weapons.

    While US v. Miller was an especially flawed decision, as it found that this right was limited to the purpose of serving in the militia, it did determine that weapons “in common use” and “suitable for military purpose” were protected. This would seem to protect “assault weapons”.

    President Biden seems to view AR-15s (which as the most popular weapon ever sold meets the “common use” standard, [> 10,000,000 in private hands in the US] and as the semi-automatic version of the M-16 and M-4 rifles used by our military is clearly “suitable for military purpose”), as “Shrodinger’s rifle” at once “a weapon of war” too dangerous to be allowed on American streets and completely useless against a modern military. (The “Schrodinger’s rifle” observation is not original to me, I’d give the author credit, but don’t recall where I first heard/ read this.)

    If we could magically make every “assault weapon” in the US disappear tomorrow… we wouldn’t notice the difference in the total number of firearm deaths in this country. The number killed w/ these weapons is smaller than the annual fluctuation in the number of annual deaths from year to year. It’s also smaller than the number of people killed w/ blunt objects, or the number killed w/ knives, or the number beaten to death w/ hands and feet.

    Now, to what is in my mind the greater question, when is some sort of an insurrection somehow justified and does the 2A preserve a right to rebellion. IMO, the only legitimate reason to use violence is to defend oneself or an innocent third party.

    I see the bar to any insurrection being legitimate as being extremely high. One would have to believe that their life, the lives of their loved ones were threatened by the government for armed resistance/ rebellion to be justified. I don’t believe that the gov’t has/ should have a monopoly on arms/ the use of force, as the legitimacy of any government rests upon the consent of the governed and if the government has a monopoly on the use of force the effect is so coercive that such consent cannot be freely given.

    An insurrection would be justified only after all other reasonable alternatives have been exhausted.

    I’ve been tempted to write that the last time anyone won a civil war was… NEVER!

    However, we did win the war w/ King George’s Britain which could rightly be considered a civil war. And that may be a large part of the problem, as a nation we were born of rebellion and some see this as noble/ heroic/ romantic and don’t have any appreciation how horrific it would almost certainly prove to be, or how vanishingly small the chance of an insurrection being successful, by almost any measure, truly is.

    1. PK

      Hi hal, rewriting the Constitution from “keep and bear arms” to “own and carry weapons” isn’t on the table. Not for us at least. The remainder is rationalization or your personal opinion on where we stand now, rather than on the idea.

      I want to own and carry nukes. Can I? Tank or APC with functioning cannon? Why not? I could Halthought my way around it and say that AT weapons might proliferate or everyone would have nukes and would be locked in for a game of MAD, so what’s the harm? Until we open the box, we don’t know.

      “An insurrection would be justified only after all other reasonable alternatives have been exhausted.” No. Just out and say it. Insurrection is justified, you mean. I won’t agree with your circumstances, and whether you’ve exhausted all other alternatives and don’t even get me started on “reasonable”. You might not agree with mine if I were to say the same. Except I don’t. Insurrection is not justifiable.

      Don’t give in to the fantasies of fools and malcontents please. This isn’t a rebuke, but you seemed disappointed that no one was talking to you. The Shrodinger’s thing isn’t as clever as you think it is, if you care about one guy hiding behind a nym’s opinion.

      1. LY

        Pk maybe you need to get a language comprehension class. “Keep and bear” literally means “own and carry”.

        Not going to try to speak to conditions that would justify an insurrection and another revolution except to say than I never live to see them.

        1. PK

          Don’t punt and send me to remedial courses. Tell me why you think those two distinct phrases mean the exact same thing. If you want to play the game properly, no dictionaries or thesauruses. Also, I’m revoking your license to use the word, “literally”. That poor word doesn’t deserve further abuse.

          I don’t really want you to waste my time like that. What I mean is that you’re wrong. Words don’t mean whatever you say they mean. You aren’t Humpty Dumpty. Grapple with the actual language of the amendment or don’t bother.

          At least try to answer the base question without qualification. Is insurrection ever justified? You seem to say yes before punting again.

          1. LY

            Actually I had tried to delete that comment, and thought it was successful, so I don’t know how it got posted.

            That being said a quick Google definition search returns these results.

            Keep – have or retain possession of.

            Bear – to be equipped or furnished with

            Arms – weapons and ammunition; armaments

            Per dictionary definitions the phrase “keep and bear arms” literally means to have and carry weapons.

            I deliberately stated that that I didn’t want to consider conditions that would justify an insurrection and never hoped to see them and I hope America never descends to that. I hope to never be able to look at our nation and say these conditions are just cause for insurrection and rebellion.

      2. Hal


        Thanks for the response. I’ll remain civil and trust that you will, too. This is a very contentious issue, made more so by how ill informed and ignorant many of the talking heads in the media, their guest “experts”, and many politicians are w/ rgd to the 2nd Amendment and the RKBA, and as a result how badly misled many others are. I’ve studied this for over forty years and know what I’m talking about. When I state something as a fact, there’s a great deal of evidence behind that. When I’m stating my opinion, I try to make it clear that it’s my opinion (“IMO”/ “JMO”).

        First, “keep and bear” does mean “own and carry”.

        Second, “Arms” in the parlance of the time had roughly the same meaning as the term “small arms” does today. Tench Coxe, writing contemporaneously, described it as meaning “every terrible implement of the soldier”. So, no you couldn’t carry a nuke, and a tank or an APC would be likewise excluded. However, rifles and pistols would clearly be protected.

        I noted that in Miller SCOTUS ruled that weapons “in common use” and “suitable for military purpose” were explicitly protected. If one looks at the TO&E, basically the inventory, of an Army or Marine infantry platoon, the only weapons listed that are not already either prohibited or severely restricted are rifles and pistols. The very sorts of weapons that some are now seeking to ban/ restrict.

        The Schrodinger’s rifle thing may not be as clever as I think, but it’s apt and gets to the hypocrisy and ignorance of those who would prohibit ownership of “assault weapons”. For years, starting in the 1960s, and likely due to a combination of wishful thinking and a misreading of the Miller decision (IMO), the claim that the 2nd Amendment protected a right of the militia, rather than an individual right. There’s also a certain semantic sleight of hand sometimes used to make this argument, pretending that the prefatory clause was intended to limit the scope of the amendment.

        The 2nd Amendment actually reads, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms for the common defense, shall not be infringed.”, (with the words struck through here considered but not adapted). Please note that the words, “Militia”, “State”, and “Arms” are capitalized, while “the people” is in lower case. The framers capitalized words referring to plural or collective entities. “We the People” refers to the people as a whole, while “the people” mentioned throughout the Bill of Rights refers to individuals and the rights of individuals. Also note, that had they considered restricting the right (as some state constitutions had) to being for the common defense, and chose not to.

        The purpose of the 2nd Amendment was threefold; to provide an alternative to a standing army, to serve as a deterrent to government tyranny, and to insure that Americans could not be denied the means with which to protect themselves and their loved ones. It should be treated as a fundamental right and afforded the same respect/protection as other fundamental rights. An “assault weapon” is an unconstitutional affront as it diminishes the capabilities of “the militia” (as duly constituted by the individual states, not these LARPers who pretend their little groups are “militias” – using the term inappropriately is another sin the media is guilty of), disarms militia members (all able bodied adult males, 18-55 years of age, per fed’l statute going back to 1906), and diminishes people’s abilities to defend themselves.

        Suggesting, as Biden/ O’Rourke/ Pelosi and others have, that banning “assault weapons” is constitutional or would solve some imaginary problem is not just asinine, it’s obscenely irresponsible. More than 20% of Americans (per Pew, 2017) see the RKBA as “essential to their liberty” and will see another such ban (remember that the first had no discernible impact on violent crime) as an unjust usurpation of their rights.

        Finally, with regard to when an insurrection might be justified. I meant what I said and it wasn’t some sort of code or in any away a wink and a nod affirmation of what the crazies are advocating. I’m not a fan of Ayn Rand, but her comment to the effect that violence is so despicable that it makes responding to it with violence is something of moral imperative, is IMO apt.

        I have had more experience with violence than I wish, and I’m under no illusions to how awful any sort of civil war/ insurrection would be. I have on numerous occasions spoken/ written how strongly I oppose the sort of rhetoric that encourages people thinking civil war/ insurrection offers some sort of solution to our current ills.

        As dangerous as the agitation of some on the right is, and I’m not diminishing this, in promoting civil war, the efforts to treat the 2nd Amendment as a second class right is even more so. It’s frighteningly likely that someone will violently resist police trying to seize their firearms under the provisions of a constitutionally dubious “red flag” law and kill some police officers who will then likely kill him. Depending on how this is portrayed in the media, and whether it happens more than once, some RWNJs are likely to seize upon this as an excuse to start ambushing police or assassinating politicians. If that doesn’t scare you, it should.

        The right to own and carry weapons deserves the same respect as any other fundamental right.

        1. Hal

          Just noticed that the words ‘for the common defense’ were not struck through. Lost in transfer from my word processor.

          The framers considered the language, “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms for the common defense, shall not be infringed.”

          But chose the language “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Presumably to avoid limiting the right.

        2. PK

          Respectfully, I didn’t need this, hal. I wanted insurrection talk, and you gave me one paragraph of it out of all that. Glad to hear you think the violent overthrow of the government can be justified and that you follow the principal of “an eye for an eye” as an imperative. I’m glad you’re wrong, but am concerned that you and others indulge in fantasy. Next you’ll be quoting Jefferson and telling me about spilling blood and trees of liberty and other flowery crap. I’d rather not.

          1. Hal


            I don’t see anything that I’ve said in this thread, in my orig post, my reply to you, or my replies to others, that could reasonably be construed as advocating an insurrection. I don’t understand where you’re coming from w/ this.

            The case for the RKBA is so strong as to be irrefutable, trying to deny this is not just foolish, but foolhardy. More than fifty million people believe the RKBA is essential to their liberty. They see an assault weapon ban as an unconstitutional infringement upon that right, even if I didn’t agree with them, I’d see imposing such a measure when there no statistically significant upside (again should these weapons magically disappear there’d be no noticeable difference in the number of Americans dying) as a grave error.

            I’ve said that I believe that violence/ the use of force is justifiable only in defense of oneself or an innocent third party. That’s where I personally draw the line, I won’t engage in violence unless I feel that I am, or someone I care about is, in imminent danger.

            Nothing that I’ve said here, or anywhere else for that matter, could reasonably be construed as advocating/ encouraging insurrection. I can see how a reasonable man might draw their line somewhere else (e.g., choosing to resist police trying to seize their property under a “red flag” law, seize people from a home w/o a warrant, see Solzhenitsyn), but that’s a long damn way from encouraging insurrection.

            I won’t quote Jefferson, but I’ll give you John Stuart Mills, “War is an ugly thing, but not the ugliest of things: the decayed and degraded state of moral and patriotic feeling which thinks nothing worth a war, is worse. A man who has nothing which he cares about more than he does about his personal safety is a miserable creature who has no chance of being free, unless made and kept so by the existing of better men than himself.” My line is fear of imminent harm to myself or a loved one. Yours may be somewhere different. Many, if not most, of the founders would agree with Mills. Some number of our countrymen still do. Trying to pass a blatantly unconstitutional law is poking the tiger and I see it as terribly ill advised and extremely dangerous.

            Now, if i can impose upon your time and good nature. I’d ask that you review what I’ve written throughout this thread and see if you can find anything that I’ve written that can be construed as encouraging insurrection. I’d also ask if on rereading my response to your comments above I didn’t, in fact, address every concern you’d raised, even if I’d not replied as you might have liked.


            1. PK

              Only because you asked nicely and it might annoy those who were too cowardly to wade into the discussion. Better to try and fail than to not try at all. Good on you for trying, in other words. Whether you failed isn’t up to me.

              The narrow question is whether the Second Amendment “protect[s] the right of citizens to rise against someone who has seized power or engaged in tyranny . . .” You responded, “An insurrection would be justified . . .”

              I don’t care what you think about how far it would have to go before you consider such action justified. The mere fact that you said it is possible is enough for me to object. I took the hard line position that it is never ever justifiable under any circumstance. Instead of confronting that narrow topic you massacred words. Please, please show restraint. I only responded further because you asked, and the cowards annoyed me.

              Good talk. Don’t let the haters get you down.

      3. L.Phillips

        PK, you can own a tank or APC with functioning cannons if you have the time, money and sterling background necessary to do so. Same with automatic weapons up to .50 BMG in caliber. Possibly larger calibers, too, with additional licensing but that’s not my rice bowl.

        Don’t forget combat aircraft. The permission level on those has apparently moved up from Viet Nam vintage aircraft to F16’s because one of those is now in civilian registration and ownership. Not sure how BATFE feels about active guns on those but do know that the FAA forbids them in CONUS airspace on any aircraft. Have experience helping rebuild combat aircraft in civilian ownership for display or flight, including building non-functional but visually correct guns to be mounted on same. No clue on legal ownership of nukes and don’t want to know.

        I’m assuming “AT” means automatic weapons. I am licensed to manufacture, repair and own automatic weapons and a portion of my business is transferring those weapons listed in the BATFE registry to qualified civilians. Primarily, I deal with police and other governmental agencies on newly manufactured weapons outside the registry. If you are truly interested in owning a tank or APC with live cannons have the Admiral forward your contact information and I can set you up with a dealer in those trinkets.

    2. Elpey P.

      “I see the bar to any insurrection being legitimate as being extremely high. One would have to believe that their life, the lives of their loved ones were threatened by the government for armed resistance/ rebellion to be justified.”

      A whole lot of people claim to believe their lives are threatened by mean tweets. Some of them are probably batshit sincere. That bar may not be so high for some. It’s a staple of our partisan discourse that the Bad Guys in the other tribe are a mortal threat.

      At the same we are having a renaissance of horseshoe conservatism where “liberals” feel government is being existentially threatened by dissident and critical voices, and want to lower the bar of what constitutes insurrection to cast as wide a net as possible against their adversaries. It will mostly come back to bite their own (supposed) side, since discontent with the status quo and inflammatory protest is more characteristic of the left.

      Guns are a handy meta discourse for the partisan crazies on both sides, even when they are used overwhelmingly for horizontal violence and not for the mother of violent insurrections.

      1. Hal

        Please read my response to PK, if what I say here doesn’t adequately address your concerns with what i’ve written.

        i have to assume that were there police or troops rounding up people to send them to camps, you’d agree that violent resistance would be justified. So, there’s some point where we likely agree that violence is an appropriate response.

        We agree that mean tweets would not constitute a legitimate justification for using violence.

        Somewhere in between are the places where the line should be drawn.

        I don’t know what I’d do if police came to seize my property, or kidnap someone I love, under color of law, but I can’t really fault the thinking of someone who decides that that’s where they will draw the line.

        When this subject has come up in discussion with friends, I’ve urged them to watch “Beirut” and imagine the pancaked buildings and a smell that makes a dumpster on a hot afternoon seem pleasant, and to read the writings of the guy who posts online as “selco” about his experiences in Sarajevo.
        FWIW, I listen to NPR, support a woman’s right to choose, think drugs should be decriminalized, and have never voted a straight ticket in my life.


        1. Miles

          “It’s an opportunity to see who has the ability to exercise self-restraint and who needs therapy.”

          –Scott H. Greenfield, September 27. 2022

      1. Hal

        FWIW, while not discounting the value of therapy or my need thereof, I made a real effort to address what i think were the two real questions raised.

        I don’t know whether to infer from no getting smacked down that I was successful.

        1. Mike V.

          “…and don’t have any appreciation how horrific it would almost certainly prove to be, or how vanishingly small the chance of an insurrection being successful, by almost any measure, truly is.”

          I thought you hit the nail on the head. Especially with the passage above. If a civil war starts, it’ll make the breakup of Yugoslavia look like a church picnic.

          What most forget is that the Revolutionary War and Civil War were both preceded by years of increasing rhetoric and sporadic violence. Sometimes I wonder if Leni Riefenstahl’s ghost isn’t advising both Biden and Trump. The effort of both the left and right to “other” their opponents today are scary. If people don’t at some point take a breath, step back, and pause, things could spiral out of control.

      2. Drew Conlin

        “…It’s an opportunity to see who has the ability to exercise self-restraint and who needs therapy”….
        turned out to be prophetic

  3. RemnantPsyche

    Every American politician knows what the 2nd Amendment protects. Most pretend not to know because it’s not in their best interest to acknowledge the truth. It could spread to the ignorant, and as we’ve recently been told, truth that causes trouble for the government is a form of “misinformation.”

    And as for the feasibility of actual insurrection with widespread ownership of small arms, one might point out that a number of dedicated insurgents equipped with machine guns and pickup trucks recently added another corpse to the graveyard of empires after 20 years of occupation. Why restrict firearm ownership at all if they aren’t a threat to power? Why indeed.

  4. Jake

    Depends on who you ask? I’ve understood James Madison’s quotes on this topic to mean it was for the state militias to repel a ‘tyrannical federal government’. In Heller, Scalia seemed to enshrine the self-defense of the home as the central purpose of 2A.

    I don’t know that the argument that the 2A protects an individual’s right to defend themself from the tyranny of the government has ever been suggested by any serious person of authority but that’s irrelevant. If an individual, or even a couple thousand individuals, wants to defend themselves from the perceived tyranny of the federal government, they’re gonna need a lot more than AR-15s.

  5. Mark

    No, the Second Amendment does not protect the right to overthrow a tyrannical government. Simply stated, the Second Amendment protect the individual right to own, possess, and carry weapons. The idea of overthrowing a tyrannical government comes from The Declaration of Independence.

    “…That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…”

    Any ‘protection’ of that right would have to rest in the Tenth and Fourteenth Amendments [my lay assumption] and would be a breathtaking stretch of an argument. Not that a government so tyrannical as to merit overthrow would be respectful of any rights. When it comes to such an action, it should be assumed if you lose, the government will crush you by any all means possible. This should be expected – as it was for the American Colonists who revolted against their King and lawful government. Had the revolution failed, hangings and perhaps drawings and quarterings would surely have resulted.

    Returning to the Second Amendment, it protects an individual’s rights to own and carry weapons (and body armor) – up to and including what an infantryman might carry. Which, admittedly, is an uncomfortable position where actual assault rifles and grenades are concerned. This is a right that stands on its own without need for justifications like hunting or overthrow of governments.

    Segway-ing into two related questions areas.

    There are NYS laws concerning weapons and carrying weapons (firearms, knives, etc.) that are in opposition with my view of the Second Amendment. For instance, as a remote worker and introvert my ability to rally four willing and qualified character references is effectively zero (I might manage two or three). The restrictions NYS places on ownership and carry are overly burdensome and impinge on enumerated rights.

    Going back to my lay view of the founding documents (Declaration, Constitution, etc.) … the government is founded to protect the rights of the people. In too many cases, the three branches end up tilting the scales in favor of the government (looking at the lenient approach to 4th amendment violations, qualified immunity, prosecutorial and judicial immunity, sovereign immunity, civil asset forfeiture, subverting presumption of innocence and availability of due process because sex, and the list could go on a long time). IF (and that is a big “IF”) there is a case for calling tyranny, it isn’t over the transfer of presidential power…. it is due to the boiled frog encroachment on our rights.

    1. Jake

      “– up to and including what an infantryman might carry.”

      I’m asking, not challenging: What analysis supports this conclusion?

      If you are being narrowly specific to what an 11B might carry, that includes hand grenades and squad automatic weapons. If you’re colloquially referring to any weapons system an individual member of an infantry battalion might carry, this conclusion is clearly mistaken. I know of no authority that claims individual Americans should be allowed to own and carry mortars, MANPADS, or antitank systems.

      1. Hal


        I’ve addressed this above, by quoting Tench Coxe saying that the 2nd Amendment “right to keep and bear arms” referred to “every terrible implement of the soldier”.

        There are numerous other contemporaneous quotations, from the framers and others, that make clear that their intent was to have the people be able to turn out as a militia when called upon. For most people, that meant as infantrymen. The Militia Act of 1892, passed by the same Congress that ratified the Bill of Rights, supports this.


      2. Mark

        The thought is narrowly tailored to the individual infantryman, and not to an organization. In the example, SAW and Grenades but not the heavier weapons. This is based on the prefatory clause including militia as one of the purposes. This is where the idea of having weaponry available to infantry comes to mind.

        I’m not settled on this topic and have my own internal argument regarding weapons capable of automatic fire and especially explosives. Any thoughts on either side would be fantastically appreciated.

        1. Jake

          A very simple test: If an individual ‘militia member’ can get it, so can a drug dealer, a religious fundamentalist terrorist, or a garden variety crazy person. Do you want MS 13, Al Queada, a sovereign citizen, or a Juggalo to have access to hand grenades? Standoff artillery? I do not. I find it hard to believe any rational actor does.

          1. Hal


            I don’t know where to draw the line. I’ve had some version of this conversation dozens, if not hundreds of times, and what I’ve come to realize is that the question isn’t really “Are there things that aren’t presently allowed that should be (grenades, full auto weapons, etc.)?”, but “Is this (any given additional measure proposed) going too far?”.

            With an “assault weapon” ban the answer is clear that it is. IANAL, but IIUC, the standard of review for any measure that infringes upon a fundamental right is strict scrutiny. For the measure to be legitimate it must serve to address a compelling government need (I trust we’d both agree that public safety meets this criteria), and that it be narrowly tailored to meet that need. An “assault weapon” ban cannot clear this hurdle, as it’s been tried and did not result in any discernible reduction in violent crime, and in banning an entire class of firearm (when they’re so rarely used to commit any sort of violent crime) could not be considered to be narrowly tailored.

            Further, per Miller, these weapons are specifically protected as they are both “in common use” and “suitable for military purpose”.


            1. Jake

              FWIW I agree the term ‘assault weapon’ is too vague. If I were king of the United States I would classify small arms by the amount of energy they can send downrange per minute and use that metric to draw the lines between weapon systems suitable for civilian, LEO, and military purposes.

      3. Gus

        And yet in the founding era, it was commonplace for individuals to own cannons of all types, arguably the then top of the line military weapon.
        Essentially all privately owned merchant ships carried them, often in large quantity. There also was little or no restriction on individuals forming their own private militia companies and purchasing cannon for their use, in fact the Ancient and Honorable Artillery Company, which is a private artillery company organized in Massachusetts in 1638, still exists.
        Under Bruen, its not such a stretch to see this as supporting current ownership of mortars, MANPADS, or antitank systems.

        1. Hal


          I agree w/ your assessment, “Under Bruen, its not such a stretch to see this as supporting current ownership of mortars, MANPADS, or antitank systems.”

          However, as fervent a supporter of the RKBA as I am, Bruen is… something of a departure from trad’l jurisprudence, if not actual rationality. IANAL, but I’m a reasonably bright guy and I really struggled to make sense of Bruen, the reasoning is really pretty convoluted at times. I intend to read the dissenting and concurring opinions, but haven’t to them.

          JMO, but I’m for taking the 2nd Amendment as written and applying strict scrutiny as the standard of review. This would seem to preclude another “assault weapons” ban and prohibit other “gun control” measures that aren’t evidence based and infringe upon the RKBA.

          I can see an argument, a valid argument, against MANPADs, Javelins/ NLAWs, etc., but I can’t see a valid argument against “high capacity” magazines or AR-15s. It’s also hard to see an argument against grenades as they existed the time the Bill of Rights was written, but I don’t really want to see them become common. Again, JMO.

  6. phv3773

    Biden’s statement was the simple recitation of a Democratic party platform plank.

    It’s hard to think of an issue in which the division of looney ideas is more equally divided than gun control. On the right, the need to carry a gun any and everywhere, and the hoarding of weapons for the next rebellion. On the left, preoccupation with mass shootings and utter failure to address the causes of the majority of gun homicides.

  7. Mr. Ed

    The discussion begins with an agreement on what defines an “assault gun”.

    U.S. law use to require every male of fighting age to own a military grade firearm at there own expense and ammunition. What is the difference than that and a semi-automatic AR-15 variant?

    * I claim Tuesday rules

  8. Anonymous Coward

    Based on the letter of the law and the background concepts of organized and unorganized militias, I’d say anything in the National Guard inventory is fair game, including main battle tanks and helicopter gun ships. Related to this the NFA needs to be abolished since “avoid the prohibition on gun registration with this one weird old trick” of calling it a tax was bad to begin with and made worse by the Hughes Amendment and other added restrictions.
    Further related is the Biden claim that citizens couldn’t own cannon, proven total BS by Article 1 Section 8 of the Constitution governing letters of marque which only makes sense if privately owned warships, and their guns, were common and and legal.

  9. Mr. Ed

    No real serious discussion can begin without a agreed definition of an “assault gun”.

    U.S. law use to require every male of fighting age to possess at their own expense, a military grade firearm with bayonet and ammunition.

    What is the difference between that and owning a semi-automatic AR-15 variant today?

  10. SamS

    Wikipedia has a list of Indian attacks on settlers. About 100 occurred before the Second Amendment was proposed in 1790. If fully automatic M-16’s, machine guns and Claymore mines were available then, I’m sure the founders would have considered owning them to be both legal and prudent.

    In Texas today, hunting feral hogs from a helicopter with an assault rifle is legal, even encouraged. Therefore helicopter gun ships are also legal.

  11. The Infamous Oregon Lawhobbit


    Having done my A paper on the state of firearms law (looooong ago) I recall a decent case out of Texas referring to something like “the arms and accoutrements traditional to light infantry,” or suchlike. We’re looking at 30+ years ago. That’s probably the most “reasonable” definition – esp. considering what the Militia Act required the militia to have.

    Though that said …. at the time the 2A was written it was quite possible for Regular Folks to buy field artillery….It would seem odd that someone could purchase an M777 howitzer, but not an M1 Abrams tank….

    Nice and thoughtful writing, Hal!

    (For the record, people *can* buy tanks – there are websites dedicated to selling the varmints. Generally with deactivated gunnery bits, but with the right taxes paid…)

    ETA: One of those great ironies in life: Miller was decided because nobody bothered to tell the courts that shotguns, esp. short barrelled ones, were in high demand during the trench warfare of WWI. Though the Germans disapproved, much as their saw-toothed engineers bayonets were frowned on.

    1. Hal

      Thanks for the kind words.

      JMO, but I’d agree w/ your “the arms and accoutrements traditional to light infantry,” as being reasonable.

      To my mind, now that we have a standing army, there are two reasons for continuing to protect the RKBA. One is to act as a deterrent to tyranny/ government overreach, the other is to self protection/ personal defense. Having sev’l million (~ 20 million, perhaps a bit more) should give any gov’t pause. Certainly, we’ve seen in the riots in a number of cities, that the display of such weapons deterred rioters from fire bombing some buildings. Perhaps a shotgun would have served just as well, i don’t know.

      When we take into consideration how statistically unlikely these weapons are to used to commit violent crimes, it becomes clear that banning such weapons serves no purpose.

      W/ rgd to Miller, few people appreciate that Miller’s attorney neither appeared to argue before the court nor submitted written arguments. The court had only the government’s arguments to consider and their decision clearly reflects that, including their ludicrous assertion that short barreled shotguns/ rifles and machine guns had no “military purpose”.

      This sort of ignorance is what i was referring to above. i recall having a teacher tell the class that the 2nd Amendment described a collective right. When I asked why he thought so, somewhat to my surprise, said that “the Supreme Court ruled that it did” and cited Miller. I asked if he’d actually read the decision and, of he hadn’t, I told him that it didn’t say quite what he thought it did, but wasn’t really allowed to make my case.

      Thanks again for the praise rgd my writing, i do appreciate it.

  12. Robert

    Question: Do we need a Constitutional recognized right to fight with force against a tyrannical government? I do not want this to be thought of as specific to any administration or to any party. I am just asking, do we need the governing charter’s permission to fight off tyranny? Thank you.

  13. Keith

    I’ll say this – you tried.

    Our host asks an interesting question:
    Does the Second Amendment protect the right of citizens to rise against someone who has seized power or engaged in tyranny as a reminder to those who would do so that the people might take to the streets with more than pussy hats if the government goes too far?

    On the most simplistic level, if the arms are for the defense of self (based on the sovereignty of the individual), then it would logically follow that defense of the sovereignty of the State would be a permitted use, too.

    I’ve been trying to imagine, assuming it does, what it would look like.

    At a minimum, it would appear to require:
    1) either those in power or those seizing power were acting outside the scope of their authority.
    2) it would need to be sufficiently clear (to those on the winning side of history at a minimum) that when people came with guns to say they needed to knock this off, they weren’t seeking to replicate one improper power with another — but rather to restore a shared ethos.

    Is it possible we don’t have many examples because until fairly recently, we were a people with guns and a shared ethos? Could that be why some people will tread up to the Rubicon but dare not cross it? Maybe, but I’m skeptical.

    So what kind of tyranny are we likely to see?

    Are we looking at large scale insurrections (e.g. Bull Connor, adjusted for inflation across a large region?) or Battle of Athens type local demagogues?

    I’d imagine that the more localized the tyranny, the easier a mounted response would succeed (and be acceptable).

    My gut says that the older among us, that remember shared stories about the Country we all live in, may be able to see 2A as a bulwark against the kind of tyranny that would likely pop up, but as we lose our shared myths — the ability to have a coordinated response to tyrannical forces would suffer proportionately.

    But for those that say the answer is yes, what kind of tyranny would you imagine taking hold that is capable of being repelled by the people?

  14. The Infamous Oregon Lawhobbit

    You can make heads spin (on both sides) by pointing out that Miller is actually a relatively pro-gun decision.

    I love the “collective rights” folks. I guess that means all the other parts of the Bill of Rights that refer to “the people” are collective as well. Which creates a fascinating paradox when it comes to assembly – you have a right to assemble, but only after you’ve already assembled.

  15. rxc

    And then there are Mr. Bezos and Mr. Musk, who have developed their own private Intercontental Ballistic Missiles. Minus the nuclear warheads (so far).

    The rich people of the late 18th century owned ships for commerce, and they were often armed with cannon for protection, and sometimes for use as privateers. Maybe Mr. Bezos and Mr. Musk are following in their footsteps.

  16. jim

    The pro and anti 2A arguments here are typical. I note, as usual, that anybody complaining M16/AR15/MANPADs aren’t covered (now) because of what was available to the Founders (then) has to likewise square the circle for typewriters, TV and the internet.

    What’s fascinating in this discussion is whether the public can legitimately overthrow the government. I’d argue that ‘We The People…’ makes that clear we can but I’m reminded by SHG the Constitution has clear prohibitions against insurrection. Interesting contradiction. IF the gov’t can’t be overthrown by the public how is that different from subordination to the Divine Right of Kings? Which was assuredly problematic way back when.

    Good discussion. Thanks to all-

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