2.2 "If the Second Amendment guarantees the right to keep and bear ordinary military weapons, then everybody can have their own tactical nuclear warhead."
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This article is from the talk.politics.guns Official Pro-Gun FAQ, by Ken Barnes (kebarnes@cc.memphis.edu) with numerous contributions by others.
2.2 "If the Second Amendment guarantees the right to keep and bear ordinary military weapons, then everybody can have their own tactical nuclear warhead."
[This is what is known on t.p.g. as the "nuclear strawman" or "Ban guns, ban The Bomb!" argument, designed to get everybody off on a tangent about whether or not the U.S. Constitution protects privately owned nuclear weapons.]
Reynolds, Glenn H. and Kates, Don B., "The Second Amendment And
States' Rights: A Thought Experiment," William and Mary Law Rev.,
v.36 pp. 1737-1768 (1995)
In summary: The Second Amendment protects all arms, though as is
mentioned elsewhere (see 3.3), those arms which have some relationship
to a well-regulated militia are better protected than those which do
not, at least according to legal precedent. Many people (at least for
the sake of argument here on t.p.g.) are justifiably distressed at the
thought of private individuals owning such indiscriminately destructive
and persistently dangerous weapons. Some supporters of the civil right
to keep and bear arms, as a result, seek to interpret "arms" as meaning
"personal arms" (i.e. those which can be carried and used by an
individual against another individual). However, in researching the
era during which Amendment II was drafted, it is possible to find
individuals who owned cannon and privateer ships, much as it is possible
today to find people who own tanks and planes from the World War II era
(and later), some with functioning guns. Civil War re-enactor companies
today sometimes own cannon and other weapons which were state-of-the-art
for_that_period.
If one attempts to "creatively interpret" the Second Amendment today
to say that it should now only apply to "personal arms" (in the absence
of any textual or historical basis for that interpretation), what
legitimate objection can one have to others who "creatively interpret"
it to say that it now applies only to the National Guard, or even to say
that it's entirely outmoded and can be totally ignored? (See 2.0)
Any of these is an arbitrary selective interpretation, and all are
equally unsupportable, as would be any attempt to limit the First
Amendment protection of a free press only to, say, presses like those
used by Benjamin Franklin, and not the unimaginably more powerful
telecommunications devices of today. It is perhaps not surprising,
however, that the power which modern telecommunications gives to the
individual is similarly opposed, out of fears of what can possibly be
done with it (see also 4.0).
The implications of the "states' rights" interpretation of the
Second Amendment are also noteworthy in this regard. If the Second
Amendment is properly understood to protect the militias of the
state governments from being interfered with by the Federal authority,
the existing structure of the National Guard would very likely be
unconstitutional, and there could be no bar to the states possessing
independent nuclear arsenals as a counterforce to the power of the
Federal standing army. The types of "arms" available to a state
government, particularly in a wealthy state like California, would
undoubtedly exceed that of most every individual.
The Second Amendment was indeed written to protect all arms, and thus
nuclear weapons are included. If multibillionaires (or wealthy state
militias!) funding their own private bomb development efforts seem to
be a problem worthy of serious consideration, what's the solution?
Follow the procedure that the authors of the Constitution provided for
modifying the Constitution to adapt to changing times --amend it by
following the procedures in Article V. The people who wrote the
Constitution did not intend for it to be selectively interpreted in
order to fit changing conditions. They planned that if conditions
"did_change enough to warrant an alteration in a provision of the
Constitution, it should be done with due care and consideration,
and only upon the agreement of two thirds of each house of Congress,
and three fourths of the legislatures of the states. "This_is the
proper way to react to changing times-- through the amendment process,
and not by arbitrary denial of the plain language of the Constitution,
by whatever branch of government (see 2.3).
--
Based on a posting by Dan Day (dcd@RKBAfirstnethou.com)
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