Neither Muskets nor Ducks

Like it or not, the assault weapons outlawed by the now-expired 1994 Crime Bill are precisely the kind of firearms that our Founding Fathers probably intended to protect.

"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."

They were following the collectivist, or "states rights" argument, that the Second Amendment of the Constitution was written to protect the States in their authority to maintain formal, organized militias. To their way of thinking, there is no individual right of gun ownership, and the government is permissive in the kind of sporting arms used in hunting or target shooting. According to their argument, assault weapons and several other categories of firearms should be banned outright.

These people could not understand the Second Amendment any less.

If any category of modern firearm is protected by the Constitution it is assault weapons, not hunting or target-specific arms. Does this seem like a strech to you?

Read on.

Many may scoff at the idea, but those who subscribe to the collectivist interpretation of this Amendment betray a misunderstanding of the historical context the Bill of Rights was written in, or they simply chose to ignore it in pursuing their political agenda.

In the cultural context in which it was written, the Colonial Era "militia" referred to the armed citizenry as a whole, as opposed to the "organized militia" which was the government-controlled force we would now recognize as the Guard and Reserve components of our full-time armed forces.

In this correct context, the Second Amendment simply justifies the pre-existing right to keep and bear arms, just as the Constitution was written to justify certain inalienable rights. We have a pre-existing natural right to keep and bear arms for self-defense and other reasons that is bolstered by the phrasing "the right of the people" in the First Amendment that is understood to apply to all the other Amendments to protect individual rights, not the authority of states. To say that the Second Amendment is the only amendment in the Bill of Rights that followed the collectivist model is disingenuous at best.

The only Supreme Court case on the matter, United States v. Miller (1939), held that a shotgun having a barrel of less than eighteen inches did not show a "reasonable relationship" to the kind of arm that might be expected to use in a well regulated militia, and that the sawed-of shotgun in the case was not the kind of ordinary military equipment that could be reasonably expected to be used in the common defense.

In Miller, the Court specifically held that the militia was comprised of all males physically capable of acting in concert for the common defense. This individual rights position was bolstered in 2001 where in United States v. Emerson, the Court held that the people have "rights" and "powers" but that the federal and state governments have only "powers" or "authority," holding that the "right" referred to in the Second Amendment was an individual right.

In addition, a 2002 Justice Department brief states that the Second Amendment "broadly protects the rights of individuals, including persons who are not members of any militia or engaged in active military service or training, to possess and bear their own firearms, subject to reasonable restrictions designed to prevent possession by unfit persons or to restrict the possession of types of firearms that are particularly suited to criminal misuse."

In short, the modern Justice Department and apparently the Supreme Court uphold the individual right to own arms, but what kind of arms does that specifically apply to?

Once again, this historical context of the Framer's time period is important to understand their intent.

At the time the Bill of Rights was ratified in 1789, a substantial portion of the population lived in rural or semi-rural areas, where firearms played a vital role in the lives of the colonists being used primarily for hunting, self defense, and community defense.

The typical military firearm of Revolutionary War was a musket, a smoothbore firearm typically loaded with "buck and ball," a single large round ball slightly smaller than the interior diameter of the barrel, and several smaller buckshot. This was an inaccurate firearm not capable of reliably hitting a single man-sized target outside of approximately 50-75 yards, however, it was easy to load and fire several projectiles per firing in a comparatively short amount of time, which was desirable in an age and style of warfare that utilized densely packed formations of men firing in close proximity to their enemy.

The typical civilian firearm of the time period was the rifle, a firearm with spiraled grooves down the length of the barrel that imparted spin on a single projectile, making it much more stable in flight, and thus more accurate, much in the way a football thrown to impart spin is much more stable and accurate than one that is thrown so that it tumbles end over end.

The rifle was a huge technological improvement over earlier firearms such as muskets and shotguns, extending the practical range from the approximate 50-75-yard range of muskets to 150-200 yards for rifles. The downside of a rifle in the military usage of the period was it's comparatively slow rate of fire and lack of a bayonet mount, both major problems in the style of combat prevalent in regular armies of the time period. That said, rifle-equipped units were the "special forces" units of their day, and excelled in unconventional combat.

So... what does that have to do with assault weapons in modern America?

Everything.

The Second Amendment was written to make sure that the civilian population that makes up the general militia has arms suitable for the protection of the community at large, which at the time of the adoption of the Bill of Rights, consisted of the continued civilian ownership of muskets and of more technologically advanced civilian rifles.

A logical person understands that for the civilian militia to be effective, they must have personal arms that can be militarily viable in the context of the potential conflicts of the day. This of course does not apply to crew-served weapons employed by professional militaries and their organized militia (Guard and Reserve) components, but just to small arms. Civilians have no rights to cannons, tanks, or nuclear weapons, just small arms.

Considering the small arms technologies employed by conventional infantry units in 2004, civilian versions of military assault weapons are specifically the kind of small arms our Founding Father's intended us to have.

Militaries today primarily use either NATO-specified 5.56mm and 7.62mm ammunition, or military calibers of the former Soviet Union (7.62x39mm, 7.62x54R). Therefore, firearms chambered to fire these calibers of ammunition are exactly the kind of firearms the Founders who have had in mind for the general militia that is the population at large.

Further, the kinds of semi-automatic firearms erroneously called "assault weapons" that most closely mimic conventional military weapons, are precisely the kinds of civilian-owned firearms most protected by a correct contextual interpretation of the Second Amendment.

The Second Amendment was never written to preserve our right to hunt ducks or squirrels, and it was certainly never intended to limit our choice of weapons to period muskets any more than the Freedom of Speech would be limited to those conversing in Colonial-era English.

The Second Amendment was written to ensure that the individual American could ensure his access to military capable arms for the defense of his home and his community.

Now, when can we get a militia-friendly, semi-automatic version of one of these?

Update 11/30: This thread has been picked up by excellent gun blogger Jeff Soyer at Alphecca, and was "Today's must read" from SayUncle. Thanks, guys!