Jon, thank you for this post. I appreciate your insight and informed perspective. I have three honest questions that I would love to get your feedback on.
I should start by stating that I most definitely fall within the “Moral Arc” club, but I am sympathetic to those who like you, wish to be prepared for a worst-case scenario.
If we as a society agree that we should continue with the “fight the tyrannical government” purpose of the 2A, isn’t there a lot of latitude for states to establish which guns are allowed, which civilians can own them, and what regulations they wish to put in place?
Most constitutional scholars agree that when the 2A was written, it was purposely designed to allow civilians to own the most powerful weapons of the day, including cannons. Given this, it seems like civilians should be allowed to own any type of arms, including bombs, warplanes, missiles, tanks, etc., however…
In the Heller decision, Scalia dedicated an entire section that was unrelated to the case (Section III) and opened the door for bans on guns like the AR-15. In fact, the Heller decision overturned D.C.’s total ban on handguns, but given Section III there seems to be a good possibility that D.C. could ban specific types of handguns. (E.g. only allowing revolvers up to .357 caliber with a maximum of 6 chambers.)
That leads me to my second question. Constitutional scholars also agree that as the 2A was written, there were two types of “militia”: Organized and Unorganized. The former consists of our state National Guard, local police forces, and military draft.
An unorganized militia was originally understood as all “able-bodied” men between the ages of 16 and 45. That definition holds true to this day with the most recent decision being Miller in 1939 which found that “the Militia comprised all males physically capable of acting in concert for the common defense.” (In fact, in Arizona the state constitution maintains an age restriction of 18–45. This has never been enforced, but with the recent shootings one state legislator is worried that it will be and is seeking to amend the state constitution to remove the upper limit.)
This presents a strong case that the blind, obese, mentally ill, physically weak, paralyzed, people with anger-management deficiencies, etc., are not able-bodied. Given this, couldn’t a state require aspiring gun owners to:
- Fit within a set age range,
- Require them to pass an annual psychiatric exam,
- Require them to pass an annual physical fitness test per the Army’s minimum standard,
- Bar known members of hate groups (E.g. KKK) from owning firearms,
- Require an annual field test on gun safety, shooting ability, and live-fire response with innocents in the mix?
The interpretation of “well-regulated” is all over the map with a very wide variance from state to state on how this looks. In his Heller opinion, Scalia went to great lengths to detail the meaning behind each phrase within the 2A EXCEPT “well-regulated” providing only this one, unsatisfying sentence:
“Finally, the adjective ‘well-regulated’ implies nothing more than the imposition of proper discipline and training.”
Given that and the current variance we see from state-to-state, there doesn’t seem to be a very good 2A argument against state regulations such as:
- Registering all currently owned guns into statewide database.
- Entering their ballistics into a state database.
- Linking a state database to state and local law-enforcement agencies for real-time updates.
- Linking the state database with other states (opt-in state-by-state) in a singular system.
- Tracking all manufacture, shipping, and sales of firearms and ammunition.
Final thought. What about a sliding scale of physical requirements and regulations that increase as the destructive force of arms increase such that nearly all civilians could own a break-action shotgun, revolver, and bolt-action rifle, but for semiautomatics with swappable magazines, a higher bar is set, and so on?
in advance for reading my very long question. I recognize this was basically a blog post unto itself, but these are the thoughts I’m consumed with lately and I’ve had a very difficult time finding a mindful gun-rights advocate to have this conversation with.