Right to Bear Automatic Arms?

[Feb. 2, 2013] In the wake of the Sandy Hook shootings, gun control has re-emerged as a controversial topic, and everyone has an opinion.  Senators want to implement extensive new safety regulations,[1] and the National Rifle Association wants to convince everyone that guns aren’t the problem.[2]  Many people are concerned at the thought of the government interfering with their constitutionally guaranteed right to bear arms.  But what does that right really mean?  Does it right inherently include automatic weapons, or stockpiled guns to use for self-defense?

The Second Amendment to the U.S. Constitution creates the foundation for the gun control debate: “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.”[3]

The NRA contends that stricter gun regulations would infringe on “the right of the people to keep and bear Arms,” and would therefore be unconstitutional.  Historically, debate has centered around whether the Amendment confers the right to bear arms on individuals, or solely the government.[4] The U.S. Supreme Court recently held that the right does in fact extend to individuals, in District of Columbia v. Heller and McDonald v. City of Chicago.[5]

In both those decisions, the Supreme Court noted that, while the right to bear arms extends to individuals, that right is not without limit:

Like most rights, the right secured by the Second Amendment is not unlimited… [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[6]

We also recognize another important limitation on the right to keep and carry arms… the sorts of weapons protected [by the Second Amendment] were those “in common use at the time.” [7]

The second limitation noted above is worth more discussion.  When analyzing ambiguous statutes, courts often look to legislative intent of the drafters.  Applying that analysis here, it is difficult to conceive that the drafters of the Constitution foresaw the creation of automatic weapons, or that individuals would purport to use them “in self defense.”  Modern gun legislation should compliment the Constitution to address modern technology, including automatic weapons that individuals can currently obtain and keep easily.

New Yorkers recently celebrated an entire crime-free day: on November 26, 2012, “there wasn’t a single report of a person being shot, stabbed, or subjected to a violent crime.”[8].  Police officers cannot even remember the last time that has happened.[9]  While it is true that New York City may not be representative of the general U.S. population – with its eight million residents packed into five boroughs, disagreement is not surprising.  But should a twenty-four hour period without violent crime be that rare?

The Sandy Hook shootings have spurred debate that will undoubtedly continue over the next several months.  But advocates for gun rights seem to imply that individuals should be able to stockpile weapons for self-defense.  In my opinion, people owning guns to defend themselves against other gun owners is analogous to the blind leading the blind.  And the nature of modern automatic weapons cannot be something the Constitutional framers foresaw or intended to protect when they ratified the Second Amendment.


[1] Dana Bash and Tom Cohen, ‘Enough is Enough,’ Feinstein Says in Proposing New Gun Ban, CNN (Jan. 26, 2013).
[2] See, What Should America Do About Gun Violence? Hearing before the S. Comm. On the Judiciary, 113th Cong. 1 (2013) (statement of Wayne LaPierre).
[3] U.S. CONST. amend. II.
[4] Jeff Cohen, Gun Control, the NRA and the Second Amendment, FAIR (Feb. 1, 2000).
[5] District of Columbia v. Heller, 554 U.S. 570, 595 (2008) (“There seems to us no doubt, on the basis of both text and history, that the Second Amendment conferred an individual right to keep and bear arms.”); see also McDonald v. City Chicago, 130 S. Ct. 3020 (2010) (holding that the Fourteenth Amendment incorporates the Second Amendment right to keep and bear arms for the purpose of self-defense).
[6] Heller, 544 U.S. 570 at 626.
[7] Id. at 627.
[8] Danny Cox, New York City Records Extremely Rare Day Without Violent Crime, THE EXAMINER (Nov. 30, 2012).
[9] Id.