In The U.S.A. It Is Your Right to Own Military Weapons

Ground-to-air missiles on snow winter. Air defense. defensive system iStock-Diy13 1367808965
Ground-to-air missile, air defense system. iStock-Diy13

Tombstone, Arizona – -(Ammoland.com)- You might be familiar with the question-and-answer site on the internet called Quora.com. While a lot of the discussion on the site is just garbage, a question that’s worth exploring occasionally pops up. Amidst the wrangling over “military-style” weapons and such, I recently ran across a question that I think is worth answering.

The question was:

“What is the legal precedent allowing private ownership of military weapons in the United States?”

My answer:

First, “private ownership of military weapons” is not “allowed” in the US. It’s a right.

You wouldn’t say that practicing Catholicism or Judaism is “allowed” or that reading book is “allowed.” It is a right that is recognized in the US Constitution as fundamental and preexisting that document. The government can’t “allow” rights. They either recognize and respect them or don’t, which is how civil wars start.

Contrary to what President Biden keeps babbling on about cannons, the Second Amendment “right of the people to keep and bear arms” was considered comprehensive at the time of the founding. Civilians could and did own cannons, repeating rifles, and even warships armed with cannons. In his ridiculous decision in the Dred Scott case, explaining why dark-skinned people of African heritage could not be citizens, Justice Taney infamously rolled out his “parade of horribles,” saying that if African-Americans were citizens, they would be able to freely travel between states, hold political meetings, and carry arms wherever they went.

That suggests that the Supreme Court at that time recognized that the Second Amendment is the individual right of all citizens and that it was not restricted to only federal limits.

In 1934, Congress used legal sleight-of-hand to get around the prohibitions of the Second Amendment by calling restrictions on machine guns a tax measure rather than a firearm restriction law; supporters of the law were concerned about it potentially being overturned by the courts. They were looking for a perfect test case to try and slip a new law, the National Firearms Act, past the courts. They found what they were looking for in a case known as US v. Miller, in which a couple of low-life thugs had been caught for bank robbery and were additionally charged with possessing a sawed-off shotgun and transporting said short-barreled shotgun across state lines for illegal purposes. Their lawyer challenged the additional penalties for violating the NFA, which was fast-tracked to the Supreme Court in 1939. In their decision, the Court focused on the “militia clause” of the amendment, saying that any review of the amendment must consider the militia’s purpose.

That’s the part of the flawed decision that all of the lower courts latched onto for the next 70 years, but that was really just part of the dicta of the decision.

The actual meat of the ruling was that, since the Court had no evidence that a short-barreled shotgun served any purpose in the proper function of a militia, they found that such a weapon was not covered by the protections of the Second Amendment.

Often overlooked about Miller is that there was no one arguing on behalf of Miller and his accomplice. One of them was dead, and the other was serving long sentences for other crimes. No lawyer representing them or their side appeared to present any briefs or arguments. A second overlooked or intentionally missed point is that short-barreled shotguns have always had a place in military units. But here was no one to tell the Court that.

The government argued that the Second Amendment protected the “collective right” of being armed during active militia service, but the Court directly rejected that argument.

A true reading of the Miller decision suggests that the objective of having access to a properly functioning (in other words, “well regulated”) militia must be taken into account when looking at Second Amendment cases and that the amendment covers only such arms as are useful to a properly functioning militia. That would mean that ONLY military-type weapons would be covered, which, if Miller were properly read, would include machine guns, rocket-propelled grenades, and crew-served infantry weapons.

Instead of giving the Miller decision a fair reading, a lower court judge misrepresented the Court’s militia comments to mean exactly the argument that the Court had rejected about the Second Amendment referring to a “collective right.” All of the other courts jumped on that court’s misconstrued interpretation. For almost seventy years, care was taken to avoid ever sending any questionable case back up to the Supreme Court.

For most of the last century, that flawed interprtaion was the standard the courts used as “settled law” and what was taught in law schools.

In the early 1970s, a University of Arizona law student named David Hardy, stumbled on the Miller decision and recognized the incompatibility with what he was being told in his studies.

He approached his professor and was encouraged to pursue the subject to better understand what he was reading wrong in the precedents. Hardy dove deep into the case law and the history and couldn’t get around the fact that there was simply no true precedent for the prevailing attitude holding the Second Amendment to be dealing with a “collective,” not “individual,” right. He wrote an article for the Arizona Law Review explaining his findings, and that article was widely ignored as the Arizona Law Review was not a very prominent journal. Fortunately, California attorney, criminologist, and constitutional law professor Don Kates happened to read the article and thought it worth pursuing. In 1983, he wrote his own article in the Michigan Law Review, supporting Hardy’s conclusions. More people read the Michigan Law Review than the one from Arizona, and Kates’ article was noticed by a prominent law professor in Texas named Sanford Levinson. Levinson thought the article was absurd, so he and his graduate students began a research project to correct the errors of Kates and Hardy. The result was an article in the Yale Law Review titled “The Embarrassing Second Amendment,” in which Levinson lamented the fact that after thorough research, he had concluded that Kates and Hardy were indeed right.

The Second Amendment did protect a virtually unrestricted individual right to arms.

Over the next 20 years, the Supreme Court steadfastly avoided taking Second Amendment cases, and activists on both sides of the issue helped steer potential SCOTUS cases away from the Court, as neither side was confident in how the Court might rule.

Finally, in 2008, even though the NRA had tried to derail the case, fearing the Court would rule against their interests, the Court heard the case of District of Columbia v. Heller, resulting in a landmark decision. Though the case was very narrowly focused on the question of whether Dick Heller had a constitutional right to have a functional handgun in his home in DC for personal defense, the Court couldn’t help voiding the mistaken notion of a “collective right” being implied in “the right of the people to keep and bear arms, shall not be infringed.” All nine Justices agreed that the right protected was “individual” in nature, but four of the Justices argued that “shall not be infringed” somehow meant “shouldn’t be unreasonably infringed” and that the individual right to arms had to be directly connected to active service in the militia. Those four were outnumbered by the five justices who concluded that NO direct connection to active participation in the militia was necessary and that “shall not be infringed” does not imply the inclusion of the word “unreasonably.”

The Court majority opinion, written by Justice Antonin Scalia, included some dicta suggesting that the protection only applied to such arms as are in “common use” at the time and which would be normal for a person to bring with them to militia service if called upon. (In the US, all able-bodied persons above the age of 18 are automatically considered to be members of the militia, regardless of any active service.)

A few years later, in the case of McDonald v. Chicago, the Court held that the right protected by the Second Amendment is “fundamental” and applies to the states under the “Equal Protection” clause of the Fourteenth Amendment. Then, just a few months ago, the Court ruled in NYSRPA v. Bruen, in a six to three decision, that the “right to keep and bear arms” includes bearing arms for personal protection outside the home. The decision also set the standard for evaluating the application of the amendment to the actual text and its perceived meaning and application at the time it was adopted, without consideration for the “public safety” or other concerns of states or municipalities.

Under these rulings, Heller, McDonald, and NYSRPA v. Bruen, and to a lesser extent Miller, the Court has established that the Second Amendment protects an individual right to arms, inside and outside the home and that the right applies to arms that are commonly held by the populace, and that the protections apply to the federal government and all subsidiary governments, as a fundamental right.

As “military-style” arms are specifically identified as protected in the Miller decision, and as virtually all firearms have evolved from military designs, and “military-style” arms such as the AR15 and AK variants are among the most popular and common rifles in civilian hands, the matter should be considered pretty well settled.

Rights advocates are now pushing for rolling back or repealing laws like the Hughes Amendment, which cut off the sales of new, full-auto firearms back in 1986, and the National Firearms Act, which added restrictions on a wide variety of arms back in 1934.

Meanwhile, gun control advocates keep pushing new laws which are clearly unconstitutional, such as bans on so-called “assault weapons” and limits on ammunition capacity.

As Sanford Levinson wrote in his Yale Law Review article, “The Embarrassing Second Amendment,” the correct approach for those wanting to restrict firearms must begin with amending or repealing the Second Amendment.

Good luck with that.

Read Related : Fact-Check: Joe Biden ‘Civilians Couldn’t Own Cannons’ ~ FALSE ~ VIDEO


About Jeff Knox:

Jeff Knox is a second-generation political activist and director of The Firearms Coalition. His father, Neal Knox, led many of the early gun rights battles for your right to keep and bear arms. Read Neal Knox – The Gun Rights War.

The Firearms Coalition is a loose-knit coalition of individual Second Amendment activists, clubs, and civil rights organizations. Founded by Neal Knox in 1984, the organization provides support to grassroots activists through education, analysis of current issues, and a historical perspective of the gun rights movement. The Firearms Coalition has offices in Buckeye, Arizona, and Manassas, VA. Visit: www.FirearmsCoalition.org.

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Arizona

All 23,000 gun laws are unconstitutional infringements.

Ope

Many of those infringements are from decades of the former NRA pandering to and compromising our 2A rights away. Now we’ve got lilly livered, candy assed RINO’s doing the same.

Arizona

The NRA absolutely negotiated our rights away, writing or assisting with every bill, starting with the NFA. FNRA, and Wayne’s suits and vacations. Treasonous behavior.

Free men and women are not constrained in what arms they choose to bear to defend themselves. Nor where or with what amount and style of ammo.

Will

AZ,I remember several years ago Vanns40 and the Revelator had an exchange about treasonous gun laws and infringements to the 2A caused by the NRA and politicians. The Rev thought that through constant compromise the NRA intentionally welcomed war with the left over our 2A freedoms because it was good for business and kept memberships and donations coming in.

Russn8r

“AZ,I remember years ago Vanns40 & the Revelator…”(blah blah blah). –Will

LOL, Ope-TEX-Bruce et ilk F’d up again & posted under one of his downvote sock accounts.

Boz

I have always detested when people use the word “allowed” concerning gun rights. l am the one who ALLOWS govt. to exist. WE are the ones who ALLOW govt. to exist. Government ONLY exists by the CONSENT OF THE GOVERNED.

“Governments are instituted among Men, deriving their just Powers from the Consent of the Governed.”

TargetAssassin

Let’s also recognize the simple fact that the Federal Government was never supposed to have any power over the American people, nor was it to have any power over the sovereign states. The people were to possess ALL the power. Government was created to serve the people, not the other way around. The Federal Government was put in place for one reason, to ASSIST the states, not lord power over them. And I’m still waiting for the children in DC (Marxist, Communist Democrats) to learn the meaning (i.e. the definition) of the word uninfringed. There should be NO gun regulation,… Read more »

HLB

I don’t think the people who wrote the Constitution were trying to define what weapons were “allowed” with the prefatory clause. Why would they? All weapons were “allowed” then.

All weapons would include military weapons and knives and sticks and rocks.

I think they just wanted to recognize that their victory over a world power tyrannical force was achieved because of their own well regulated militia. Nothing too complicated here.

HLB

john

When the constitution was drafted such weapons made today were never even thought possible. Our founders fathers could never have conceived a Rail Gun let alone a Nail Gun. I agree with what you wrote
Respectful John

Wild Bill

Actually, Congress did know about repeating rifles: “Many people try to claim that the Founding Fathers couldn’t have conceived of repeating rifles when they drafted the Second Amendment to the Bill of Rights. However, the story of Joseph Belton and his correspondence with the Continental Congress proves otherwise. If you’d prefer to watch and learn, the video I made below details the entire event. If you’d prefer to read about it, the story unfolds below. Belton, an inventor and gunsmith from Philadelphia, claimed to have devised a new form of flintlock musket that was capable of firing as many as… Read more »

john

Repeating rifles agreed Enter laser guided hyper sonic missiles The Hydrogen bomb The intercontinental ballistic missile, or a ship that can stay at see that never need to be refueled. How about a drone that can fly and kill a single enemy or a whole village. Even flight was not possible back then ship had sails battles were fought had to hand from deck to deck out on the battlefield in hole dug by the soldier Trench warfare seems brutale to today’s military cleanliness to dispatch our enemies. History tells of mankind’s victories & mistakes our accomplishments. I can not… Read more »

Wild Bill

The weapons that you mention are too expensive for most nations to buy or develop, maintain, and secure much less any individual. So the argument is moot.

john

There is no argument none whatsoever. The picture shows surface to air missiles. Not quite your home defence day to day weapon.

Wild Bill

Nope they certainly are not, but we might could use them for home land defense, when war with China comes to our shores. But we have none so my hypothetical is moot.
Folks here are selling their entire herds, cows too. That means that they are not going to be able to raise calfs next year. I fore see a temporary surplus of beef, and a long term shortage.

Last edited 1 month ago by Wild Bill
john

I will take 2 years for cattle mkt to correct a surplus than a shortage is correct. After the birth of a new animal you still need 180 days to that new animal can yield 2 years for a breeding animal to rebuild the herd.If you send all the breeders to market that is a long time to manipulate the market. It not the ranger He is drought stricken and having only bought spring hay. There is no summer hay and fall hay bought on the open market will be twice the cost. If you read between the lines of… Read more »

Wild Bill

America is entering dark times.

john

Yes we need to be the lite the guides those into the unknown.

Tackleberry

Those are notorious for blowing up on the rails upon ignition and often killing their crews. Poor storage conditions often causes the solid fuel propellant to crack and crumble which allows fissures to develop. An uneven burn in the chamber will make the rocket goes catastrophic. Plus the guidance systems are antiquated and can be wildly inaccurate. So, you don’t want one of those, but let me show you what’s behind door number two…

Wild Bill

Ok, brother, I am on the edge of my seat!

TargetAssassin

I disagree. That’s just a concession handed to the anti-gunners. Eventually semiautomatic handguns will be moot with an attitude like that. The anti-gunner attitude is, give us one type of firearm to regulate and/or ban and we’ll just take them all away from you.
Wake up, NO argument about the RIGHT to keep and bare arms is moot. That’s just a disguise for giving up, giving in, in my opinion.

Wild Bill

I have found that when people say,” what about atom bombs? Do you have a Right to those too?” I get little support by saying yes everyone gets to have an atom bomb. I suppose that they are afraid that atomic weapons in private hands would get used injudiciously resulting in a lot of mass destruction and death. I do better when I point out that no one can, as a practical matter, afford the initial cost, maintenance, and security costs. But if you can construct a convincing argument for individual ownership of atomic weapons, then I am willing to… Read more »

HLB

“Do you have a Right to those too?”. Well, a man has a right to defend himself as long as he does not harm others who are not associated with that defense need. A man has this right irrespective of any document or any other man’s opinion. Now, how would you write a constitution recognizing that reality? Why that might be difficult. I think we should give the atom bomb a bit of space and concentrate on those items we really might need short term to protect us from people who are determined to make us unwillingly do what they… Read more »

Tackleberry

I clicked on this link due to the main thumbnail. Here I was hoping we were going to be discussing the merits and detractors of the SA-3. I’ve had quite a few of those, and SA-2S, shot at me over the years.

Wild Bill

I’d like to hear about that!

hippybiker

If that is the case, then what about all the other technological advances we see? Or, should we give them up and go back to The Pony Express and Quill Pens and India ink?

Chuck

With the Green Dealdo, we may have to go back to the Pony Express. You could cover ever square foot of the US in Solar Panels and Wind Turbines and it still wouldn’t be enough to power the country.

Arny

I’m curious as to know, how you know what they may have thought possible ? Those Men were able to see well ahead of their time. I would be willing to bet they had some wild fantasies about what was to become in the future. Just look at what they thought this country would become from just a penned document. And a populace that believed in it. Almost like a Bible, hey. Do you believe they were narrow minded people ? That they couldn’t foresee some crazy inventions in the future ? I would not be surprised to find out… Read more »

Wild Bill

I like every thing that you wrote except “allowed”. All weapons were not ‘allowed”. All weapons were a Right… and, of course, remain so.

HLB

Sure, that was subtended from the article itself, not my idea.

HLB

Henry Bowman

“The government can’t ‘allow’ rights. They either recognize and respect them or don’t, which is how civil wars start.”

…And when the people are disarmed, it inevitably leads to democide.

Deplorable Bill

YUP, well said and documented

Arm up and carry on

Deplorable Bill

A well regulated militia, being necessary to a free state, the RIGHT of the people to keep and bear arms shall not be infringed; this is the second amendment, this is constitutional LAW. The people and the militia are one and the same. The militia is a military branch made up of civilians. Anyone who would doubt this would be on the wrong end of the stick if our nation were to be invaded. The word militia, infers the use of military weaponry. This obviously includes rifles, pistols, assault rifles, machineguns, artillery, aircraft, naval weapons etc. etc. etc. If a… Read more »

Greg K

This is why we should never allow terms such as; “Law Abiding, Common Use” to be normalized by the Supreme Court.

In Title 18 there is a sentence that lays out (Unconstitutionally) what you may use your arms for.

Wild Bill

I’m thinking that anybody would have a difficult time controlling the words and phrases of any given S. Ct. justice. I could be wrong.

Greg K

In general those phrases are picked up by the Justices during briefs and arguments. Not always, but in general. If the terms are not introduced they generally never pass the moral decision aspects Justices must face…According to all the briefs, arguments and decisions you have claimed to have read, you knew that. Right Bill?

Wild Bill

How do you propose to control the word choice, phraseology and dicta of any given justice, much less the word choice and phraseology of the many attorneys that draft the briefs or the S. Ct. clerks that work on the opinions. That is an awful lot of people to not “allow” word choice.

swmft

defense of self and/or beliefs property think the irs auditor will come to your house with a gau8 aimed out your front window?

Greg K

Wish I had a Gau8 and the A10 to go with it.

swmft

would be a fun go to town ride ,walmart would freak if you landed and taxied into parking lot ,could park it in the barn it would fit

Arny

Maybe when using such words they should give a brief definition of their use & context as to not confuse the wordsmiths.

Wild Bill

Terrific article!

DarthKur

It’s way past time to be rid of any and all of the infringements that traitorous individuals, insidiously heaped upon us over the years. They are an affront to the Constitution and our basic freedom. Any and all weapons are an individual right to possess and use for both personal and collective defense.

DIYinSTL

I’ve long held that Miller was precedent for declaring the Hughes Amendment unconstitutional. And even if the NFA was upheld (which it should not be) the interminable wait for a stamp (14 months and counting for me) is justice delayed.

Chuck

“A Law repugnant to the Constitution is void.” 1801 Marberry v Madison Chief Justice John Marshall. With those words, the Chief Justice established the principle of Judicial Review. That the court, and the court alone would determine if a law passed by Congress and signed by the President met the requirements to pass Constitutional muster. This was also taken as applying to the court when reviewing previous decisions. The NFA and all subsequent legislation are Repugnant to the 2nd Amendment of the Bill of Rights, which expressedly forbids Congress from passing those pieces of legislation, regardless of the trickery involved… Read more »

john

With respect to the author anti aircraft missiles in the photo are misleading the readers. Anti-aircraft missiles are outright illegal except for government entities or defense contractors that are developing missiles for government entities. A missile system is not just the missile itself. That’s just the weapon. The whole system is all the wiring, computers, sensors and all the rest of the associated electronics that allows the aircraft to find a target, relay that information to the missile, program the missile to seek out that target, and fire the missile. Your would need access to the satellites owned by the… Read more »

Considerthis

” why would you want combat weapons in the first place ” The last democrat presidential debate featuring about 20 hopefuls had Beto promising Hell Yeah , we will come and take your AKs and your ARs by force. None of the other candidates raised any objection indicating it was a plank of the entire party. Later Biden advised against any resistance because jet fighters and Hellfire missles could be used by the government. Such increasing threats naturally creates the desire in some not to be helpless at the hands of their own government no matter how impractical or unworkable… Read more »

TargetAssassin

I would defend them with my other rightfully owned firearms.
Anything the military can have, we can have according to the Second Amendment. Plain and simple. There are no “Allowed” weapons since it is a God given RIGHT to own them.