How do "originalist" interpreters of the constitution cope with the 2nd amendment?

Question

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.

As far as I can see, from both the plain meaning of the words and the writings of the founding fathers, the 2nd was originally meant to apply to all weapons from a dagger to a cannon.

The Heller decision (written by Justice Scalia) seems to be the prime originalist interpretation of the 2nd Amendment. However that case was primarily about restrictions on handguns, not about "arms" in general. It is the wider meaning of "arms" that iterests me here.

Heller quotes the following definiton of "arms":

Timothy Cunningham’s important 1771 legal dictionary defined “arms” as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another.”

Given that a cannon is "used in wrath to strike at another" it certainly seems to fit the definition.

The other important term here is "bear arms". In the 18th century "bear" in this sense meant to carry, and this is the sense that Heller concentrates on. However the phrase "bear arms" more usually meant "participate in organised military action". Since organised military action at that time generally involved cannons it seems a big stretch to suppose that the framers intended to exclude cannons merely because they were too big for one man to carry. Also, at the time some cannons were in fact in private hands. In the War of 1812:

As soon as word of the war arrived, ship owners in the port cities up and down the Atlantic coast raced to get their sleek sloops and schooners to sea in their new predatory role. They found cannon where they could, signed up oversized civilian crews, and sent messengers to Washington to get licenses called letters-of-marque from the federal government.

The Heller decision also rejects the idea that the 2nd Amendment only applies to firearms that were commonly available at the time it was written.

So a plain reading of the 2nd Amendment seems to imply that every American (plus non-citizens in the USA) has a constitutional right to keep and bear any military weapon of any kind, including but not limited to heavy machine guns, fighter and bomber aircraft, bazookas, surface-to-air missiles and tanks. The right to ammunition for all of these is also covered by the term "arms", as the framers could not possibly have envisaged gunpowder and bullets being banned while guns being protected.

As I said above, Heller is mostly about handguns, but it does make a minor reference to heavier weapons:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts rou­tinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. [...] Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing 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

Here Scalia stops analysing the original meaning of the 2nd Amendment, and instead depends on the 1935 Miller case. This seems very strange; not only is this a sudden departure from originalism, but the key holding of Miller was that

Only weapons that have a reasonable relationship to the effectiveness of a well-regulated militia under the Second Amendment are free from government regulation.

However the rest of Heller overturns this, finding that the 2nd Amendment also includes a right to personal self defence, and hence that non-military weapons (such as small calibre handguns) are protected. (A cynical interpretation would be that Scalia wanted to overturn the ban on handguns but not the one on on heavy weapons, and then reasoned backwards from his desired conclusion. However such speculation is outside the scope of Politics.SE).

I know the principle that "dangerous" or "unusual" weapons can be banned, but that makes no sense. All weapons are dangerous when pointed at you, and all new weapons are unusual when first invented. Also, if a weapon is banned then few people will have one, making this a circular definition.

One might reasonably construe "dangerous" as "having unpredictable effects", so for instance gas weapons and landmines could reasonably be considered unprotected. But any weapon used by the US military, with the possible exception of nukes, would fall outside this limitation.

Another attempt at restricting the 2nd is that arms are only protected for "lawful purposes". But again this fails the originalist test. The framers regarded the 2nd Amendment as safeguarding the right of "the militia", meaning all able-bodied men, to fight against invasion or tyranny. To this end they were also expected to practice using their weapons. So by an originalist reading of the 2nd Amendment, firing a bazooka at a firing range is a lawful and therefore protected activity.

Of course one might argue that if bazooka practice is made unlawful then bazooka ownership lacks lawful purpose and hence is unprotected. However the same argument could equally be made against handguns and combat knives; the argument basically renders the entire 2nd Amendment meaningless so it cannot be what the framers meant.

So my questions are:

1. Does an originalist reading of the 2nd Amendment support the right of any citizen to keep and bear heavy military weapons?

2. If so, do originalist interpreters of the US Constitution want to have a country where anyone can keep and bear heavy military weapons, or do they consider that the meaning of the 2nd should be understood in the context of modern technological civilization?

3. If the latter, then how do they distinguish their position from any other "living constitution" theory?

4. Or is there a third option I am missing?

(Note: a shorter version of this question was posted on the Volokh Conspiracy blog. It didn't get an answer there so I am posting it here.)

Answer 1

1. No, even originalists recognize that rights have some limits. Speech is limited in cases of inciting violence, acceptable arms are similarly limited.
2. This is a false dilemma, the second amendment can be reasonably limited without wholesale reinterpretation to a modernized definition. There is a massive pile of evidence that the founders understood that everything had exceptional cases that required limited rights to some degree, or some or form of handling exceptional cases.
3. The living constitution theory attempts to redefine the constitution using modern definitions and understandings, which is effectively a way to change the constitution. An originalist would recognize the existing process for changing the constitution and encourage using that process to write new understandings into the constitution rather than simply interpret things as differently as needed for desired outcomes. This allows for some level of consistency in how parts of the constitution or laws in general will be applied as a basis for ruling.

The important distinction is that originalists would hold that the burden of proof is required to ban private ownership of a specific weapon/class of weapon. Rather then proving that something is close enough to what existed in 1800 to be allowed for private ownership, according to a living constitution theory.

Answer 2

I'm going to modify the questions slightly [with explanation] so as to make a direct answer easier:

Does an originalist reading of the 2nd Amendment support the right of any citizen [in good standing] to keep and bear heavy military weapons?

Absolutely. The rationale for the 2nd Amendment is "the security of a free state" and the oath of citizenship, of military enlistment, and of office obligates us to protect worthy citizens from assault by "all enemies, foreign and domestic". By restricting what kinds of arms are allowed, we are infringing on the right and subverting its purposes. A heavy-weapons-armed enemy could make all citizens with only lighter arms into sitting ducks, contradicting the purposes of the Second Amendment.

If so, do originalist interpreters of the US Constitution want to have a country where anyone can keep and bear heavy military weapons, or do they consider that the meaning of the 2nd should be understood in the context of modern technological civilization?

Qualifying "anyone" correctly*, the answer would be yes and yes. Nothing in the context of modern technological civilization contradicts the necessity of the security of a free state nor of the populace being adequately armed to ensure this security. A ban on heavy weapons is an admission that citizens are not actually allowed to ensure the security of a free state through bearing arms adequate to ensure that purpose, which contradicts the Constitution. This does not negate the necessity of a well-organized militia, but the Second Amendment itself and U.S. federal code makes clear that the constituents of that well-organized militia are the citizens themselves, therefore the people are the stewards of such arms as are necessary to accomplish its purpose. It is the ultimate separation of powers. I envision the military as being hierarchical; if our commander-in-chief were captured or if our federal governors were dissolved or destroyed, our Constitution would not prohibit but rather encourages the individual citizens to remain locally organized and fighting to the last man. The same argument applies to all state and local governments--the removal of a unit leader should not and does not render the fighting unit ineffectual, unorganized, or unauthorized. Consistent with constitutional ethic, the ultimate sovereignty comes from God, and is given to the individual, and families, then to larger societies by consent of the governed, not from centralized government. I feel I should make it very clear that this is not advocating anarchy, which is a very silly and absurd idea. Our strength comes from our unity. I am simply observing that the right and responsibility to defend one's family and country and to be locally organized and capable does not break down when the "higher" authorities are unreachable. Article I, Section 8, 10 and Section 10.3 in the Constitution corroborate this view:

... reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

No State shall, without the Consent of Congress, [...] engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

*If "anyone" means any citizen who has not been convicted of any serious, violent crime or has otherwise had his personal right to bear arms revoked by due process and trial by an impartial jury, then yes, this is a non-negotiable, uninfringeable citizen right; there are no exceptions to it except as individually revoked by means of due process. Any measure that does not rely exclusively on due process to revoke or infringe any citizen's right is tyranny.

If the latter, then how do they distinguish their position from any other "living constitution" theory?

The modern context does not necessitate rendering the purpose and intent of the 2nd Amendment ineffectual, as I have outlined above.

That military organization and direction are to be provided through the highest available authority and organized subordinately into state and local roles, and that the individual citizens reserve the right and autonomy for self-protection without limit, is evident from these sources.

Answer 3

Does an originalist reading of the 2nd Amendment support the right of any citizen to keep and bear heavy military weapons?

It should, if originalists were consistent. The 2nd Amendment's text is very clear, and there's no wiggle room. But then you have to allow felons and the mentally ill access to guns...

If so, do originalist interpreters of the US Constitution want to have a country where anyone can keep and bear heavy military weapons, or do they consider that the meaning of the 2nd should be understood in the context of modern technological civilization?

I have encountered several originalists who find the idea of Class 3 weapons to be completely against the constitution, so I think it safe to say that no, technology is irrelevant to the 2nd Amendment for them.

It is difficult to find one that will admit that owning something like C4 should be perfectly unregulated because they know how it sounds. Virtue signalling is real.

If the latter, then how do they distinguish their position from any other "living constitution" theory?

In my experience, the only difference between a living constitution scholar and an originalist scholar is which parts they feel are sacred. Even Justice Thomas has wavered from time to time, and he has written sympathetically of child abuse when the action was socially acceptable in 1787. Nobody wants to throw out 200+ years of case history and just read the text. The founders wouldn't have used common law if they had meant for that to happen anyway!

Answer 4

If so, do originalist interpreters of the US Constitution want to have a country where anyone can keep and bear heavy military weapons, or do they consider that the meaning of the 2nd should be understood in the context of modern technological civilization?

If we follow the definition on Wikipedia, they would consider the latter. The definition of originalism according to Wikipedia (emphasis is mine):

In the context of United States law, originalism is a concept regarding the interpretation of the Constitution that asserts that all statements in the constitution must be interpreted based on the original understanding of the authors or the people at the time it was ratified.

Answer 5

There is an important legal distinction that is missing from your otherwise quite through analysis, which is the distinction between "arms" (which you correctly point out has been understood to be anything an individual can carry) and "ordinance", which is typically understood to be military equipment that cannot be operated by a single person, and typically describes things like artillery. Artillery was known to exist at the time of the constitution and was commonly understood to be "ordinance".

You use a cannon in your examples. A cannon does not qualify as "arms" because it requires a dedicated military unit to operate it (at least 2-4 men and probably also a horse to pull it). For a more modern example, the machine gun is typically also thought of as ordinance, given that they usually require a crew to operate, which is why private ownership of machine guns is effectively banned in the United States regardless of the Second Amendment. I don't know of there has ever been a test case or law regarding the Bazooka or any other man-portable anti-tank rockets, but these are usually deployed by two or three man teams when used in the military, so I think they would probably be considered ordinance as well. Nuclear weapons are definitely ordinance and are also banned by several other laws that have withstood legal scrutiny without much controversy.