(AP Photo/Jae C. Hong)

The debate around what types of “arms” the Second Amendment protects has been revitalized in the wake of Bruen’s renewed focus on our historical tradition as the determinative factor in Second Amendment cases. Thus far, several district courts have upheld state “assault weapon” bans in part by ruling that the Second Amendment applies only to firearms most useful for self-defense, whereas the firearms covered by such bans are more suited to combat. Thus, these courts conclude, firearms that fall under assault weapon ban laws are not protected “arms” under the Second Amendment.

This is an overly sanitized version of the Second Amendment that our founders, as well as their immediate descendants in the 19th century, would consider unrecognizable. While prior generations of Americans undoubtedly believed self-defense, hunting, and sport were all important components of the right to keep and bear arms, an overriding purpose frequently dominated their discussion of that right: preventing and responding to tyranny.

Today, the idea that the Second Amendment exists in part as a “doomsday provision” to repel a foreign invader or a domestic tyrant is treated as a joke. From the President to legal scholars, many deride it as an insurrectionary notion without any true historical pedigree that was concocted by pro-gun activists in the last half-century.

For its part, the Supreme Court has only tiptoed around this question. In Heller, it did acknowledge that early generations of Americans “understood across the political spectrum that the [Second Amendment] helped to secure the ideal of a citizen militia, which might be necessary to oppose an oppressive military force if the constitutional order broke down.” But in the years since Heller, the Court has been silent on this history, even as Bruen corrected the errant circuit courts by returning the focus to historical tradition.

With more and more states passing restrictions on the very sorts of common firearms that would be most suitable for repelling efforts to overthrow our constitutional republic, a renewed focus on this core purpose of the Second Amendment is overdue. This article aims to bring renewed attention to the overwhelming amount of founding-era and 19th century commentary that emphasizes the importance of the Second Amendment right as a tool to resist tyranny. In light of this clear history, so-called “assault weapon” bans and similar laws are incompatible with our historical tradition and should be struck down.

— Chuck Michel and Kostas Moros in Restrictions That ‘Our Ancestors Would Never Have Accepted’: The Historical Case Against Assault Weapon Bans

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40 COMMENTS

  1. Yep. The gun-haters love telling us that Heller changed the meaning of the Second Amendment. Nothing could be further from the truth.

    Heller RESTORED the meaning of the Second Amendment.

    The only reason it took so long was that nobody seriously questioned what the Second Amendment actually meant until the onslaught of gun control laws in the mid-20th century.

    As we all know, it can take decades to finally work these issues through the courts, which is exactly what happened with Heller.

    • RE: “the Second Amendment applies only to firearms most useful for self-defense, whereas the firearms covered by such bans are more suited to combat.”

      The Second Amendment does not say, “The Right of The People to keep and bear Self Defense Arms.” The Second Amendment clearly says, “The Right of The People to keep and bear ARMS.”

      Failure to Define Gun Control by its History Confirmed Roots in Racism and Genocide in courtrooms is exactly what provides cover for backdoor Gun Control judges to butcher The Second Amendment.

  2. The “civic republicanism” basis for 2A (i.e., people should have arms to resist tyranny) actually has been supported by heavyweight constitutional scholars such as Sanford Levinson. But as even Levinson recognizes (see my TTAG article / post-Bruen interview with him) that courts are going to be VERY uncomfortable finding that.

    • LKB…RE: “that courts are going to be VERY uncomfortable finding that.”

      Do you mean like the VERY uncomfortable gutless wonders who hear the woman next door getting beat and ignore it?

    • When the Founders penned the Second Amendment, they had just put down a tyrannical threat of King Georgie, rather than a front door home invasion by some drug addled person. Our fearless ice cream-slurper-in-chief, Ole Slo Joey has recently put patriots on notice that to resist tyranny in the spirit of the Second Amendment, we are going to need F15s and nukes. Awaiting their arrival at my local gun shop as I type.
      Politicians poo-poo the idea of 2A purpose to resist government tyranny as they merely want to protect their tyrannical own asses for their intended tyrannical acts.

  3. When it comes to arms bans of any type the question is if the arms in question are “dangerous & unusual.” Caetano established the threshold of 200,000 units for an arm to not be “unusual.” All of the claptrap about in common use for “self-defense” is just made up chaff & obfuscation by the death ☠️ cult communists. Don’t fall for it.

    • “Caetano established the threshold of 200,000 units for an arm to not be ‘unusual.’ ”

      No. it didn’t. that was the number of stun guns guessed at for the case as to how many were in the population of a state, not a threshold at which an arm is common or unusual.

      • It represents a “maximum” threshold, not a minimum threshold. That is, if there are more than 200,000 of a thing, then it is not uncommon. However, the number could be subjectively lower (eg, 10,000 of a thing could be common).
        The other point is that the “class” of weapon was “stun gun”. Thus, we can infer that the commonality test need not be a specific model or even vendor (eg, if there are only 5000 Yeet Cannons, are they common, and therefore protected?), but rather a class of arm – eg, pistol, rifle, shotgun, SBS, SBR, MG, and AOW (as those are the classes codified in federal law).

        If laser energy weapons become a thing, then they would be “uncommon” until they weren’t.

        • Full auto weapons and all covered by NFA would be in very common use had they not been restricted in 1934 by government bureaucrats. Even with those restrictions, full auto weapons for which the NFA rax stamps have been issues far surpass the 200,000 count regarded as in common use. Government interfering with common use should be an overriding factor in citizen availability of those arms.

    • “Caetano established the threshold of 200,000 units for an arm to not be “unusual.””

      Really? 🙂

      Aren’t there something like 250,000 transferable registered machine guns on the ATF books? 🙂

  4. All of this has been a thorn in my side since grade school.
    You read the BoR and Constitution in like third grade and you think “great, I’m an American and I’m free” then a few grades later you realize it’s all bullshit and there’s this mass of the population that doesn’t want to be free, including your teachers, and wants to lock you in chains along with them and despair sets in.

    Then you become an adult and get the privilege of dropping perpetual rent in the form of property tax in a town that has nothing to show for that collection but repeatedly convicted embezzling selectmen, get to pick between petty tyrant A and petty tyrant B in an election that you only have somebodys word is even legit in the first place and eventually you just drop out altogether and wait for the feds to go Waco on you for just wanting to be left alone.

    America! Where minding your own business and wanting to be left alone is punishable by death and ripping off anyone you can for anything you can get is rewarded with high office, prestige and wealth from the Biden art commune to Bernies 4 lake houses to the Bush ranch.

    It’s right fucking there written in plain English and our so-called betters, along with a bunch of useful idiots, busybody Karens and the habitually fearful, have to jump through endless hoops to get us all believing 2+2=5 and if you don’t believe it they turn the guns on you.

    A heartily made sandwich, being necessary for a full belly, the right of the people to keep and bear bread, shall not be infringed.

  6. The article was taken from an abstract. The entire paper is available and worth the read because the authors lay waste to a whole lot of nonsense.

  7. For its part, the Supreme Court has only tiptoed around this question [whether the Second Amendment applies only to firearms most useful for self-defense, whereas the firearms covered by such bans are more suited to combat].
    In United States v. Miller (307 U.S. 174 (1939)), the court wrote:

    The Court cannot take judicial notice that a shotgun having a barrel less than 18 inches long has today any reasonable relation to the preservation or efficiency of a well regulated militia, and therefore cannot say that the Second Amendment guarantees to the citizen the right to keep and bear such a weapon.

    So, let’s get the facts straight:
    1) Miller (infers) arms useful to the militia (and by extension, military) are protected by 2A
    2) Heller says arms that are not both dangerous AND unusual are protected by 2A (in addition to being an individual, not a collective right)
    3) Bruen says you can’t use an interest balancing test for 2A.

    Even with all of that, judges still try to weasel out of it.

    • Miller was a ridiculous decision.

      In Miller, the district court quashed the indictment on Second Amendment grounds, and Miller promptly vanished (he was a criminal). With no client, and no one paying him, Miller’s lawyer didn’t appear in the Supreme Court case, meaning no one was there to oppose the government’s arguments.

      Worse, Miller had died before the SCOTUS decision was rendered. That should have required the case to be dismissed for mootness . . . but again, with no one in the case to point that out, the Court issued its ruling.

      The quoted portion of the opinion ignored the fact that SBS’s were a preferred US Army trench warfare weapon in WWI, and thus were indeed a weapon suitable for militia use.

      • Not arguing that there were many odd actions surrounding the Miller case, including all of the items you mentioned. However, just as the Dred Scott case has been used to support 2A = individual right (in Bruen), so too can Miller be used to support the 2A right to bear militarily useful (eg, MGs, or “Assault Weapons”) arms, in my opinion..

        Until the constitutionality of the NFA (requiring a tax for some class of arms protected by 2A) is challenged, why not use it to our advantage?

      • The ultimate “short barreled shotgun” is called a “claymore”. The military uses those widely. Single shot, massive load downrange, massive damage, no one comes back to talk about being shot with it. Seriously, proper set up, proper camoflage, good timing, and a bit of luck, you can wipe out an entire company with a half dozen of the things. Possibly more.

  11. Historical tradition, huh?

    Alright, let’s return the citizenry to it’s proper status. We are supposed to be armed equally with any army the government might control. That includes cannon, tanks, grenades, incindiaries, high explosives, armor piercing, drones, rockets, missiles, and, yes, aircraft. I don’t mean little Cessnas that might be used for recon, I mean, anything the military has in it’s arsenal should be available for citizens to purchase. Personally, I would get my rocks off with an A-10.

    Seriously, people, anything that the government owned in the 1700s and early 1800s was available on the open market.

    In fact, rifles, revolvers, and other small arms were often available on the market, before the military got around to adopting the new technology.

    Some may feel that I go too far, with modern lethal weaponry. Rockets, you ask? Drones? Tanks?

    Let me put it this way: if your city police force has it, you most CERTAINLY should have access. That includes armored personnel carriers, grenades, improvised bombs, robots, and a hell of a lot more.

    At a minimum, the citizenry should be on par with the police. More properly, the citizenry should be on par with the military.

    THAT is history for you.

    Do an intarwebs search for all the “irregular” and “volunteer” forces that have acted around the world, often enough in the name of the US government. Without even doing a search of my own, I can point to all the volunteer pilots who took part in China’s defense against Japan, prior to the US getting into the war.

  12. The Second Amendment (2A) protects the people’s ability to keep (own) and bear (carry, possess on one’s person) “Arms”. It does so by forbidding our government(s) from infringing upon (regulating, abolishing) that “individual right” (re: Heller). The “militia” clause of 2A recognizes the need for individuals (the people) to “keep and bear” “weapons of war” – if they so choose to do so. There is NO language contained in 2A that permits government(s) to legislate anything regarding “the right of the people to keep and bear Arms,” except that it is forbidden for government(s) to do so. These are facts that make the reason that 2A was ordained and established irrelevant. Hunting, sport, self-defense and combatting tyranny are ALL the reasons that we were blessed with 2A and any governmental interference with that people’s right is unconstitutional.

  14. The guys who wrote ” The Right to Bear Arms Shall Not Be Infringed” wasnt thinking about arguments over what is and what ain’t a prohibited weapon.
    The guys who wrote the constitution wanted its countries citizens to be able to kick the shit out of any king tyrant and his armies.
    GCA, 4473, FOID, CCW permits.
    Yeah buddy.

  17. Making the argument some type of rifle is not serviceable for defense because it’s of a style or design similar to what is military issue is laughable. If a rifle is serviceable for combat use, it is ideal for defensive use. A battle axe is preferable to a woodsman’s felling axe in a fight. A sword would be preferable to a machete. And, honestly, I would prefer an AR or AK over my old 3030 should I need to defend my home or property.
    On the question of second amendment rights, arms are any weapon up to and including crew served weapons. There could be some debate regarding ships, aircraft or vehicles.
    Cannon and armed warships or armed merchantmen were privately owned up through the late 19th century. Even today, artillery is still legal to own. As are tanks or war planes.
    What is currently prohibited are explosive shells and automatic weapons. You are limited to solid non explosive projectiles and either semi automatic, or non working replicas.
    Honestly, I see no reason to have those limits. Damn few criminals are going to haul around heavy weapons. And few are going to want to tote around the large amount of ammunition needed to make full auto weapons effective, nor spend the time and money to learn to use those weapons effectively. How many street punks are going to learn to use a cannon without blowing themselves to hell?
    Yes, there will always be some dumbass who thinks they are a Rambo and does something stupid. Or the punks will try to recreate the St. Valentines day massacre upon a rival gang.
    Every single firearms restriction has been the result of the “DO SOMETHING!!” reaction to some criminal action. Ignoring the real solution of removing the criminals from the streets. Always the easy, ineffective route instead of doing the hard work needed to actually solve the problem.

  18. For more than 40 years now, I have been asking a simple question of those who support various degrees of “gun control” to which I have yet to receive a single rational response: Where in the wording of The Second Amendment is there a provision for, or even a suggestion of, restrictions, limitations, or exceptions? Anyone?

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