A good standard

With the upcoming decision in the Heller case, Sebastian is talking about what standard of interpretation we should be prepared to accept or should be pushing for on the 2nd Amendment.

I wanted to note that what I’m speaking of is not what interpretation of the second amendment is most correct historically, but which interpretations protect the widest array of firearms that the federal judiciary would adopt. Note that there is no way the federal judiciary is going to accept a standard that laws regulating any kind of arm is by default unconstitutional.  There will be lines drawn with certain classes of arms being protected, and certain classes not being protected.

The standard that he proposes is one that would set the limit as “general police use”, i.e. if a firearm is considered acceptable for use by the police in their duties, than it should be equally acceptable for a law-abiding citizen.  I also like his three point plan for determining what defines a firearm as acceptable for a law-abiding citizen:

  1. Is the arm usable for personal self-defense, or
  2. It has a function in the preservation of or practicing skill at arms, and
  3. It is of a type or functional variant of a firearm in common police or civilian use.

Using those three standards, you ensure that it would protect all the guns we current have, as well as protecting high-capacity magazines and semi-automatic rifles which are banned in some jurisdictions.

I know that it’s not “shall not be infriiiiiiiinged”, but the reality of the situation is that even with an individual rights decision from the Supreme Court, some gun control is still going to be inevitable.  Where we can win and gain ground will be determined by how and what we push for in the wake of a possible individual rights decision.


  1. So much for anti-aircraft cannons. Of course, those would probably fall under a national security threat or whatnot.

  2. The militia clause seems to set a standard of “whatever a typical infantryman might carry”. This, of course might me modified by saying _one_ infantryman, under, say foot patrol conditions, so anti-tank rockets and crew-served weapons would still require a permission slip. Still, this would include full-auto such as the AR, AK, and similar battle rifles.
    If it’s good enough for the Chicago police, it’s good enough for us.

  3. His (and Kim’s) standards would seem to throw the .50 cal & 20mm folks under the same bus as the NFA people. That bus is starting to get a bumpy ride I think. I understand incrementalism in seeking to restore our lost liberties. I agree with the goal. I think that we need a different direction. Consider the problems we have had with the “sporting purpose” definition in the past. The 2nd amendment is no more about policing than it is about hunting. If people really want to go in that direction then I suggest looking at combining military use, past/present/future, with collecting and sporting.

    And consider something else. How much will such discussions benefit our community as opposed to dividing it? To me this sounds like another version of “reasonable regulations”. On the other hand, I do not really believe that we will not be without some regulations. But I do believe that those regulations should be aimed at individuals whose choices in life have demonstrated their inability to be a part of the society that wishes to insure the liberties of all that choose to be a part of such a goal.

  4. I don’t think this is throwing anybody under the bus. It’s a good, big, first step back up the slippery slope.

    If Heller shows that the Second Amendment can be used to overturn the most egregious laws, it will become acceptable for gun owners to come out of the closet. As “police” guns again become common, and no bloodbath ensues, the fear of guns will decrease, and stupid restrictions will relax.

  5. “Militia” is as much a law enforcement/peace enforcement role as it is national defense. IMHO of course.

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