An interesting piece of commentary in “The New Hampshire” raises a question I have heard before in debates over the Second Amendment.
Can I own a nuclear weapon? It seems like a silly question, I grant you. I mean the idea of a private citizen, especially one so wildly unstable as myself, owning a nuclear weapon is unnerving to say the least. But considering the stated purpose of the second amendment it would follow that I be allowed to own a nuclear weapon or weapons grade anthrax or a tomahawk missile.
and:
If I can build a nuclear bomb or obtain one then certainly I have a right to have it. However, in practice, I don’t know that I would want this to be the case. From there it is only a matter of degree, should we have the right to own street sweepers, AK-47s or AR-15s?
Good questions.
First, the definition I use for a ‘Right’ is that which you can do yourself, without requiring action on the part of another, that does not inflict harm on another who has not attacked you. So you have the right to any food you can provide yourself, but not to the food of others or to have others provide it. You have the right to ask others for food, but not the right to force them to give it to you. You have the right to speak, but no right to force others to listen. You have a right to whatever shelter you provide yourself, but not to someone else’s home. You have the right to defend yourself, but not the right to assault someone else. Got the idea?
We are a technological species. We use out technology to extend out natural abilities beyond what we can do our selves.
We travel faster than we can run, using technology such as the bicycle, motor vehicle, airplane, boat, or even rocket ship, as well as farther by these same means.
We live longer using technology such as anti-biotics, vaccines, pacemakers and other medical advances.
We speak louder and to more people using technology such as automated presses, telephone, radio, television, and now the Internet.
We defend ourselves better, and more effectively using technology such as cartridge ammunition, smokeless powder, repeating guns, automatic and semi-automatic guns, and, yes, make war, more effectively as well.
So technology is part of being human. To restrict the technology we use when exercising our rights is akin to saying we have a right to use our hands, but disabling our thumbs.
At the time the Second Amendment was written, arms consisted of blades, single shot firearms, (though many, such as Leonardo DaVinci, had envisioned and tried to design multi-shot firearms), and basic artillery that could throw shot, solid balls and explosive shells. All of which were owned by private people, without restriction, except the notion of personal responsibility for ones actions, and being held accountable for misuse, whether accidental or deliberate.
At the time the First Amendment was written, speech and the press consisted of how loudly and persuasively you could speak to others in person, and to manually operated presses, with individual lead letters, placed by hand. All of which was done or used, by private people, without restriction, except the notion of personal responsibility for ones actions, and being held accountable for misuse, whether accidental or deliberate, as in libel or slander, or incitement to riot. This is important for what follows.
As our technology has advanced, we have not updated our constitution in a way that addresses this advancement. This I think, is due to our reluctance to do so, a reluctance we should not allow. Instead we bend and twist meanings and definitions to fit whatever new comes along.
When printing presses became automated, there was no outcry over it. When Radio was invented, there was some outcry, but it was included as protected by the First Amendment. When Television extended Radio, this occurred again, and is also occurring with the Internet. While the electromagnetic spectrum was ruled public property, in much the same way that much land in this country is, and leased in a similar manner, the speech carried by these mediums has still been largely protected.
When the technology has permitted direct targeting of speech at specific listeners that have expressed interest in hearing it, or actively sought it out, it is fully protected. But when the speech is broadcast to all, some restrictions have been permitted, such as certain words and images prohibited from broadcast channels, that are protected on subscription channels such as HBO or the Playboy Channel. This is one reason why Howard Stern has moved from a broadcast radio network to a subscription satellite channel. This is also why the ‘wardrobe malfunction’ of Janet Jackson during the Super Bowl broadcast raised such an uproar. If it had occurred on HBO, no one would have cared. (I am not saying it was not a silly over reaction).
But none of these advances in the technology of ’speech’ fundamentally changed the nature of speech or how people react to it, how it affects them and how they respond to it.
So, as to the First Amendment as our technology has advanced, the distinction between whether the content of the speech is protected or not, is whether it is broadcast to all, regardless of whether or not they may wish it, or targeted to those that request it or seek it out. When broadcast to all, some limited restrictions have been permitted. Whether this is right or not, is not the issue here.
The Second Amendment is similar, but how we have treated it is not. As arms became more accurate and more powerful, just as with printing presses, little was done, even when the occasional worry was expressed. No restrictions, (fewer than on speech, anyway), beyond being held accountable for misuse.
Until the Civil War. From that point, things changed politically, but that analysis is beyond what I am discussing here.
If the Second Amendment had been treated like the First Amendment, today we would have no licensing of dealers, just as we have no licensing of printers or publishers. We would have no licensing of owners, just as we have no licensing of readers, subscribers, etc. We might have licensing for use in public places or on government land, as we have for using the ‘public airwaves’, but I doubt that, since carrying of firearms was an accepted practice for centuries before radio was discovered.
So to return to the original questions: Does the Second Amendment protect a right to chemical, biological or nuclear, (CBN), weapons, tomahawk missiles, street sweepers, AK-47s or AR-15s?
This depends on the nature of the weapon. Automatic weapons like the AK-47, semi-automatic weapons like AR15’s and ’street sweepers’ which I usually see defined as automatic or semi-automatic shotguns, are just extensions of firearm technology, the types of arms known by the authors of the Second Amendment. As is artillery, like cannons, which were commonly used on merchant ships. All of these are means to employ the right of self defense, in all its’ meanings, that also extend the known technology of the time.
CBN weapons are entirely different. So far as I know, chemical weapons were not known at the time. Biological agents were used in warfare, like tossing rotting, disease ridden corpses into an enemy camp, but this was not really considered an ‘arm’, so much as it was considered a tactic. Corpses could not really be stored in armories or over the fire place, for deployment when needed. Rockets and guided missiles also were unknown, and are not considered firearms by anyone I know. Nuclear weapons were completely off the map of human knowledge, with nothing even pointing to the possibility.
But these advances in the technology of arms DO fundamentally change the nature of arms, how people react to them, how arms affect them and how they respond to arms.
So yes, the Second Amendment does cover machine guns, submachine guns, ’street sweepers’, and artillery, and anything that extends them. It also covers edged weapons. But it does not cover CBN weapons or missiles, just as the First Amendment would not cover direct transmission into the brains of the populace. These are fundamentally different things than what was known or intended by the authors. ‘Arms’, as the authors of the Second Amendment understood the term, and as used in the Second Amendment, does not include CBN weapons or missiles.