A Modest Proposal for Gun Control

The Supreme Court has told us that despite language referring to a “well-regulated militia,” the Second Amendment gives individuals the “right to keep and bear arms.” Over the past few years, the Court also has held that the ability of states to regulate (limit) this right is subject to scrutiny, although it has upheld certain laws that restrict the possession of firearms by certain classes of people (such as convicted felons and the mentally ill) or that forbid firearms in certain places (such as schools and government buildings).

I can live with the notion of a right to bear arms, but I don’t know why it has to include guns that are not designed for self-protection or hunting, such as semi-automatic weapons.  When it comes to the U.S. Constitution, I am not an originalist, but I still think that it is relevant that the Framers could not possibly have intended to be ensuring that individuals have the right to carry weapons that can cause mass casualties in a few moments.

My views don’t really matter, but Supreme Court Justice Scalia does purport to be an originalist, at least with respect to women’s rights.  In early January, he said that the Constitution does not prohibit discrimination against women because (as reported by Yahoo!) “Nobody ever thought that that’s what it [the 14th Amendment] meant.”

Now, I don’t want the Court to limit the 14th Amendment to what might have been the original intent of its authors, but if Justice Scalia believes that it should be, shouldn’t he look at the Second Amendment in the same light?

I think the Supreme Court should approach the Second Amendment issue the same way that the city of Alexandria, Virginia is approaching its rules for homes in its historic preservation district. As reported in the January 6, 2011 issue of the Alexandria Gazette Packet, the city has decided that homeowners maintaining the exteriors of their homes can only use replacement materials that were available when the houses were built. That means that materials developed in the twenty-first century cannot be used on houses built in the 1800’s. I don’t necessarily agree with this rule–won’t it preclude the use of more environmentally friendly and/or inexpensive materials?–but that’s not my point.

My proposal here (and it is a modest one), is to interpret the Second Amendment as ensuring the right to bear the types of arms that were available in the late 1700’s when the Bill of Rights was adopted. I’m sure these pistols could be used for self-defense, and people back then had to hunt for their food, so the rifles must be good enough for hunting.

So, Justice Scalia, what do you think?