Justice Scalia: The M-16 (AR-15) is the textbook example of a weapon protected by the Second Amendment

by Chuck Norton

Girl with pink AR-15

Girl with pink AR-15

Tonight I heard a leftist anti-self defense activist say that military style arms have no place in the hands of civilians, and in the very next sentence say that banning military style arms is totally consistent with the Second Amendment and the Heller Decision as authored by Justice Scalia. What a big fat lie.

Here is the video mentioned, and in it the “gun control” advocate uses almost every misleading rhetorical trick in the book:

Heller says that states can limit weapons that are unusual and  menacing, but military style small arms are mentioned as protected several times in Heller:

“[The purpose of the Second Amendment is] to secure a well-armed militia… . But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms… . The clause is analogous to the one securing the freedom of speech and of the press. Freedom, not license, is secured; the fair use, not the libellous abuse, is protected.” J. Pomeroy, An Introduction to the Constitutional Law of the United States 152–153 (1868) (hereinafter Pomeroy).

MORE:

“Some general knowledge of firearms is important to the public welfare; because it would be impossible, in case of war, to organize promptly an efficient force of volunteers unless the people had some familiarity with weapons of war. The Constitution secures the right of the people to keep and bear arms. No doubt, a citizen who keeps a gun or pistol under judicious precautions, practices in safe places the use of it, and in due time teaches his sons to do the same, exercises his individual right. No doubt, a person whose residence or duties involve peculiar peril may keep a pistol for prudent self-defence.” B. Abbott, Judge and Jury: A Popular Explanation of the Leading Topics in the Law of the Land 333 (1880) (hereinafter Abbott). – end quote

The above are merely two of plenty more references to be found in Heller. In Heller Justice Scalia references the earlier Miller Supreme Court Decision where the court argued that since weapons with a military purpose are protected by the Second Amendment the state may regulate certain guns that serve no military purpose. Justice Scalia uses this example to specifically refute a claim in Justice Stevens’ dissent:

It is entirely clear that the Court’s basis for saying that the Second Amendment did not apply was not that the defendants were “bear[ing] arms” not “for … military purposes” but for “nonmilitary use,” post, at 2. Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [short-barreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

In fact, Justice Scalia gives the example of the M-16/AR-15 as the quintessential example of a weapon protected by the Second Amendment. Read Justice Scalia carefully below:

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16Ala. 65, 67 (1849); English v. State, 35Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

The M-16 (AR-15) is the second most common rifle in use today, second only to the Kalashnikov (AK and SKS style rifles). By every legal definition throughout history, these rifles are not considered unusually dangerous and menacing, rather they are common.

UPDATE: Already I have received a few comments essentially stating the following:

The guy’s argument is doubly self-defeating. The AR-15 is not a military weapon, it is not used by any military. What MAKES it an AR-15 are precisely the things that make it non-military. The argument is self-defeating.

Political Arena Editor Chuck Norton Responds:

Only if you have accepted the false premises of the left.

The bolt action ’03 Springfield held five rounds and was the standard infantry rifle for the United States for decades. The musket was the standard military weapon for decades, hundreds of thousands have carried a .30 M1 Carbine in battle which is a semi-auto rifle only. The Colt Single Action Army Revolver was carried by our troops in some cases until after WWI. Are all revolvers now only military weapons that can be banned?

Of course the difference between the M-16 and the AR-15 is that one is selective fire and one is not. While it is an important difference to point out, with respect, it is not Justice Scalia or us that are making a self defeating argument, it is you who are accepting a self defeating premise of the far left, eg – that military style small arms are not protected, which they are, in fact, in Heller, Justice Scalia openly questions if the 1934 NFA is constitutional.

Heller is clear that as long as the military small arm is commonly in use and not highly unusual, weapons similar to it are protected.

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About Chuck Norton

I write about politics, education, economics, morality and philosophy.
This entry was posted in Firearms, True Talking Points and tagged , , , , . Bookmark the permalink.

One Response to Justice Scalia: The M-16 (AR-15) is the textbook example of a weapon protected by the Second Amendment

  1. Mark Buehner says:

    The guys argument is doubly self-defeating. The AR-15 is not a military weapon, it is not used by any military. What MAKES it an AR-15 are precisely the things that make it non-military. The argument is self-defeating.

    Political Arena Editor Responds:

    Only if you have accepted the false premises of the left.

    The bolt action ’03 Springfield held five rounds and was the standard infantry rifle for the United States for decades. The musket was the standard military weapon for decades, hundreds of thousands have carried a .30 M1 Carbine in battle which is a semi-auto rifle only. The Colt Single Action Army Revolver was carried by our troops in some cases until after WWI. Are all revolvers now only military weapons that can be banned?

    Of course the difference between the M-16 and the AR-15 is that one is selective fire and one is not. While it is an important difference to point out, with respect, it is not Justice Scalia or us that are making a self defeating argument, it is you who are accepting a self defeating premise of the far left, eg – that military style small arms are not protected, which they are, in fact, in Heller, Justice Scalia openly questions if the 1934 NFA is constitutional.

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