The Second Amendment and Civilian Armories

(2 pm. – promoted by ek hornbeck)

I am as progressive as they come. I have been a lawyer for 35 years. I have never owned a gun; nor did my parents. But I think banning assault weapons is not only unconstitutional, but no matter how well intentioned, may generally a bad idea as well.

I think there is a better solution that not only is constitutional but would go a long way toward reducing gun violence: private civilian armories.

For me, and most lawyers like me, the 2nd amendment is the anti-tyranny amendment. The 2nd amendment does not guarantee the right to hunt or to have a hunting weapon, nor is it about ensuring self-defense and having a gun that is ideal for protecting one’s self.  The 2nd amendment guarantees a private right for a common purpose – because guaranteeing that private right is necessary to achieve the 2nd amendment’s common purpose of opposing a tyrannical government.

There are those that argue that in today’s world, that to be an effective guarantee against tyranny, the 2nd amendment would need to guarantee the citizenry not only the right to have assault weapons but the right to have stinger missiles and other weapons that stop tanks and drones, and since these weapons are not available, the amendment should be formally repealed.  Some even argue that if the 2nd amendment is truly an anti-tyranny amendment, it would, or should, entitle the citizenry to have much more potent weapons – even atomic ones – and think it should be repealed for that reason.  Some argue that the risk of one person even having the power of an assault rifle is not justified by the benefits these weapons could be to a revolutionary force against a modern military.   If the belief and the will of the people is that modern military arms in the hands of the people would not be effective against a tyrannical government, or the risks of violence outweigh the benefits of having the means to overthrow an intolerable government, then the people should formally repeal the amendment.  The amendment should not be watered down legislatively or judicially to the point where it has lost the reason for its existence.  That is not the way one of the bill of rights should die.

But I don’t think repeal, whether actual, or as a practical matter — by statute or judicial interpretation — acknowledges the lessons of modern history, nor is it the best solution to gun violence.

The history of the last century has shown that having weaponry against tanks and planes is not an absolute requirement for a successful overthrow of domestically imposed tyranny.  An armed revolutionary force would certainly be able to more effectively overthrow a tyrannical government with stinger missiles and the like, but in the last century, many successful revolutions have occurred with not much more than military rifles.  Modern history has shown that the framer’s justification for the 2nd amendment’s existence is still viable.

However, I am not one who thinks that in order to have an effective anti-tyranny amendment, we need to have, or should have, assault rifles in our homes.  They have proven to be unacceptably dangerous in the wrong hands.  But just because we should not be able to keep them in our homes does not mean they should be banned.  Why?  Because we could have private civilian armories and be required to store them there so as to be available in the event an overthrow of the government is the only means the citizenry has left to remove a government it can no longer tolerate.  And private civilian armories would do much to keep these weapons out of the hands of those dangerous people who pose a significant risk to a civil society.  Indeed, civilian armories would probably work better than anything else to keep these weapons from individuals who are a danger to themselves or to others.

The founding fathers had the equivalent of private civilian armories; so the idea is not new.  Just as we don’t keep our money under our mattresses anymore, we don’t need assault weapons in our homes to have an effective deterrent to domestic tyranny.  Civilian armories could be the arms equivalent of private banks and safety deposit boxes.  

The government would have to be required by statute and by judicial interpretation to refrain from interference with civilian armories.  And if there were civilian armories everywhere, then the threat of the government shutting enough of them down to stop a revolution in progress would not be very real.  The civilian armories could even be allowed to store more effective military weaponry against tanks and drones – weapons such as stinger missiles.  And civilian armories could provide a place for training, so that we could better achieve the 2nd amendment’s requirement of a well-regulated (trained is the best synonym for regulated in this context) militia.

And when would the citizenry know it is time that their services are required to overthrow a tyrannical government? The some way our founding fathers knew.  When the equivalent of a contemporary Declaration of Independence is written and signed and enough people support it.

Civilian armories are a common sense solution to both a tyrannical threat and to the threat dangerous individuals pose to society when they get their hands on military hardware.