It is apparent that my opponent is unwilling and/or unable to debate a position opposite of mine, as he agreed that he would when he called me out to debate him.
But, as agreed to, I will present my argument for him to counter.
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Part I
In this post, I shall show how the 2nd amendment, by protecting the right to arms, protects the right to own and use any modern firearm. This shall be done through an examination of the legal and constitutional issues surrounding the 2nd amendment insofar as what weapons are considered ‘arms”, the effect of the linkage of the right to arms to militia service has on determining what weapons are considered arms, and how those two terms, in concert, relate to how the term “arms” relates to weapons available today.
To determine the proper position regarding any given point of contention relating to the Constitution, there are several methods. Most obvious is to examine current and past jurisprudence, preferably that from the Supreme Court, but from the lower courts if the Supreme Court has not rendered a clear picture. To supplement the view from the Supreme Court, one can draw on rulings from the lower courts, as well as, if available and if necessary, the writings of the people involved in the creation of the Constitution and/or the bill of rights.
To that end, one must first look at the only case in which the SCotUS examines the 2nd amendment:
UNITED STATES v. MILLER, 307 U.S. 174 (1939)
FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code
In this case, the SCotUS in effect created a test to see if any given weapon was covered by the protections afforded to the right of the people to keep and bear arms by linking that weapon to its effectiveness if employed in militia service - that it must have a "reasonable relation to the preservation or efficiency of a well regulated militia":
In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' 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. Certainly 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
The key terms here, and the obvious conclusion from them is that to be protected by the 2nd amendment, a weapon must be of a kind that is “any part of the ordinary military equipment or that its use could contribute to the common defense” and thus bears “some reasonable relationship to the preservation or efficiency of a well regulated militia”. This necessitates that to enjoy the protection of the 2nd, a weapon must be of a kind found in current military service.
This is further supported by:
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. 'A body of citizens enrolled for military discipline.' And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
Note that “in common use at the time” not only supports the position that the 2nd amendment protects the sort of weapons one might find in current military service, but it also quickly and easily negates any argument that the amendment protects only weapons in use at the writing of the amendment, as “in common use at the time” means in commune use at the time of the service, which could mean from any point after the establishment of the British North American colonies to the present day. Indeed, this phrase readily indicates that the militiaman were expected to provide a weapon for service that was in line with those in service with the standing army.
Put more simply, the decision in Miller indicates that weapons considered as “arms” in the context of the 2nd must be or be substantially similar to the ordinary weapons in current use with the standing army, and be suitable for use in the missions the militia might be expected to undertake. Of course, missions define weapons necessary to undertake them, and so to determine what ordinary weapons in current use might be necessary for the militia to undertake its usual missions, we must look at what those missions are.
As per Article I section 8:15 of the US Constitution, the militia has three roles:
• execute the laws of the union,
• suppress insurrections
• repel invasions
Along with these three constitutionally mandated mission, the militia was held by the Founding Fathers as the nations bulwark from tyranny, in that an armed populace would and should resist, through force of arms, an oppressive government, Just a few lines of a great many to this effect:
Patrick Henry:
Are we at last brought to such an humiliating and debasing degradation that we cannot be trusted with arms for our own defense? Where is the difference between having our arms under our own possession and under our own direction, and having them under the management of Congress? If our defense be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands?
Thomas Jefferson:
What country can preserve its liberties, if its rulers are not warned from time to time that this people preserve the spirit of resistance? Let them take arms.
Every citizen should be a soldier. This was the case with the Greeks and Romans, and must be that of every free state.
For a people who are free, and who mean to remain so, a well organized and armed militia is their best security.
James Madison:
The highest number to which a standing army can be carried in any country does not exceed one hundredth part of the souls, or one twenty-fifth part of the number able to bear arms. This portion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Besides the advantage of being armed, it forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. The governments of Europe are afraid to trust the people with arms. If they did, the people would surely shake off the yoke of tyranny, as America did. Let us not insult the free and gallant citizens of America with the suspicion that they would be less able to defend the rights of which they would be in actual possession than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.
Americans need never fear their government because of the advantage of being armed, which the Americans possess over the people of almost every other nation.
... large and permanent military establishments which are forbidden by the principles of free government, and against the necessity of which the militia were meant to be a constitutional bulwark.
An efficient militia is authorized and contemplated by the Constitution and required by the spirit and safety of free government.
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of
Clearly then, the militia carries 4 missions, two of which, to , when necessary, assist and/or resist the standing army, being the most relevant. In these missions, the militia must be sufficiently equipped and armed, thus the protection of the 2nd amendment, to ensure that the government might not ever strip the people of the means to resist said government.
And so, the question begs: what weapons are those necessary for the militia to resist and/or assist the standing army, and that are of the kind in common use as any part of the ordinary military equipment that its could contribute to the common defense?
We have already examined the missions of the militia, and what it is expected to do. To determine the particular weapons that the militia might need for these missions, we must look at the nature of the militia units themselves, particularly their size and composition.
The militia, historically, were company-sized units of infantry, raised and employed locally by local leaders, sometimes at the behest of the state government and sometimes not. There were, of course, examples of militia artillery, cavalry and dragoon units, but there huge majority of militia were infantry; while there were militia units of up to brigade size, these units were almost always comprised on individual militia companies serving under a single command. As such, it is accurate, if not all-encompassing, to describe the standard militia unit as a company of infantry or light infantry.
This determination serves to put into a modern context the militia as it might be seen today, and, more importantly, what weapons it might need to carry out its intended missions.
Today, US Army infantry is largely mechanized, with their armored components integrated into the infantry units themselves, under command of the infantry commander. As such, these are not infantry units in the strict sense, but more akin to dragoons or, obviously, armored or mechanized infantry. Within the US military, there are, however, 3 classes of infantry companies which match the classic infantry designation – US Army airborne companies, USMC infantry companies and US Army Ranger companies, which are, in moist respects, ‘light infantry’.
https://www.infantry.army.mil/infantry/
Infantry - Wikipedia, the free encyclopedia
Light infantry - Wikipedia, the free encyclopedia
The weapons “in ordinary use” for these units are well-known and widely seen in various forms from various sources – certainly, anyone who cares to notice while watching the nightly news will observe the vast array of weapons carried by our infantry forces. In summary, the US infantryman is generally issued one or more of the weapons from this list, or a derivative thereof:
Historic U.S. Small Arms
Small Arms Information
• M9/M1911A1 pistol
• M16A2 rifle
• M14/M21 rifle
• M24/M40 rifle
• M82A1 rifle
• M249 Squad Automatic Weapon
• M240 General Purpose Machine Gun
• M2 Heavy Machine Gun
• M590/M1200 shotgun
• M203 40mm grenade launcher
Note that these are currently issued small arms; a more inclusive historical listing is provided in the 1st link noted above.
Continued in Part II, below.