B.L.U.F. An analysis/opinion of the State’s attempt to move certain arms out from the protection of the Second Amendment.

This is a long running argument from the anti-gun rights people. The gist is always of the “this modern thing didn’t exist in 1791 so it isn’t covered by the second amendment.” These same people are saying this on phones, computers, The Internet, which the firmly believe are covered under the first Amendment, even though those things would not have been known at the time of the founding.

The question is legitimate, so lets take it to an extreme.

Are Nuclear Weapons Protected Arms Under the Second Amendment?

Hagar reported to me that she often times has discussions with anti-gun people and they will ask something like “Well, do you think people should be able to own nuclear weapons!?!?!?”

She reports that most of them are shocked when she replies in the affirmative “Yes, they should be able to legally own nuclear weapons.” There is more to our discussion, I’ll get to that later.

Here we have the short of it [w]eapons of offence, or armour of defence.Id, citing Samuel Johnson’s dictionary of 1773

Are “nuclear weapons” weapons of offence? Yes, by the clear text of the Second Amendment supported by multiple sources at the time of the ratification of the Bill of Rights.

But nuclear weapons were not in existence at the time of the founding and the Founding Fathers could not have anticipated the horrific destructive power of such weapons. Again, Justice Scalia answers us.

Under the instructions given by the Supreme Court in Heller it is clear that nuclear weapons are arms.

But the argument goes on that the arm must be “bearable” to be considered covered under the Second Amendment. We know from historical fact that this was not the understanding at the time of the founding. We know this because many civilians owned cannon and even warships. In fact the US Government was known to issue sanctions to warship owners to have them engage in combat on the high seas with the enemies of the United States.

Justice Scalia addresses this issue. He is addressing the question in Heller in regards to individual right vs. collective right so his analysis is not a direct answer for us.

This leaves the question slightly open as to the question of size limitations on arms that are protected by the Second Amendment. We know that Heller clearly states that pistols and other handguns are. This has been extended to the sorts of long guns and shotguns that can be shouldered. It has been extended to weapons that are too heavy to shoulder but can be fired by one man from a bipod. I.e. a .50 cal semi-auto or bolt action rifle.

What about crew served weapons? Is a 60mm M224A1 mortar covered? How about the 81mm M252A1? How about the 120mm M120/M121, are they covered?

If those are covered are the M119 105mm Howitzer covered and the M777 155mm Howitzer? Or even the M110 Self-Propelled Howitzer. Those are huge. Are they covered?

The answer to all of that seems to be “yes”. The text of the Second Amendment does extend to “arms” that can not be carried by just one man but must instead have some other way of conveyance. It seems clear that a 16″ 3 Gun turret from a Wisconsin class Battleship would be covered arms.

From this, it seems clear that nuclear weapons are covered under the Second Amendment.

What laws are constitutional in regards to nuclear weapons?

According to the Constitution the answer is shall not be infringed According to the Supreme Court, there are acceptable regulations and limitations on the right to keep and bear arms.

…is neither a regulatory straightjacket nor a regulatory blank check… which leads to the question of when it the analogical reasoning within the limits? That is not relevant here.

This allows the state to raise the question of what laws are consistent with Nation’s historical tradition of firearm(arms) regulation.

So far the state has not been able to produce any law, in my opinion, from the correct time period that supports the banning of a class of weapon.

What they have been able to do is to find multiple laws regarding fire safety in regards to gunpowder. I submit that since the possibilities of a radiation mishap does exist and that does not infringe on your ability to keep and bear the nuclear weapon, that the state could have storage requirements that are for safety purposes.

Note, when I say “safety purposes” that doesn’t mean stuff like “It must be kept disassembled with its fissionable materials in a different county.” It means things like radiation sensors that are tested and monitored. Containers that are designed to low radiation leakage to a reasonable level and so forth.

In my opinion this type of safety law would fall within the text, history and tradition requirements of both Heller and Bruen.

Currently, the Supreme Court has put another limitation on what arms are covered within the scope of the Second Amendment.

[T]hose in common use for lawful purposesHeller is the phrase that much of our current litigation is founded on. If an arm is in common use for lawful purposes then that arm is not “Unusual”.

This links back to …finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.Id. at P. 2786 is the other part of this.

What this means is that nuclear weapons fail “in common use for lawful purposes” so they are unusual weapons and they are also “dangerous” which means that laws from the founding that prohibited carrying “dangerous and unusual” weapons can be used to justify carry regulations in regards to nuclear weapons today.

More to come.