Discussion on the Second Amendment

Charles C.W. Cooke writes at the National Review in response to recent criticism from liberals of comments made by Justice Scalia concerning the Second Amendment and whether it would protect the right to own a rocket launcher. Cooke states:

Winkler’s insinuation that the American compact includes no way out for the oppressed would have shocked its authors and contemporaries. In a much-distributed article published in the Philadelphia Federal Gazette and Philadelphia Evening Post in 1791, the Second Amendment was explained to intrigued citizens as protecting the people from “civil rulers” who “may attempt to tyrannize” and from “military forces” that “might pervert their power to the injury of their fellow citizens.” The author was channeling no less a personage than the drafter of the Second Amendment, James Madison. In Federalist 46, Madison laid out the insurrectionist theory himself, observing bluntly that the states should not fear the tyranny of a federal standing army because the superior state militias and well-armed public could defeat that army by force if, heaven forbid, it became necessary for them to do so.

After looking at another historical example, Cooke moves into the area of what types of weapons might be permissible under the Constitution. He takes the position that a nuclear weapon or cruise missile is too indiscriminate to be protected under the Second Amendment, but a pistol is clearly protected. He goes on:

Nevertheless, a significant gray area remains. Are the current federal restrictions on the sale of machine guns permissible? Can a state limit access to so-called “assault weapons” without violating the incorporated right? Can, per Scalia’s own example, the government prohibit private ownership of rocket launchers? These are serious constitutional questions — questions that, as an inevitable consequence of wading into the debate around an amendment that was left largely untouched for two centuries, the court will ultimately be required to address. This, remember, is a constitutional issue. It is not a political one. Contra the zeitgeist, “constitutional” and “unconstitutional” are not synonyms for “things I like” and “things I don’t like,” but statements of legal fact. If the Constitution does prevent Congress from prohibiting rocket launchers, and if this is deemed by a supermajority to be ridiculous, then the Second Amendment can be changed via the usual channels. Until that time, it remains in force and it must be upheld as it was written.

Again, looking at history, it is clear that the Constitution protected the right of private ownership of large military hardware--merchant ships of the day were regularly and routinely outfitted with the same type of cannon found on military vessels (which is why I disagree with the comment that a cruise missile is per se unprotected by the Second Amendment).

At the time of the founders, there was no such thing as a "strategic weapon" other than a standing army, and a person could not have a standing army. But a person could outfit a warship, and own and use explosive shells. Thus, the analysis should begin at that division--the difference between strategic and tactical weapons--and then work backwards.