The Second Amendment and the Doctrine of Probable Use

There are frequent discussions of whether to limit the ownership of various kinds of weapons such as assault rifles, machine guns and the like. The discussion on this topic has been historically illiterate and has failed to contemplate the fundamental reason for the ownership of guns. Guns are necessary for the public militia to protect the people from state tyranny. Hamilton noted this in the Federalist 29 and the Second Amendment makes this clear when it says that a well regulated militia is necessary for the defense of a free state.

Since the purpose of the right to bear arms is largely to protect the public from state tyranny, the public ought to have the right to own weapons that are at least equal to weapons that the state would probably use in an assault on the public to re-enforce tyranny. Thus, if tanks are likely to be used against the public in a rural area, the public militia ought to have the right to own tanks.

Rifles used against tanks would hardly be effective for the defense of a free state. All legal discussion that fails to balance the weapons that the government might use against the people with the threat that private ownership poses to the public is illegitimate and does violence to the Second Amendment. The government's probable use of a given class of weapons against the public ought to be the basis for the legality of gun ownership.

The Federalist Number 8 and the Second Amendment

The Federalist No. 8, attributed to Hamilton, sheds some light on the Second Amendment debate. As many have pointed out, the Second Amendment refers to the citizens' and the states' ability to resist a federal standing army. As such, it would seem that a robust interpretation as to the right to keep and bear arms is condign. In the Federalist Number 8 Hamilton argues that the threat of a standing army to liberty will not be great since the country, under the Constitution, would not ordinarily need to worry about military threats and so the federal army would not need to be large. He adds that because of the rarity of internal invasions:

"The smallness of the army renders the natural strength of the community an overmatch for it; and the citizens not habituated to look up to the military power for protection, or to submit to its oppressions, neither love nor fear the soldiery; they view them with a spirit of jealous acquiescence in a necessary evil and stand ready to resist a power which they suppose may be exerted to the prejudice of their rights.

"The army under such circumstances may usefully aid the magistrate to suppress a small faction, or an occasional mob, or insurrection; but it will be unable to enforce encroachments against the united efforts of the great body of people."

The Second Amendment reads:

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

It seems evident that the Second Amendment, like Hamilton, refers to the public's and the states' ability to resist military incursions on liberty. Gun ownership in this light is not only an individual right, but an individual responsibility. Far from limiting the right to bear arms, the phrase "a well regulated militia" suggests that all Americans ought to bear arms as a defense against a standing army and suppression of the citizenry. Would that the European victims of nazism and communism had taken the advice of the Bill of Rights and formed a well-regulated militia.