Surely the National Rifle Association, in that sense, is the distorted double of the American Civil Liberties Union. How do civil libertarians feel when they hear their own dialog and principles--the absolutism of Constitutional rights, the fear of the slippery slope--echoed back to them in defense of the right to bear arms?
The ACLU must ferociously oppose the slightest insult to the right of free speech--no matter how marginal, weird, pornographic, violent or sick the speech--because "if we don't fight them on the beaches, we will have to fight them in the cities." The NRA, of course, is a past master at fighting on the beaches-- its opinion, which so closely resembles the absolutism of the ACLU, is that a restriction on cop killer bullets, or plastic guns undetectable by airport security, today, implies that all guns of every description will be taken away tomorrow.
What were the founders thinking about when they drafted the right to bear arms in the Second Amendment to the constitution? To different people, different sections of the Bill of Rights may sing, while others remain silent. To the NRA, the right to bear arms is thrilling, while there are probably NRA members to whom the right of free speech seems puzzling or irrelevant. For others of us, the right of free speech in the first amendment is electrifying, while the right to bear arms has all the intensity and relevance of a "right to import trivets" or a "right to churn butter".
The full text of the Constitutional language is:
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.
The first words, about the necessity of a militia, are often omitted. When considered, they are ambiguous. Proponents of gun control argue that the founders intended the Second Amendment only to protect the states against the federal government, or to draw the states into the new Union by reassuring them that they would remain somewhat independent, continuing to have the right to organize their own militias.
The Constitution, though drafted by extraordinary men, is a living and flawed document. While parts of it continue to generate electricity, others have diminished in importance or possibly even become irrelevant. (It is, however, dangerous to allow too quickly for the irrelevance of any part of the Constitution; it puts us on another slippery slope. Just imagine the impact of a statement at the height of the Cold War and McCarthyism that "The First Amendment right of free speech has no bearing on our current circumstances.")
If the intent of the founders, translated into current day terms, was to guarantee the states the right to organize National Guard divisions, such a right is not in question anywhere today. In fact, few (except for NRA members) would be likely to argue that a law prohibiting the National Guard (though unconstitutional) would wreak any great havoc, except symbolically.
In the context of the time--the late eighteenth century-- a guarantee to the states of the right to bear arms should certainly have implied the right to resist an oppressive federal government and therefore (by use of those very arms, if necessary) to secede from the Union. If this is what the Constitution intended, this right, of course, passed out of existence as part of our social compact at the time of the Civil War.
In the NRA's opinion, was the Civil War an unconstitutional exercise of power by an oppressive federal government? If so, the NRA could comfortably say, "Yes, something unconstitutional happened, but the Constitution survives." This would then be like the ACLU, speaking of the Japanese internment camps or the Jim Crow laws. But if you believe that the Union was right to defend itself and to force unhappy members to keep their membership, it is hard to see that the right to bear arms, postulated as a state's right, survived the ordeal.
Of course, the NRA does not view the Second Amendment as creating a state's right; the militia referred to was always intended to be, or has transmuted into, the body of all citizens taking arms individually against an oppressive federal government. If this is true, it is hard to imagine the founders deliberately drafting a document containing the seeds of the Union's destruction by its own citizens. Any lawyer knows that a contract terminable at will by either party without consequences, where neither has given anything up to sign it, fails for lack of consideration. Why would anyone draft a social contract that guaranteed the right to bear arms against the very union created by the contract? Again, what were the founders thinking?
A right to bear arms against one's own government would be a very peculiar right indeed. What would such a right mean in practice? Could a cop killer plead the Second Amendment in extenuation, if his act was political? Does the NRA believe that David Koresh and his followers had a constitutional right to fire on federal agents because they were behaving heavy handedly or oppressively? And if the answer to this is yes, then: WHO MAKES THE DETERMINATION?
Stop and think about this point for a moment. The right to bear arms in itself would be meaningless if it did not imply the right to fire them. This would be tantamount to saying that the First Amendment right of free speech meant only the right to have organs of speech, not to use them. And if the right to bear arms was really granted to the states or to individual citizens as a means of self-protection against oppressive government, it logically follows that the Second Amendment protects the right not simply to fire guns at targets or at deer, but at oppressive federal agents. Such a right of killing would be strange, unique and surprising for the founders to have wished to include in the Constitution.
And very impractical. Some killings are, of course, considered legal and justified as self-defense. But society, under the framework of the Constitution, has appointed its judges, who are government officials, to determine when a killing is self defense and when it is murder. Do the Second Amendment absolutists recognize the government's jurisdiction to determine when the shooting of a government agent is justified? Because, if they do not, they necessarily set the shooter himself up as judge and jury--something the founders and the Constitution obviously did not intend, because the Constitution also deprives individuals of the right to make life and death decisions about their peers without submitting themselves to the jurisdiction of the legal system.
It is possible that the right to bear arms was the least well thought out section of the Constitution, and that the drafters would be horrified if they could see the gun violence in our cities today and then hear the sanctimonious use of the Second Amendment to sanction the means of killing. The Constitution has grown and changed to adapt to many social transformations; when it was written, black people were still slaves in this country and half the white population did not have the right to vote. It may be possible to ban guns entirely, without doing any fundamental violence to the Constitution. The danger here is again, who gets to make the determination? To see the problem, just imagine that there are other people, with equal conviction and honesty, who could make the same statement about the right of free speech: that current conditions do not permit it, that if the founders saw the uses being made of speech, they would be horrified, etc.
There is a sense among judges and scholars, the "conservative" in the pure, not the political sense of the word, that the Constitution ought not to be amended too easily. For every noble amendment, such as the one confirming the freedom of the slaves, there are silly or trivial ones such as Prohibition. Today, with calls for a Constitutional amendment requiring a balanced budget, or the right to school prayer, one can only be glad that it is hard in general to amend the Constitution, or else it would become a tattered patchwork and cease to have much to do with its original beauty and intent.
Where this leads us is that the Second Amendment right to bear arms, even if we personally believe it to be misguided, must be treated with respect, like any other part of the Constitution. It is a force in American life, and it means something which cannot simply be disregarded or explained away. But like the First Amendment right of free speech, it is not absolute. Certain forms of speech are (and always have been recognized to be) prohibited (eg, yelling fire falsely in a crowded theater) or subject to strict regulation (pornography). Only a demagogue would argue that the right to bear arms is more absolute than the right of speech.
For example, it is well established that the First Amendment does not prohibit some government regulation pertaining to protected speech, for example, the necessity to obtain a permit before handing out leaflets in a park. Such a law is only unconstitutional if it singles out particular groups or forms of speech, for example, if only Communists had to obtain permits, or if permits were freely issued to everyone but Communists.
If government can regulate by permit the right to hand out a leaflet, drive a car, catch a fish, perform dentistry or fly a plane, it certainly should be able to regulate the right to own a gun, as long as there is no discrimination against speech or against particular groups in the way such a program is administered. Guns are dangerous instrumentalities and reasonable regulations imposing waiting periods, safety classes or other such requirements should certainly stand up. In fact, no court has ever held that the Second Amendment granted an absolute right to bear arms free of any regulation.
It is doubtful that the founders, in drafting the Second Amendment, intended it to permit the average citizen to place a loaded cannon in his front yard pointed at his neighbor's house. Since that time, many new instrumentalities have been invented and sold as "arms". Even if we restrict ourselves to those that can be carried by a single human being, we must still acknowledge that flamethrowers are arms; if we require (is this what the Constitution intended?) that such an "arm" fire a projectile, then bazookas, grenade launchers, and even SAM missiles are included. Does the NRA argue that we have a Second Amendment right to bear such arms?
If the NRA acknowledges that a line may be drawn somewhere, for example, that a private citizen should not have the right to own a SAM, then it becomes simply a question of where to draw the line. Understanding that the NRA, like the ACLU, is fighting on the beaches rather than on its own doorstep to avoid insults to its most dearly-held beliefs, there is nothing repugnant or unconstitutional in drawing the line to exclude semiautomatic weapons along with SAM's.