Would a U.S. state have the right to stock nuclear weapons? Would that qualify as a “well-regulated militia”?
The right protected by the Second is " of the People," not of the states as such, despite the stated purpose being “security of a free State.”
I also hold that the phrase “keep and bear” is significant; weapons that can’t be borne by individuals are not necessarily within the purview.
Early interpretations of the Amendment did allow for cannons on privately-owned ships, though, and neither a cannon nor a ship can be “borne” by a single individual.
Are these interpretations from actual court cases?
Or privateers operating under Letter of Marque?
Actual court cases, as I understand it. But I’m no expert on law nor history.
Many states have their own defense forces, which operate independently from the federal military and, unlike the National Guard, cannot be federalized.
My understanding, though, is that they tend to be very small, and usually operate as a supplement to the state’s National Guard, helping with disaster relief and the like, and they tend to be unarmed, because most states aren’t willing to fund weapons training.
Of course, they can be armed if the government of the state deems it necessary. I have no idea, though, if there are any restrictions on the types of arms they’re allowed to acquire, or if it would be legal for a state defense force to acquire a nuclear weapon (putting aside the fact that doing so would be very difficult as a practical matter).
“State”, being capitalized, refers to the United States as a whole and not any one individual state. Besides, the explanatory preface does not define the right, so the “well-regulated militia” portion has no bearing on the matter.
This is probably not correct inasmuch as one may privately own a tank or an artillery piece, albeit demilitarized. But nuclear weapons are a category all their own.
The NRC regulates nuclear material, and it would be difficult indeed to obtain the required (and accounted for) nuclear material, with the added problem that building a nuclear weapon isn’t at all easy to hide and is very complex to boot.
Ultimately, though, it comes down to Federal supremacy. The Federal government would quickly put the kibosh on any attempt by a state to build their own private nuclear arsenal.
Legal or not, is it your second amendment right to own a tank or artillery piece? I would think not. I am as pro-gun as they come, but I believe that implicit in the second amendment is that the arm be capable of being borne, or carried upon one’s person as would be expected of a militiaman (again, membership in a militia not required, nor does the arm have to be explicitly designed or approved for use by a militia, but only capable of being carried in such a manner).
So, if a state wanted to outlaw ownership of cannons by private individuals, I don’t think that it would run afoul of the second amendment (though I would be against said law).
As far as a state itself being allowed to possess a nuclear weapon, I believe that Congress’ exclusive power in raising and supporting an army, along with a finding that nuclear weapons are ONLY suited for possession by military forces (can’t be carried, no suitable militia purpose, treaties that we have signed, the inherent extreme danger in them, etc.), would be sufficient to disallow a state from having one.
Several provisions of the Constitution in Article One clearly indicate that the federal government is to handle all foreign relations, and especially that the federal government alone is to determine whether or not the states are conducting armed hostilities with a foreign power. Section Ten of Article One details the sovereign powers that the states agreed to cede to the federal government, and Clause Three of Section Ten says:
IOW,the states are forbidden to maintain their own standing state armies and navies. So if, as seems likely, the provision against keeping “ships of war” is to maintain a federal monopoly on the power to wage foreign war, then it could be argued that more generally the states can be forbidden to keep strategic weapons systems intended to project military power against a foreign nation. At a minimum I would suppose that long range bombers and ICBMs would qualify.
BTW, regarding the state Defense Forces: they were authorized by a federal law, 32 U.S.C.§ 109, which is exactly the “Consent of Congress” mentioned above. The State Defense Forces are state armies; they exist at the federal government’s sufference and if the federal congress withdrew it’s permission, the states could be forced to disband them.
What?
No, “State” means state. The word is capitalized–reflecting the importance of the entities that create and compose the United States–throughout the Constitution, including all the places where it says “any State,” “each State,” “that State,” “the several States,” and “no State.” In every case it refers to individual states.
I invite anyone who isn’t convinced of this to read the Constitution.
Alternately, “State” is just capitalized because it’s a noun. That was a common stylistic convention at the time.
Okay, so it’s reflecting the importance of Nouns. You’re right. (It looks like this convention had faded by the time of the Twelfth Amendment in 1803.)
That’s not the point, anyway. Capitalized or not, the word (in the singular) in founding documents always refers to individual states, not the United States.
BTW, I’d be interested in cites on the interpretations of the Second Amendment with respect to private shipboard cannons, if you can recall where you heard that. My inclination is to agree with jtgain that the fact that heavier armament in private hands (shipboard or otherwise) may have been tolerated is not necessarily related to the question of whether such ownership is Constitutionally protected.
That’s fair enough. I had forgotten about that particular convention being universal.
And I would agree with you both. Sea-borne trade was critical to many nations during that period, and piracy, while on the wane, was still rampant in many places, so it would be in a government’s best interest to authorize/license private merchant vessels flying their flag to carry some form of defensive armament. I wouldn’t be surprised at all if there was some form of “Naval Reserve” clause on such vessels.
Although, if Patrick O’Brian is to be believed, the “Indiamen” merchants of British fame were often left alone to do their thing (aside from Impressment of their hands).
…and it does so by statute, which if it hasn’t been found unconstitutional by now, probably never will be. State governments can enter into agreements with the NRC to allow them certain oversight over “special nuclear materials” but the final authority is the NRC.
My guess is that Congress could prohibit it. BTW you might get a kick out of this video:
I’m with Lumpy: huge parts of the Constitution make it very clear that the federal government is solely responsible for both international and interstate relations, particularly warmaking. Unless there’s some use for an atomic bomb that doesn’t have to do with international or state-to-state relations, then I think the feds have supreme authority.
Even if this were true (and I seriously doubt it is) it is possible for an individual to carry a nuclear bomb. Granted a very “small” nuclear bomb will still weigh 100 pounds or more but in theory it is possible for an individual to carry one.
That’s why you carry it on a space shuttle, to be sure.
Does nuking your state capital when the governor is a fuck-up count?