# Which "arms" should be protected by the Second Amendment?
**URL:** https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795
**Category:** Great Debates
**Created:** [March 21, 2016, 8:42pm UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795 "2016-03-21T20:42:12Z")
**Posts on this page:** 20
**Page:** 1
### Author:  [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)
#### Post date: [March 21, 2016, 8:42pm UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/1 "2016-03-21T20:42:12Z")
This thread was inspired by the SCOTUS decision today overturning Massachussettes’ stun gun ban ([cite, PDF, starts on page 15](http://www.supremecourt.gov/orders/courtorders/032116zor_h3ci.pdf))
The ‘great debate’ I see here is: Which “arms” should be protected by the Second Amendment?
tazers (banned in a few states)?
knives?
swords?
nunchuks (banned in CA, NY, and MA, I believe)?
handguns?
semi-auto rifles?
“high”-capacity magazines (banned in a few states)?
select-fire firearms (highly-regulated at the federal level)?
crew-serve weapons?
“destructive devices” ('splody things, highly-regulated at the federal level)?
military vehicles with mounted weapons?
Yeah, the tail end of my list is a bit fuzzy, but I think you get the idea. If you were the deciding vote on the Supreme Court, or Dear Leader for a day, where would you draw the line? Which “arms” do you think are outside the protection of Second Amendment guarantees?
---
### Author:  [@Musicat](https://boards.straightdope.com/u/Musicat)
#### Post date: [March 21, 2016, 8:45pm UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/2 "2016-03-21T20:45:08Z")
You left off tactical nuclear weapons.
---
### Author:  [@running\_coach](https://boards.straightdope.com/u/running_coach)
#### Post date: [March 21, 2016, 8:51pm UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/3 "2016-03-21T20:51:41Z")
> [@Musicat](#):
>
> You left off tactical nuclear weapons.
Not much point if you can’t get into orbit.
---
### Author:  [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)
#### Post date: [March 21, 2016, 8:55pm UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/4 "2016-03-21T20:55:07Z")
You’re not thinking ahead, future weapons that allow one to zap a person’s brain telepathically with a psychic-amplifying helmet should be legal too. Kids should have them, so they can zap each other senseless when they get upset.
While teleporters will come with safety regulations, since they can be used as arms to teleport bombs and bullets into people, they need to be deregulated and sold openly as well.
Not to mention bear arms, for when we finally wrest control of the genome from Mother Nature. There is literally no argument against modifying your arms into that of an ursine, its word for word allowed in the Constitution!
---
### Author:  [@Some\_Call\_Me.Tim](https://boards.straightdope.com/u/Some_Call_Me.Tim)
#### Post date: [March 21, 2016, 9:26pm UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/5 "2016-03-21T21:26:00Z")
I don’t think there’s consensus on this, to put it mildly. However, I think that the USSC opinion in [US vs. Miller](https://www.law.cornell.edu/supremecourt/text/307/174) may be a good starting point;
> [@](#):
>
> The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. “A body of citizens enrolled for military discipline.” And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
Though it may be counterintuitive to some, by this standard the more ‘military’ a weapon is the more it’s protected, as long is it’s something used by a common grunt soldier.
I’d say:
knives
handguns
semi-auto rifles
“high”-capacity magazines
select-fire firearms
are items that it would be reasonable to say are in common use by rank-and-file soldiers at this time. A case could also be made for crew-serve weapons, but I think that’s arguable as they are typically used by specialists.
---
### Author:  [@Common\_Tater](https://boards.straightdope.com/u/Common_Tater)
#### Post date: [March 21, 2016, 9:28pm UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/6 "2016-03-21T21:28:46Z")
Anyone concerned with self defense, as a practical matter this means a firearm with the current state of technology, and further this means a handgun. Best defense weapon to protect the smaller and weaker, against the larger and meaner sorts. Other weapons like knives or pepper spray or “stun” guns are decidedly less effective at stopping a lethal threat.
---
### Author:  [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)
#### Post date: [March 21, 2016, 10:46pm UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/7 "2016-03-21T22:46:17Z")
> [@Some\_Call\_Me.Tim](#):
>
> I don’t think there’s consensus on this, to put it mildly. However, I think that the USSC opinion in [US vs. Miller](https://www.law.cornell.edu/supremecourt/text/307/174) may be a good starting point …
My reading of today’s opinion ([here’s a better link, BTW](http://www.supremecourt.gov/opinions/15pdf/14-10078_aplc.pdf)) is that _Miller_ is essentially dead.
> [@](#):
>
> Finally, the court used “a contemporary lens” and found “nothing in the record to suggest that [stun guns] are readily adaptable to use in the military.” … But **Heller rejected the proposition “that only those weapons useful in warfare are protected**.”
Anyways, it always seemed goofy to me that the gun control crowd clung to _Miller_ as a precedent worth preserving, and simultaneously argued that assault weapons should be banned.
---
### Author:  [@thelurkinghorror](https://boards.straightdope.com/u/thelurkinghorror)
#### Post date: [March 21, 2016, 10:49pm UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/8 "2016-03-21T22:49:29Z")
“High capacity” semi-automatic arms existed at the time of the 2nd Amendment, even [handheld ones that were nearly silent](https://en.wikipedia.org/wiki/Girandoni_air_rifle).
Tasers and stun guns - the operative term is “less lethal,” not “non-lethal,” and any
Nunchaku and switchblade bans are based upon the belief that it’ll turn someone into an instant ninja.
> [@running\_coach](#):
>
> Not much point if you can’t get into orbit.
If you need genetic material to kilt bar arms, [you can do it in style](https://en.wikipedia.org/wiki/Davy_Crockett_%28nuclear_device%29)!
---
### Author:  [@Peremensoe](https://boards.straightdope.com/u/Peremensoe)
#### Post date: [March 21, 2016, 10:56pm UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/9 "2016-03-21T22:56:04Z")
> [@Some\_Call\_Me.Tim](#):
>
> I think that the USSC opinion in [US vs. Miller](https://www.law.cornell.edu/supremecourt/text/307/174) may be a good starting point…
>
> Though it may be counterintuitive to some, by this standard the more ‘military’ a weapon is the more it’s protected, as long is it’s something used by a common grunt soldier.
>
> I’d say:
> knives
> handguns
> semi-auto rifles
> “high”-capacity magazines
> select-fire firearms
>
> are items that it would be reasonable to say are in common use by rank-and-file soldiers at this time. A case could also be made for crew-serve weapons, but I think that’s arguable as they are typically used by specialists.
I don’t start with _Miller_, but I agree with this interpretation. Militia weapons are those that may reasonably be kept and borne–maintained and employed–by one person.
---
### Author:  [@Bone](https://boards.straightdope.com/u/Bone)
#### Post date: [March 21, 2016, 10:57pm UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/10 "2016-03-21T22:57:08Z")
Stun guns can still be banned in Massachusetts. The ruling today simply obliterated the reasoning that the Mass courts used. The issue was remanded and the Mass. court could come up with another novel way to ban stun guns.
The ruling’s larger impact is to put to bed the piss poor reasoning that Mass. used to come up with their scheme.
---
### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [March 21, 2016, 11:12pm UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/11 "2016-03-21T23:12:06Z")
The absolutists insist on reading the Constitution in the language and context that applied at the time. Okay, fine: The clear intent of the amendment was to make sure the country would have an effective military force on short notice when it needed one. Since the decision was made shortly afterward to have a standing army, and since the state militias were transformed into the National Guard (which takes care of its own equipment), it has been meaningless ever since.
---
### Author:  [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)
#### Post date: [March 21, 2016, 11:24pm UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/12 "2016-03-21T23:24:17Z")
> [@Bone](#):
>
> Stun guns can still be banned in Massachusetts. The ruling today simply obliterated the reasoning that the Mass courts used. The issue was remanded and the Mass. court could come up with another novel way to ban stun guns.
>
> The ruling’s larger impact is to put to bed the piss poor reasoning that Mass. used to come up with their scheme.
The opinion today said, “The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.”
Do those words have a significantly-different meaning from “The judgment is reversed, and the case is remanded” which the court utilized in McDonald v Chicago?
---
### Author:  [@E-DUB](https://boards.straightdope.com/u/E-DUB)
#### Post date: [March 21, 2016, 11:35pm UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/13 "2016-03-21T23:35:45Z")
The Popiel Pocket Phaser.
---
### Author:  [@Bone](https://boards.straightdope.com/u/Bone)
#### Post date: [March 21, 2016, 11:39pm UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/14 "2016-03-21T23:39:06Z")
> [@HurricaneDitka](#):
>
> The opinion today said, “The judgment of the Supreme Judicial Court of Massachusetts is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.”
>
> Do those words have a significantly-different meaning from “The judgment is reversed, and the case is remanded” which the court utilized in McDonald v Chicago?
The Mass. court essentially got the analysis wrong. They upheld the ban on stun guns because they concluded that stun guns weren’t covered under the 2nd. SCOTUS just vacated, but did not say stun guns are covered. They simply said that Mass. used reasoning that was proscribed by Heller. They need to do it again, and this time, it must be consistent with SCOTUS.
Conceivably the Mass. court could re-evaluate the case, and do the 2 prong 2nd amendment analysis, follow Heller, and determine that stun guns are covered. Then, in the 2nd prong, say that even though they are covered, still uphold the ban because other defense mechanisms are available. That too would be very very shitty reasoning, but the 2nd circuit did that with assault weapons. So if you are the stun gun lobby, you haven’t achieved total victory yet.
That’s why the rationale used today is more of a victory and potentially longer lasting than the stun gun issue. It destroys specious arguments like ones that tried to limit arms to those available at the time of enactment. No matter what the Mass. court does, that part isn’t going away. Maybe Mass. upholds the ban based on different reasons, and SCOTUS then denies cert. It would be status quo from yesterday before the ruling with regard to stun guns in Mass. But the reasoning that got eliminated from SCOTUS will still be eliminated.
One of the shitty things here is that Caetano (plaintiff) is still in limbo. She acquired the stun gun to protect her self from domestic violence, and as a result of her conviction she is barred from also purchasing a handgun or any firearm. While this case makes its way through the judicial proceedings, she’s still fucked.
---
### Author:  [@HurricaneDitka](https://boards.straightdope.com/u/HurricaneDitka)
#### Post date: [March 21, 2016, 11:54pm UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/15 "2016-03-21T23:54:36Z")
> [@Bone](#):
>
> The Mass. court essentially got the analysis wrong. They upheld the ban on stun guns because they concluded that stun guns weren’t covered under the 2nd. SCOTUS just vacated, but did not say stun guns are covered. They simply said that Mass. used reasoning that was proscribed by Heller. They need to do it again, and this time, it must be consistent with SCOTUS.
>
> **Conceivably the Mass. court could re-evaluate the case, and do the 2 prong 2nd amendment analysis, follow Heller, and determine that stun guns are covered. Then, in the 2nd prong, say that even though they are covered, still uphold the ban because other defense mechanisms are available**. That too would be very very shitty reasoning, but the 2nd circuit did that with assault weapons. So if you are the stun gun lobby, you haven’t achieved total victory yet.
>
> That’s why the rationale used today is more of a victory and potentially longer lasting than the stun gun issue. It destroys specious arguments like ones that tried to limit arms to those available at the time of enactment. No matter what the Mass. court does, that part isn’t going away. Maybe Mass. upholds the ban based on different reasons, and SCOTUS then denies cert. It would be status quo from yesterday before the ruling with regard to stun guns in Mass. But the reasoning that got eliminated from SCOTUS will still be eliminated.
>
> One of the shitty things here is that Caetano (plaintiff) is still in limbo. She acquired the stun gun to protect her self from domestic violence, and as a result of her conviction she is barred from also purchasing a handgun or any firearm. While this case makes its way through the judicial proceedings, she’s still fucked.
Agreed that it’s not total victory yet, but Alito’s concurring (I know, not binding) opinion targeted that very same line of thinking:
> [@](#):
>
> The lower court’s ill treatment of Heller cannot stand. The reasoning of the Massachusetts court poses a grave threat to the fundamental right of self-defense. The Supreme Judicial Court suggested that Caetano could have simply gotten a firearm to defend herself. 470 Mass., at 783, 26 N. E. 3d, at 695. But **the right to bear other weapons is “no answer” to a ban on the possession of protected arms**. Heller, 554 U. S., at 629. Moreover, a weapon is an effective means of self-defense only if one is prepared to use it, and it is presumptuous to tell Caetano she should have been ready to shoot the father of her two young children if she wanted to protect herself. Courts should not be in the business of demanding that citizens use more force for self-defense than they are comfortable wielding.
The actual quote from the Heller opinion is:
> [@](#):
>
> It is no answer to say, as petitioners do, that it is permissible
> to ban the possession of handguns so long as the possession of other firearms (i.e., long guns) is allowed.
After a smack-down they just received, I’d be _very_ surprised if MA tried the “but we let them have handguns so they don’t need stun guns” line.
And yes, Caetano has been horribly mistreated by Massachussettes’ insane weapon laws. The state has been ruining her life for _years_ now, all in the name of enforcing an utterly-asinine electric-weapons ban.
---
### Author:  [@Bone](https://boards.straightdope.com/u/Bone)
#### Post date: [March 22, 2016, 12:10am UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/16 "2016-03-22T00:10:29Z")
> [@HurricaneDitka](#):
>
> After a smack-down they just received, I’d be _very_ surprised if MA tried the “but we let them have handguns so they don’t need stun guns” line.
The [reasoning in the 2nd circuit](http://www.ca2.uscourts.gov/decisions/isysquery/f65f5551-0d79-4b31-b734-7aea4a8fba59/3/doc/14-36_14-319_opn.pdf)did just that.
> [@](#):
>
> Plaintiffs nonetheless argue that the legislation
> 4 does prohibit “firearms of a universally recognized type—
> semiautomatic.” 5 96 Not so. Rather, both New York and Connecticut
> 6 ban only a limited subset of semiautomatic firearms, which contain
> 7 one or more enumerated military‐style features. As Heller makes
> 8 plain, the fact that the statutes at issue do not ban “an entire class of
> ‘arms’” makes the restrictions substantially less burdensome.97 9 In
> 10 both states, citizens may continue to arm themselves with non‐
> 11 semiautomatic weapons or with any semiautomatic gun that does
> 12 not contain any of the enumerated military‐style features. Similarly,
> 13 while citizens may not acquire high‐capacity magazines, they can
> 14 purchase any number of magazines with a capacity of ten or fewer
> 15 rounds. In sum, numerous “alternatives remain for law‐abiding
> citizens to acquire a firearm for self‐defense.” 16 98 We agree with the
> D.C. Circuit that “the prohibition of semi‐automatic rifles and large‐
> 2 capacity magazines does not effectively disarm individuals or
> substantially affect their ability to defend themselves.” 3 99 The burden
> imposed by the challenged legislation is real, but it is not “severe.”100 4
The 2nd circuit court goes on to say that the bans pass intermediate scrutiny, even though the standard they apply seems more like rational basis, and defer to the legislature who wants to ban the weapons and magazines.
I would not be surprised if at the end of the day the stun gun ban in Mass is upheld, and Caetano is still prohibited from purchasing a weapon to defend herself. Because weapon laws in Mass. fucking suck.
---
### Author:  [@DinoR](https://boards.straightdope.com/u/DinoR)
#### Post date: [March 22, 2016, 12:56am UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/17 "2016-03-22T00:56:04Z")
> [@ElvisL1ves](#):
>
> Since the decision was made shortly afterward to have a standing army, and since the state militias were transformed into the National Guard (which takes care of its own equipment), it has been meaningless ever since.
Even for very broad definitions of shortly (the National Guard didn’t become a permanently dual status organization until 1933) that’s simply not true from a legally absolutist standard. Nothing about the agreement to make the National Guard a dual status force made it the only militia in the US. Federal law, in fact, still provides for an unorganized federal militia (all able bodied males 18-45). If addition many states still maintain organized militia forces outside the National Guard structure that have uniforms and get together to train. Some states even have naval forces (including Ohio!). Overwhelmingly states also provide a legal basis for an unorganized militia subject to involuntary call up. Those state level unorganized militias tend to either follow the federal standard of who are members or a looser standard (like a wider age range and/or including both male and female).
The National Guard is A militia force. It’s not the ONLY militia force. The absolutist interpretation comes up on the most unrestrictive pro-gun side at times. They use it to support loosening current restrictions on guns since the militia is so broadly defined in law.
---
### Author:  [@Scumpup](https://boards.straightdope.com/u/Scumpup)
#### Post date: [March 22, 2016, 1:06am UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/18 "2016-03-22T01:06:39Z")
> [@ElvisL1ves](#):
>
> The absolutists insist on reading the Constitution in the language and context that applied at the time. Okay, fine: The clear intent of the amendment was to make sure the country would have an effective military force on short notice when it needed one. Since the decision was made shortly afterward to have a standing army, and since the state militias were transformed into the National Guard (which takes care of its own equipment), it has been meaningless ever since.
My, that is a novel way of looking at the legal situation. Is there anybody whose legal credentials did not come with two stickers and a piece of bubblegum who actually takes that line of reasoning seriously?
---
### Author:  [@ElvisL1ves](https://boards.straightdope.com/u/ElvisL1ves)
#### Post date: [March 22, 2016, 1:55am UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/19 "2016-03-22T01:55:04Z")
> [@DinoR](#):
>
> Nothing about the agreement to make the National Guard a dual status force made it the only militia in the US.
The topic was the intent of the amendment, not ways to make it mean something different. “Militia” meant the nation’s military force, and that meaning soon became obsolete with the establishment of a standing army that made requiring readiness for a temporary one unnecessary.
For clarification, look at the relevant section of the Articles of Confederation, IOW the constitution that was actually in effect when the Second was written.
---
### Author:  [@octopus](https://boards.straightdope.com/u/octopus)
#### Post date: [March 22, 2016, 4:46am UTC](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795/20 "2016-03-22T04:46:48Z")
> [@ElvisL1ves](#):
>
> The absolutists insist on reading the Constitution in the language and context that applied at the time. Okay, fine: The clear intent of the amendment was to make sure the country would have an effective military force on short notice when it needed one. Since the decision was made shortly afterward to have a standing army, and since the state militias were transformed into the National Guard (which takes care of its own equipment), it has been meaningless ever since.
Wrong. It’s also meant as a hedge against tyranny.
[Next page](https://boards.straightdope.com/t/which-arms-should-be-protected-by-the-second-amendment/749795.md?page=2)