Types of arms protected by the second amendment

Although I would hope that all of us in this community strongly support the Second Amendment, I get dismayed when occasionally I see posts that insist that it prevents the government from prohibiting individuals from having any kind of " arms" at all. The Heller decision of the Supreme Court, written by Scalia, finally resolved that the right to keep and bear arms applies to individuals rather than just in relation to service in a militia. The Court also squarely addressed the question of whether some " arms" can be banned and held that yes they may:

"We may as well consider at this point (for we will have
to consider eventually) what types of weapons Miller
permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those
weapons useful in warfare are protected. That would be a
startling reading of the opinion, since it would mean that
the National Firearms Act’s restrictions on machineguns
(not challenged in Miller) might be unconstitutional,
machineguns being useful in warfare in 1939. We think
that Miller’s “ordinary military equipment” language must
be read in tandem with what comes after: “[O]rdinarily
when called for [militia] service [able-bodied] men were
expected to appear bearing arms supplied by themselves
and of the kind in common use at the time.” 307 U. S., at
179. The traditional militia was formed from a pool of
men bringing arms “in common use at the time” for lawful
purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen
and weapons used in defense of person and home were one
and the same.” State v. Kessler, 289 Ore. 359, 368, 614
P. 2d 94, 98 (1980) (citing G. Neumann, Swords and
Blades of the American Revolution 6–15, 252–254 (1973)).
Indeed, that is precisely the way in which the Second
24As for the “hundreds of judges,” post, at 2, who have relied on the
view of the Second Amendment JUSTICE STEVENS claims we endorsed in
Miller: If so, they overread Miller. And their erroneous reliance upon
an uncontested and virtually unreasoned case cannot nullify the
reliance of millions of Americans (as our historical analysis has shown)
upon the true meaning of the right to keep and bear arms. In any
event, it should not be thought that the cases decided by these judges
would necessarily have come out differently under a proper interpretation of the right.

Cite as: 554 U. S. ____ (2008) 53
Opinion of the Court
Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say
only that the Second Amendment does not protect those
weapons not typically possessed by law-abiding citizens
for lawful purposes, such as short-barreled shotguns.
That accords with the historical understanding of the
scope of the right, see Part III, infra.25
We conclude that nothing in our precedents forecloses
our adoption of the original understanding of the Second
Amendment. It should be unsurprising that such a significant matter has been for so long judicially unresolved.
For most of our history, the Bill of Rights was not thought
applicable to the States, and the Federal Government did
not significantly regulate the possession of firearms by
law-abiding citizens. Other provisions of the Bill of Rights
have similarly remained unilluminated for lengthy periods. This Court first held a law to violate the First
Amendment’s guarantee of freedom of speech in 1931,
almost 150 years after the Amendment was ratified, see
Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931), and…"

The key point here is that firearms which are not " in common use at the time" meaning at the time then, and at the time now, may be restricted. So, as a practical matter, I believe that since AR 15s are presently commonly owned by individuals, a ban on them should not pass constitutional muster. But on the other hand, fully automatic weapons are not in common use and so they could be banned or restricted. It is I think useful to point out here that this post is meant to address the LAW, as it stands and as it is interpreted by our Supreme Court, rather than what any of us personally think.
I believe that those unwilling to accept the scope of our right to bear arms do a disservice to to cause of preserving the rights which we actually have

I personally think it is clear that the founding fathers expected citizens to carry the same arms as the common soldiers of the day at the very least. Select fire rifles are todays modern equivalent of muskets.

However I would be willing to live with some future restrictions on the ownership of automatic weapons (such as the tax stamp and extra background checks) in exchange for a return of our other denied constitutional rights. Such as no more tax stamps on SBRs or suppressors, the right to keep and bear arms regardless of what state you are in with however many bullets as your magazine can carry, as well as the right to carry in all reasonable public spaces.


Here’s my thoughts,
When the 2nd Amendment was written, the military used the same rifles as the civilians.
The M-16, was adapted from the AR-15, for military use.
The military uses variants of the Mossberg 500/590 and the Remington 870.
More often than not, the military uses weapons adapted from civilian firearms, for military purposes. So, the commonality argument becomes very muddy. Especially, when with a 200 dollar tax stamp, you can still own pre-86 machine guns in 38 states. I believe any law abiding citizen has the right to own any small arms they desire.

Do I think we should have nukes, and surface to air missiles, no. But, as many point out, the right to keep and bear arms is for defense from enemies foreign, and domestic. When the government turns on us, it is our God given right, to me Force, with equal force.

I’ll take a Squad Assault Weapon thank you.


By whom?

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But what does it cost you ? The $200 stamp…and a class 3 FFL that costs how much, maybe $2500 per year ? Not sure how to spell infringed ! In the mid 1960s I’m thinking you could order a 20mm anti-tank weapon from the Sears catalog for less than $500, no FFL, no background check, even if you were only 14 years old.

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I’ll admit, this is a grey area for me. 2A opponents always ask if someone should be allowed to own a tank. I have no problem with that. In fact, I knew a gentleman who owned an entire tank collection. A lot of them appeared in movies.

But let’s say an uber-rich person like Jeff Bezos wanted to buy an fully armed A-10… I don’t know how I’d feel about that. He’d be subject to FAA restrictions, just like the farmer who couldn’t drive his tanks down the interstate. But I wouldn’t like the idea of some civilian with that much firepower flying over my house. Does that make me a 2A hypocrite? Or is it just that a lot of Americans draw the line somewhere, and we have different ideas where that line is?

Maybe it’s just a matter of perception. To me, a 5.56 rifle is a “common use” firearm that something that doesn’t inflict that much damage, unless paired with a well-trained fire team. Militaries happen to have their versions of 5.56, but they’re common outside the military, as well. Someone with no familiarity with firearms only knows that people in the movies can destroy entire buildings with an M-16.

By contrast, an A-10 with 30mm depleted uranium rounds is not a common use civilian plane. Is that the difference?

The men who wrote the Second amendment were not returning from a hunting trip. They just finished liberating a nation. Context is everything.


Yes !! I agree !! the word civilian is not in the 2nd Amendment


Speaking of context, don’t forget that when the Bill of Rights passed Congress, the United States had virtually no Army to speak of. The small regiment they maintained were spread across the entire western frontier. There was no U.S. Navy defending the coast, either. The last ship was sold because Congress didn’t have enough money to maintain even a single ship. So the defense of the states was left entirely in the hands (and arms) of the militia, and defense of the seas was left entirely to the merchants who risked their fortunes on trade.

Between the time that the Bill of Rights passed Congress and was ratified by the states, the militia system had proven completely inadequate. The United States Army, supplemented with large numbers of militia, had been destroyed by Native American coalitions… not once, but twice.

Yes, defense was very much on Americans’ mind when they passed the 2nd Amendment.


Our government “allowed”, rather, authorized, called “Letters of Marque”, private citizens to use their ships to attack British shipping. Those ships outfitted with all sorts of cannon and other armaments surely were not in “common usage” by the average citizen.

Well, what is the definition of “arms”? If the Founding Fathers believed in some sort of limitation, why did they not write that, rather than clearly state that the RKBA “shall not be infringed”? This, at the time when wealthy private citizens were providing all sorts of arms and supplies to the war effort.


I believe this arm is protected by the Constitution.

Granted. But it was common to outfit a merchant ship for self-defense. There was nothing unusual about that. What was unusual was having the audacity to attack a ship of the most powerful navy then on the ocean.

None of which would make me feel any better about Jeff Bezos flying an armed A-10 over my house, or Elon Musk putting a warhead on a rocket. If that puts me on the wrong side of 2A, then I guess I’m on the wrong side of 2A. Talking about ships in the 18th century doesn’t make me feel any more comfortable about it. And maybe that’s our problem when we talk to people who are afraid of scary black rifles.

I tend to look at this subject from what I believe was the intent. My take, the Founding Fathers understood that America’s independence might be threatened on occasion. They viewed the militia as a wall against such aggression. They understood the fact that it will be easier to staff the militia in times of need if the people were able to provide their own arms. The added benefit being they would understand how to use them. To that end, we have the wording of the Second Amendment: “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.” They did not expect the people to keep cannons and the like. The expected them to have arms they could “bare” and would be on par with what they might face.

The issue about “common use” is not related to ships, but the usage amongst people in general. So, since automatic weapons are common in the military, as are military aircraft, you would then agree that we should all be able to have them if we can afford them, just as the privateers did, making Bezos, if he so chose, own whatever he wants. Isn’t Elon Musk building rockets and spacecraft? Should he not be allowed to do that as they can be quite destructive. How much highly explosive propellant does he have access to?

Appreciate you all.

Interesting about the “2A (27 words from 1787)” mentioning having weapons and militia. Back then, could bearing arms include, rifles, knives, cannons or other hand-held weapons of the era? Today, God forbid, if we had to fight for independence against a tyrannical government similar to the late 1700’s, modern governments have a multitude of sophisticated weapons, but legally we only have guns per se. Complex or “apples and oranges”. IDK. Lots of opinions. Perplexing to me.

I cannot help but think, the Constitution didn’t give me my firearm rights which I have today. The legislators from my state did. I like to think they listened to their constituents, the people. Nothing against the 2A, but personally I don’t find it helpful to either debate it or use it to persuade lawmakers today, as opposed to instead using testimony and evidence in the name of safety, and self-defense. Less we risk too much division among friends here.

Although there are legal restrictions, some I might agree with so that it’s not a blanket statement, but with rules. I’ve seen even some hardline gun rights advocates on these pages agree that there are certain cases when it should be illegal for a person to purchase a firearm from a store or another person. To me, that’s reasonable.

Just IMHO, but I like to believe and appreciate that we have some freedoms of possessing firearms. Yes, there’s room for improvement, such as to help those of us with special needs, such as domestic violence victims and the poor.

I wonder if one of the more contentious debates in society will be about semi-automatic rifles. Why?: The idea of defending ourselves against our own government seems remote; semi’s are not a “hunting” model, but there are other models of rifles which are not semi, but good for hunting; semi auto’s don’t seem to be as popular as “sport” as are bolt, or hand-guns; and with the high price of ammo, are semi-auto rifles practical anymore?

One right that I regret I haven’t fought more for but want to, is allowing us more freedom to conceal carry in stores and business, as opposed to Prohibited Signs. My pet peeve per se, on safety. Hey, check out some of the other posts on similar Subject titles (to this one) from this and last week; Some good discussion I think. Stay safe.

I’m sure you meant to say they relaxed some of their unjust restrictions.


I’m expressing discomfort at the thought that someone with enough money could get their hands on enough firepower to level my house, my neighborhood, or my city. I’m picking on rich celebrities because commoners like us couldn’t afford to buy a Warthog or a warhead. But there comes a point where something is so destructive that we shouldn’t let normal folks play around with it, even if they have the money to do so.

I’m not drawing a line in the sand. I’m saying that most of us get to a point where we get uncomfortable.

Should someone be allowed to stockpile sarin gas or biotoxins simply because they have the money? It’s a weapon, after all. 2A says you can’t infringe… might need some CBRN if you have to overthrow the government. (Dear FBI: that was sarcasm.)

My end point here is to say that some people view semi-automatic rifles the same way, especially if they’re scary looking. And much the same way that your points about legal certainties or historic uses does nothing to relieve my unease with civilian owned nuclear warheads, our arguments do nothing to make people feel better about black rifles.

In short: we’re losing the battle to keep 2A because we’re trying to use logic to win an emotional argument.

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Don’t take this wrong, I’m not intending to sound rude. That said, civilians fly over our homes with privately owned aircraft, full of deadly chemicals all the time. Crop dusters.

I have no problem with law abiding Americans having a fully loaded, ready to go tank, A-10, F-18, etc. Again, this equipment was adapted from civilian counterparts.
Warplanes=Wright Brothers first flight
Trucks=GMC brothers
So, with a little ingenuity, and some easily sourced civilian parts, anyone could build the equivalent of these machines. Add in some firepower, and we’re off to the races.

Now, no WMD’S for us civilies. I do think you need a high level of training to safely handle those. I can just imagine Joe Bob, and Bobby Ray trying to blow up a stump, with a MOAB.

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The F35s, AH-64 choppers and M1 tanks are a little out of the price range of most people. So I tend to look at it in terms of an invading army or nation that has already breached the defenses of the standing US army (and all other military forces).

So if/when the nation becomes occupied (even partly), I would want civilians to have sniper rifles, auto and semi-auto rifles, pistols, shot guns, all of that at minimum, and lots of them. I don’t believe 2A is only about personal/family defense. I believe it’s also about down and dirty in the trenches, and even about urban conflict/warfare. A terrible scenario, maybe even a losing scenario if the invading army is another major superpower. But nevertheless a good deterrent against occupation.

And also, 2A is every much about the ability of “the people” to fight back against their own tyrannical government, should it come down to that. So IMO, whatever weapon I can afford, within limits.

As for private citizens owning M1 tanks and attack choppers, would you expect your local police force to be appropriately equipped to quickly stop such an attack from a super-wealthy nut-job civilian or group of civilians? Are you prepared for you local taxes to finance what would be required for a rapid response?

No, read the Founding Fathers’ writings and speeches. Your inalienable, Natural Rights are not granted by government, but have existed since Man has existed, pre-dating government and the Law of Man.

Not at all true. If one believes in the RKBA, then anyone that does not agree does not believe in our rights. It was not until the 1938 FFA that felons were disbarred their RKBA. Since then, many more groups have been added. When will your group be added to the list of those that are disbarred their RKBA? Will anyone care, just as you do not care about the others?