The Second Amendment and “Weapons of War”

AR-15 rifles showing their configurations with...
AR-15 rifles showing their configurations with different upper receivers (stripped-down lower receiver is visible at bottom) (Photo credit: Wikipedia)

“Put simply,” writes Judge Robert King of the 4th US Circuit Court of Appeals, “we have no power to extend Second Amendment protections to weapons of war.” In Kolbe v. Hogan, the court upheld Maryland’s ban on “assault weapons,” also known as rifles that look scary to people who know nothing about guns.

As talk radio host Darryl W. Perry of Free Talk Live notes, King’s perversely broad statement would cover a ban on the possession of rocks:

“And David put his hand in his bag, and took thence a stone, and slang it, and smote the Philistine in his forehead, that the stone sunk into his forehead; and he fell upon his face to the earth. So David prevailed over the Philistine with a sling and with a stone, and smote the Philistine, and slew him …” — 1st Samuel, Chapter 17

King also displays a poor grasp of history. No judicial power is required to “extend” the Second Amendment to cover weapons of war, because they’re precisely what it was intended to cover in the first place.

The Second Amendment was ratified only a few years after a citizen army — many of its soldiers armed, at least at first, with weapons brought from home — defeated the most fearsome professional military machine in the history of the world, the army of a global empire.

The express purpose of the Second Amendment was to guarantee the continued maintenance of an armed populace. In fact,  the Second Militia Act of 1792 legally required  every adult able-bodied white American male to own and maintain “weapons of war” (a musket or rifle, bayonet, powder and bullets) just in case the militia had to be called out.

Even in the 1939 case usually cited to justify victim disarmament (“gun control”) laws, US v. Miller, the US Supreme Court held that the reason Jack Miller’s short-barreled shotgun could be banned was that it WASN’T a weapon of war: “[I]t is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”

Yes, you read that right: The Supreme Court ruled that the Second Amendment applies ONLY to “weapons of war.” I think that’s too narrow myself, but at least it comes at the matter from the correct historical perspective.

The purpose of the Second Amendment is best understood in terms of a quote falsely attributed to Admiral Isoroku Yamamoto of the Japanese navy at the beginning of World War Two: “You cannot invade the mainland United States. There would be a rifle behind every blade of grass.”

Shame on King and the 4th Circuit for failing to uphold the plain meaning of “shall not be infringed.”

Thomas L. Knapp (Twitter: @thomaslknapp) is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism ( He lives and works in north central Florida.


Also published on Medium.

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  • Don

    I know quite a bit about guns and I still find those ones scary. That’s because they will be found in the hands of scary people. Especially when they’re standing around on the street in camo gear with one of those guns. (rifles) It’s looks distinctly like a very angry mental issue that’s looking for somewhere to happen. And there’s no doubt it happens thousands upon thousands of times every year in the land of the gun. Although there’s not much doubt that it becomes a real learning experience for those who lose a loved one due to one of *them.

    *(both the rifle and the kook)

    Nothing much to do with being a libertarian!

    • Don,

      This piece was about the history and meaning of a part of the document which styles itself “the supreme law of” the United States. It is an indisputable fact that the intent of that part of that document was to ensure that as many Americans as possible would be armed with state of the art military weaponry.

      The wisdom of that is a different question, and the status of the thing as a right is still another, but in fact the percentage of US homicides committed with those guns that look so scary to you (and that are otherwise functionally identical to semi-automatic hunting rifles and which have been around since the late 19th century) is in the very low single digits. Most gun homicides are committed with handguns — and outside of cities with strict “gun control” laws, the US homicide rate is one of the lowest in the world.