Self-defence, nuclear weapons, and the Constitution

Why can't I own nuclear weapons? The Second Amendment guarantees it!

This argument comes up from time to time during gun control arguments. An anti-gun person who intends to use it as a strawman argument usually offers it facetiously or sarcastically. A strawman is a logical fallacy in which a debater exaggerates an opponent's position, directs arguments at this exaggerated position, and claims to have defeated the opponent's real argument.

No this isn't a "straw-man" argument. It is a very valid critique of the individual right position.

I decided to do a search using the text of the Constitution, which is available here.

Now the term "self-defence" is never used in this document. Neither is "democracy" for that matter, instead this country is formed as a republic (article 4, section 4).

On the other hand, "provide for the common Defence" is used twice, once in the preamble and in Article I, Section 8.

The term "self" shows up once in the fifth amendment regarding self-incrimination: "nor shall be compelled in any criminal case to be a witness against himself."

Since the term self-defence is never mentioned in the Second Amendment, or the Constitution. And, given the term common defence IS used. It is very obvious that the intent of the Constitution is to deal with the common defence and not self-defence. I think it is sensible that the Second Amendment is not extended to the common law concept of self-defence.

Moreover, this is borne out in the debates regarding both the militia and the adoption of the Second Amendment. Never was the "right of self-defence" (or even "self-defence") mentioned during these debates. The issue was the common defence, not personal defence. Personal defence was not a concern. The ultimate issue was the possibility of the establishment of a standing army over the institution of the militia. As I have said before, Justice Kennedy's frontier farmer's family could have been scalped and the women raped for all "we the people" who wrote the Constitution could have cared in respect to the Second Amendment. The issue was not private arms, but the plenary power of Congress over the militia and the establishment of a standing army.

I have more than enough posts on this topic to delve too far with the issue of self-defence here, but it is a common law concept, not a Constitutional one.

In fact, the Pennsylvania Minority is mentioned regarding a personal right, yet they said "no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals". This says that public injury is a reason for disarming the people. Would they support gun control given the current cost of gun violence in this country? And, the Pennsylvania minority is usually cited as a pro-self-defence position.

True, I cannot use a nuclear weapon for self-defence if that is the alleged purpose of the Second Amendment, but I am more than justified if the right extends to military purposes. We can't read the term "the people" broadly and then restrict the term "arms". That is a logical inconsistency. Both must be read broadly or read narrowly. One can't read one term narrowly and the other broadly.

Additionally, if I am entitled to a personal right to fight tyrant's armies and invading forces, then it makes total sense to have a nuclear or other form of weapon of mass destruction. I cannot fight off a tyrant who is equipped with missiles and tanks if I am not similarly equipped. Where would the US have been had Saddam Hussein actually possessed and used WMD?

On the other hand, the "right of self-defence" is one at common law and can be limited in scope by law. One cannot repulse the attack with such force that one then becomes the attacker to paraphrase Blackstone (and St. George Tucker). We see in other common law jurisdictions (e.g., Britain and Canada) where personal defence weapons are barred from ownership. Additionally, one cannot use self-defence as a reason to justify firearms ownership in Britain. In fact, the use of deadly force is extremely limited at common law, which means that a firearm is definitely not the first choice of self-defence weapon.

There is absolutely no reason to open up the Second Amendment to add the common law concept of self-defence. To do so would be to destroy the constitution. We will see all forms of litigation if a personal right is recognised where it doesn't exist. Whether that is challenging laws regarding machineguns, felon in possession, sentencing, etcetera. There is more than just a hint that this will happen as I have also cited in my other posts.

And I will indeed file a petition to the Supreme Court claiming that my Second Amendment rights are being infringed by treaties limiting nuclear weeapons if it finds an individual right.