V. Honestly (and constitutionally) applied common sense: the Twenty-Eigth Amendment

V. Honestly (and constitutionally) applied common sense: the Twenty-Eigth Amendment

We cannot use the Second Amendment to argue against keeping and bearing any weapon, but we also understand the risk this causes in a society with weapons as destructive as ours. Fortunately, we have ways to preserve society and protect the Second Amendment without illegitimately harming the Constitution. I will not dig too deeply here since that would be beyond the scope of this article, but when I was in the military I was always taught never to discuss a problem without offering a solution. I will therefore suggest some likely starting points from which to search for the right answer.

Look at the preamble to the Constitution, which sets out the reasons for enacting this framework of our law in the first place.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.77

Common sense tells us that no interpretation of any legal text can rightly be read so as to threaten the explicitly stated reasons for enacting the text in the first place. I think the preamble supports the idea that we the people can rein in someone's claim to a "right" if that right presents enough of a threat to our domestic tranquility, and if the general welfare of our people is in enough danger. The danger posed by powerful weapons controlled by incompetent, careless, or malevolent individuals obviously qualifies.

No right is absolute. We correct statutes suffering from a scrivener's error.78 We permit numerous exceptions to the prohibition on hearsay testimony.79 We recognize the First Amendment's protection of the freedom of speech and of the press as fundamental, yet we restrain libel80, slander81, pornography82, "fighting words"83, and speech that incites panic84. The Confrontation Clause of the Sixth Amendment protects a criminal defendant's right "to be confronted with the witnesses against him,"85 we (perhaps unconstitutionally) permit children to accuse adults of molestation while seated behind the safety of a screen through which only the child on the witness stand can see.86 Although judges often exceed their authority when interpreting the Constitution, our legal system does sometimes correctly impose limits and create exceptions to our most fundamental rights in ways that actually preserve the purpose of the Constitution.

Surely, we can come up with reasonable limits on the right to keep and bear arms. To impose these restrictions correctly and legitimately, we would need to enact a Twenty-Eighth Amendment that fleshes out the Second. Perhaps we could limit the right to keep and bear arms to those weapons with destructive power equivalent to the best heavy weapons of the late Eighteenth or early Nineteenth Centuries. This would permit citizens to arm themselves, but not with weapons so capable of killing vast numbers of other people that the risk would outweigh the benefit. This framework might draw the outer boundary at, say, a mid-size howitzer, a backpack sized flamethrower, a shoulder-launched surface-to-air missile, or an anti-tank mine. Such weapons are destructive, to be sure, yet still comparable to the power wielded by a militiaman of two hundred years ago, standing behind an artillery piece or on the bridge of a privateer's ship, firing at a crowded enemy troop vessel. Therefore, these weapons should be suitable for private ownership.

The kinds of limits I foresee would also preserve the ability to resist any standing army unleashed against us from Washington, albeit not in the same "toe-to-toe on the field of battle" style used by our ancestors in the Revolutionary War. The battle would revert to a guerilla-style conflict, much like the fighting by the French Resistance in occupied France in World War II, or like the efforts of the Contras in Nicaragua in the 1980s. Regardless, no standing army could forever withstand a sustained guerilla war without resorting to weapons of mass destruction . . . which would irreparably scorch the very earth that the army would seek to rule.

Read honestly, the individual right to keep and bear arms in defense of self and country protects every kind of weapon one could want and afford. However, I am certain that the right can survive in a post-Emerson textualist nation while still protecting us from nuts with nukes, if we impose reasonable limits on the exercise of that right.

I simply think we will have to look outside the Second Amendment to other parts of the Constitution to find the authority to do it.