At The Morning Call, Noah Feldman: What would Founding Fathers say about assault weapons? (discussing this decision by the Fourth Circuit). He argues:
So what should this self-professed originalism have to say about assault weapons?
A true originalist could say that literally only 18th-century weapons are protected. Because that would presumably limit the amendment's reach to flintlock muskets, it would be like saying the amendment is obsolete. That kind of originalism isn't very convincing, and the court won't adopt it here.
Another angle would be to say that the amendment covers all weapons that a militia would use today. That would surely include assault weapons.
The problem is, this originalism would prove much too much. Modern militias would also have rocket-propelled grenades, vehicle-mounted machine guns and no doubt some armed drones. The court won't want to include these in the right to bear arms. So that originalism is out, too.
That leaves the view that there's something special about weapons that can be used both for self-defense and for militias. According to Scalia, those are the weapons that the people who ratified the Second Amendment had in mind.
At Legal Theory Blog, Larry Solum has some sharp commentary that begins:
I don't have any idea what Feldman means by "true originalist." His use of the word "literally" suggests that he is discussing the "literal meaning" of the Second Amendment; "literal meaning" is the phrase used by lawyers to refer to what the philosophy of language and theoretical linguistics call "semantic content"–the ancontextual meaning of the words and phrases as combined by syntax. Of course, nothing in the semantics of the Second Amendment includes "flintlock muskets." The word "arms" and the associated concept meant something like "weapons that can be carried by a person" and that concept obviously is not limited to flintlock muskets.
Though I'm no gun enthusiast and it has little to do with originalism, I was also struck by Feldman's claim that:
[Assault rifles are] great for military purposes, and no doubt fun to shoot on the range. But they aren't useful for self-defense, almost by definition.
The "assault weapons" at stake in the Fourth Circuit decision were described as semi-automatic rifles (meaning ones that fire at each pull of the trigger) including those with "larger-capacity detachable magazines." I'm not sure of Professor Feldman's expertise on this, but that sounds fine for self-defense to me. And indeed the court described the weapons in question as "commonly kept by several million American citizens for defending their families and homes and other lawful purposes." So I'm curious as to the basis for Professor Feldman's conclusion that semi-automatic weapons with large capacity magazines aren't useful for self-defense. I would not want to attack someone holding one.
Posted at 6:00 AM