Limits of the Second Amendment, Part I

Lately it has become fashionable for Tories to throw what is, to their minds, a devastating straw man at gun rights supporters:   "Well the 2A doesn't allow citizens to own NUKES does it?  So clearly we can ban some things..."

The problem is that there is a rich legal and historical tradition to tear down the straw man with.

HISTORICAL REVIEW

The framers lived in a world where private ownership of arms went far beyond a simple horse pistol, Brown Bess musket or Kentucky long rifle.

Some militia units acquired and used artillery.  For example, Alexander Hamilton (a strong federalist and proponent of central government) organized a company of artillery.  The town of Concord, Massachusetts raised a battery of two artillery pieces on 5 January 1775, which were provided by the Committee of Safety and to be used for communal defense of the town.  The town treasurer paid all expenses to make the cannon serviceable.  One need only do a quick informal survey of Revolutionary militia units to see that there were a number of artillery units.

Revolutionary War arms in private hands did not just include muskets, rifles, and crew served artillery pieces.  Numerous privateers -- armed light warships for raiding under letters of marque or commissions -- were in private hands:

Although the documentation is incomplete, about 1,700 Letters of Marque, issued on a per-voyage basis, were granted during the American Revolution. Nearly 800 vessels were commissioned as privateers and are credited with capturing or destroying about 600 British ships. 

Vessels of every size and description were pressed into service as privateers. At the upper end of the scale was the 600-ton, 26-gun ship Caesar of Boston. At the other end was the 8-ton boat Defense of Falmouth, Massachusetts. Crews ranged from a few men in a whaleboat to more than 200 aboard a large, fully equipped privateer. Two-masted schooners and brigantines were most often used in privateering, reflecting the kind of vessels available to American seamen.

While personal arms were clearly the most common arms, numerous artillery pieces were in the hands of local militias.  Private individuals were permitted to operate ships of war with dozens of cannons with more than a hundred of people in the crew.

Much more common that artillery and warships were common arms.  Each town or county usually raised multiple companies of soldiers.  Traditionally, in the Saxon system, a county was subdivided into "Hundreds," so named for their ability to raise a company of a hundred men.  On April 19, 1775, the British were faced with companies and regiments of militia, formed in ranks, fighting in close order.  The "Indian style" skirmisher tactics did not begin in earnest until later in the day, when the column of Regulars departed Lexington.  Raising an infantry company was a reasonable and expected force for a community.

LEGAL REVIEW

US v. Miller clearly articulates that militia weapons are those most suitable for military service:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument...   that ordinarily when called for service these men [militia] were expected to appear bearing arms supplied by themselves and of the kind in common use at the time... 

Revisitations of Miller in Printz, Lewis, and Heller confirm that the 2A scope specifically protects weapons useful for military service.

Heller articulates a standard for the types of weapons which are specifically protected at the core of the 2A:

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Miller’s holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons.

Weapons in common use which are neither dangerous nor unusual are protected.

WHERE FROM HERE?

In the next section, I'll use the above historical and legal framework to explain where I personally draw the line on the 2A's protections...  Somewhere between nukes and complete disarmament.