In the continuing debates on proposed methods of gun control the focus has largely revolved around the Second Amendment and the last interpretation given it by the Supreme Court. The Second Amendment is not lengthy, seemingly granting a fundamental right to buy and own guns. Many of the gun control laws passed by states and local authorities are now under assault because of the very expansive ruling by the Court on the Second Amendment. Overlooked in this debate is a very important element in the Constitution, namely Article I, Section 8, paragraph 16.
That paragraph grants to Congress the express power to provide for authorizing and funding state militias, whose officers are appointed by the respective states. It seems clear that these militias envisioned by the Constitution are presently the state national guards. These guards can be called up to serve the national interest in times of insurrection and rebellion. In addition, we now employ these guards to serve in emergencies as quasi-police and deliverers of aid.
There is only one qualification stated in the Second Amendment and it refers to a well regulated militia being necessary to the security of the nation. It seems that the militia being referred to in this qualification is the same as that envisioned in the body of the Constitution. How then do we interpret the substantive element in the Second Amendment which provides for an unabridged right to bear arms?
Number 29 of the Federalist Papers by Hamilton makes a case for the necessity of having state militias as a balance on the federal executive, who is the commander-in-chief for defense of the nation. The founders rightly feared having a standing army at the behest of the commander-in-chief. However, the Cold War breached that constraint by requiring immense power in the commander-in-chief in order to respond in very short time to any threat of a nuclear attack by an adversary, when there would be no time to convene Congress, so we now have a standing army. And that of course is why we are always troubled by how wartime powers are executed.
Number 29 goes on at length on this theme and nowhere mentions the necessity of citizens having guns as an individual protection against their own government by allowing its citizens to buy and keep weapons of a military nature. And it would be folly for a founding document such as the Constitution to provide the such a seed for its own demise. It becomes abundantly clear, upon reading the founders concerns regarding military power and its use, that a different interpretation of the Constitution can be drawn about the power of the federal government to regulate guns.
A very logical conclusion drawn from the Constitution gives Congress the power to define and regulate all military weapons. This should include all assault weapons, rocket launchers, ammunition, and devices to deliver military power such as semi-automatic and automatic capabilities and large ammunition clips and other weapons of a military nature. Congress could pass legislation that would simply not allow any military weapons so defined to be held by individuals. This would leave individuals the clear right to own guns for sport and for home defense. Home defense weapons would therefore consist of handguns without large capacity clips and other simpler weapons. And Congress could also demand that gun sellers be held to these regulations.
Clearly it is not necessary to even go to the Second Amendment to establish the power to regulate guns in the fashion described above. Legislation to carry out such regulations should refer primarily to the power given Congress in Article I, Section 8, paragraph 16.