Donald Kilmer is a Professor of Constitutional Law at Lincoln University Law School, where his courses include Second Amendment and Firearms Law. He is co-author of the third edition of the textbook Firearms Law and the Second Amendment.

Politicians and activists calling for more gun control, especially when it comes to modern rifles, invariably use the term “weapons of war.” Who hasn’t heard the mantra: “These AR-15s are ‘weapons of war’ and have no place on our streets.”

I leave it to others to debunk whether an AR-15, rather than the M-16/M-4 variant that’s actually issued to soldiers, is a true “weapon of war” in the taxonomy of human tools that are used to inflict injury and death. Instead, I’d like to reflect on two more abstract questions.

The first question:  Why shouldn’t law-abiding citizens of a free nation have “weapons of war?” Nobody is seriously talking about anyone owning nuclear weapons. Those were developed, used, and are maintained by governments as political weapons and have offensive capabilities.

True, they can be used after a first strike to retaliate, so it’s theorized that such a retaliatory capability or “mutually assured destruction” may deter that initial strike, and therefore constitute a defensive weapon. But that only works if the person or persons with control of first-strike capabilities value the lives of his/her fellow citizens. Religious and ideological zealots are not good candidates for testing a theory that can only be used once.

So let’s stick with conventional weapons. That includes ships, artillery, aircraft, and of course personal infantry weapons like rifles. The Second Amendment is not the only part of the Constitution that would require amending if possession or control of non-nuclear “weapons of war” is to be limited to only the U.S. Military or other executive branch agencies.

Militias are not the same thing as the National Guard. Nor are they any component of the standing Army or Navy. They’re mentioned in several places in the U.S. Constitution. And we know two mutually exclusive things about militias:

  • They’re not under the control of the president of the United States (who’s commander-in-chief only of the existing Army, Navy and sometimes National Guard) until or unless that militia is “called into the actual service of the United States” — presumably after a declaration of war by Congress.
  • At all other times, militias are under the joint supervision of Congress and the states. Thus, Congress is incentivized to cede control of the militia only to a president it can trust.

In other words, under our Constitution, Congress and the subordinate state governments retain a direct ability to wage war and were never intended to depend on the president of the United States if armed conflict (or resistance) is necessary to implement Congress’ policies or to uphold the Constitution.

If existing militias are not up to the task, Congress also has the power to hire mercenaries through issuance of “letters of marque and reprisal.” These are ad hoc private navies and armies that can make war to implement the policies of a Congress writing the checks to pay them.

From time immemorial, militias and any holders of a letter of marque and reprisal were expected to show up and do their jobs with weapons already in their possession. They did not depend on a supply chain controlled by the existing executive. The reasons for that are left as an exercise for the reader. (As a hint, look up the history of England’s Glorious Revolution circa 1688, an event fresh in the minds of the founders who fought the Revolutionary War and wrote the Constitution.)

If that job is to repel an attack by some foreign enemy, or quell an insurrection by a domestic usurper outfitted with aircraft carriers, artillery, aircraft, and modern rifles — then isn’t it suicidal and futile to expect this “peoples’ army” to be equipped with single-action side arms and lever-action rifles?

So as a matter of Constitutional interpretation and practical necessity, the possession of “weapons of war” cannot be limited to the standing armies and navies that are solely under the control of a U.S. president. This arrangement should give the antipodes of our current political spectrum some comfort. Neither Donald Trump or Joe Biden can disarm 80 million gun owners, or Congress, as a prelude to dictatorship.

The second question: What is a “weapon of war?”

In October of 2019, Abu Bakr al-Baghdadi killed himself rather than be taken alive during a raid by the U.S. military. The “weapon of war” that persuaded this particular terrorist that resistance was futile—and that suicide was preferable to submission—was a Belgian Malinois. The breed’s name is derived from Malines, the French name for its Flemish city of origin, Mechelen. The Belgian Malinois is basically a sheepherder’s dog.

As every dog lover knows, viciousness is not a characteristic that’s intrinsic to any breed. True, a Chihuahua cannot inflict as much harm as a Belgian Malinois. But all dogs have a will of their own. That’s why SWAT teams routinely kill dogs when serving high-risk warrants. The rationale given is that it is impossible to know if Fido is a sweet and loving member of the family, or a “weapon of war.” Because police don’t want to take that chance, Fido is routinely sacrificed to officer safety as standard operating procedure.

Let that sink in. The government has no compunction about killing the same kind of dog that they might very well use in combat or police work. That’s because they’re unable to distinguish a family pet from a “weapon of war.” The inability to make that distinction is a clue to both questions posed by this essay. Hint: There isn’t one.

On the other hand, the rifle is inanimate objects with no will of its own. It is the will of the person bearing arms that transforms an inanimate object into: (1) a “weapon of war”; or (2) a device for defending life, liberty, and property; or (3) a tool for putting food on the table.

The term “weapon of war” should not be pejorative because it is not static. It is contextual and is therefore a useless term for defining the contours of a fundamental constitutional right.

[This article is an edited reprint. It was originally posted on Nov. 1, 2019 at Talking.]

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