Amicus Brief Addression Militias and AR-15s Pivots in Bizarre Place

"A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."

That introductory clause has caused a surprising number of problems over the years. Never mind the whole "shall not be infringed" thing, and don't bother with "the people," either. For some, the "militia" means the state and no one else, and so gun control is cool.

That's not remotely what it means, and an amicus brief filed in the combined cases of Viramontes v. Cook County and Grant v. Higgins before the Supreme Court seems to get it.

A new Supreme Court brief makes one of the strongest originalist arguments for protecting the AR-15: Its value as a militia arm is precisely why it falls within the Second Amendment. Unfortunately, the brief then undercuts its own argument by treating machine guns as constitutionally disposable.

Attorney G. Antaeus B. Edelsohn submitted the 48-page amicus brief on August 27 in Viramontes v. Cook County and Grant v. Higgins, the consolidated cases in which the Supreme Court will decide whether the Second and Fourteenth Amendments protect AR-15-platform and similar semiautomatic rifles.

The brief correctly attacks the central deception behind Cook County and Connecticut’s defense of their bans. Those governments argue that AR-15s are not protected “arms” because they are supposedly more useful for offensive combat than personal self-defense.

Edelsohn responds that the governments have the Second Amendment backward. Its prefatory clause expressly identifies a well-regulated militia as necessary to the security of a free state. An arm does not lose protection because it is useful for militia service. That usefulness is an affirmative reason for protecting it.

That is the right argument. It also leads somewhere the brief appears unwilling to go.

Now, I'm going to interject here because I've made the case that if you accept the Second Amendment is about militia service, then the whole "We're not coming after your hunting weapons" thing is specious at best. For one thing, the whole militia clause somehow invalidating "shall not be infringed" would necessarily impact non-militia weapons the most. That includes that double-barrel gun you use for bird hunting.

It would not, though, include the AR-15, because the militia was required to provide their own firearms and equipment for military service. The state might provide powder and shot, back in the day, but you had to come ready to fight with your own stuff.

But where was it that the brief didn't want to go? Well...

The Machine-Gun Concession Undercuts the Militia Argument

After explaining why United States v. Miller protects arms with a reasonable relationship to militia efficiency, the brief declares that the “general consensus” is that automatic weapons are not protected. It then argues that semiautomatic rifles fall within the Second Amendment because they fire one round per trigger pull and are therefore legally and mechanically distinguishable from machine guns.

That may be a convenient litigation strategy, but it is not a faithful application of the constitutional principle Edelsohn has just defended.

AmmoLand Editor Duncan Johnson makes a valid point here.

Machine guns are even more a part of military service, and thus militia service, than semi-auto rifles would be, even if the semi-auto looks military-like.

A militia made up of people with their own weapons can and should include full-auto weapons, including belt-fed firearms, and even live artillery. The case for defending so-called assault weapons under the argument that they're ideal for militia service is perfectly valid. I've made that point myself a few times over the years.

But it doesn't stop there. A military unit needs more than a bunch of weapons that fire one shot at a time. Sometimes, you need to unleash hell on an enemy position if for no other reason than to successfully cross the street. The modern unorganized militia is largely prevented from having those by a combination of legislation and scarcity created by other legislation.

Edelsohn shouldn't have dodged the issue, in my opinion.

Editor’s Note: President Trump and Republicans across the country are doing everything they can to protect our Second Amendment rights and right to self-defense.

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