The Supreme Court will announce, as early as tomorrow, whether it will hear the D.C. gun ban case on cert (Story here). The District prohibits the ownership and carrying of all handguns; one may not even keep one in a house for self-defence. This goes far beyond the scope of “reasonable restrictions” that the Supreme Court has allowed. Those restrictions apply to either a narrow category of people (minors, felons, the mentally insane – those too violent or incompetent to safely handle a weapon) or to a narrow category of weapons (AK-47s, sawed-off shotguns – those too dangerous to be used outside of a professional military, or those used specifically for the commission of crimes). According to the NRA, about half of gun owners have handguns. DC’s ban is overbroad: its scope is not limited to a certain class of persons, more likely than others to harm themselves, nor is it limited to certain types of weapons.
Most opponents of Second Amendment rights point to the prefatory language therein:
A well-reguled Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
As a functional matter, the purpose clause is identical to that found in Art. I, Sec. 8, cl. 8 (“To promote the Progress of Science and useful Arts…”); no one has ever argued that Congress may only allow for copyrights and patents on those things which promote philosophy and engineering. Functionally, the purpose clause does not limit the right to keep and bear Arms to those who happen to be in a state militia; it merely states its raison d’etre. After all, if the Founders so intended that construction, they would not have claimed that this is a right of the people (used expansively elsewhere); they would have limited the right to militia-men. (More here and Resnick, 77 U. Det. Mercy L. Rev. 1.)
The Founders were kind enough to tell us exactly why they stuck the Second Amendment in there – something about being necessary to our freedom and security. It would be odd to use this language to argue, first, that the right contained therein is not really a right at all, and, second, that it is for our own good to revoke said right.
At the time of the Founding, the militia compromised every able-bodied, free man (here). Even if the Second Amendment were limited to militia-persons, that is hardly a substantive restriction upon the right to keep and bear arms. Furthermore, militias were under the control of the States (although the Congress could call out the militia for national needs); the Second Amendment has only (as of yet) been held to apply against the federal government. It is nonsensical to import the state’s definition of a militia into potential federal laws. We would be left with the situation in which the federal government could prevent all non-militiamen from keeping arms, and any State could override the restriction by inducting everyone within its borders into the militia. A federal ban on weapon-owning would thus apply differently to people, depending on their state of citizenship, and such a ban would be (in a strange reversal of the theory behind the Supremacy Clause) subject to state whim.
One of the arguments against Second Amendment rights is that the right only protects the right which would have existed at the time of the Founding: right to own muskets capable of firing a shot every few minutes. Should the same rationale be applied to the First Amendment, our right to free speech and a free press would be limited to that found in the late 18th century: no blogs, internet, movies, magazines, or newspapers printed on modern presses (which are clearly capable of disseminating much more information than those printed on older presses). Furthermore, the ability of the people to resist tyranny cannot be realised when oppressors are fighting with modern technology and are resisted with muskets and flintlocks; it is only when the would-be tyrants or criminals are evenly matched against civilians that a free, secure state may be realised.
Finally, the Founders were not a bunch of legal nerds hanging about in a dingy, Dark Ages cave, with no conception of technology aside from those nifty candles invented 200 years ago; their number included Benjamin Franklin; they expressly provided for a patent system in the Constitution; and they were aware of developments in weapons technology.