I have been following the gun control debate in the United States with interest.

I live in a country (Australia) which suffered a terrible mass shooting tragedy (the Port Arthur massacre of 1996) and then introduced tough gun restrictions the following year that eliminated most firearms in the country – not just semi-automatic weapons, but shotguns and pistols. I find it intriguing the amount of opposition to the relatively moderate gun restrictions that are being proposed in the United States.

Now I’m not going to get into the merits of the points being made by either side in this post (I’ll do that in subsequent posts). But I do want to address one aspect of the pro-gun lobby that perplexes me related to the Constitution.

I’ve heard a lot of dissension from gun owners centering on the the 2nd Amendment, which guarantees the rights of citizens to bear arms. There is no doubt the many US citizens hold their Constitution to be sacred and something not to be messed with, and that’s not a bad thing. But the 2nd Amendment was authored in a very different age, when semi-automatic weapons, gang violence and other modern social ills did not exist.

The 2nd Amendment has always been taken to mean that an American citizen has the right to a firearm, but not any sort of firearm that they choose. Fully automatic weapons, for example, are highly restricted and are subject to stringent regulations, as too are rocket launchers, hand grenades and other military grade weapons as defined under the National Firearms Act of 1968. It has been the practice to leave the decision of what ‘arms’ are allowed to be owned to the law makers in government and the courts.

Given that few (if any) gun proponents are suggesting that restrictions on military-grade weapons should be rescinded, on what grounds can they claim that a ban on semi-automatic weapons constitutes a challenge to their Constitutional rights? Most likely, some are broadly seeing any restrictions on guns (military grade or not) as a challenge to their Constitutional rights, and that proposed regulations are further undermining their rights. Others may be taking a narrower view and believe that regulations of semi-automatic weapons is a further step towards the total ban on guns and the overturning of the 2nd Amendment.

Two Supreme Court rulings have been made relating to the 2nd Amendment. The first is the United States vs Miller judgement, where the court ruled that arms could be held that were consistent with a “well regulated militia” and is consistent with “ordinary military equipment”. The judgement seemed to exclude personal defense as a legitimate reason to possess a firearm. The ruling is confusing on a number of grounds, particularly in its reference to “ordinary military equipment”, which would presumably include banned weapons such as machine guns and rocket launchers.

The second case is the District of Columbia vs Heller judgement which ruled that the 2nd Amendment protects an individual right to possess a firearm unconnected with service in a militia, therefore qualifying (arguably correcting) the Miller judgement. It referred to the Miller judgement as protecting weapons “in common use at the time” but excluding unusual and dangerous weapons. This is not actually true, as the Miller judgement referred to “ordinary” weapons in the context of standard military equipment, which could include all manner of military-grade weapons. At any rate, the Heller judgement confirms “It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose”, and this should probably be taken to mean that it is up to government to define what weapons are for “common use” (although as yet there has been no further clarification by the Supreme Court on the Miller ruling).

Court rulings like these are simply interpretations and represent a majority opinion of the justices present not definitive conclusions. This is not to deny that they have a great deal of authority by virtue of the precedent they set, but they can be contradicted by subsequent judgements and therefore subject to modification. By terming semi-automatic weapons as “assault weapons”, the government has indicated (somewhat rhetorically it must be said) that it views this class of guns as inconsistent with the self-defense interpretation of the 2nd Amendment. The Federal Assault Weapons Ban of 1994 (which lapsed 10 years later) demonstrates that Congress believes it has the right to limit weapons it deems dangerous (note that the ban was never challenged in court, so it is not possible to know what the Supreme Court’s view was on this).

As it stands, then, the view that bans on semi-automatic weapons are a violation of the 2nd Amendment cannot be sustained without a ruling by the Supreme Court. That’s not to say either they are not a violation. Simply, it is a legal matter that requires clarification from the law makers and interpreters.