The Second Amendment of the U.S. Constitution, is an oddly worded sentence. It reads:
“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.”
To some there are two separate thoughts, the clause following the word “State” is an independent sentence. To others, the clause after the word “State” is dependent on what precedes it. There is a recognition that militias were not well-funded, were temporal in nature, would rely on citizens to bring their weapons from home. At the time there was also a reluctance to grant too much power to the Federal government. The Constitution funded a navy, but not an army. Militias counter-balanced a strong Federal government and left power by rights and in weaponry with the citizens of the States. The drafters could have raised maintaining Arms for hunting, or for protection of ones home, but it was unnecessary. The Amendment only addresses the maintenance of Arms in the context of militias. Had the drafters wanted the second clause to stand on its own, it could have done so. They did not.
Justice Scalia is a literalist. He believes, as do some fundamentalists about religious texts, that the Constitution should be read literally. It should respect the original thinking of its creators. It is an organic document, but not one that develops beyond what was intended by the Founders.
It is fair to say, none of the Founders could have imagined assault weapons. The country was new and fragile, and they were concerned about foreign powers. Local militias would do. No citizen had a means for mass killing.
Today we are a nation with well armed National Guards, police and military that could end life on earth. No matter how many assault weapons are amassed by citizen militias or vigilantes, they would not come close to the military power of the Federal Government. Assault weapons are not protecting individual Americans from their own government, even for those few who think that having assault weapons is necessary to do so. Unfortunately, the Federal Government is more likely to bore them to death.
Citizens at the time the Constitution was drafted had guns. They were muskets. If a mass killing weapon was requisite to be held by the people the Constitution could have provided that the right of the people to artillery not be infringed. Did the drafters intend that each citizen keep a cannon in their home, or trail one behind their horse, to protect them from their neighbors and criminals. If they did, no one seem to take them up on it. A simple one shot gun would suffice.
It might not be fair to be so literal and limit the Second Amendment to a one shot gun. Realistically, it may be all that is needed to hunt, or for protection, assuming you are well trained in usage of the weapon. Three rounds should be more than enough for the public to have. If we cannot agree to make illegal the ownership, possession and usage of a semi-automatic weapon or other automatic weapon using more than three rounds, then we should take the Constitution literally and only permit muskets.
In addition, we might want to impose strict liability for ownership, possession and usage of such weapons by other than law enforcement. Damages awarded could not be covered by insurance or other indemnity. This might seem unfair because self-defense is a valid defense and the weapon might have been stolen or used without the owner’s permission. However, any defense would allow continued usage and the exceptions would soon swallow the rule. Damages would not be excusable in bankruptcy and all of the liable person’s property or income could be attached or garnished. We are pretty tough about forgiveness of college loans. We could be as tough here. Maybe our kids will live long enough to incur this debt.