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Do Americans Have the Right to Bear Weapons of Mass Destruction?

The mounting volume of gun deaths and injuries, the easy access that criminals and terrorists have to what amounts to weapons of mass destruction, require substantial limitations on the ability of individuals to use, carry and obtain guns.
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The massacre and assassination attempt in Tucson have reignited the ongoing battle over what limitations should be placed on our rights to bear arms.

Let's assume for a moment -- though there are many Constitutional scholars who disagree -- that the majority of the Supreme Court is correct in its view that the Constitution does in fact confer on Americans a right to bear arms that is similar in scope to our right to free speech and assembly. What does it actually mean, that we have a right to bear arms?

The Second Amendment 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.

What exactly are "arms"? Do Americans have the right to bear atom bombs? How about biological or chemical weapons?

For the vast majority of Americans, the proposition that we have the right to bear our own nuclear, biological or chemical weapons is preposterous. But what about stinger missiles that can down commercial aircraft -- or bazookas? They are all arms.

Strict constructionists of the Constitution would want to look back at original intent. So let's think for a moment what the framers of the Constitution meant by "arms."

At the time the Constitution was written in the late 18th century, "arms" included weapons that had a fairly limited degree of destructive power. To Thomas Jefferson or Alexander Hamilton, the term "arms" referred to clubs, swords, single shot cannons, single shot muskets and pistols. Weapons that allowed people to rapidly fire many bullets had not been invented. There were no assault rifles, machine guns or semi-automatics. While there were a few double barreled rifles as early as the seventeenth century, the double barreled rifle would not be perfected until the late 1800's. Samuel Colt would not invent the revolver -- the six-shooter -- until 1836.

To the framers, the term "arms" referred mainly to single shot muskets and pistols.

But beyond the question of what the Constitution means by the "right to bear arms," we must also remember that no right is absolute. Each person's rights are constrained by the extent to which they impinge on another person's rights.

If you live by yourself on an island, you have an absolute right to do whatever you want. There's no one else around with whom your rights can conflict. But as soon as you join a society of other people, an individual's personal rights are limited by the degree to which they affect the rights of others.

Legislative bodies and courts were set up precisely to adjudicate the conflicts between these rights.

There is general agreement that the right to free speech does not give individuals the right to falsely cry "fire" in a crowded theater, because that conflicts with everyone else's right to avoid being killed or injured by the ensuing panic.

The right to free speech doesn't allow individuals to lie under oath to a court, because that would conflict with the rights of others to a fair trial.

Like any other right, the right to bear arms is limited by the rights of other Americans not to be killed or injured. So -- given the Supreme Court's interpretation of the Second Amendment -- the question is not whether Americans have the right to bear arms, but rather how that right should be limited because it conflicts with other rights.

I believe the answer to that question is clear. The mounting volume of gun deaths and injuries, the easy access that criminals and terrorists have to what amounts to weapons of mass destruction, require substantial limitations on the ability of individuals to use, carry and obtain guns. That need is enhanced by the technological advances that have been made in weapons technology in the years since 1789.

Our laws currently ban guns made of plastic, because they cannot be identified by metal detectors.

There are very few Americans who would support repealing our current laws banning guns on commercial aircraft.

For many years we have banned personal possession of large caliber machine guns -- including those that could bring down airplanes.

In 1994, Congress and the President passed a bi-partisan assault weapons ban that outlawed private possession or sale of specific types of fully and semi-automatic weapons whose principle uses are to kill people in war, or by police forces. That bill also banned the possession and sale of high-volume magazines of the sort that allowed the Jared Lee Loughner, the accused Tucson killer, to fire thirty-one shots in rapid succession before stopping to reload. That bill sunset in 2004, and the Republican Congress and Bush Administration refused to extend its provisions.

Had it still been in effect it would have been likely that Loughner -- who bought the magazines legally -- would have had to reload after firing off only 10 rounds, which was the maximum magazine capacity under the assault weapons ban. Since nineteen people were killed or injured, that would have preventing the death or injury of at least another nine human beings.

When the ban expired, assault weapons once again began to flood our streets -- and -- according to the Mexican government -- have played a major role in the drug violence that has torn apart the border region. Regardless of the increasing gun carnage, many Republicans are pushing to expand the right to carry weapons of all sorts. They oppose reinstituting the assault weapons ban and even want to allow people to carry guns into schools, churches, restaurants and bars.

Arizona recently eliminated the requirement that individuals get permits to carry concealed weapons.

Their argument is that if more people carried guns, there would be people around with weapons to stop other people who would use their guns against their fellow citizens. It's the "quick draw" argument. I'm not sure many people would go for that argument in a plane, or a crowed restaurant, or in a bar where most of the customers have thrown back a few drinks - particularly if the whole crowd were carrying Glocks with the ability to squeeze off 31 rounds each in a matter of seconds. Frankly, it's ridiculous.

Let's see how many of the Republicans in Congress who want to allow everyone to pack assault weapons feel about eliminating the ban on weapons in the Capitol. Why not just let any old American (or other visitor) wander the halls with Uzi's while we're at it?

You hear, "guns don't kill people, people kill people." Sure. But if Loughner had a knife or a club instead of a semi-automatic Glock with extended magazine, lots of people would be alive today.

We all agree that someone like Loughner -- or any other citizen -- should not be permitted to possess a nuclear weapon or some other weapon of mass destruction. Why should he be permitted to carry semi-automatic Glock with extended magazine? It is also a weapon of mass destruction. Its only purpose is to kill or injure large numbers of people. It can't kill hundreds of thousands, but we know empirically that within a few seconds it can kill and injure nineteen.

The argument that our society would be safer if we had even more guns -- and especially high-powered guns -- is simply absurd. Hopefully the shock of the appalling massacre in Tucson will prompt us to snap out of our NRA-induced stupor and pass restrictions on weapons that effectively balance the right to bear arms with our rights to life, liberty and the pursuit of happiness.

Robert Creamer is a long-time political organizer and strategist, and author of the book: Stand Up Straight: How Progressives Can Win, available on