What Guns Would the Founders Ban?

This nation’s founding fathers were brilliant men. The documents they created more than 230 years ago are the bedrock of a system of government that has endured longer than any other. Since our republic was founded, France has gone through five constitutions. European kingdoms that once saw us as a useful foil in their own struggles no longer exist. Russia’s czars have gone to dust; communism has risen and fallen away.


Our enduring Constitution and its Bill of Rights are magnificently clear to all Americans — with the glaring exception of certain individuals and groups. Some even obscure and distort the plain intent of our founders in order to impose their own peculiar political views.

In the modern age, no constitutional declaration of intent has been abused more than the Second Amendment, which plainly 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.

Despite its slightly archaic grammar, it is a simple statement, easily understood.

Our young nation had just burst forth thanks to the grit of a disheveled army of citizen-soldiers — one which overcame what was then the greatest military power in the world. From firsthand experience, those citizen-soldiers knew that the civilian ownership of arms suitable for military use was vital, both to their new nation’s existence and to the continued existence of their liberty itself.

Hunting and target practice were not cited as justification for the amendment.

Several weeks ago, Jared Loughner used a Glock 19 9mm pistol with an extended magazine to kill six people and wound 13 others, including Congresswoman Gabrielle Giffords, the apparent target of his assassination attempt.

The mental health system and the local sheriff’s office are to blame for Loughner’s possession of the weapon used in his massacre. But gun control advocates are using the tragedy to claim that legislation should be passed to limit the magazine capacity of firearms to 10 rounds. Their pretext is that they can see “no sporting purpose” — that 30-round magazines are not useful for hunting, target shooting, or even concealed carry.


They are, by and large, correct. And their argument is utterly irrelevant.

The founders wanted to preserve the access of the American people to the kinds of arms necessary for the kind of militia that could keep a free state secure. They didn’t write a Constitutional amendment to ensure that Billy can hunt squirrels or Becky can shoot paper targets. They wrote a law to ensure we would not lose our most basic protection against tyranny without and within.

The rejoinder is a familiar one. “But the founders couldn’t have foreseen the advent of machine guns, and rocket launchers, and nuclear weapons.” It’s irrelevant, too — an attempt to deflect the argument away from the founders’ intent. No rational person is arguing that the general public should equip itself with crew-served, area-obliterating weapons, artillery, and bombs. The clear intention of the founders was to make sure the people have individual arms of the sort suited to equipping a militia.
That was true at the time of the founding, when the militia was armed with the same Brown Bess and Charleville muskets as professional military units. It was true when U.S. soldiers carried single-shot Springfield rifles beside frontiersmen armed with more advanced Henrys and Winchesters. And it has been true for the 108 years that the Civilian Marksmanship Program has provided military weapons to civilians to help them become the “well-regulated” (well-trained) militia the founders respected.

The militia is not a relic to be retired along with the fife and drum. It is the way the community defends itself against all comers — both against those actions that are overtly criminal and those hiding behind the color of law.


It is the armed citizen that holds the line when the police run away and the National Guard fails. It is the militia that overthrows tyranny. Sadly, it is also a fact that the lack of a properly armed citizenry has allowed tyranny to sometimes prevail.

It is only logical that, to remain the nation the founders intended us to be, “we the people” should be armed and equipped similarly to our professional soldiers. The founders would approve of the citizenry and the military being armed with small arms that use the same ammunition, magazines, and optics as those used by our military professionals.

Doubtless, the modern civilian AR-15 rifle and its variants are the modern “militia guns” the founders would approve of today. These semi-automatic firearms, which best accord with the militia function the founders recognized, must be regarded as the contemporary firearm best protected by the Second Amendment as written and conceived.

The most common magazine issued with these firearms holds 30 rounds of ammunition. For these and similar firearms, this is not high but standard capacity. Any attempt to ban such magazines would cut directly against the clear intent of the Second Amendment.

The people are the militia, and the militia — not the government — is the ultimate guardian of this nation’s liberty from one generation to the next. Any attempts to break that covenant in the guise of public safety are to be met with with derision, and if necessary, force — a point made clear by William Rawle, U.S. attorney for Pennsylvania and President George Washington’s nominee to be first attorney general of the United States:


The corollary, from the first position, is that the right of the people to keep and bear arms shall not be infringed.

The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both. (A View of the Constitution of the United States of America, 125-26 [2d ed., 1829].)


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