Of Arms and the Militia: Gun Regulation by Defining “Ordinary Military Equipment”

Recent mass shootings have placed pressure on Congress and state legislatures to regulate semi-automatic rifles and handguns in the interest of public safety. However, the Second Amendment provides that, “[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. There is no obvious public safety exception. Semi-automatic rifles, handguns, and other kinds of arms can be regulated more effectively by defining the “ordinary military equipment” militia members are expected to provide. This may be accomplished using the rationale employed by the United States Supreme Court in its 1939 decision of United States v. Miller, which upheld the National Firearms Act of 1934. The Firearms Act regulated automatic weapons, including machine guns, short-barreled shotguns, and short-barreled rifles, by requiring possessors to register them and pay a substantial tax. In its 2008 decision of the District of Columbia v. Heller, the Supreme Court reaffirmed the holding in Miller. In Heller, the Supreme Court found that the Second Amendment protected an individual’s right to keep and bear arms. The Court in Heller stated that Miller “stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons” and that it “does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. Thus, the rationale employed in Miller is still effective and shows how certain types of weapons may be regulated