It is important, I think, to come up with legal distinctions between certain types arms, protected by the Second Amendment, and other types of arms, which are unprotected.Â Even most people who believe in a very broad reading of the Second Amendment would generally agree the Second Amendment protects no right for someone to have a nuclear, chemical or biological weapon of mass destruction.Â Even if there is not agreement among Second Amendment activists about where the boundary ought to be, we can at least agree that there is a boundary, and distinctions must be made between arms that are protected, and those that are not.
The Second Amendment constructed by Heller protects the right of self-preservation, or more precisely, the tools necessary to exercise the right of self-preservation.Â Under that kind of interpretation, the courts would examine the device’s utility for that purpose, when seeking to discover whether it is an “arm” in the scope of the Second Amendment.Â It would seem unlikely that destructive devices of an explosive nature would be possessed for such a purpose.Â But as I’ve said before, I don’t think the courts can just consider self-preservation under normal circumstances, but must also consider extraordinary circumstances, to determine whether a particular arm is useful for self-defense, and should fall under Second Amendment protection.Â In the case of a .50 BMG vs. a pipe bomb or grenade, I think a distinction can be made.
The first distinction is that a .50BMG most definitely is useful for personal self-defense, in that it is a discriminate weapon, that can be aimed at a threat, and can disable that threat.Â A grenade is not so discriminate.Â It has to be lobbed a certain distance in order not to injure the thrower, and is only very generally discriminative, in that the shrapnel it sends in all directions does not distinguish between friend and foe, and can cause considerable collateral damage to property.
But I think there’s another distinction between the two.Â One can imagine a .50BMG being useful in a period of temporary civil disorder, such as a hurricane or an earthquake, where an ability to disable a vehicle, or shoot through cover, could mean the difference between self-preservation and being dead. One can also imagine a grenade, for instance, being useful for fending off multiple attackers.Â In either temporary, or a more lasting civil disorder, both could be useful.Â But obtaining a precision rifle, such as a .50BMG rifle, is probably going to be very difficult during civil unrest.Â Obtaining explosives is easy, as the ingredients to create them would be readily available even in the event of civil breakdown.Â In that instance, I think it’s not unreasonable to suggest that banning the manufacture or possession of pipe bombs does not run afoul of the Second Amendment, because under ordinary circumstances, they aren’t useful for self-defense, and under extraordinary circumstances, in the absence of law and order, they would be available.Â I think that likely strengthens the government’s case that the burden on self-defense is minimal.
Of course, this very fact makes the effectiveness of the law suspect, at best, since it wouldn’t be hard for those with criminal intent to make them under normal circumstances, but this isn’t an argument about what makes for good public policy, but about what is constitutional.Â When it comes to that, I’m willing to accept a Second Amendment that doesn’t cover destructive devices, if their exclusion makes the federal courts more likely to offer stronger protections to other small arms.Â The burden created on my ability to defend myself is minimal, and even for those who argue that the Second Amendment is meant to guard against tyrannical government, let’s face it, under those kinds of circumstances, pipe bombs aren’t going to be hard to come by.