Like most of the other VC bloggers, I am sympathetic to the idea that the Second Amendment protects an individual right to bear arms, not just a "right" limited to members of state-controlled "militias." The DC Circuit's recent decision in Parker increases the likelihood that that view will soon triumph in the Supreme Court. However, this possibility raises some important questions about the scope of the individual right in question. In particular, what kinds of "arms" do we have a right to bear?

As a textual matter, the "the right to keep and bear arms" seems to apply to all types of weapons, without exception. This approach, however, would give citizens the right to own powerful military weapons, perhaps even including nuclear bombs and other WMDs. One possible textual limitation is the idea that the right is limited to those that one person can "keep and bear," thereby excluding a great deal of heavy military equipment, such as tanks or artillery pieces. However, the right would still apply to such potent handheld arms as machine guns, RPGs, shoulder-launched surface to air missiles (e.g. - the Stinger SAM), and grenades. It is far from clear to me that largely unrestricted private ownership of such weapons is desirable.

Questions such as these are usually met with the response that the Second Amendment will still permit "reasonable" regulations. This, however, is far from satisfactory in light of the fact that people of differing ideologies have widely divergent conceptions of what counts as reasonable. Moreover, the implicit assumption that regulations banning private ownership of RPGs and Stingers are "reasonable" is in tension with the theory that the principal purpose of the Second Amendment is to give citizens the ability to use their weapons to resist a tyrannical government. This "insurrectionary theory" of the Second Amendment is arguably the most popular interpretation advanced by scholars sympathetic to individual rights view. Obviously, RPGs, handheld SAMs, and machine guns are likely to be far more effective in achieving this goal than mere handguns or hunting rifles. The insurrectionary theory of the Amendment is at odds with most arguments claiming that the Amendment only protects the right to own weapons that don't pose grave risks. After all, the most dangerous weapons are often the ones that can most effectively be utilized by a resistance movement opposing the government.

I come to improve the individual rights view of the Second Amendment, not to bury it. However, advocates of the theory will need to develop a more compelling account of the scope of the individual right in question. That need will be even more urgent if the Supreme Court embraces the individual right theory, as it may well soon do.