By John M. McNichols, Litigation News As sociate Editor
Technology and the Second
Amendment: Bump Stocks, Stun
Guns, or Billy Clubs?
courts in Heller’s wake have been bombarded with Second
Amendment challenges covering all manner of weapons, from
machine guns and assault ries, to high-tech but non-lethal
alternatives such as TASERs and stun guns, to thoroughly
pre-modern weapons like knives and clubs. As the challengers
have noted, if the right to bear arms truly is independent of
militia service, there is no reason to limit the right to weap-
ons intended for military use. Unsurprisingly, the scope of the
constitutional right to bear arms has yet to be worked out and
will likely remain uncertain for so long as both weapons and
the laws governing them continue to evolve.
The Historica l Second Amend ment and Heller
Until Heller, Second Amendment case law was anchored in the
amendment’s prefatory clause, which states, “A well regulated
Militia, being necessary to the security of a free state . . . .”
Based on that clause, lawyers and judges understood the
amendment to protect the right of states to keep armed mili-
tias independent of the federal army, not the right of private
citizens to keep arms for self-defense. Consistent with that
understanding, the Supreme Court held in United States v.
Miller (1939) that a federal law against the interstate transport
© Getty Image s
he U.S. Supreme Court’s 2008 decision in District
of Columbia v. Heller ushered in a new era in
Second Amendment jurisprudence, holding that the
constitutional right “to keep and bear arms” meant an
individual right independent of service in an orga-
nized militia. The decision reignited the country’s debate over
gun control, in which gun-control advocates have asserted
that the Second Amendment’s drafters did not anticipate
the lethality of present-day technology and would not have
endorsed the private ownership of certain modern rearms.
The Court rejected the rst part of this argument as
“bordering on the frivolous,” noting that, just as the First
Amendment applies to modern forms of communication, the
Second Amendment applies “to all instruments that consti-
tute bearable arms, even if not in existence at the time of the
founding.” But the Court claried that this did not mean that
the right to bear arms extended to any type of weapon what-
soever, and that for some types, restrictions or even prohibi-
tions would be proper.
But if newness is not the criterion to distinguish technolo-
gies protected by the Second Amendment from those that
are not, what is? This is not merely an academic question, as
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TECHNOLOGY
