What Weapons Get 2nd Amendment Protection?

The Second Amendment protects the right to bear arms, but what weapons exactly are covered by this Constitutional provision? Professor Jake Charles of Pepperdine Law School sheds new light on a long-standing question. Is it merely firearms that the Constitution protects, or does the word "arms" also refer to other weapons? Professor Charles explains existing case law, including Supreme Court precedent, to clarify which weapons, such as stun guns and nunchucks, are protected under the Second Amendment.

While questions remain as to which weapons are included under the Second Amendment, Professor Charles shares the legal tests and benchmarks often employed by courts in evaluating the right to bear arms.  First, the weapon must pass the "common use test." Under this judicial yardstick, courts seek to determine whether a weapon is in common use by law-abiding citizens for lawful purposes. Weapons, even in common use, can still be regulated where they are determined to be “dangerous and unusual.”

The United States Supreme Court provided some guidance on the ability of states to regulate "dangerous and unusual weapons" in the landmark case of District of Columbia v. Heller (2008). In this case, Justice Antonin Scalia, writing for the majority, made it clear that the right to bear arms is not unlimited and does not prohibit laws forbidding the carrying of "dangerous and unusual weapons." Heller specifically notes that the possession of "M-16 rifles and the like" could be banned, describing them as "dangerous and unusual."  Professor Charles delves into the nuances of the 'dangerous and unusual' test and also examines another Supreme Court case, Cayetano v. Massachusetts (2016), which further elucidates the constitutional meaning of 'Arms.

The Caetano case challenged the constitutionality of a Massachusetts law that prohibited the possession of stun guns, thereby raising questions about the definition of “Arms” in the Second Amendment. Jaime Caetano, the petitioner, had been convicted of possessing a stun gun, which she carried for self-defense purposes. The Massachusetts Supreme Judicial Court upheld her conviction, reasoning that stun guns were not the type of weapons that the Second Amendment was intended to protect, in part because they were nonexistent at the time the Second Amendment was enacted. The Supreme Court, however, vacated the Massachusetts court's judgment, expanding the legal meaning of "bearable" arms. Though short and unsigned, Professor Charles explains that the Caetano decision has significant implications for Second Amendment jurisprudence, highlighting that even modern weapons can qualify for constitutional protection.