MARK KLEIMAN has a post on the Second Amendment in which he argues essentially that (1) the Second Amendment should probably be read to protect only military guns; which means (2) rifles rather than handguns. This actually isn’t all that far from my position, which you can read here. (A much shorter explication can be found in this piece.) And if you follow this link and click on #3, “Original Meanings,” you can hear me (and see me in streaming video) say somewhere that the purposes of the Second Amendment would be largely satisfied by universal ownership of bolt-action 1898 Mausers, though my views on what the Second Amendment actually protects are somewhat more expansive.

Kleiman is on solid ground in suggesting that there isn’t, under this view, a Second Amendment right to carry concealed handguns, and — as the two articles linked above illustrate — state case law, even when very protective of the right to arms, tends to support that position. In Tennessee (where a court, ironically enough, recently stressed that the enumerated fundamental right to bear arms is so strong that it’s on a par with the unenumerated right of privacy, which in Tennessee protects abortion independently of federal law) the legislature has the right to regulate the carrying of arms, but keeping and bearing them — including such incidentals as buying and selling guns and ammunition, taking them for repair and target practice, etc. — are fundamental rights beyond ordinary regulation.

However, in interpreting the Tennessee right to arms — which both Tennessee courts and, interestingly, the United States Supreme Court, say is essentially synonymous with the Second Amendment — Tennessee courts have not gone as far as Kleiman where handguns are concerned. Instead, they distinguish between weapons suitable only for crime (like derringers, etc.) and handguns that are military in character, such as revolvers and automatic pistols. The latter are held protected.

UPDATE: I just went back to Kleiman’s page and he’s posted an update with a link to a long post by Dwight Meredith (whose blog I hadn’t seen before) arguing that: “The best thing that could happen to gun control advocates is for the NRA to win the debate over whether or not the Second Amendment provides an individual right to keep and bear arms. Irony can be sweet.”

Well, I’ve been making this point for some time (I think the first place was in an L.A. Times oped in 1994, but I’m not sure and it doesn’t seem to be on Google (or, to be more accurate, if it’s there it’s buried under so many other links that I can’t find it). But this piece of mine from Legal Affairs makes the point similarly:

The gun issue is divisive in American politics largely because it is falsely treated as an all-or-nothing choice: Either homicidal maniacs will carry howitzers on Main Street, or jackbooted government thugs will confiscate revolvers at midnight. As the Emerson decision shows, however, the individual-right theory allows for neither of these extremes.

The right does bar efforts to disarm Americans as a whole and create a British-style society in which guns are limited to the military and police. But it wouldn’t stop the government from passing laws to protect the safety of Americans. Regulations aimed at prohibiting criminals and people with histories of violence from owning guns will face no problems under the individual-right theory. If that view were generally adopted by the courts, a lot of political wrangling would come to an end. Gun owners confident that their rights would be protected would be less likely to oppose minor gun control as a step down a slippery slope.

Having said this, the above doesn’t make it paranoid or foolish for gun-rights activists to oppose regulations that the Second Amendment might permit — any more than it’s paranoid or foolish for First Amendment advocates to oppose regulations that the First Amendment permits, but that they see as a step down the slippery slope. And, in both cases, such opposition may be justified by reference to the relevant amendment and the interests it protects even if its letter might not reach the conduct in question. (For a lengthy and erudite explanation of why such behavior is appropriate in both cases, see this article on “slippery slopes” in general by Eugene Volokh. You might also read this article on slippery slopes and gun regulation in specific, by Dave Kopel and Joseph Olson.)

Well, there you are. More than you probably wanted to know. (Later: But just in case it’s not, here’s a link to an article that discusses the Tennessee cases at more length.)

UPDATE: My Mauser remark is about 1:14 into the video, which is about 1:20 long, though for context you may want to go a couple of minutes earlier than that.

ANOTHER UPDATE: Clayton Cramer weighs in on the handgun issue. And reader Richard Riley writes:

I’m as pro-gun as you can get – NRA life member, instructor, CCW in Orange County, CA. But I absolutely agree with you. The second amendment is military weapons, not dirks and daggars and derringers. Citizens carrying concealed are good policy and help society, but so are lots of things not covered by the Constitution.

I think most gun owners would be happy with all kinds of reasonable restrictions, so long as they knew that those restrictions weren’t the next slice of salami. But, I think most gun control advocates ARE using the incremental approach. All the laws they wanted 20 years ago are on the books in California now – long waiting periods, education and tests, trigger locks, banning “unsafe” guns and “assault” weapons, universal registration. Yet they want more, and more. In their own literature they say they’ll go after guns category by category till we live in an unarmed utopia.

Yes. It’s rational to fear the slippery slope when people are consciously pursuing a strategy of incrementalism in depriving you of your rights.

UPDATE: Toren Smith has more.