Senator: Ms. Kagan, what are your thoughts on gun control laws and the Second Amendment?
Kagan: You mean, what do I plan to do to protect the people of the United States from your dereliction of duty? How will I make up for you and your colleagues abundance of cowardice and paucity of wisdom in regard to proposing an updated version of the Second Amendment to be ratified by the States?
The Second Amendment to the United States Constitution reads
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
When it was adopted in 1789 its meaning was clear. The Americans had no standing army, no Department of Defense, no Military-Industrial Complex. In order to raise an army, the federal government relied on the states, which in turn relied on their citizens to gather at their call, and to bring their own weapons with them. These weapons were state-of-the-art military-grade muskets and rifles, and most male citizens were expected to have them. Indeed it would have left the country defenseless if they did not.
But the framers of the Constitution (as amended) were mindful of another potential source of tyranny - the federal government that they themselves were working to establish. The states could use their militias to defend their rights against the federal government if the need arose. The abuse of this idea to defend the indefensible system of slavery (human beings were enslaved by human-Neanderthal hybrids) led to the Civil War of 1861-65.
Nevertheless, we can still derive a useful concept from the idea of raising militias. We, the People of the United States, in order to enjoy a greater degree of domestic tranquillity, voluntarily give our governments (local, state, and federal) a monopoly on the use of legitimate violence. This monopoly is ours to bestow, and ours to rescind, by inalienable right given to us by our Creator.
Indeed, losing the monopoly on socially legitimate violence is what makes a "failed state." It is therefore our government's responsibility to conduct itself in such a way that we continue to be willing to give it the monopoly on legitimate violence. If it loses our confidence, the founders expected that we would have both the armament and the courage to take back that monopoly, using whatever force was necessary.
Now taking back the government's monopoly would be something to give us pause even if it could be done without violence of our own. It's really nice to live in a society where the government enjoys a monopoly on legitimate violence. You can walk out of your house without having to be prepared to fight to the death every day. If you don't carry a gun, sword, or dagger, it is because you don't need to. Almost nobody else does, either. If you get into an argument, it is very unlikely that either you or the person you argue with will do or even threaten to do physical harm to the other.
In many other times and places, such a thing would be an unheard of luxury. In order to survive, you must be armed. And even then, it's not enough. On your own, you still can't defend yourself or your family. You need a larger unit, whether its the males of your extended family, your tribe, or your gang. The extended family, tribe, or gang has always been the natural unit of human organization, not the nuclear family. It results in a relatively constant, but sustainable level of violence. Think of the Hatfields and McCoys, or if you want a more literary example, the Montagues and the Capulets of Shakespeare's Romeo and Juliet. Or think of Afghanistan or the tribal areas of Pakistan. Or even Mexican drug cartels fighting each other. (It takes a lot of dedicated socialization and values training of our young to keep societies from reverting to this kind of organization in one or two generations.)
So, it was the Founder's intent that we keep and bear military-grade weapons. In their day, that meant muskets and Kentucky rifles. The equivalent in our day is the AK-47. It's a great weapon, powerful, reasonably accurate, delivering a high rate of fire. And it's relatively low-tech, cheap and easy to make in large quantities. It's not finicky, it works in almost all conditions. But a guy going berserk in a crowd with a musket might get off only one or two shots before the crowd overcomes him. The same nut with an AK-47 might mow down everybody in sight. Unless, of course, the crowd was full of well-meaning citizens carrying AK-47s. But we don't want to live like that. That's how they live in Afghanistan.
So we ignore and otherwise subvert the Constitution of the United States, thereby undermining the Rule of Law, because we don't let the supreme Law of the Land mean what it says. We do this by passing gun control laws willy-nilly without benefit of amending the Constitution to reflect the technology of our time and our relationship to it.
What we need is an amendment that is intended to reduce the level of violence by our society and our government by providing a balanced incentive for both parties to calm down. Something like
We the People of the United States, in order to increase our domestic tranquillity do voluntarily limit our right to keep and bear arms such that no citizen, resident, or visitor in the United States shall keep and bear arms exceeding the military capability of the arms kept, borne and used by local police walking their beats.
This by construction excludes SWAT teams. Now without SWAT-style weapons it will be impossible to sustain an insurrection or insurgency against the government. But insurrections and insurgencies are always by definition illegal. It is absurd to expect legal protection for an illegal act. If you want to rebel against the government, please have the decency to obtain your illegal weapons by illegal means. I hear there are some good AK-47 factories in Colombia.
This can't be good enough to be the final form, but you get the idea. Incentivize both the police and the crooks to carry less firepower. And let the rest of us have whatever they have. Make it a societal disarmament race. If the government wants a less armed citizenry, the let the government limit the armament is uses to control the citizenry. Fair enough?
Here is our previous attempt to update the Second Amendment.