What argument supports a right to bear arms but denies a right to bear nuclear weapons?

Per the second amendment: A lot of people really want to be able to declare that they can own any weapon they want but then the argument absurd is always, "Well that means you could own a nuke too." Is there any legal academic literature that supports owning any weapon except nukes?

I can't think of any coherent argument that would argue that the Second Amendment allows the private ownership of arbitrary weapons, including cruise missiles, bunker busters, nerve gas, etc, yet somehow manages to draw the line at nuclear weapons - a line which the framers of the Bill of Rights surely could never have imagined even existing.

3 Answers 3

Sure: No Constitutional rights are totally unencumbered. Even natural rights like the "right to life" are legally "infringed" through various theories (e.g., self-defense, capital punishment, warfare).

The Second Amendment has been interpreted as a right to keep and bear weapons that would reasonably be used in self-defense or in military service. You don't have to go to strategic weapons like nukes to find "reasonable infringement" of that right. For example, even though the military and even police routinely use explosives, individuals are absolutely subject to the whims of a federal regulatory agency (the BATFE) as well as state restrictions if they want to keep and bear detonators.

Also, I'm not aware of an absolute prohibition on the possession of nuclear devices by non-government entities. E.g., various government regulators oversee private entities that operate commercial and research nuclear reactors and other activities that put them all-but in possession of nuclear arms. If an individual really wanted to legally keep and bear a nuclear weapon it could probably be done with enough money and oversight. (Amendment: Except, as cpast points out in the comments, that there is a law against private possession of nuclear weapons in the U.S. Which just goes back to the broad answer to your general question: In practice there are no unencumbered rights. Constitutional "rights" might better be called things that require "strict scrutiny" and "narrow tailoring" of government infringement.)