Let’s talk Constitutional law for a moment. I am going to assume that the founding fathers, the drafters of the Bill of Rights, the framers of the Constitution, were intelligent men who only had the best interest of their new country in mind when they drafted the Consitution and the Bill of Rights. That said, let’s look at the language of the 2nd Amendment as it was sent to, and approved by, the states.
"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."
Let us ignore, for the moment, all the arguments that the framers of the Bill of Rights were arguing that only those citizens serving in a "well regulated militia" should have the unfettered right to keep and bear arms — a pretty rational argument, I must say. Acceptance of that argument would require that all non military and non law enforcement personnel turn in their weapons immediately, and since that will never happen, let’s not even waste time on it.
Let us accept the argument, however, that the framers/founders intended that the constitution should be followed and interpreted strictly and in accordance with the thinking of the 18th century framers/founders. In other words, let’s start thinking like Justice Scalia, although he may be rethinking his postion a little.
Back in 1791 when the 2nd Amendment was approved, James Holmes could have walked into a performace of Shakespeare, let’s say, in a Philadelphia theatre, armed with a musket and the single shot muzzle loading pistols available at that time. Of course, the musket, being rather large and heavy, might have been noticed, and he might have been asked to check it at the door. But let us assume that he entered the theatre with both weapons. He then raised the musket and fired, maybe hitting someone with his shot – maybe not – since muskets were not that accurate in the hands of a non Daniel Boone type. If he wasn’t tackled then, he pulls out the pistol and fires again. This time he probably would miss, since the pistols were woefully inaccurate, more so than the musket.
In order to duplicate the carnage at Aurora, the 18th century James Holmes would then have to reload his musket or his pistol sixty or seventy times while the theatre patrons all sat quietly waiting for him to do so. One person, maybe two, would have been killed. Even that would be too many, but it is certainly better than the toll in Aurora.
So, what is the point here? It’s simple. If the pro-killing folks in America maintain the Constitution gives them to right to bear arms just like it did in 1791, then let the laws reflect that, and state clearly that only single shot, muzzle loading weapons are permitted in the hands of non "well-regulated" militiamen. Somehow, I don’t think James Madison envisioned a 100 round magazine in a semi-automatic assault rifle when he drafted the language. We should, therefore, be true to the spirit and intent of the framers and allow only those weapons they knew about when the 2nd Amendment was enacted. Think how many lives that would save. And I guess the question I have to ask is simple: "what would be so wrong with that limitation?" Why does anyone need an assault rifle, or any weapon for that matter with a 20, or 40 or 100 round magazine? Or a semi automatic pistol with a 15 round magazine? The only things you hunt with weapons like that are people – and I think there are laws – constitutional laws – against that. At least there are in most states. I can’t speak for Texas.