The 2nd Amendment...

[eyer]

The 2nd Amendment has been cited verbatim in the OP...

...many founders' and framers' thoughts on the issue are also cited in the OP.

As I've explained before on this Board...

...those Congressional delegates who attended the Constitutional Convention in Philadelphia in the summer of 1787 and then signed the document itself that September debated including ALL of the primary issues of the 10 Amendments we now call the Bill of Rights.

But all of them - the right to free speech, the right to bear arms, the right to be free from unreasonable search and seizure, et al - were considered unalienable, inherent rights of all free individuals and thus above the concern of any government, so none of them were included in the Constitution itself.

As a poster has brought up, the only reason we have a Bill of Rights reasserting that they are indeed individual rights above the concern of any government is because the framers who lost the vote on including them in the Constitution protested so loudly that they wouldn't sign it, or that the People of their State wouldn't be in favor of ratifying the Constitution without a written guarantee of what so many Americans truly knew as their inherent right(s).

The 2nd Amendment's purpose is to simply state once more that an American's right to bear arms is a Law in a nation of laws, and not subject to any opinion from a nation of men - regardless if that man, or men, is a Citizen, a Supreme Court Chief Justice, a Congressman, or a President; NO MAN IS ABOVE THE LAW (except, of course, the one who does not violate it).

The ONLY legal remedy - as I've already posted above - for usurpers who deem to deny that unalienable right to all Americans is to repeal or amend the 2nd Amendment itself; all other actions to encroach upon even an inch of its sovereignty is unconstitutional in definition and illegal in any enforcement...

...and when the effort rises to actually disarm Americans without first undertaking the Constitutional dictate of amending or repealing the 2nd, then whatever revolt shall be against that unconstitutional action will simply be in primary defense of the Constitution itself.

Why won't you statists stand up from behind your disingenuous masks and just openly campaign to either amend or repeal the 2nd?

 

[eyer]

None of those quotes disagree with what I said. Not even, on second read, the one from Jefferson that you repeated. You threw me off there in your feeble attempt at rebuttal by pretending you actually understand what he said.

So my bad, Jefferson was not (to my knowledge) mentally ill.

A backpedaling squirrel should have no problem finding his natural role in the circus...

 

[Liar]

A backpedaling squirrel should have no problem finding his natural role in the circus...

Indeed, this squirrel has learned his lesson, and will henceforth not assume that you know what you're talking about.

 

[eyer]

Indeed, this squirrel has learned his lesson, and will henceforth not assume that you know what you're talking about.

How many times have you posted virtually the same lame sh!t, squirrel...

...only to return again and again to get your nuts handed to you.

Why is it, squirrel, that I don't give a fvck what you or any other socialist Swede deems is best for your country...

...but you have such an unnatural fascination with my country that you actually believe your voice matters in its politics?

 

[blobfish]

How many times have you posted virtually the same lame sh!t, squirrel...

...only to return again and again to get your nuts handed to you.

Why is it, squirrel, that I don't give a fvck what you or any other socialist Swede deems is best for your country...

...but you have such an unnatural fascination with my country that you actually believe your voice matters in its politics?

This sh!t is fvcking crazy!!

 

[Comshaw]

.
As passed by the Congress:


As ratified by the States and authenticated by Thomas Jefferson, Secretary of State:




If you haven't figured it out yet, socialists, the 2nd Amendment is one of those unalienable, or inherent rights of any free individual; the right to self-defense being among the very core of natural law, regardless of any man's opinion...

...meaning that, in these here United States of America, that individual right is above the power of any government or any branch of government - executive, legislative, or judicial - to affect.

And, if any government in toto does not fulfill it's Constitutional oath to protect that right of every American, it is committing treason and is then justifiably subject to the full force of the natural law it is breaking..

You can either obey the Law and work to get the 2nd Amendment amended to favor your socialist slant (which ain't going to happen), or you can keep goosestepping in your social democratic way by erecting unconstitutional laws which might very well, eventually, result in your own demise...

...it seems to me this will just take maybe one or two more serious pushes to prove its revolutionary truthfulness.

You're off your meds again ain't cha???

Comshaw

 

[HAL_9000]

The 2nd Amendment still doesn't protect anyone from the 16th Amendment.

 

[coachdb18]

The 2nd Amendment still doesn't protect anyone from the 16th Amendment.

The 16th Amendment needs to go the way of the 18th.... and I feel given the waste in our government, one day it will.

 

[Deleted member 1405174]

The gun control morons are already starting. If they have their way, decent law abiding citizens will be disarmed. Only police and criminals will be armed. I'm not sure which of those groups (police or crooks) scare me worse.

 

[Colonel Hogan]

But all of them - the right to free speech, the right to bear arms, the right to be free from unreasonable search and seizure, et al - were considered unalienable, inherent rights of all free individuals and thus above the concern of any government, so none of them were included in the Constitution itself.


The ONLY legal remedy - as I've already posted above - for usurpers who deem to deny that unalienable right to all Americans is to repeal or amend the 2nd Amendment itself; all other actions to encroach upon even an inch of its sovereignty is unconstitutional in definition and illegal in any enforcement...

You realize the two thoughts are contradictory, right?

If the rights articulated in the Bill of Rights are as unalienable as you say they are, then their very inclusion in the Constitution is superfluous (as I believe you were arguing) and their "lawful" amendment or repeal, while procedurally noteworthy, would be equally ineffectual due to their existence on the moral plane "above the concern of any government."

As the GB's semi-official libertarian, this is no time to go soft on us now.

 

[eyer]

You realize the two thoughts are contradictory, right?

If the rights articulated in the Bill of Rights are as unalienable as you say they are, then their very inclusion in the Constitution is superfluous (as I believe you were arguing) and their "lawful" amendment or repeal, while procedurally noteworthy, would be equally ineffectual due to their existence on the moral plane "above the concern of any government."

As the GB's semi-official libertarian, this is no time to go soft on us now.

I'm about as "libertarian" as you are "conservative", rino...

 

[coachdb18]

You realize the two thoughts are contradictory, right?

If the rights articulated in the Bill of Rights are as unalienable as you say they are, then their very inclusion in the Constitution is superfluous (as I believe you were arguing) and their "lawful" amendment or repeal, while procedurally noteworthy, would be equally ineffectual due to their existence on the moral plane "above the concern of any government."

As the GB's semi-official libertarian, this is no time to go soft on us now.

It's the reason the Founders didn't include them in the original form of the Constitution, but the states refused to sign without them, so they finally agreed to amend them as the Bill of Rights. The Founders truly wrestled with the same issues, thinking they were above a need to specify. They never figured on today's liberal penchant for 'clarification' and 'review' of the most obvious of their views, things like 'natural born citizen' was not spelled out either, as it was obviously not a consideration we would be considering a Kenyan Marxist to rise to the same position as George Washington.

 

[HAL_9000]

The 16th Amendment needs to go the way of the 18th.... and I feel given the waste in our government, one day it will.

I mean, really.

No apportionment?

 

[Liar]

How many times have you posted virtually the same lame sh!t, squirrel...

...only to return again and again to get your nuts handed to you.

Why is it, squirrel, that I don't give a fvck what you or any other socialist Swede deems is best for your country...

...but you have such an unnatural fascination with my country that you actually believe your voice matters in its politics?

It's "shit" and "fuck".

For someone who doesn't care, you sure do foam at the mouth a lot.

 

[eyer]

It's "shit" and "fuck".

For someone who doesn't care, you sure do foam at the mouth a lot.

Right on schedule:

A squirrel without nuts will always return to beg for more...

...scat, rodent.

 

[eyer]

We don't need no Steenking 2nd Amendment

by John Silveira

I usually get up to the magazine from southern California in plenty of time for the bimonthly deadline. Not this issue. I was late and way behind. But getting up here late doesn't lessen my workload; it just stretches out the number of hours I have to work each day. There's less time to relax, visit, or spend with friends. That said, three of us, Dave Duffy, O.E. MacDougal, and I went shooting anyway and depreciated a huge amount of ammunition on a hillside up behind Duffy's house. Duffy, of course, is the fellow who publishes this magazine.

Mac is Dave's poker-playing friend from the old days.

After a hard day of knocking down cans and collecting brass, we got back to the office and discovered that Dave's old college buddy, Bill, had stopped by. Dave and Bill began talking about old times, but the phone rang and took Dave out of the conversation.

I, in the meantime, had disassembled my rifle and there were pieces in my lap and some on my desk. Mac was off in the corner reading a copy of the last issue of BHM.

What are you doing with that? Bill asked.

I looked up. He was talking to me.

I looked down in my lap at the gun parts I had there. I'm cleaning it, I said.

What do you need it for? he asked.

I don't usually clean them but...

No, not why do you need to clean it, why do you need a gun?

Why do I need it?

Yes.

I want it, I said.

But why do you need one? he persisted.

Need one? I asked again, not understanding his question. I don't follow you.

How many guns do you have?

You mean own or how many did I bring up with me?

My question seemed to put him off.

How many do you own? he asked in a voice that was tinged with exasperation. How many guns do you have here, there, and everywhere?

I thought a minute. About a dozen.

He screwed up his face. What do you need 12 guns for? If you need a gun, one should be enough.

Enough for what?

What do you need a gun for?

The meaning of the 2nd Amendment

He was back to that. I don't know where this is going. I don't even understand your question, I said. I don't have to need a gun to own one any more than I need a CD player or a couch to own one of those. The 2nd Amendment says I can have them. It doesn't say I have to show a need and it doesn't limit the number I can own.

Bill shook his head. So, you're one of those.

Dave finished his call and turned to us as he hung up and said, Bill, what do you mean by needing a gun?

The 2nd Amendment isn't about you guys owning guns, Bill said. It's about the state having guns. It says you're only allowed guns if you're part of the militia and I don't see any of you guys with uniforms. The 2nd Amendment is about the National Guard.

I don't think that's what it means, Dave said.

It says it right in the amendment. It's for the militia. You can even ask Mac, he said and pumped his thumb back to the corner where Mac was quietly reading. I'll bet even he agrees with me.

I think Bill was baiting Mac. He and Mac had had a lively discussion about our rights the last time Bill was here about two years ago (Issue No. 44 March/April 1997). But Mac didn't look up. He just kept reading.

Dave got out of his seat and pulled down the almanac from the bookcase and flipped through the pages.

Then he began to read, 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.

See, Bill said. It's about having a well regulated militia. Militia that's military. It's not about you.

Well, a whole bunch of people think it's about individual gun ownership, Dave said.

But it's not. Read the amendment again. It's about the militia. It's only you gun nuts who think it's about you.

I shrugged. The wording of the 2nd Amendment has always bothered me.

But Dave looked off into the corner to where Mac was still reading. What do you think? he asked.

Mac just looked at us and smiled, then went back to his magazine.

See, Bill said. Even he knows it's about the National Guard, not you guys.

The National Guard didn't exist when the 2nd Amendment was written. It came into existence over a century later, Mac said without looking up and he continued to read.

What? Dave asked.

I said the 2nd Amendment isn't about the National Guard. The Bill of Rights was adopted in 1791. The act that created the National Guard wasn't enacted until 1903

Well, you know what I mean, Bill said. It's to allow the states to have state police and things like that.

Mac continued to read.

Is that true? I asked.

Mac looked up when he realized I was talking to him.

You mean was it for the state police and such? he asked me.

Yes, I replied.

No.

Bill smiled. Mac, it says right there in black and white. Dave just read it to us that it's to ensure we have a well regulated militia.

I looked expectantly to Mac who seemed to be getting impatient because he really was trying to read. Could you give us a little input into this? I asked him.

I can tell you that when the Founding Fathers used the word militia, it meant something different to them than what it means to us now, and he continued reading.

Is that all you've got to say? I asked.

He looked at me, then back at his magazine. He knew we weren't going to let him stay out of this and he reluctantly closed it.

What is the militia?

Now that I had him I asked, What's this about how the guys who founded this country used the word militia?

You've got to understand what the militia is, he said. In May of 1792, five months after the adoption of the 2nd Amendment, the Militia Act was passed. That act distinguished between the enrolled militia and the organized militia. Before the passing of that act, there was only the enrolled militia, which was the body of all able-bodied men between the ages of 17 and 44, inclusively, and it is that militia to which the 2nd Amendment refers. It couldn't refer to the organized militia because it didn't exist yet. The 2nd Amendment was to ensure that this body of citizens is armed and that's why the Founding Fathers thought to place it in the Bill of Rights. Legally, both militias still exist.

Are you saying I'm in some militia? Bill asked derisively.

By law, you were. I would guess that, by now, you're over that age.

So, you're also saying only people between 17 and 44 are allowed guns, right?

No, Mac replied. That's just the ages of the body of men constituting the militia. The amendment says the people can both keep and bear arms. It's usually been construed to mean all the people.

I don't believe you.

Mac shrugged, reopened his magazine and resumed reading.

What don't you believe? I asked.

Anything. First, I don't believe that I'm part of any militia or ever was. Second, I don't believe that the 2nd Amendment refers to the people at large and not the army or some other state or federal organization.

I still don't get this thing about the organized and the enrolled militia? Dave said.

Mac put the magazine down again. He shook his head and muttered something about fishing in Alaska from now on. He got up out of his chair and walked out the door. Through the window we could see him in the parking lot fishing around in the trunk of his car until he finally pulled something out. It was a tattered black briefcase. He carried it back into the office and put it on the desk next to his magazine. He opened the briefcase and took out a sheaf of papers and fanned through them.

I was looking up some stuff on the 2nd Amendment for a lawyer friend I play poker with down south, he said, meaning southern California, and I still have some of the papers.

He stopped fanning them.

Here are copies of the Militia Act, he said and held them out to Bill. They explain what the militia meant to the Founding Fathers. They also show that the 2nd Amendment came before Federal law created the organized militia and provide evidence that what they referred to as the enrolled militia the body of citizens were allowed to arm themselves.

Bill waved them away. All that happened 200 years ago, Bill said. Militia means something else today. It means the military.

No, the law hasn't changed, Mac said. But even if we decide the word means something new to us, you can't use the new definition to change the intent of the Amendment.

That's your opinion and you're entitled to it. But times have changed and we need new interpretations of the words and of the Constitution.

It's not just my opinion, Mac said. The Supreme Court has ruled that the words in the Constitution mean what the Founding Fathers said they meant, and we can't go changing or amending the Constitution by giving new meanings or new shades of meaning to the words. And, if you think about it, it makes sense; otherwise, our rights really mean nothing. Congress or any other governing body can deny you the right to free speech, freedom of religion, a trial by jury, or whatever else it wanted just by claiming the words now have a new meaning. An oppressive government could change the Constitution without ever having to go through the bothersome ritual of submitting it to us, the people, for our approval. And, in the end, the Constitution and, in particular, the Bill of Rights are there for our protection, not for the benefit of the government or those who run it.

Well, I don't buy into these definitions you have of militia and such, Bill said. I don't believe the 2nd Amendment gives John or anyone else the right to privately own guns. I think your interpretation is just a well-presented opinion and that the 2nd Amendment really refers to the powers given to the states.

Why we don't need the 2nd Amendment

Mac shrugged. That's okay. Even if you're right and the 2nd Amendment refers only to the National Guard, the state police, or some other uniformed military or police organization we'd still have the right to keep and bear arms. We don't need the 2nd Amendment.

What? Bill yipped. If the 2nd Amendment is about the states, and not the individual, you don't have the right to own guns.

Yes we do, Mac said.

Wait a minute, Dave said, How do you figure we'd still have the right to have guns? Without the 2nd Amendment we're lost.

Bill was laughing, Yeah, how do you come up with that?

Because the Founding Fathers believed we had that right. They spoke about it and wrote about it. And that's enough.

Bill laughed harder. That'll look good in court: I can carry a gun because some guy who's been dead for 200 years said I can. Here, let me show you the note he gave me. It's in the form of a permission slip. Can I get a hall pass, too?

Dave laughed at what Bill said, but Mac didn't seem in the least perturbed.

I think Dave and Bill are right, I said. The whole question of gun rights hinges on what the 2nd Amendment means. If it means the right to bear arms belongs to the states, then it means you and I don't have any right to individual gun ownership.

Well, let's start with this, Mac said. Can you find anything in the 2nd Amendment, or any other part of the Constitution, that says the individual can't have arms?

What's that got to do with it? Bill asked.

That's not an answer. Just keep in mind my question is not whether you think the Constitution allows individuals to carry guns but whether or not there's anything in it that says they can't?

Anyone can answer it, but the question is really directed at Bill.

There was a long pause while we all thought about that. I don't know where Mac was taking this, but it smelled suspiciously like a trap and I'm sure Bill felt that way, too.

Mac waited patiently.

I don't think so, Dave finally said.

I agreed, too, but Bill still didn't say anything.

Natural Rights

And do you also understand that the Bill of Rights is not the source of our rights. It's not even a complete list of our rights.

What are you talking about? I asked.

Mac's losing it, Bill said and threw his arms up.

I'm asking you if you understand that we do not get our rights from the Bill of Rights.

Of course we do, Bill said. That's why they wrote the Bill of Rights.

I've got to agree with Bill, I said.

Dave said nothing. He seemed to be thinking.

I'm saying this because the Founding Fathers did not believe we got our rights from the Bill of Rights. Nor did they believe they came about as a result of being American, Christian, of European decent, or white. They believed everyone had these rights even if they lived in Europe, China, or the moon. They called them Natural Rights. Where these rights were not allowed, they believed they still existed but were denied.

You should be writing fiction, Bill said.

Well, it's a question as to whether or not our rights exist apart from government, Mac said. Let me ask you this, he said to Bill. In a country where children have no civil rights, do they still have a right not to be molested? Do women in countries where they have a second-citizen status have the right not to be abused by their husbands, even if the government won't protect them?

Bill didn't answer.

Then is it too much of a stretch for you to understand that the Founding Fathers believed everyone has the right to free speech, freedom of religion, the right to fair trials...? His voice trailed off.

Bill still wouldn't answer.

In other words, Dave said, it's a question as to whether the rights of the citizens in China are at the pleasure of the government or if they have them but are being denied, or if the Jews had basic human rights in Germany even if Hitler didn't let them exercise them?

Yes. All I want to know is if that's hard for you to see. He looked at Bill who was still silent.

Then I see what you're saying, Dave said, But I'm not sure how it relates to the 2nd Amendment.

Bill still said nothing but neither did I.

Take it a step further. If the government passed a law tomorrow that said we didn't have the right to free speech, or the right to free worship, or freedom of the press, would those rights no longer exist, or would they be simply denied? If the Constitution is amended depriving us of our rights, do those rights cease to exist?

What's the answer? Dave asked Mac.

The answer, according to the guys who set up this country, is yes, we would still have those rights. We're just being denied them. Because of that, it's the way we have to look at the Constitution.

Bill rubbed his nose.

Dave said, Okay, I never thought of it that way, but I'll buy into it for a moment.

It may be, Mac said, that in reality, rights are a figment of our imagination. But the Founding Fathers believed they existed and that's how this country was set up. Rights are something that come with being human. The Founders never believed we got them from the government. If and when the United States goes away, the rights will still be there.

Why a Bill of Rights?

Then why have a Bill of Rights? Bill asked. The question was posed as a challenge.

You're not the first person to ask that. Men like Alexander Hamilton asked it. He and many others thought having a Bill of rights was dangerous.

Dangerous, Bill laughed. How could it be dangerous?

They were afraid that the existence of a Bill of Rights as a part of our Constitution implied that the government not only had the right to change them, but that any rights not listed there were fair game for the government to deny. And, as a matter of fact, that's exactly what has happened. The government seems to have set itself up to be an interpreter of our rights; it acts as if it is also the source of our rights, and whatever rights weren't mentioned in the Bill of Rights, the government has seen fit to declare exist only at its discretion.

Then how do we know what our rights are in court? Bill asked.

Have you ever read the Bill of Rights? Mac asked. I think he was tired; there was no humor in his voice.

Specifically, have you ever read the 9th and 10th Amendments?

Bill smiled and shook his head. I never thought it was important to memorize them.

It's important to understand what they say and know why they are written the way they are because they tie in with how the Founding Fathers viewed our rights and how they expected us to view them.

They were put there to quell the fears of men like Hamilton who were afraid that any rights not mentioned in the Bill of Rights would be usurped by the government. The 9th says:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

This means that any rights not mentioned in the Bill of Rights are not to be denied to the people.

The 10th says:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

So any powers not specifically given to the Federal government are not powers it can usurp.

So it's enough to show the Founding Fathers thought we had a right for it to fall under the protection of the 9th or 10th Amendment. This means that the Founders didn't even have to specify we have the right to free speech, religion, jury trials, or anything else. To understand what they felt our rights were, all you had to do was show what they said our rights are. Any rights in the first eight Amendments are just redundant with what the Founding Fathers considered Natural Rights.

Bill rolled his eyes.

Then why do we have a Bill of Rights? I asked.

Because even though Hamilton and others feared having one, most of the Founding Fathers were sure that without one the government would eventually take all of our rights.

Just getting off the gun issue for the moment, Dave quickly asked, are there actually rights not mentioned in the Constitution that you'd say we've been denied?

Sure. The Founding Fathers felt we had a right to unrestricted travel. So, now we have driver's licenses, automobile registrations, and passports. They also felt we had property rights, so Civil Forfeiture or Civil Seizure laws, now exercised by the Feds and the states, are actually illegal under both the 9th and 10th Amendment.

And, he continued, if the Congress or even the Supreme Court decides the 2nd Amendment only refers to formal military organizations, we still have the right to keep and bear arms, because the Founding Fathers considered it a natural right. And if you don't believe it, read what the Founding Fathers said in their papers, their letters, and their debates in both Congress and the state legislatures.

He pulled more papers from his briefcase and started going through them.

You know, he said, weapons have always been important. In Greece, Rome, and even under Anglo-Saxon law, when slaves were freed, part of the ceremony included placing a weapon in the man's hand. It was symbolic of the man's new rank.

What the Founders said

He paused as he looked through the papers. Here's one, and I quote:

Arms in the hands of individual citizens may be used at individual discretion...in private self-defense.

That was said by John Adams in A Defense Of The Constitution.

Here's another one:

The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.

That was said by Samuel Adams, John Adams second or third cousin, during Massachusetts' U.S. Constitution ratification convention in 1788.

This is all bull, Bill said.

Mac looked up, then he started to put the papers back in the briefcase.

No, I want to hear more of this, Dave said. What else have you got there? Dave asked, and Mac began going through the papers again.

If you really want to hear what they had to say, here are a few by Jefferson:

The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in Government.

And here's another by him:

No free man shall ever be debarred the use of arms.

He wrote this as part of the proposed Virginia Constitution, in 1776.

Personal protection

And here's one more. It's Jefferson quoting Cesare Beccaria, a Milanese criminologist whom he admired who was also his contemporary in On Crimes and Punishment:

Laws that forbid the carrying of arms...disarm only those who are neither inclined nor determined to commit crimes...Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.

I think it's pretty clear that Jefferson felt we had the right to keep and bear arms for both personal protection and as a safeguard against tyranny.

Bill went and poured himself some coffee and acted, for all the world, as if he wasn't listening anymore.

Mac shuffled through a few more papers. Here's one by Thomas Paine that comes from his Thoughts On Defensive War written in 1775:

Arms discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property. Horrid mischief would ensue were the law-abiding deprived of the use of them.

And here's one from Georgy Boy:

Firearms stand next in importance to the Constitution itself. They are the American people's liberty teeth and keystone under independence. From the hour the Pilgrims landed, to the present day, events, occurrences, and tendencies prove that to ensure peace, security and happiness, the rifle and pistol are equally indispensable. The very atmosphere of firearms everywhere restrains evil interference they deserve a place of honor with all that's good.

Who's Georgy Boy? I asked.

George Washington. That was from a speech he made to Congress on...He looked at the paper again...January 7, 1790.

But that's not the only quote from him. In response to a proposal for gun registration he said:

Absolutely not. If the people are armed and the federalists do not know where the arms are, there can never be an oppressive government.

I think that's pretty clear. He lowered the pages and looked at Dave. More?

Do you have more?

He went through more of his papers. Here's one of my favorites:

To disarm the people; that it was the best and most effectual way to enslave them.

That was by George Mason when the Constitution was being debated.

And who, may I ask, was George Mason? Bill asked. It sounds like you're bringing in the second string now.

He's the most underrated and unsung of all the Founding Fathers. Jefferson drew on him when composing the Declaration of Independence; his doctrine of inalienable rights was not only the basis for the Virginia Bill of Rights in 1776, but other states used them as the models for their own Bill of Rights, and James Madison drew upon them freely while composing the Bill of Rights for the United States.

Even though a Southerner, Mason recognized the evils of slavery and the fact that slaves were entitled to the same rights as the rest of humanity. He also feared the Constitution because it didn't do a better job of limiting the powers of the Federal government. He believed local government should be strong and the Federal government kept weak. He firmly believed in the power, the rights, and the integrity of the individual.

Never heard of him,Bill said.

I'm not surprised. But you're not alone because most people haven't.

Why's that? Dave asked.

He suffered bad health and had all kinds of family problems, so he never attained any office outside of Virginia other than his membership to the Constitutional Convention in Philadelphia. But he was the most vocal of the Founders on individual rights, and the other Founding Fathers recognized him as a force to be reckoned with. Without him, I can guarantee you that the United States would not be as free as it is now.

You guys should do an article on him, he said to Dave.

Dave quickly wrote something on his notepad, then glanced at me.

Defense against tyranny

Mac continued to go through his papers. Here's a quote by Elbridge Gerry, a representative to Congress from Massachusetts during the debates over the Bill of Rights. He's also the man for whom gerrymandering is named because, as governor of Massachusetts, he tried to rig districts to favor his party. In this quote he was specifically referring to what we now call the 2nd Amendment:

What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty...Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.

That should also give you insight as to how the Founders defined the militia and why they thought it was important.

Okay, I've heard enough, Bill said.

Me to, Dave added.

There's one more, Mac said. It's kind of a long one, but it's by James Madison, the guy who wrote the Constitution and actually put together the Bill of Rights.

Okay, go ahead, Dave said.

The highest number to which a standing army can be carried in any country does not exceed one hundredth part of the souls, or one twenty-fifth part of the number able to bear arms. This portion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence. It may well be doubted whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Besides the advantage of being armed, it forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. The governments of Europe are afraid to trust the people with arms. If they did, the people would surely shake off the yoke of tyranny, as America did. Let us not insult the free and gallant citizens of America with the suspicion that they would be less able to defend the rights of which they would be in actual possession than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors.

I kind of like that one, Dave said.

So do I, Mac said.

I've got more, but I think that's enough. But I think you can see how the Founding Fathers felt about the right of individuals to have weapons. In fact, this whole debate over the right to arms is a recent one. In the last century, Americans would have been as amazed to find their right to have weapons a subject of debate as they would to have found their right to free speech or religion debated. There was no question to them, or to the Founders, that the right to keep and bear arms was one of the most fundamental perhaps the most fundamental of all civil rights.

Are any of the Founders on record saying they don't believe individuals should have guns? Dave asked.

None I know of and I've actually looked for some.

Do you know of any, Bill? he asked.

Bill didn't reply. Again, I thought he was acting as if he wasn't listening.

The phone rang again and someone called across the office to tell Dave it was an advertiser, so he took the call.

Mac put his papers back into the briefcase and picked up his magazine and started to look for his place.Bill had even lost interest in the conversation. And it was time for me to get back to work. As I said, I was way behind. I took a last look at the gun parts to ensure they were clean, and I began to reassemble the rifle.

But I turned back to Mac for a moment and asked, The lawyer friend you found this information for...were you giving him legal advice, doing research for him, or what?

I was winning a bet, he said.

What were the stakes?

A six-pack of beer.

That seems like a paltry sum to have gone through all this research for.

We're going to drink it in Florida, he said.

Oh, I replied and continued to reassemble the gun.

http://www.keepandbeararms.com/information/XcIBPrintItem.asp?ID=491

 

[eyer]

Konsen wrote this piece for a law school class on firearms law...

...footnotes - and the entire piece itself - can be found at the link.

The Right to Keep and Bear … What?

The Second Amendment Definition of “Arms”
©2003 Alo Konsen

Introduction

The Second Amendment to the U.S. Constitution reads in its entirety,
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.

Today, the gun control debate has bogged down into verbal trench warfare, with opposing camps firing sound bites, infomercials, and lawsuits across no-man’s land and not having much to show for it. Interestingly, few people focus much attention on just what they are fighting over. Fortunately, a recent court case seems to have resolved the debate in favor of individual rights view of the Second Amendment, and stands some chance of adoption in other jurisdictions. Assuming that this view becomes the law of the land, a new hot-button issue seems likely to emerge: what do we mean when we speak of the “arms” we are guaranteed the right to keep and bear?

Everyone knows that rifles, pistols, and shotguns are “arms,” but what about other weapons like clubs, knives, swords, artillery, bombs, missiles, or weapons of mass destruction?1 Although this question sounds silly at first, Larry Arnn of the Claremont Institute once remarked that if the courts interpreted the Second Amendment as they do the First Amendment, we would all have the right to own nuclear weapons.2 Some scholars think this kind of reading of the Second Amendment means that “individuals may keep and bear … whatever ‘arms’ they desire.”3 So does our Constitution recognize your neighbor’s right to park a brand new M-1 Abrams main battle tank in his driveway? Should we permit gun shops to hold tent sales offering great low prices on military-grade flamethrowers and nerve-gas-tipped artillery shells? Must the U.S. Government allow you to carry a “suitcase nuke” to avoid violating your fundamental Constitutional rights, even if you might trip while carrying it and level a city block?

Part I of this article summarizes the recent Fifth Circuit Court of Appeals decision that acts as the point of departure for this journey into the “what-ifs” of the right to keep and bear arms. Part II looks at the decision’s inconclusive treatment of what “arms” means, and explains why the “textualism” school of constitutional interpretation should control the search for the meaning of “arms,” instead of the “living document” or “framer’s intent” schools. Part III explains what the Founders and their informed contemporaries understood “arms” to mean in their day: that the Second Amendment guarantees an individual’s right to keep and bear any and all weapons, no matter how destructive. Part IV brings that definition forward to modern times and identifies the unacceptable social risks posed by private citizens’ possession and use of today’s most powerful weapons. Part V makes some tentative and preliminary suggestions for a Twenty-Eigth Amendment limiting individual access to excessively destructive weapons that threaten society, while preserving the common-sense meaning of the individual right protected by the text of the Second Amendment.

Part I: United States v. Emerson

The Fifth Circuit Court of Appeals’ recent decision in United States v. Emerson4 revived a long-dormant legal debate over the right to keep and bear arms. Three competing views predominate in the gun control debate, which most scholars call the collective rights view, the sophisticated collective rights view, and the individual rights view. The collective rights view says that the Second Amendment does not apply to individuals but actually does nothing more than guarantee a state’s right to arm its militia.5 The sophisticated collective rights view says that the Second Amendment protects a form of an individual right, but the right can only be exercised by members of a formal state militia, who are bearing arms while actively participating in that militia’s activities.6 The individual rights view says that the Second Amendment recognizes the right of individuals to keep and bear arms.7

The Emerson court broke with long standing precedent and recognized the individual rights view of the Second Amendment, to the exclusion of the other two views (held by every Circuit until Emerson was handed down). But before we analyze Emerson’s constitutional reasoning, we need to get a basic grasp of what the case was all about.

In divorce proceedings, a Texas judge issued a boilerplate temporary restraining order which enjoined Dr. Timothy Emerson from, among other things, threatening his wife or causing bodily injury to her or their child. Later he was indicted for unlawfully possessing a firearm while subject to the order, in violation of 18 U.S.C § 922(g)(8). Emerson asked a federal district court to quash the indictment on several grounds, including a claim that § 922(g)(8)(C)(ii) was on its face a violation of his individual Second Amendment right to keep and bear arms. The district court agreed with Emerson and dismissed the indictment for that reason and others.

The government appealed to the Fifth Circuit Court of Appeals and won reinstatement of the indictment. The Fifth Circuit held that the nexus between firearm possession by Emerson and the threat of lawless violence was just barely enough to justify depriving his Second Amendment rights while the order remained in effect.8

Although Emerson lost in the end, the Fifth Circuit did recognize the validity of one of his novel claims. Emerson argued that the Second Amendment protects the rights of individual citizens to keep and bear arms. The court’s interpretation of the Second Amendment deserves a look, if for no other reason than its sharp break from persuasive precedent. On this argument, the decision raised four main points.

First, the Emerson court ruled that the appearance of “bear Arms” in the Second Amendment accords fully with the plain meaning of the subject of the substantive guarantee (i.e., “the people” are the ones bearing arms), and offers no support for the proposition that the Second Amendment applies only during periods of actual military service or only to those who are members of a select militia.9

Second, Emerson held that the plain meaning of the right of the people to keep arms is that it is an individual, rather than a collective, right and is not limited to keeping arms while engaged in active military service or as a member of a select militia such as the National Guard.10

Third, the Emerson court ruled that taken as a whole the text of the Second Amendment’s substantive guarantee aims at an individual rights interpretation, especially because of the guarantee’s placement within the Bill of Rights and the wording of the other nine Amendments around it, and because of the original Constitution as a whole.11 Specifically, the court said “[it] appears clear that ‘the people,’ as used in the Constitution, including the Second Amendment, refers to individual Americans.”12

Last, Emerson stated that the Second Amendment’s substantive guarantee, read as guaranteeing individual rights, may reasonably be understood as being a guarantee which tends to enable, promote or further the existence, continuation or effectiveness of that “well-regulated Militia” which is “necessary to the security of a free State.”13 As argued elsewhere in the case, the preamble referring to the militia does not contradict the placement of the Second Amendment within the Bill of Rights, the wording of nearby Amendments, and the wording of the rest of the main body of the Constitution.14

So, Emerson makes a pretty air-tight argument for the individual rights view. But if its reasoning ends up as the law of the land, whether by persuading the other Circuits, the Supreme Court, or Congress, a new issue will need to be resolved. Gun-control advocates will not quietly admit defeat and move on to other pursuits. They will likely shift their approach and try to argue that although individuals may keep and bear arms, certain “bad guns” do not count as “arms” under the Second Amendment. The National Rifle Association and its allies will argue the opposite. To break this future semantic stalemate, we will need to know what the word “arms” really means.

Part II: Emerson and the definition of “arms”

To define “arms,” we can turn to any of three main schools of constitutional interpretation that currently hold sway in American law. To line up with most commentators I will call them the “living document” school, the “framers’ intent” school, and the “textualism” school. The Emerson court subscribes to the textualism school, and I think rightfully so.

The “living document” school arose in the 1930s, and advanced the idea of a “dynamic, living Constitution, which changed as social and economic needs demanded.”15 As set out by Justice William Brennan16, this view of law says that courts need not defer to legislatures expressing the will of the majority. The text of any law informs its interpretation, but does not limit the interpreter to the bounds of the text’s plain meaning. A statute or constitution must be interpreted in light of modern social realities, not of any moment in history. The document must be interpreted to give effect to the principles expressed in the text, but the overarching context is today’s social and political scene, not the scene back when the document was written.

I find this theory untenable, mainly because it allows activist judges (both liberal and conservative) to usurp the power to create law, which properly belongs to the legislature. A judge of this stripe sees no problem with twisting the meaning of the text of the law to mean whatever suits his or her fancy, whether the new interpretation makes sense or not. Further, the “living document” school offers precious little guidance on how to assess exactly where the all-important “social realities” are and where they are headed. Under this scheme, there is no need to look for the true meaning of “arms” as it is used in the Second Amendment. “Arms” are whatever society (actually, any sitting judge) says they are.

The “framers’ intent” school offers a better method of interpreting the law, but it still fails to pass muster. A “framers’ intent” devotee looks backward through history and tries to discern what the legislature meant to accomplish when it enacted a given law. Typically this involves trying to figure out what most of the individual politicians had in mind, as revealed in secondary sources like legislative histories. I find this method unsound too, for two reasons. First, the legislature enacted the text of the law in question (not their intentions), so the proper focus of study should logically be the enacted text. Second, the intentions of the legislators almost certainly varied from person to person, so we can never know for certain what they all thought, whose thoughts carried more weight, and how their “corporate intent” can ever be nailed down.

The “textualism” school is the only game in town … because words mean things. A textualist concentrates on the only objectively verifiable part of the law: the enacted text. Legislatures enact laws made of words, not their intentions and not society’s meaning-of-the-moment. Searching for what the words of the text were understood to mean by the rational, reasonable reader of the time is the only logical, stable, proper method for interpreting the law. As Judge Robert Bork puts it17,

All that counts is how the words used in the Constitution would have been understood at the time. The original understanding is thus manifested in the words used and in secondary materials, such as debates at the conventions, public discussion, newspaper articles, dictionaries in use at the time, and the like.

In our situation, we must ask “what did ‘arms’ mean when the Second Amendment was written and ratified, in that society, and in that context?” How would a citizen or judge back then have understood “arms”? Only after we are confident in our answer can we apply it to our own world to predict an outcome. The Emerson court used this method of interpretation, and we will use it too, to discover what “arms” meant to the generations alive near 1787, when the Second Amendment was drafted.

Part III: What “arms” meant, circa 1787

First, a few modern definitions of “arms” present themselves. Merriam-Webster’s Collegiate Dictionary defines the noun arm as “a means (as a weapon) of offense or defense; especially: firearm.”18 Black’s Law Dictionary defines the word arms as “anything that a man wears for his defense, or takes in his hands as a weapon.”19

Federal law fails to define “arms” explicitly, but does identify some sub-groups of arms. For example, the National Firearms Act20 (“NFA”) does not define arms in general terms, but does exhaustively list what items count as “firearms” under Federal law, including shotguns21, rifles22, machine guns23, silencers24, and the catch-all terms “any other weapon”25 or “destructive devices.”26 Almost all the types of weapons listed in the NFA are easily man-portable, except for some rockets, missiles, bombs and mines that would presumably qualify as “destructive devices” but which weigh too much to be easily carried by one person.

The Omnibus Crime Control and Safe Streets Act27 (“OCCSSA”) defines “firearm” as any weapon which is designed as or may be readily convertible to expel a projectile.28 The definition also includes the frame or receiver of such a weapon29, any firearm muffler or firearm silencer30, or any “destructive device.”31 “Destructive devices” include bombs, missiles, rockets, grenades, mines and similar devices, whether they have explosive, incendiary, or poison-gas warheads.

In general, our modern documents offer little help in defining “arms,” but our older documents have information that can enlighten us. Starting with the Declaration of Independence, we find that it specifically mentions arms only once. It recites a litany of King George III’s violations of American rights, stating that he “has constrained our fellow-citizens, taken captive on the high seas, to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands.”32 We gain no special insight into the definition of the term here, but it clearly contemplates military weapons.

Eleven years after Thomas Jefferson wrote the Declaration, future President James Madison kept exhaustive records of the debates and goings-on during the Constitutional Convention of 1787, where he was a delegate from Virginia. Although the delegates hashed out many of the details of creating and supplying the militia, only one quote in Madison’s huge record bears closely on their understanding of the term “arms.” During debates over the content of the militia clauses on August 23, 1787, delegate Elbridge Gerry of Massachusetts asked “Will any man say that liberty will be as safe in the hands of eighty or a hundred men, taken from the whole continent, as in the hands of two or three hundred, taken from a single state?”33 Jonathan Dayton of New Jersey argued against Gerry’s ideas about militia uniformity. Dayton thought that in some states “there ought to be a greater proportion of cavalry than in others. In some places, rifles would be most proper; in others, muskets, &c.”34 Looking at his reply, we see that Dayton evidently thought the militia could include mounted troops, not just foot soldiers with muskets. Nowhere in Madison’s record did any delegate express surprise or disagreement with that idea.

The Federalist Papers and other writings of the Founding Fathers and their contemporaries mention “arms” in several contexts. Some clearly refer to man-portable weapons, but others suggest a broader possible definition of the word. For instance, Alexander Hamilton’s essay in Federalist 29 emphasized the deterrent effect of a citizen militia against the U.S. Army35:

… if circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.

Referring to the impracticality of training militiamen all the way to professional soldier standards, Hamilton wrote “[l]ittle more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped.”36 As other writings demonstrate below, a properly armed and equipped militia includes infantry, cavalry, and artillery units.

Madison, the eventual author of the Second Amendment, wrote in Federalist 46 of the “last successful resistance of this country against the British arms.” Here the term “arms” refers generally to the British invasion and all its weaponry, including cavalry, artillery, and naval power. Expanding on Hamilton’s theme of deterrence, Madison then argued for the establishment of a militia of “half a million of citizens with arms in their hands”37 as a deterrent against the standing army of any tyrannical federal government that might arise. Although read in a wooden and literal sense he meant man-portable small arms, his other writings and those of his contemporaries show that these men did not always think of arms in such a narrow way.

Moving outward from the Constitutional Convention, we look to records of the debates that the individual states held when deciding whether to ratify the Constitution. Many of these records include references to “arms.” For example, when New York ratified the Constitution, it added a list of proposed Amendments which included the following text: “… That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.”38 Rhode Island’s ratification document echoed that sentiment, saying “… That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.”39 The New York and Rhode Island proposals contemplate small arms at a minimum, and do not explicitly limit their definitions to small arms.

Vermont chimed in with a proposed Amendment exactly identical to the future text of the Second Amendment, arguing for an Amendment reading: “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.”40 Virginia added a bit of detail on who would bear arms in its preferred Amendment, which read, “… That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state.”41

The Pennsylvania ratification debate mentioned the need for the militia to be effectively equipped and disciplined, and when referring to “arms” specifically addressed muskets,42 although not in an exclusive way that ruled out other weapons. In the ratification debates of North Carolina, Delegate William R. Davie gave a speech arguing for a strong military to compel other nations to respect international trade rules. He thought America “… should be empowered to compel foreign nations into commercial regulations that were either founded on the principles of justice or reciprocal advantages… . Is not our commerce equally unprotected abroad by arms and negotiation?”43 He clearly thought naval power fell within the definition of “arms.”

The original thirteen states’ constitutions expand the definition a bit beyond the U.S. Constitution, but not much. The original text of the Vermont Constitution mentions “arms” in the same context as the military and “standing armies” in general.44 The Pennsylvania Constitution of 1776, in its Declaration of Rights, contains identical text.45 A common sense reading of both documents suggests that the weapons in question could possibly include all military weaponry customarily in use at the time. Although a broad reading is possible, it is not certain.

Less-official writings of our Founders and their peers mentioned arms in several instances. George Washington’s personal correspondence and official writings are full of references to “arms.” For example, while he commanded the Continental Army, his General Orders repeatedly passed harsh sentences (typically 100 lashes or hanging) on deserters for “bearing arms against these United States.” The severity of the punishments depended on whether the offender simply joined the British and merely “bore arms” or whether he violated the rules of war by committing heinous acts like burning civilian homes.46 Here, Washington made no mention of what type of unit each deserter served in. Common sense suggests he would have applied the penalty identically whether a man was found with the British infantry, artillery, cavalry, or Royal Navy.

In another example of his personal correspondence, Washington wrote: “… your first object should be a well regulated Militia Law; the People, put under good Officers, would behave in quite another Manner; and not only render real Service as Soldiers, but would protect, instead of distressing, the Inhabitants. What I would wish to have particularly insisted upon, in the New Law, should be, that every Man, capable of bearing Arms, should be obliged to turn out, and not buy off his Service by a trifling fine. We want Men, and not Money.”47 Again, Washington referred to soldiers in general here, not just infantry.

Thomas Jefferson mentioned arms in his writings several times. In a letter to William Short, for example, he thought about the likelihood of revolution in France when he wrote “… f, then, France has invaded Spain, an insurrection immediately takes place in Paris, the Royal family is sent to the Temple, then perhaps to the Guillotine; to the 2 or 300,000 men able to bear arms in Paris will flock all the young men of the nation.”48 Later in the same letter, he wrote of “the army of the Pyrennes catch[ing] the same flame and return[ing] to Paris with their arms in their hands.”49 Here he seemed to have small arms in mind. But in other writings he used a broader definition.

Referring to possible British attacks on Norfolk, Jefferson wrote, “Were they even disposed to make an attempt on Norfolk, it is believed to be sufficiently secured by the two frigates Cybele and Chesapeake, by the 12 gun-boats now there, & 4 more from Matthews county expected, — by the works of Fort Nelson; to all of which we would wish a company of artillery, of the militia of the place, to be retained & trained, putting into their hands the guns used at Norfolk, and a company of Cavalry to be employed on the bay shore between Norfolk & Cape Henry…”50

Responding to Alexander Hamilton’s opinions on the international incident involving a French warship equipped with cannons made in America51, Jefferson thought that “Great Britain ought not to complain: for, since the date of the order forbidding that any of the belligerent powers should equip themselves in our ports with our arms, these two cannon are all that have escaped the vigilance of our officers, on the part of their enemies.”52 Later in the same document, Jefferson remarked that “it is equally true that more than ten times that number of Americans are at this moment on board English ships of war, who have been taken forcibly from our merchant vessels, at sea or in port wherever met with, & compelled to bear arms against the friends of their country.”53

Jefferson seemed to think that “arms” included even full-blown naval guns, a category that included some of the most powerful weapons of his day. In fact, he understood the militia mentioned in the Constitution to include units of infantry, cavalry and artillery.54 Therefore, he must have imagined few limits (if any) on the kinds of arms needed to equip that militia of private citizens.

To wrap up our bundle of examples from personal correspondence, we find that another contemporary of the Founders, Joseph Story, thought that “[t]he right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic.”55

Early records of the U.S. House of Representatives often parallel Jefferson’s idea of a muscular militia of private citizens serving in infantry, cavalry, and artillery units.56 The House arranged to loan artillery to the Ohio militia in 1808.57

The early Senate tried to set up militia schools for cavalry and artillery in 182658, appropriated funds for a howitzer-equipped militia in 183259, gave the state militias field artillery, cavalry, and armed ships to defend the nation’s borders in 1836.60 The Senate clearly assumed the existence of a powerful militia61 just like the House did.

The Continental Congress seemingly saw things the same way, providing for a militia that included several kinds of artillery and “every species of troops.”62 It also recorded events at the end of the War of Independence, when “Letters were received from General Carleton and Admiral Digby, enclosing the British proclamation of the cessation of arms.”63 The mention of a British Admiral implied that a nation’s “arms” included naval power, which sounds reasonable when one recalls that America’s early navy consisted in no small part of privateers.64

In fairness, that same body sometimes distinguished between “arms” and “cannon.” It did so in 1776 when considering what kind of relations with France would best suit the colonies. The Continental Congress that year observed that it could pursue “[o]nly a commercial connection; that is, make a treaty to receive her ships into our ports; let her engage to receive our ships into her ports; furnish us with arms, cannon, saltpeter, powder, duck, steel.”65 The key point to remember, though, is that sometimes cannons were indeed seen as militia-ready arms.

We now know that our nation’s oldest writings seem to show that the “arms” which citizens could keep and bear included some of the most advanced and destructive weapons known at the time. Without some counterbalance, the scary modern scenario of the privately-owned suitcase nuke wiping out a city center seems more threatening than perhaps it should. But fortunately for us, some old court cases tackle the definition of “arms” too, and in a very detailed and helpful way. Three cases decided in the 1840s deserve a look.

State v. Buzzard,66 an 1842 Arkansas case, includes a straightforward claim67 that

… the term “arms,” in its most comprehensive signification, probably includes every description of weapon or thing which may be used offensively or defensively, and in the most restricted sense, includes guns or firearms of every description, as well as powder, lead and flints, and such other things as are necessarily used in loading and discharging them, so as to render them effective as instruments of offense or defense, and without which their efficiency for these purposes would be greatly diminished, if not destroyed. [emphasis added]

Reining in this expansive definition, though, Chief Justice Ringo thought it possible to legitimately restrict the right to keep and bear arms. He pointed out that the individual rights protected by the first ten Amendments could not possibly be absolute (and therefore free from all regulation) because otherwise great disorder and conflict would tear society apart.68 He illustrated his point when he mentioned certain justified limits on freedom of speech and of the press that were “necessary to protect the character and secure the rights of others, as well as to preserve good order and the public peace.”69 Justice Dickinson agreed when he wrote, “[t]he motive, then, for granting this power to keep and bear arms could not be extended to an unlimited, uncontrolled right to bear any kind of arms or weapons, upon any and every occasion; still less the terms, for they are restrictive in their language.”70 Here we see an early example of a court applying reasonable and constitutionally sound upper limits on weapon ownership, while still preserving the plain meaning of the Second Amendment’s protected individual right.

The Alabama Supreme Court two years earlier had recognized in State v. Reid71 a similar reason to place legislative limits on the carrying of concealed weapons, explaining that a law “intended merely to promote personal security, and to put down lawless aggression and violence … does not come in collision with the constitution.”72

Nunn v. Georgia,73 decided four years after Buzzard, went furthest of these three cases in liberally defining “arms.” Judge Lumkin’s majority opinion saw no limit on what weapons qualified for Second Amendment protection from both federal and state74 75 infringement:

The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of the free State. [emphasis added]

However, Judge Lumkin also thought it possible to legitimately restrict the right to keep and bear arms. His opinion explained that although the right was a fundamental one, the state legislature could forbid the carrying of concealed weapons so long as the natural right to keep and bear arms remained intact.76

So where does all this historical research bring us? It seems fairly clear that the Founders and their informed contemporaries understood the term “arms” to be synonymous with what we call “weapons.” They did not use that overarching meaning at all times, sometimes referring to particular types of weapons like small arms as simply “arms.” But the Founders’ generation were certainly willing to apply the term to more powerful and traditionally “military-only” weapons. This is evident in the writings that prove they thought it very important to have an armed populace capable of resisting foreign invasion and domestic tyranny alike.

Since we are trying to be faithful textualists, now we need to bring that understanding forward to our time and see what shakes out.

Part IV: 1787′s definition applied to 21st Century America

If we take a textualist approach to interpreting the Constitution, we find that all military weapons are considered “arms” for the purposes of the Second Amendment. Although recognizing the keeping and bearing of arms as a fundamental individual right can rein in judges intent on eroding our constitutional freedoms, it also causes huge problems if we let the right run wild.

In the late 1700s, individual access to military weaponry was a good thing. The citizenry could effectively employ any and all military weapons against enemies, without fear of much collateral damage. Now, though, the technology of war has far outstripped even the wildest dreams of our forebears, and our textualist exercise presents serious problems if applied in isolation.

We can wipe out cities under a nuclear mushroom cloud with the press of a button. We can unleash invisible chemicals that have no scent and no taste, yet can strike crowds of people dead in moments if the smallest amount comes in contact with unprotected skin. We possess germs and viruses that need only be dispersed in small quantities to be effective, that have no known cure, that kill eight of every ten humans infected, and that can circle the globe in hours thanks to international air travel. But worst of all, human nature has not improved since the Eighteenth Century.

We ourselves are the deadliest weapons around. Our capacity for cruelty, pettiness, selfishness, carelessness and rage has reached new heights (or is that depths?) in the last century. In the 1700s, a psychopath could still kill, but his ability to kill was restrained by relatively weak weapons. Now, our movies unsettle us with visions of nuclear missile-equipped madmen. Even the wildest scenarios seem less outlandish by the day, especially after we watched nineteen suicidal fanatics topple the World Trade Center, punch a gaping hole in the Pentagon, and kill thousands in mere moments. Even formerly obscure diseases like anthrax now pose a daily threat thanks to our efficient postal system.

If the reasoning behind Emerson becomes the law of the land, and if the textualist understanding of “arms” takes hold without any limit at all, we might find ourselves living right next to careless or homicidal people who will have suddenly found the ability to take thousands of their fellow humans with them to the grave in a very short time.

Fortunately, reasonable steps can protect us from a completely unfettered textualist application of Second Amendment rights.

Part V: Honestly (and constitutionally) applied common sense … the Twenty-Eighth Amendment

We cannot use the Second Amendment to argue against keeping and bearing any weapon, but we also understand the risk this causes in a society with weapons as destructive as ours. Fortunately, we have ways to preserve society and protect the Second Amendment without illegitimately harming the Constitution. I will not dig too deeply here since that would be beyond the scope of this article, but when I was in the military I was always taught never to discuss a problem without offering a solution. I will therefore suggest some likely starting points from which to search for the right answer.

Look at the preamble to the Constitution, which sets out the reasons for enacting this framework of our law in the first place77.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Common sense tells us that no interpretation of any legal text can rightly be read so as to threaten the explicitly stated reasons for enacting the text in the first place. I think the preamble supports the idea that we the people can rein in someone’s claim to a “right” if that right presents enough of a threat to our domestic tranquility, and if the general welfare of our people is in enough danger. The danger posed by powerful weapons controlled by incompetent, careless, or malevolent individuals obviously qualifies.

No right is absolute. We correct statutes suffering from a scrivener’s error.78 We permit numerous exceptions to the prohibition on hearsay testimony.79 We recognize the First Amendment’s protection of the freedom of speech and of the press as fundamental, yet we restrain libel80, slander81, pornography82, “fighting words”83, and speech that incites panic84. The Confrontation Clause of the Sixth Amendment protects a criminal defendant’s right “to be confronted with the witnesses against him,”85 we (perhaps unconstitutionally) permit children to accuse adults of molestation while seated behind the safety of a screen through which only the child on the witness stand can see.86 Although judges often exceed their authority when interpreting the Constitution, our legal system does sometimes correctly impose limits and create exceptions to our most fundamental rights in ways that actually preserve the purpose of the Constitution.

Surely, we can come up with reasonable limits on the right to keep and bear arms. To impose these restrictions correctly and legitimately, we would need to enact a Twenty-Eighth Amendment that fleshes out the Second. Perhaps we could limit the right to keep and bear arms to those weapons with destructive power equivalent to the best heavy weapons of the late Eighteenth or early Nineteenth Centuries. This would permit citizens to arm themselves, but not with weapons so capable of killing vast numbers of other people that the risk would outweigh the benefit. This framework might draw the outer boundary at, say, a mid-size howitzer, a backpack sized flamethrower, a shoulder-launched surface-to-air missile, or an anti-tank mine. Such weapons are destructive, to be sure, yet still comparable to the power wielded by a militiaman of two hundred years ago, standing behind an artillery piece or on the bridge of a privateer’s ship, firing at a crowded enemy troop vessel. Therefore, these weapons should be suitable for private ownership.

The kinds of limits I foresee would also preserve the ability to resist any standing army unleashed against us from Washington, albeit not in the same “toe-to-toe on the field of battle” style used by our ancestors in the Revolutionary War. The battle would revert to a guerilla-style conflict, much like the fighting by the French Resistance in occupied France in World War II, or like the efforts of the Contras in Nicaragua in the 1980s. Regardless, no standing army could forever withstand a sustained guerilla war without resorting to weapons of mass destruction … which would irreparably scorch the very earth that the army would seek to rule.

Read honestly, the individual right to keep and bear arms in defense of self and country protects every kind of weapon one could want and afford. However, I am certain that the right can survive in a post-Emerson textualist nation while still protecting us from nuts with nukes, if we impose reasonable limits on the exercise of that right.

I simply think we will have to look outside the Second Amendment to other parts of the Constitution to find the authority to do it.

http://brainshavings.com/the-right-to-keep-and-bear-what/

 

[KingOrfeo]

As passed by the Congress:

A well regulated militia being necessary to the security of a free state . . .

But, it isn't.