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The Right to Keep and Bear . . . What? The Second Amendment Definition of "Arms"
http://www.cga94.com/contributors/stuff/arms/ii.htm ^ | Alo Konsen

Posted on 06/24/2002 1:10:34 PM PDT by Sir Gawain

The Right to Keep and Bear . . . What?

The Second Amendment Definition of "Arms"

by Alo Konsen

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 it,

"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."17

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.

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. Army:

". . . 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."35

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 ". . . [i]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 claim 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.67 [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 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."75 [emphasis added]

Fortunately, 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.

IV. 1787's definition applied to 2001 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. Our cannons fire farther, faster, and more accurately than was thought possible in the eighteenth century. But worst of all, human nature has not improved since then.

We 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. 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 limit, 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, common sense can protect us from unfettered textualist application of Second Amendment rights.

V. Honestly (and constitutionally) applied common sense

It seems reasonable to say that we cannot use the Second Amendment to argue against keeping and bearing any weapon. 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.

First, look at the preamble to the Constitution, which sets out the reasons for enacting this framework of our law in the first place.

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.77

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 speaks of a criminal defendant's right "to be confronted with the witnesses against him,"85 yet we 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 We 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. Perhaps we could limit the right 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. That 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.

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 thoroughly scorch the very earth that the army would seek to rule.

Lastly, if my ideas sound too much like the very common law approach to interpreting the Constitution that I oppose, then our country can always take the straightforward and slow yet very forceful tack of passing a Twenty-Eight Amendment that fleshes out the Second.

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 find the authority to do it.


Footnotes15 Stephen M. Griffin, Constitutional Theory Transformed, 108 Yale L.J. 2115, 2136 (1999).
16 William J. Brennan, Jr., Presentation to the American Bar Association (July 9, 1985), in American Constitutional Law 607, 609 (Mason & Stephenson eds., 8th ed. 1987).
17 Bork, Robert. The Tempting of America, at 144 (1990). See also Justice Antonin Scalia's highly readable and entertaining treatment of his brand of textualism, A Matter of Interpretation: Federal Courts and the Law. (Amy Gutmann, ed.) Princeton University Press, 1997.
18 Merriam-Webster's Collegiate Dictionary online. <http://www.webster.com/> The word "arms" in this military context has its origins in the 13th century Middle English armes, meaning "weapons."
19 Black's Law Dictionary 109 (6th ed. 1990).
20 26 USC § 5845 et seq.
21 26 USC § 5845(a)(1)-(2)
22 26 USC § 5845(a)(3)-(4)
23 26 USC § 5845(a)(6)
24 26 USC § 5845(a)(7), referencing the silencer definition in 18 USC § 921.
25 26 USC § 5845(a)(5). The Act uses the term "any other weapon" here to mean any of several unorthodox projectile-shooting devices.
26 26 USC § 5845(a)
27 18 USC § 921 et seq.
28 18 USC § 921(a)(3)(A)
29 18 USC § 921(a)(3)(B)
30 18 USC § 921(a)(3)(C)
31 18 USC § 921(a)(4). Interestingly, this section includes some potentially heavy weapons that might not be man-portable.
32 Declaration of Independence
33 Madison, James. The Debates in the Federal Convention of 1787 Which Framed the Constitution of the United States of America, at 453. The Lawbook Exchange, Ltd. (1999).
34 Id.
35 Alexander Hamilton, Federalist 29, Concerning the Militia, 1788
36 Id.
37 James Madison, Federalist 46, The Influence of the State and Federal Governments Compared, 1788
38 The Ratifications of the Twelve States, Reported in the General Convention (hereafter, Ratifications). The Debates in the Several State Conventions on the Adoption of the Federal Constitution (hereafter, Elliot's Debates), Volume I, 11. New York.
39 Ratifications, Elliot's Debates, Volume I, 13. Rhode Island.
40 Ratifications, Elliot's Debates, Volume I, 14. Vermont.
41 The Debates in the Convention of the Commonwealth of Virginia, on the Adoption of the Federal Constitution. June 27, 1788. Elliot's Debates, Volume III, p. 659
42 The Debates in the Convention of the State of Pennsylvania, on the Adoption of the Federal Constitution. December 11, 1787. Elliot's Debates, Volume III, p. 521
43 The Debates in the Convention of the State of North Carolina, on the Adoption of the Federal Constitution. July 24, 1788. Elliot's Debates, Vol. IV, p. 18
44 "That the people have a right to bear arms for the defence of themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power." Vermont Constitution, Chapter 1, Article XV, 1777.
45 Pennsylvania Constitution of 1776, Declaration of Rights, Article 13. Quoted in The Founders' Constitution, Volume 5, Amendment II, Document 5. The University of Chicago Press. <http://press-pubs.uchicago.edu/founders/documents/amendIIs5.html>
46 For example, the punishments General Washington imposed on deserters William Timmans and Thomas Crawford illustrate one type of "bearing arms" and its consequences in war: "William Timmans late of the first Maryland regiment charged with Desertion, inlisting with the Enemy and bearing arms against these United States, Marauding, and burning the Houses of different inhabitants of the State of Maryland, found Guilty of the whole of the above Charges and sentenced to be hanged by the Neck till he be dead. . . . Thomas Crawford late of the same regiment charged with Desertion, Inlisting with the Enemy and bearing Arms against these United States, found Guilty of the two last Charges and sentenced to receive One Hundred lashes on his bare back." George Washington, November 3, 1781, General Orders. The Writings of George Washington from the Original Manuscript Sources, 1745-1799. John C. Fitzpatrick, Editor. Vol. 23. <http://memory.loc.gov/ammem/gwhtml/gwhome.html>.
47 Letter from George Washington to William Livingston, January 24, 1777, The Writings of George Washington from the Original Manuscript Sources, 1745-1799. John C. Fitzpatrick, Editor. Vol. 07. <http://memory.loc.gov/ammem/gwhtml/gwhome.html>.
48 Letter from Thomas Jefferson to William Short (March 28, 1823). Thomas Jefferson Papers <http://memory.loc.gov/ammem/mtjhtml/mtjhome.html>. Transcribed and edited by Gerard W. Gawalt, Manuscript Division, Library of Congress.
49 Id.
50 Thomas Jefferson to William H. Cabell, Thomas Jefferson Papers (June 29, 1807).
51 Britain and France were at war in 1793, and at the time the U.S. was officially neutral. A French warship had pulled into Charleston, South Carolina, and its crew bought two American cannons from a private citizen in violation of a ban on arms sales to either belligerent power. Britain complained bitterly, but Jefferson thought the whole incident a trivial thing.
52 Thomas Jefferson, "Hamilton's Opinion on French armed vessel, the Little Sarah" (July 8, 1793). Thomas Jefferson Papers <http://memory.loc.gov/ammem/mtjhtml/mtjhome.html>. Transcribed and edited by Gerard W. Gawalt, Manuscript Division, Library of Congress.
53 Id.
54 ". . . the militia of the State, that is to say, of every man in it able to bear arms; and that militia, too, regularly formed into regiments and battalions, into infantry, cavalry and artillery, trained under officers general and subordinate, legally appointed, always in readiness, and to whom they are already in habits of obedience." Thomas Jefferson to Antoine Louis Claude Destutt de Tracy, Id. (January 26, 1811).
55 Story, Joseph. Commentaries on the Constitution of the United States, § 1890. Boston, 1833.
56 "By the late returns of the Department of War, the militia force of the several states may be estimated at eight hundred thousand men, infantry, artillery and cavalry. Great part of this force is armed, and measures are taken to arm the whole. An improvement in the organization and discipline of the militia, is one of the great objects which claims the unremitted attention of Congress." Journal of the House of Representatives of the United States, 1789-1873. December 2, 1817. See also, transcripts from January 29, 1795 and March 30, 1798.
57 "Resolved, That the President of the United States be authorized to loan to the State of Ohio, for the term of seven years, twenty pieces of field artillery, with carriages complete, for the use of the artillery companies of militia, in the said State, under such regulations and restrictions, as to safe-keeping and redelivery, as the President may prescribe." Id., January 14, 1808.
58 Journal of the Senate of the United States of America, 1789-1873. March 24, 1826. See also, transcripts from April 10, 1828.
59 "Resolved, That the Committee on Military Affairs be instructed to consider the expediency of establishing a national foundry for the making of cannon, howitz, bombs, shot, and other material, for the artillery service of the United States, and for the militia." Id., March 29, 1832.
60 Id., February 18, 1836.
61 See transcripts from: April 5, 1810; May 15, 1826; and February 26, 1827.
62 "It will be proposed, that the number of one hundred thousand arms, shall be deposited in the respective Arsenals, a train of battering Artillery and every kind of Stores necessary thereto, field Artillery and every necessary equipment for an army of every species of troops." Journals of the Continental Congress, 1774-1789. March 13, 1787. See also, transcripts from February 1, 1777 and November 2, 1785.
63 Elliot's Debates, Volume V, April 10, 1787.
64 Basically, privateers were pirates working for the U.S. government as commerce raiders. They kept a percentage of all enemy cargo seized on the open ocean, selling it and using the proceeds to improve their ships and line their pockets. For more information read Zeinert, Karen (ed.), The Memoirs of Andrew Sherburne: Patriot and Privateer of the American Revolution (Linnet Books, 1993).
65 Id., March 4, 1776.
66 State v. Buzzard, 4 Ark. 18 (1842)
67 Id., at 21
68 "These rights are believed to be as essential to the enjoyment of well regulated liberty, and as fully guarded against infringement by the government, as the right to keep and bear arms. Their use, if subject to no legal regulation or limitation whatever, would tend to unhinge society, and most probably soon cause it either to fall back to its natural state, or seek refuge and security from the disorders and suffering incident to such licensed invasion of the rights of others, in some arbitrary or despotic form of government; while their unrestrained exercise, so far from promoting, would surely defeat every object for which the government was formed. And if the right to keep and bear arms be subject to no legal control or regulation whatever, it might, and in time to come doubtless will, be so exercised as to produce in the community disorder and anarchy." Id., at 21.
69 Id., at 20
70 Id., at 30
71 1 Ala. 612 (1840)
72 Id., at 617
73 1 Ga. 243 (1846)
74 Lumkin explicitly incorporated the Second Amendment's protections downward to the state level, saying "The language of the second amendment is broad enough to embrace both Federal and State governments -- nor is there anything in its terms which restricts its meaning.." Id., at 250 [emphasis Lumkin's]. This is remarkable, since the Fourteenth Amendment would not be enacted until decades later.
75 Id., at 251
76 Id.

77 U.S. Constitution
78 Green v. Bock Laundry Mach. Co., 490 U.S. 504 (1989)
79 Federal Rules of Evidence 803-805
80 New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
81 Id.
82 Miller v. California, 413 U.S. 15 (1973)
83 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
84 Schenck v. United States, 249 U.S. 47 (1919)
85 Amendment VI, U.S. Constitution
86 Maryland v. Craig, 497 U.S. 836 (1990)




TOPICS: Constitution/Conservatism; Editorial; Government; Philosophy
KEYWORDS: banglist
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1 posted on 06/24/2002 1:10:34 PM PDT by Sir Gawain
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To: *bang_list; Victoria Delsoul; Travis McGee; Squantos; harpseal; sit-rep; Noumenon; DCBryan1; ...
±
2 posted on 06/24/2002 1:11:31 PM PDT by Sir Gawain
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To: Sir Gawain
"I simply think we will have to look outside the Second Amendment to find the authority to do it."

SG, It seems this guy wants more "gun control". But, doing the above is ILLEGAL! Peace and love, George.

3 posted on 06/24/2002 1:21:49 PM PDT by George Frm Br00klyn Park
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To: Sir Gawain; Atsilvquodi; da_toolman; jdogbearhunter
PING
4 posted on 06/24/2002 1:26:00 PM PDT by phasma proeliator
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To: George Frm Br00klyn Park
I haven't read the entire thread yet. I'll have to reserve judgment.
5 posted on 06/24/2002 1:26:18 PM PDT by Sir Gawain
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To: Sir Gawain
Hope this helpt this thread . . . . . .

Copyright (c) 1991 by The New Gun Week and Second Amendment Foundation. Informational reproduction of the entire article is hereby authorized provided the author, The New Gun Week and Second Amendment Foundation are credited. All other rights reserved.

THE UNABRIDGED SECOND AMENDMENT

by J. Neil Schulman

If you wanted to know all about the Big Bang, you'd ring up Carl Sagan, right? And if you wanted to know about desert warfare, the man to call would be Norman Schwartzkopf, no question about it. But who would you call if you wanted the top expert on American usage, to tell you the meaning of the Second Amendment to the United States Constitution?

That was the question I asked Mr. A.C. Brocki, Editorial Coordinator of the Los Angeles Unified School District and formerly senior editor at Houghton Mifflin Publishers -- who himself had been recommended to me as the foremost expert on English usage in the Los Angeles school system. Mr. Brocki told me to get in touch with Roy Copperud, a retired professor of journalism at the University of Southern California and the author of "American Usage and Style: The Consensus".

A little research lent support to Brocki's opinion of Professor Copperud's expertise.

Roy Copperud was a newspaper writer on major dailies for over three decades before embarking on a distinguished seventeen-year career teaching journalism at USC. Since 1952, Copperud has been writing a column dealing with the professional aspects of journalism for "Editor and Publisher", a weekly magazine focusing on the journalism field.

He's on the usage panel of the American Heritage Dictionary, and Merriam Webster's Usage Dictionary frequently cites him as an expert. Copperud's fifth book on usage, "American Usage and Style: The Consensus", has been in continuous print from Van Nostrand Reinhold since 1981, and is the winner of the Association of American Publishers' Humanities Award.

That sounds like an expert to me.

After a brief telephone call to Professor Copperud in which I introduced myself but did "not" give him any indication of why I was interested, I sent the following letter:

*** "July 26, 1991

"Dear Professor Copperud:

"I am writing you to ask you for your professional opinion as an expert in English usage, to analyze the text of the Second Amendment to the United States Constitution, and extract the intent from the text.

"The text of the Second Amendment is, '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.'

"The debate over this amendment has been whether the first part of the sentence, "A well-regulated Militia, being necessary to the security of a free State," is a restrictive clause or a subordinate clause, with respect to the independent clause containing the subject of the sentence, "the right of the people to keep and bear Arms, shall not be infringed."

"I would request that your analysis of this sentence not take into consideration issues of political impact or public policy, but be restricted entirely to a linguistic analysis of its meaning and intent. Further, since your professional analysis will likely become part of litigation regarding the consequences of the Second Amendment, I ask that whatever analysis you make be a professional opinion that you would be willing to stand behind with your reputation, and even be willing to testify under oath to support, if necessary."

My letter framed several questions about the text of the Second Amendment, then concluded:

"I realize that I am asking you to take on a major responsibility and task with this letter. I am doing so because, as a citizen, I believe it is vitally important to extract the actual meaning of the Second Amendment. While I ask that your analysis not be affected by the political importance of its results, I ask that you do this because of that importance.

"Sincerely,

"J. Neil Schulman"

***

After several more letters and phone calls, in which we discussed terms for his doing such an analysis, but in which we never discussed either of our opinions regarding the Second Amendment, gun control, or any other political subject, Professor Copperud sent me the following analysis (into which I've inserted my questions for the sake of clarity):

***

[Copperud:] The words "A well-regulated militia, being necessary to the security of a free state," contrary to the interpretation cited in your letter of July 26, 1991, constitute a present participle, rather than a clause. It is used as an adjective, modifying "militia," which is followed by the main clause of the sentence (subject "the right," verb "shall"). The right to keep and bear arms is asserted as essential for maintaining a militia.

In reply to your numbered questions:

[Schulman: (1) Can the sentence be interpreted to grant the right to keep and bear arms "solely" to "a well-regulated militia"?;]

[Copperud:] (1) The sentence does not restrict the right to keep and bear arms, nor does it state or imply possession of the right elsewhere or by others than the people; it simply makes a positive statement with respect to a right of the people.

[Schulman: (2) Is "the right of the people to keep and bear arms" "granted" by the words of the Second Amendment, or does the Second Amendment assume a preexisting right of the people to keep and bear arms, and merely state that such right "shall not be infringed"?;]

[Copperud:] (2) The right is not granted by the amendment; its existence is assumed. The thrust of the sentence is that the right shall be preserved inviolate for the sake of ensuring a militia.

[Schulman: (3) Is the right of the people to keep and bear arms conditioned upon whether or not a well-regulated militia is, in fact, necessary to the security of a free State, and if that condition is not existing, is the statement "the right of the people to keep and bear Arms, shall not be infringed" null and void?;]

[Copperud:] (3) No such condition is expressed or implied. The right to keep and bear arms is not said by the amendment to depend on the existence of a militia. No condition is stated or implied as to the relation of the right to keep and bear arms and to the necessity of a well-regulated militia as requisite to the security of a free state. The right to keep and bear arms is deemed unconditional by the entire sentence.

[Schulman: (4) Does the clause "A well-regulated Militia, being necessary to the security of a free State," grant a right to the government to place conditions on the "right of the people to keep and bear arms," or is such right deemed unconditional by the meaning of the entire sentence?;]

[Copperud:] (4) The right is assumed to exist and to be unconditional, as previously stated. It is invoked here specifically for the sake of the militia.

[Schulman: (5) Which of the following does the phrase "well-regulated militia" mean: "well-equipped," "well-organized," "well-drilled," "well-educated," or "subject to regulations of a superior authority"?]

[Copperud:] (5) The phrase means "subject to regulations of a superior authority"; this accords with the desire of the writers for civilian control over the military.

[Schulman: If at all possible, I would ask you to take into account the changed meanings of words, or usage, since that sentence was written two-hundred years ago, but not to take into account historical interpretations of the intents of the authors, unless those issues can be clearly separated.]

[Copperud:] To the best of my knowledge, there has been no change in the meaning of words or in usage that would affect the meaning of the amendment. If it were written today, it might be put: "Since a well-regulated militia is necessary to the security of a free state, the right of the people to keep and bear arms shall not be abridged."

[Schulman: As a "scientific control" on this analysis, I would also appreciate it if you could compare your analysis of the text of the Second Amendment to the following sentence, "A well-schooled electorate, being necessary to the security of a free State, the right of the people to keep and read Books, shall not be infringed."

My questions for the usage analysis of this sentence would be,

(1) Is the grammatical structure and usage of this sentence, and the way the words modify each other, identical to the Second Amendment's sentence?; and

(2) Could this sentence be interpreted to restrict "the right of the people to keep and read Books" "only" to "a well-educated electorate" -- for example, registered voters with a high-school diploma?]

[Copperud:] (1) Your "scientific control" sentence precisely parallels the amendment in grammatical structure.

(2) There is nothing in your sentence that either indicates or implies the possibility of a restricted interpretation.

***

Professor Copperud had only one additional comment, which he placed in his cover letter: "With well-known human curiosity, I made some speculative efforts to decide how the material might be used, but was unable to reach any conclusion."

So now we have been told by one of the top experts on American usage what many knew all along: the Constitution of the United States unconditionally protects the people's right to keep and bear arms, forbidding all government formed under the Constitution from abridging that right.

***************************************************************

I was looking at the "View" section of the LA Times from December 18, 1991 today -- an article on James Michener which my wife Kate had saved for me to read -- when the beginning of Jack Smith's column caught my eye: "Roy Copperud had no sooner died the other day than I had occasion to consult his excellent book, 'American Usage and Style: The Consensus.'"

Thus I learned of the death a few weeks ago of Roy Copperud, the retired USC professor whom I commissioned to do a grammatical analysis of the Second Amendment this past summer. (My article was published in the September 13th issue of "Gun Week".) It seems to have been one of the last projects he worked on. It is certainly one of the most important.

Roy Copperud told me afterwards that he, personally, favored gun control, but his analysis of the Second Amendment made clear that its protections of the right of the people to keep and bear arms were unaffected by its reference to militia. This sort of intellectual and professional honesty is sorely lacking in public discourse today.

In my several letters and phone conversations with Professor Copperud, I found him to be a gentleman of the old school. The planet is a little poorer without him.

J. Neil Schulman December 27, 1991

------------------------------ End of Article ---------------------------------------

6 posted on 06/24/2002 1:28:14 PM PDT by Freeper
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To: phasma proeliator
I have reservations whenever I hear people talking about a "living document" ala WJeffKlintoon...
I suspect this could be a preamble to gun confiscation. Things don't always seem what they appear to be at first reading & I'm not much at trusting anyone who's at ease with legal jargon.
7 posted on 06/24/2002 1:35:01 PM PDT by jdogbearhunter
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To: Freeper
Very cool article!
8 posted on 06/24/2002 1:41:49 PM PDT by Sloth
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To: Freeper
See the "well-regulated" section here.
9 posted on 06/24/2002 1:43:25 PM PDT by Sir Gawain
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To: Sir Gawain
Not sure what I think...

St.Paul warns us that Satan transforms himself into an angel of light (2 Cor. 11:14). Why? Out of necessity, since anyone would flee from him if they sensed his true nature. A veritable master of disguise, Satan appears in many forms to conceal the truth... and propagate lies.

The debate on 2A has become mightily complex. I'm not sure anymore who I can trust but for the simple words in the 2A... "shall not be infringed..."

Molon Labe!!!

10 posted on 06/24/2002 1:53:52 PM PDT by alieno nomine
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To: Sir Gawain
From the article: '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 Constitution does not "grant" the power to keep and bear arms. It, instead, prohibits the government from infringing a pre-existing right.

The author misses the point that governments derive their just powers from the consent of the governed. The governed at the time did not consent to allowing any limitations on the right to keep and bear arms.

The amendment process was included to allow their successors to consent to granting the government additional powers. The author is correct that this is the way to go.

11 posted on 06/24/2002 1:54:16 PM PDT by William Tell
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To: jdogbearhunter
FWIW, seems like it came out of the US Coast Guard Academy.. perhaps the intent is honorable. Then again, the road to hell is paved with good intentions.
12 posted on 06/24/2002 2:04:58 PM PDT by Xphantasos
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To: Sir Gawain
It is pretty obvious just what the 2nd means and what the definition of "arms" is; it is not as complicated as the author of this piece would have us believe. The problem with those who advocate "reasonable" gun control, is that very few of them are "reasonable" people. Therefore, I and millions of my fellow citizens will continue to resist any and all legislation which we regard as step-wise parts of a total ban. I am willing to be "reasonable" when people like the Brady Boob shut the hell up or at least acknowledge the RKBA. Until that time, I do not consider ANY further gun control as "reasonable". We already suffer from a lot of "unreasonable" law.
13 posted on 06/24/2002 2:05:11 PM PDT by 45Auto
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To: Sir Gawain
The Right to Keep and Bear . . . What?

Anything that can and will be used to defend yourself, your faimily, your property etc. No limitations. In Federalist Paper No. 46, James Madison wrote,

"Extravagant as the supposition is, let it however be made. Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger."

With what? Pop-guns and slingshots?

"A brain, being necessary to understand the Constitution, the right of the people to keep and bear Arms, shall not be infringed."

14 posted on 06/24/2002 2:05:57 PM PDT by 4CJ
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To: William Tell
Well stated...
"that governments derive their just powers from the consent of the governed.."

If the sorryassed electorate wants to give consent to "arms confiscation" - then we have just taken a turn down that road to hell have we not?

15 posted on 06/24/2002 2:10:25 PM PDT by Xphantasos
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To: jdogbearhunter
"dynamic, living Constitution, which changes as social and economic needs demanded."

I suppose that means making up the rules to fit the agenda of the day as you go along. Here is the best "correct" definition I have heard:

"The Constitution and the Bill of rights means today what they meant in 1787 and 1791"--Justice Antonin Scalea, Bass Hall, Ft. Worth, Tx, circa 2000

16 posted on 06/24/2002 2:10:58 PM PDT by J Jay
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To: Xphantasos
Molon Labe

The "sorryassed electorate" who want to give up their guns can kiss Satan's hairy a55.

17 posted on 06/24/2002 2:16:01 PM PDT by alieno nomine
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To: Sir Gawain
For a strict textualist, this guy sure uses "framers' intent" overly much.
18 posted on 06/24/2002 2:20:04 PM PDT by Frumious Bandersnatch
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To: J Jay
Roger that.
19 posted on 06/24/2002 2:27:21 PM PDT by jdogbearhunter
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To: 4ConservativeJustices
Anything that can and will be used to defend yourself...

Article 1, Section 8, IIRC, allows Congress to Declare War, and issue Letters of Marque...

Our dear Marque Captain, and his band of gentleman adventurers, would find service to these United States to be of little profit or honor if allowed only to defend themselves.
Arms mean weapons. All weapons.

20 posted on 06/24/2002 2:41:03 PM PDT by FreedomFarmer
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