What were the limits on weapons during the framers' time?


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ol' scratch
January 18, 2013, 10:25 AM
I have been reading about Scalia and how there were limits on weapons during the time the Bill of Rights was drafted. Actually the quote is, "“My starting point and ending point probably will be what limitations are within the understood limitations that the society had at the time,” Justice Scalia said. “They had some limitation on the nature of arms that could be born. So, we’ll see what those limitations are as applied to modern weapons.”


So what were the limits on scary weapons during that time?

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Sam1911
January 18, 2013, 10:31 AM
Hmmm...well, artillery pieces were often owned by private citizens (especially wealthy ship owners) and many used by the Colonials were so provided.

If that's the standard to be used, we're in GREAT shape!

berettaprofessor
January 18, 2013, 10:55 AM
Limitations were money to buy them and availability...that is, until the British decided to confiscate them.

legaleagle_45
January 18, 2013, 11:02 AM
I believe Scalia was referring to limitations which were applied about 50 years after the 2nd was ratified. His "dangerous and unusal formulation" seems to be derived from a series of cases which put limits on "Bowie knives" based upon their being the tools of "robbers and assassins " and would be useless for the Common defense. The test employed is found in a case called Aymette and is cited in not only Heller but in Miller. It appears quite similar the old obscentity test based upon no significant "redeeming value"... He might also be referring to the Statute of Northhampton which predates the 2nd by several centuries but is limited by Sir John Knights case to one prohibiting brandishing.

Tinker
January 18, 2013, 12:10 PM
Justice Scalia said. “They had some limitation on the nature of arms that could be born.

If I was to hazard a guess the limitations were:

Can't get it.

Can't afford it.

Too heavy to transport.

:)

Frank Ettin
January 18, 2013, 12:40 PM
Early gun control was discussed at some length by Adam Winkler in his book, Gunfight: The Battle over the Right to Bear Arms in America (W. W. Norton & Company, 2011). I don't recall all the details, but it's a good book; and anyone really interested would do well to read it.

I do remember that Massachusetts (or some towns in Massachusetts) had a law prohibiting having loaded guns in one's house. It was a matter of fire danger.

MedWheeler
January 18, 2013, 12:45 PM
believe Scalia was referring to limitations which were applied about 50 years after the 2nd was ratified. His "dangerous and unusal formulation" seems to be derived from a series of cases which put limits on "Bowie knives" based upon their being the tools of "robbers and assassins " and would be useless for the Common defense. The test employed is found in a case called Aymette and is cited in not only Heller but in Miller. It appears quite similar the old obscentity test based upon no significant "redeeming value"...

Now this, if found to be binding, would indeed be interesting.. only weapons not suitable for "the Common defense"?

Sam1911
January 18, 2013, 01:46 PM
Now this, if found to be binding, would indeed be interesting.. only weapons not suitable for "the Common defense"?Remember, that's the basis for Miller! (Protected guns must be suitable for militia/military type use.) And it completely conflicts -- utterly eviscerates -- the "sporting purposes" doctrine that arose in the latter half of the century.

legaleagle_45
January 18, 2013, 06:42 PM
only weapons not suitable for "the Common defense"?

That is how Aymette phrased it:

so the arms, the right to keep which is secured, are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. If the citizens have these arms in their hands, they are prepared in the best possible manner to repel any encroachments upon their rights by those in authority. They need not, for such a purpose, the use of those weapons which are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin. These weapons would be useless in war. They could not be employed advantageously in the common defence of the citizens. The right to keep and bear them, is not, therefore, secured by the constitution.

Bighouse Doc
January 18, 2013, 07:06 PM
My understanding was the basis in English law of "Personal Weapons" type as opposed to crew serviced weapons.

That being said, some people owned artillery.

-Doc

Baba Louie
January 19, 2013, 10:06 AM
IIRC, only free men could be armed. Self imposed limitations were some religious groups. Having said that and hazarding a guess, if you were a free man, had no religious issues and had the money you could purchase and own a fleet of ships with cannons aplenty (the nuclear device of the day I suppose), let alone the latest and greatest design for long or hand guns, swords, pikeaxes, halbards, etc.

I think punt guns came into vogue right after the revolutionary period, maybe early 1800s? Who wouldn't want to own a couple of those as well? You could. They did.

But make no mistake. Even then the founding fathers did practice "Gun Control" in keeping weaponry out of certain hands. Thus... limitations on a right, i.e. limits on weapons.

bayesian
January 19, 2013, 04:17 PM
It is interesting and I've been reading a bit about this lately. Often the problem was that not enough people had the money or interest in buying a gun and so often the laws were out to encourage households to have one gun to be used if a community needed to muster a militia.

There were restrictions on the transfer to weapons to Native Americans but often only to particular tribes that were causing problems and there was a small industry building barebones muskets for transfers to friendly natives. (Often with really large triggers because they often preferred to pull the trigger with two fingers... No idea why...)

So, the whole context of the 2nd A. is a bit odd when you try to translate to the present time. This is why notions of original intent are a bit tough when the societal situation has changed so much.

In some parts of the country (frontier regions), the idea was of course you will have a gun, and no one could really conceive of trying to regulate that because you just plan needed them for hunting and in some areas, defense against hostile natives.

So, some of the wording of the amendment is probably also aimed at making sure that states would retain some independent authority for the creation and control of militias.

There weren't typically restrictions on, for example, women, because you were typically talking about a gun in the household... In some regions, free blacks were allowed to keep guns (North) but there were attempts to restrict this for the few free blacks that resided in predominately slave states.

joeschmoe
January 19, 2013, 04:32 PM
There were several (colonial) cities that had laws about the storage of powder, the carrying of weapons, without the kings permission, and weapons (guns and knives) owned by blacks and slaves.
Most had to do with fire safety, or fear of insurrection by slaves/blacks/indians and later rebellious colonists.
There have been rules about carrying weapons in urban areas, long before America was "discovered", dating back to at least the middle ages and older (roman era). Usually in crowded areas, like markets. Or durring some eras, the wearing of weapons was the symbol of class, forbidden to peasants.
Attemps by the ruling elite to disarm the peasants is at least that old.
Scots had to hide their family swords in the thatches of the roof.

This is an ancient battle.

zorro45
January 20, 2013, 05:26 PM
Don't forget the "sword hunts" in feudal Japan, where the new ruling class would confiscate the weapons of the peasants and the new regime's former adversaries.
http://en.wikipedia.org/wiki/Sword_hunt

VVelox
January 21, 2013, 05:56 AM
n/m... did not completely read the question

Carl N. Brown
January 21, 2013, 06:59 AM
There were restrictions on the transfer to weapons to Native Americans but often only to particular tribes that were causing problems and there was a small industry building barebones muskets for transfers to friendly natives.

There was a whole class of arms known as "trade muskets" made to be traded for furs, etc., with friendly Indian tribes, and tended to be lighter gauge suitable for hunting game, and not weapons of war.

Colonials were often required to own military muskets and military gear and show up for inspection in militia musters. The requiremant for military muskets was never an enforcement as a prohibition against owning fowling pieces or rifles.

And the various prohibitions on the acts of riding forth armed to terrorize the community, or the brandishing of arms in public to strike fear amongst the populance, were prohibitions on terrorist acts involving the use of arms, not bans on possession of arms, or outlawing what was considered the traditional lawful uses of arms.

The Tennessee "going armed" statute has a list of "prohibited weapons" which includes the "slingshot" (roughly a form of blackjack) prohibited from carry in public as a weapon of offense or defense. The "slingshot" is easily made from a sashweight used to counter balance windows. I have one in my tool kit as a conpact hammer. It is not prohibited from possession; it is not prohibited from use as a tool; it is prohibited from being carried in the hip pocket on the street with intent to use as a weapon.

Most early weapons laws, if you read them and the cases they were applied to, and modern laws based on them like Tennessee's going armed statute, were concerned more with outlawing overt acts rather than outlawing objects. Banning riding forth to the terror of the community bearing unusually dangerous weapons did not necessarily mean that statute barred having a broadsword and battleaxe crossed on a shield over the mantelpiece. Laws requiring possession of a military grade musket did not ban owning a deer rifle or fowling piece either.

TRX
January 21, 2013, 08:26 AM
Private individuals owned fighting ships, and those were the origin of what became the US Navy.

In 1776, an armed ship was the biggest, baddest weapon there was, equivalent to a nuclear-armed aircraft today.

hockea
January 21, 2013, 04:47 PM
That the founders recognized and even expected the private ownership of battleships can be found in Art 1, Sec 8 of the Constitution under 'Letters of Marque'

joeschmoe
January 21, 2013, 05:18 PM
Also a few cities forbid the storing of loaded guns for fear of fire danger.

kludge
January 22, 2013, 06:44 PM
Remember, that's the basis for Miller! (Protected guns must be suitable for militia/military type use.) And it completely conflicts -- utterly eviscerates -- the "sporting purposes" doctrine that arose in the latter half of the century.

And since the Department of Education recently ordered 27 Short Barreled Shotguns for their own use, Miller needs to be exonerated and the NFA is de facto unconstitutional by their own "admission" that they are useful in enforcing the laws.

The LEOs in the Dept of Ed are certainly sworn to uphold and defend the Constitution against all enemies foreign or domestic, just like our soldiers are. I fail to see any difference. Only hypocrisy.

Sam1911
January 22, 2013, 07:35 PM
Hey, now that's a case I want to see happen!

JShirley
January 22, 2013, 08:00 PM
TRX is on the right trail. The Constitution put limits on ships of war. This clearly is the line: instruments of national policy vs less major ones. Art 1, section 10.

USAF_Vet
January 22, 2013, 08:06 PM
And since the Department of Education recently ordered 27 Short Barreled Shotguns for their own use, Miller needs to be exonerated and the NFA is de facto unconstitutional by their own "admission" that they are useful in enforcing the laws.

The LEOs in the Dept of Ed are certainly sworn to uphold and defend the Constitution against all enemies foreign or domestic, just like our soldiers are. I fail to see any difference. Only hypocrisy.
What is the Dept. of Education going to use 27 short barreled shotguns for?

And I agree, if they are going to use them for legitimate purposes, then the NFA should reflect that and remove SBS from the list.

Spats McGee
January 22, 2013, 09:37 PM
What is the Dept. of Education going to use 27 short barreled shotguns for?
Something much more severe than in-school suspension? [/joke]

Seriously, though, I wondered the same thing.

Jim K
January 22, 2013, 10:40 PM
First, remember one thing. The noble Founding Fathers, whom we all respect and all that, were A GANG OF ARMED REVOLUTIONARIES! They had just fought and won a war against the most powerful nation on the face of the earth, and they were infected by the idea of rule of the people.

They didn't have Google or Wikipedia, but they had studied history and they knew that all governments (repeat, all governments) tend to deteriorate into tyrannies. The body of the Constitution sets up a structure of government, with a system of checks and balances based on a "lessons learned" about English history.* But some of the delegates noted that the Constitution did not pay enough intention to the rights of the people; that resulted in the Bill of Rights. In spite of many and marvelous lies in recent years, it is not about the rights of the government, it is about the rights of the people. The militia in those days was not the National Guard, sworn to obey the Governor or President. It was a loose (often very loose) association of the men of the town or county to defend their own homes. In the older colonies, including Massachusetts, their arms were provided by the British, and were the same, or only a little inferior to those used by the regular army.

The militia, far from suppressing the rebellion. as one idiotic columnist wrote, was part of it. The British marched out of Boston in April 1775 not so much to seize private arms but to retrieve and secure crown property, which had been taken from the armories by the colonists and stored in their homes. That was when the colonists became rebels, by firing at their own army. And as one might say, the SHTF.

*No one can understand the U.S. constitution without understanding the history of England.

Jim

jerkface11
January 23, 2013, 12:32 AM
People could own anything they could afford until 1934.

tuj
January 23, 2013, 01:54 PM
Concealed carry was illegal in many states until rather recently. Laws banning concealed carry were passed in various states from 1813 to 1859.

sawdeanz
January 23, 2013, 05:30 PM
Interesting thread, thank you!

WardenWolf
January 23, 2013, 05:44 PM
Indeed, they could own anything they could get hold of, from muskets to cannons.

Twmaster
January 23, 2013, 05:56 PM
I'm still trying to figure out where in the Second amendment it says anything about what I arms cannot own.

Excellent discussion so far. Quite enlightening.

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