Define "Arms"

Justice Antonin Scalia writing for the majority in District of Columbia v. Heller, 554 U.S. 570 (2008):

Before addressing the verbs "keep" and "bear," we interpret their object: "Arms." The 18th-century meaning is no different from the meaning today. The 1773 edition of Samuel Johnson's dictionary defined "arms" as "weapons of offence, or armour of defence." 1 Dictionary of the English Language 107 (4th ed.) (hereinafter Johnson). Timothy Cunningham's important 1771 legal dictionary defined "arms" as "any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another." ...

The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity....

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the 2nd Amendment. We do not interpret constitutional rights that way....

"The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity...."

Then? What difference was there?

Art Eatman said:

"The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity...."

Then? What difference was there?

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I just took another read of Heller, and find that there is no support for this assertion. In fact, it appears from the sources they cite that this is contradictory.

Remember that at that time, the civilians were the militia and were the people who not only won the revolutionary war with "civilian" arms, but served as whatever military-type people were expected to be needed. The very idea of a standing army was definitely not desired.

Just guessing, but colonial riflemen probably had more rifled barrels than did the English soldiers.

Constitutionally speaking, as explained in the supporting documents (Federalist Papers, Anti-Federalist Papers, ratification debates), arms refers to any weapon used by the infantryman. Meaning small arms. This was further held by the United States v. Miller, 307 U.S. 174 (1939) case where the Supreme Court ruled Congress could regulate a sawed off shotgun as it was not a viable weapon on the battlefield (although MANY WWI veterans who had seen trench warfare vehemently disagreed with that).

Things have changed though, since the American people have reached this crazy place of thinking the Supreme Court's job has become to interpret their readings of the Constitution and Bill of Rights as opposed to enforcing it.

Frank Ettin said:

What matters is how courts are likely to rule on the question of what "arms" are for the purposes of the protections afforded by the Second Amendment. And courts will decide such questions based on legal principles and precedent.

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Yes, and no. If the SC decides that 'arms' means muskets, they will not have changed the meaning of the text. They'll certainly have changed the precedent that all lower courts will follow, and they will be wrong.

To argue that the SC determines, and can therefore change, what the text means, is pure relativism. If you let that stand as your presupposition for interpreting language you destroy all communication, entirely.

The text means what it says, in the linguistic context of the authors writing it. We are fortunate that the authors produced a carefully worded document, and then thousands of pages of commentary about that document. If you want to know what they meant by 'arms', you can read hundreds of pages of commentary written by the same people, about that very subject.

My new favorite short quote is, "every terrible implement of the soldier". Restated, if the DoD sees fit to spend money on it, I think it's an arm.

Intox said:

Constitutionally speaking, as explained in the supporting documents (Federalist Papers, Anti-Federalist Papers, ratification debates), arms refers to any weapon used by the infantryman.

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Well hold on there a moment. Let's not forget Article 1 Section 8 grants congress the authority to grant letters of Marque and Reprisal. As long as we accept that the founding fathers weren't colossal dicks, I think we can accept that they didn't expect privateers to be running trying to capture ships with a normal infantryman's kit.

This was further held by the United States v. Miller, 307 U.S. 174 (1939) case where the Supreme Court ruled Congress could regulate a sawed off shotgun as it was not a viable weapon on the battlefield

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Actually no, they said:

"In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. " (https://supreme.justia.com/cases/federal/us/307/174/case.html)

No evidence was given, as Miller had died before this came to SCOTUS, and his prior attorney did not pursue it at that level.

Frank Ettin said:

There's nothing crazy about that. In the Constitution the Founding Fathers authorized the federal courts to determine what the Constitution means and how it applies (Article III, Sections 1 and 2):

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The exercise of judicial power, i. e., deciding cases and controversies, necessarily involves deciding what the law (including the Constitution) means and how it applies in the context of the case or controversy.

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Please note.....trying to word this to stay in confines of this sub-forum's rules.

The Supreme Court is a product of the Constitution, and as such has no power to re-write the Constitution at a whim. They are bound to it, and any ruling they issue that conflicts with it is null and void. And this is why I make my assertion regarding this relatively new view on the function of the Supreme Court and it's perceived power. Perceived power that does away with the notion of three equal branches of government, given the SCOTUS supreme (no pun intended) power within government's three branches. Granted, the true failing is the Congress has for over a century relegated it's authority to the court to allow for the "we didn't do it" defense when running for re-election.

I understand the above is more of (one of my "philosophical" arguments that some here don't care for....lol) intellectual debate than a current legal debate, but I wanted to clarify my position. Which is why I listed the Miller case as (and I'm not a lawyer, so any one who is please feel to correct and educate me) shouldn't that strengthen individual ownership via codified case precedent?

ClickClickD'oh said:

Well hold on there a moment. Let's not forget Article 1 Section 8 grants congress the authority to grant letters of Marque and Reprisal. As long as we accept that the founding fathers weren't colossal dicks, I think we can accept that they didn't expect privateers to be running trying to capture ships with a normal infantryman's kit.

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Fully agree.

I don't go that route with these anti-gun people simply due to the fact that most people back then kept their privately owned artillery in armory located in town, privately owned warships in city docks, ect which would leave my argument open to a "yeah, but those weapons were locked up and controlled by a town appointed quartermaster" or something.

Newtosavage said:

So the 2A grants the right for "well regulated" militia to bear weapons used by the infantrymen?

Pardon my ignorance but how does that cover me as a citizen who owns firearms that are not infantry weapons?

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It's not a limit of "equal to", it's an "and up to". Meaning any weapon that has ever been or is currently used by the common infantryman.

patmccoy said:

Actually no, they said:

"In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. " (https://supreme.justia.com/cases/federal/us/307/174/case.html)

No evidence was given, as Miller had died before this came to SCOTUS, and his prior attorney did not pursue it at that level.

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You're correct. I posted that from memory and it's been a while since I had actually read it. However, I'm sure you'd agree that the meaning of both my (admittedly dumbed down) quote and the court's ruling relay the same message?

Intox said:

The Supreme Court is a product of the Constitution, and as such has no power to re-write the Constitution at a whim.

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I don't think that what Frank wrote alludes to that at all.

My take on it is that, for example, when 2 parties have a disagreement over what 'militia' means in order to bolster their policy agenda or personal case, the SCOTUS job is to decide what 'militia' means.

Inevitably, there will be times when the winning side will view that decision as 'of course, that's what it means.... its written right there' and the other side will say ' they're rewriting the Constitution'.

Intox said:

And this is why I make my assertion regarding this relatively new view on the function of the Supreme Court and it's perceived power.

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It's not relatively new nor a perceived power... it's been in writing since the late 1700s.

Thinking otherwise is akin to rewriting the Constitution of which is your point that its wrong to do.

Newtosavage said:

That makes more sense than just about anything else I've ever read on this subject. Thanks.

Now for the question of what constitutes a "well regulated militia."

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The 2nd Amendment has two protections in it:

"A well regulated Militia, being necessary to the security of a free State," - This is the justification clause. The framers were terrified of how a standing army could be used against the people (they had seen it with the British troops), which is why both the Federalists and Anti-Federalists agreed to their "compromise" in the Bill of Rights with the 2nd Amendment. This clause restricts the government at any level to pass laws or use any force to prevent the right of the people to assemble with their state militia if so called upon. It doesn't mean they have to be a group that assembles monthly for drill, it means they have the right to assemble and train if so called.

"the right of the people to keep and bear Arms," - This is the operative clause. It insures that if the militia were so called that they would be armed and in no danger of being "locked out" from any state controlled armory. The words "keep and bear arms" are inextricably linked as well as an inherent limit to the 2nd Amendment, with "keep" protecting individual ownership and "bear" reinforcing the supporting documents defining the 2nd as to apply to small arms (infantryman weapons).

"shall not be infringed." - I believe you'll know how this applies to the above.....=)

While the prefatory clause is a justification clause, it is not the only justification found in the supporting documents, but one of several:

James Madison: “The ultimate authority … resides in the people alone. … The advantage of being armed, which the Americans possess over the people of almost every other nation … forms a barrier against the enterprises of ambition.” Federalist Papers 46

James Madison: “A well regulated militia, composed of the people, trained to arms, is the best and most natural defense of a free country.” (1st Annals of Congress, at 434, June 8th 1789)

George Mason: “I ask you sir, who are the militia? They consist now of the whole people.” (Elliott, Debates, 425-426)

Patrick Henry: “The great object is that every man [citizen] be armed. Everyone who is able might have a gun.” 3 Elliot, Debates at 386.

Richard Henry Lee: “A militia, when properly formed, are in fact the people themselves…and include all men [citizens] capable of bearing arms.” (Additional letters from the Federal Farmer, at 169, 1788)

Tenche Coxe: “Who are the militia? Are they not ourselves? Is it feared, then, that we shall turn our arms each man against his own bosom. Congress have no power to disarm the militia. Their swords, and every other terrible implement of the soldier, are the birthright of an American… The unlimited power of the sword is not in the hands of either the federal or state governments, but, where I trust in God it will ever remain, in the hands of the people.” – Tenche Coxe, The Pennsylvania Gazette, Feb. 20, 1788.

danez71 said:

I don't think that what Frank wrote alludes to that at all.

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Oh, I didn't mean to imply that at all. I was simply explaining my position.

danez71 said:

My take on it is that, for example, when 2 parties have a disagreement over what 'militia' means in order to bolster their policy agenda on personal case, the SCOTUS job is to decide what 'militia' means.

Inevitably, there will be times when the winning side will view that decision as 'of course, that's what it means.... its written right there' and the other side will say ' they're rewriting the Constitution'.

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I agree. But that's where the rub is for me, as (using your example) militia is clearly defined several times over in the founding documents, as well as reinforced in preceding court cases in our history. It's why sometimes I'll get off into points dealing with understanding Classical Liberalism and Natural Law as well as language of the period, because those things are absolutely necessary to understand the documents meanings. So many anti-gun people try to justify positions and interpretations using modern and/or accepted views when discussing the topic. A good example is Liberals thinking the framers being Classical Liberals means they were what is modernly called liberal, when in fact they are polar opposites.

danez71 said:

It's not relatively new nor a perceived power... it's been in writing since the late 1700s.

Thinking otherwise is akin to rewriting the Constitution of which is your point that its wrong to do.

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Again, I agree and fully understand your point here.

My point is more to the newer scope of power we've seen the courts "gifted" with people seeing the SCOTUS as the "be all, end all", more so since we don't have a Congress willing to exert their power held in the Exceptions Clause if so needed.

Thanks.

Intox said:

....as well as language of the period, because those things are absolutely necessary to understand the documents meanings. So many anti-gun people try to justify positions and interpretations using modern and/or accepted views when discussing the topic.

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I agree.

The simplest example is the word gay and how the commonly used interpreted definition has changed from jovial to homosexual.


Way back then... saying/writing that Mark Twain was a ' gay fellow ' would have a different understanding than if today the same was said/written about Stephen King.

danez71 said:

Thanks.



I agree.

The simplest example is the word gay and how the commonly used interpreted definition has changed from jovial to homosexual.


Way back then... saying/writing that Mark Twain was a ' gay fellow ' would have a different understanding than if today the same was said/written about Stephen King.

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lol

My personal favorite is Edgar Allan Poe's writing:

"How dare you!", he ejaculated.

I had to explain to my son when he was young (7th or 8th grade) when they were assigned to read some of Poe's works how the modern accepted usage of the word ejaculate had changed over time.