What does keep and bear arms mean?

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docsleepy

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Okay, I just may be particularly stupid, but I can't exactly find what keep and bear arms really means.

The preface to the Supreme Court decision heller. suggests that it includes traditionally uses of firearms. However, preface is not written by the court!
Here's a reference in case you never read this decision: http://www.supremecourt.gov/opinions/07pdf/07-290.pdf



Can any of you bright legal guys out there tell me what exactly is or is not included within keep and bear arms? For example is target practice included?
Or are you even allowed to load the thing? Are you allowed to shoot a snake, but not a piece of paper?
 
It helps to have read a fair amount of the writings of the late 18th century and become acquainted with the word usage of that era.

"Keep" = Own and possess.

"Bear" = Carry with you as necessary--and "necessary" is a function of your judgement.

However, even in those days before gun laws, it was a social thing to not go wandering around with a rifle or shotgun when in town visiting friends or doing business.

The general view was that the right to "keep and bear" should be denied to "those of unsound mind" and "those of ill repute". (From the Anti-Federalist papers). I have to believe that "ill repute" would translate to those given to violence, or, in today's world, felons.

FWIW...
 
OK, so the home page says this particular forum is about:

"Get informed on issues affecting the right to keep and bear arms. Coordinate activism, debate with allies and opponents. Discuss laws concerning firearm ownership, concealed carry and self-defense"

And evidently we have a very difficult time DEFINING what "keep and bear arms" actually is? So.......what is this forum concerning?

Is it "traditionally lawful uses" as the Preface to Heller states?
Or it is only "ownership"
Or does it include "carrying" outside the home?
Does it include "actually training to be safe with the item"?
Or maybe it doesn't?

Ah, I hate it when I cannot define what I am talking about....

Ah-- Thanks Art! You were typing at the same time I was......
So from your definition, actually FIRING the thing is not included?
 
So, target ranges can be made illegal all throughout the nation and that would not be an unconstitutional burden?

Is the ability to LOAD the thing with ammunition included?

Can one even be allowed to TEST the ammunition to see it it works?

I know these are simple questions, but if we don't know what the definition is, how will we know when we are talking about it, or not?
 
docsleepy said:
So, target ranges can be made illegal all throughout the nation and that would not be an unconstitutional burden?

Is the ability to LOAD the thing with ammunition included?

Can one even be allowed to TEST the ammunition to see it it works?

I know these are simple questions, but if we don't know what the definition is, how will we know when we are talking about it, or not?
Click to expand...
First of all, if there's no law that could be applied to prohibit an act (unless one is bound by contract not to do something), it would be generally legally permissible (subject of course to considerations of personal responsibility and/or safety).

But with regard to any existing laws which might be applied to limit, restrict or prohibit activities associated with the keeping and/or bearing of arms, here's essentially how things work:

  1. Any law limiting, restricting or prohibiting activities associated with the keeping and/or bearing of arms is subject to judicial challenge.

  2. In the course of deciding Heller (District of Columbia v. Heller, 554 U. S. 570 (United States Supreme Court, 2008)) and McDonald (McDonald v. City of Chicago (Supreme Court, 2010, No. 08-1521)), the rulings made by the United States Supreme Court on matters of Constitutional Law, as necessary in making its decisions in those cases, are now binding precedent on all other courts. Now the Supreme Court has finally confirmed that (1) the Second Amendment describes an individual, and not a collective, right; and (2) that right is fundamental and applies against the States. This now lays the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.

  3. There is judicial authority going back well before Heller and McDonald for the proposition that constitutionally protected rights are subject to limited regulation by government. Any such regulation must pass some level of scrutiny. The lowest level of scrutiny sometimes applied to such regulation, "rational basis", appears to now have been taken off the table, based on some language in McDonald. And since the Court in McDonald has explicitly characterized the right described by the Second Amendment as fundamental, there is some possibility that highest level of scrutiny, "strict scrutiny" will apply, at least to some issues.

  4. The level of scrutiny between "rational basis" and "strict scrutiny" is "intermediate scrutiny." To satisfy the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way substantially related to that interest.

  5. Whichever level of scrutiny may apply, the government, state or federal, seeking to have the regulation sustained will have the burden of convincing a court (and in some cases, ultimately the Supreme Court) that the regulation is acceptable under the applicable level of scrutiny.

  6. Second Amendment jurisprudence is still in its infancy. Until Heller just five years ago, it was still in doubt whether the Second Amendment would be found to describe an individual or collective right. Until McDonald just three years ago, the law was that the Second Amendment did not apply to the States (United States v. Cruikshank, 92 U.S. 542 (1876)). So the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.

    • However, First Amendment jurisprudence is by now quite mature. So the sorts of regulation of rights described by the First Amendment might be interesting.

    • While the First Amendment protects freedom of speech, assembly and religion and in effect states that such right shall not be abridged, we know there has been a history of certain regulation of speech, assembly and religion. A few examples are:

      • Laws prohibiting such things as false advertising, fraud or misrepresentation, as well as laws requiring certain disclosures in connection with various transactions, would absolutely survive a challenge to their validity on Constitutional grounds even though such laws do impinge on the freedom of speech. Among other things, such laws serve an important state interests related to promoting honest business and helping to preserve the integrity of commercial transactions. They tend to be only as broad as necessary to serve that function.

      • If you are offering securities or certain other types of investments to the public, your written solicitation materials will have to first be approved prior to use by one or more regulatory agencies. If you are selling medicines in interstate commerce, your labeling will have to be approved in advance by the FDA, and you will have to have demonstrated, through hard, scientific data, that any claims or representations made are true. These are also laws that abridge freedom of speech, and yet they are regular enforced.

      • Laws respecting the time, place and manner of speech or assembly have also survived Constitutional challenges. Thus a municipality may require that organizers obtain a permit in order to hold an assembly or a parade and may prohibit such activities during, for example, the very early morning hours. Such regulations would be permitted only to the extent necessary to serve the compelling state interest of protecting public health and safety. Any such regulations, to be constitutionally permissible, could not consider the content of the speech or assembly; and they would need to be applied in an even handed manner based on set guidelines and not subject to the discretion of a public official.

      • In the past, laws prohibiting polygamy have been upheld against challenges that they violate the right to free exercise of religion.

  7. The bottom line is that Second Amendment jurisprudence will need to mature over time as these sorts of issues get litigated.
 
docsleepy,

I won't dispute Frank's learned description of the legal aspects that courts and attorneys mull over, but I will add my non-attorney, rational American way of answering your question:

If we have the right to vote, but we are kept from entering the voting place or not allowed access to information about what's on the ballot, that right is empty. If we have the right of free speech but are told we must not say certain things, then the freedom to say what we wish to say is meaningless. Of course, saying what we wish ends as it reaches the point of slander, libel, or false alarm.

Similarly, it's rational to conclude that all the things that are inherent in keeping and bearing arms are included in the "shall not be infringed" directive. Making ammo, loading, shooting, practicing, buying and selling, hanging on the wall...all are included in the keeping and bearing, and thus are all included in the things that shall not be infringed. If we can own a gun but not buy one, or are allowed to carry a gun but not load it or practice with it, then RKBA is pointless. Of course, RKBA ends at the point of harming or endangering innocent people.

Since the Founders clearly meant for us to freely have and carry guns, they must also have meant for us to freely buy, sell, load, practice with, etc. those guns. Any court reaching a different conclusion is more interested in a political agenda than in the Constitution.
 
Frank and beatledog:

THOSE where helpful. I especially appreciate the time that Frank put into it, and the knowledge that is contained therein. I was famliar with his points #1 and #2, but it is somewhat frightening that we are frankly no further along than Heller and McDonald (with which I am layman-familiar). I read Scalia's rebuke of a "test" of 2nd Amendment rights with a chuckle, where he says in effect, it is already decided.....but apparently only the barest of outlines have been.....

Beatledog, I know that what you are saying makes sense.

This seems (to me) to be a real shame that we haven't gotten our freedoms any further defined in over TWO HUNDRED years...... but maybe I miss something.

I don't know if it fits under "right to keep and bear arms" but FLORIDA has a much more expansive rule (790.33) which preempts all city etc rules and establishes the laws of what is required to safely fire a firearm, the obvious functional aspect of "keeping" one. So in that regard, perhaps (and this is a layman speaking), Florida may have further legislatively defined what are "2nd Amendment-type" rights than others.... cities and counties and parks and whatnot had to all rescind their laws, tho I have learned that there are still skirmishes going on.

OK. So anyway in FLORIDA this forum apparently includes discussions of legal issues regarding loading firearms, and actually doing target shooting with them, since Florida has established what the laws are to do that. I dunno about other States.
 
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docsleepy said:
...I was famliar with his points #1 and #2, but it is somewhat frightening that we are frankly no further along than Heller and McDonald (with which I am layman-familiar)...
Click to expand...
This might help.

  1. The thing is that courts decide cases. Heller and McDonald both sued because they claimed they wanted to keep a gun at home for self defense. The Court said, that because the Second Amendment describes an individual right to keep and bear arms (not connected with service in a militia), and because the Second Amendment right to keep and bears arms is fundamental, and because the Second Amendment right to keep and bear arms is fundamental and applicable, through the 14th Amendment, to the States, neither the District of Columbia (in Heller), nor the City of Chicago (in McDonald) can completely bar Heller or McDonald from doing so. That's what was decided in each case.

  2. But in the course of deciding Heller and McDonald, the specific rulings made by the United States Supreme Court on the meaning and application of the Second Amendment, as necessary in making its decisions in those cases, are now binding precedent on all other courts, insofar as those ruling may be applicable to issues arising in the cases before those courts. Those determinations in Heller and McDonald thus lay the foundation for litigation to challenge other restrictions on the RKBA, and the rulings on matters of law necessarily made by the Supreme Court in Heller and McDonald will need to be followed by other courts in those cases.

  3. But litigation is a slow process. We have approximately 70 RKBA cases pending in various stages in federal courts around the country. We've had favorable trial court rulings and unfavorable trial court rulings. We've had some unfavorable appellate court rulings, but one favorable one which led to the legislature of Illinois adopting a "shall issue" concealed weapons permit system in the State (previously for all practical purposes an ordinary citizen could not legally carry a loaded gun in public). The goal is to get some more good cases to the Supreme Court in hopes of getting some more good precedent on a wider range of RKBA issues.

  4. A limiting factor is the very high cost of this sort of litigation. The bill for Heller ran something over $3 Million. Ultimately a good part of that was recovered from the District of Columbia, but while the litigation was going on there were expenses that needed to be paid.

  5. Of course there are many laws out there that could in various ways affect the RKBA. Some are not directly gun related. For example, land use, environmental hazard and tort liability laws will affect the operation of firing ranges.

  6. We also need to pick our fights carefully. There is always a risk of developing bad precedent, and we have only limited resources for what could be a very expensive undertaking. There are laws which are a serous impairment to the RKBA. On the other hand there are laws which, while ideologically repugnant, are a mere inconvenience.

  7. So we can't do everything at once. Sorting things out as best we'll be able to will take time and effort.
 
Again, extremely helpful and a lot of typing in your part and very much appreciated! I've learned a lot.
 
My reading of the history is that it means have and use for legitimate needs. Including self defense and militia needs. When exactly that applies is not as clear, but certainly prior restraint that would leave you unarmed when a legitimate occasion happens would be Exactly what the second amendment is intended to prevent.
To bear them when the kings men are attacking your town. To keep them in case he might.

It does not mean to carry them just to scare the city council into voting your way.
 
OK, does this imply that one has the right to TEST the weapon to find out if it will work?

And does THAT imply that one may SAFELY test the weapon?

And where does THAT go?

In other words, just having a relic piece of shaped steel does not in my opinion give you much protection, unless you know how to use it and are able to assure yourself of your safety and adequate facility. Are those included within the "ancient right to defense" or are they included within the "right to keep and bear arms" or are we as a nation unable to secure the right to practice with a piece of shaped steel that purports to be an accurate and safe defensive firearm?

Make any sense?
 
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