In 'right to keep and bear arms', what is an 'arm'?

[Vern Humphrey]

Traditionally, (ie 18th century when the BoR was written) arms meant any firearm capable of being carried by one person. Others, such as cannon and punt guns, were ordnance.

Nope, as quoted earlier, they meant "All the terrible weaponry of the soldier."

People could and did privately own cannon and mortars, as well as fully-outfitted warships.

 

[CapnMac]

Also, if it was meant to apply to any weapon a soldier could carry I would hope nobody would try and argue they should be allowed to own a Davy Crockett. Weapons of mass destruction did not exist when the 2nd amendment was penned. I am in no way implying the second amendment should not apply today but just acknowledging that the issue is not as simple as some like to try and make it.

And, to my reading that is precisely the sort of infringement that is specifically prohibited.

I feel that the Second ought be read in its most liberal sense. Which, yes, would allow some dufus to own a bazooka or LAW-80 or even a Carl Gustav or SMAW. In practice, we, in the "well regulated" militia, would do our part to separate dufuses from items that cause greater risk to friend than foe.

In the finest sense of our law, and the traditions in which it was meant and made, even crew-served weapons are not merely meant, but encouraged. You want to own a Ma Deuce? Fine. Unless you can find the 4-5 other bros it takes to hump weapon, mount, spares, ammo and the like, you'd best not be in a hurry.

I have a great preference that we presume to set standards higher, and allow our fellow citizens to strive to better themselves, than in presuming them base and incompetent, and happy to wallow ever lower in every civic aspect that they can.

Further, my reading of the Constitution, and of USC after that, really suggests that we in the un-organized militia are "owed" access to military training and training facilities. Anything else is not "well regulated." Come [insert disaster here] is no time for me to have to teach someone how to operate a 60mm mortar (or how to run a mortar section, squad, platoon, etc.)

I really think it does "our side" no good at all to use the "well, we don't mean every terrible implement--only the ones we find socially acceptable" argument. That is because that argument leads to such foolishness as "sporting use" or the like.

It's a poor argument, forensically, too. That, and I can only imagine what Madison, Jefferson, or John Adams would fulminate upon hearing it in, or out of, context.

 

[Zoogster]

Simple, anything that is not ordinance.

Since 1932 it means 'everything under .51 caliber, without prior approval of some outside agency that doesn't want you to have anything under .51 caliber either'.

Erik0 what makes you cite the year as 1932?

The NFA was in 1934, and they didn't add Destructive Devices to the NFA until the 1968 GCA amended the NFA and added a few things if I recall. So there was not a bore diameter restriction.

They sold WW2 surplus 20mm anti-tank guns mail order for awhile, no FFL, no NFA, just order and have a 20mm shipped to your door.
And if you think purchase and possession laws were easy then, importation laws were mind bogglingly different (far less pro-gun groups focus efforts on that front or notice it erode, so it has become much more restricted than domestic laws.)

 

[Bmac1949]

All rights have restrictions. You can't yell "fire" in a crowded theater is an example of a restriction of the 1st ammendment and even the press has libel and slander restrictions. Something in a persons arsenal that could take out a city block if accidently detonated seems a tad over the top to me but don't go by what I say because I'm still trying to understand why someone would use an AR 15 for deer.

 

[gatesbox]

wow so interesting that even on a gun forum there can be so much diversity in opinions on that definition. I'm kinda low brow and not to bright, so I figure with the exception of Nukes, there are few other weapons that a law abiding citizen should not be allowed to posses. We still fall into that same old argument that any further restriction will only apply to the lawful....the unlawful will do it anyway....

to some extent the same limitations exist today that did then, ecconomic limitations. Who could afford a well made cannon.....who can afford a operational tank, well, we know Brad Pitt just bought one...

 

[AlexanderA]

There is no distinction between "arms" and "ordnance," with the former being protected under the 2nd Amendment and the latter not being protected. Actually, "ordnance" (presumably heavier weapons) is included in the term "arms." Remember that the colonial militia arsenal at Concord, the target of the British raid at the beginning of the Revolution, included artillery and ammunition for artillery. The 2nd Amendment was intended to prevent precisely such high-handed seizures of the people's weapons.

Another point to be made is that "to bear" arms, in the 18th-century sense used in the 2nd Amendment, does not mean casually carrying weapons. "Bearing" arms implies some sort of military discipline, even the use of a prescribed drill manual. This is what distinguishes a militia from a mere armed rabble.

 

[Zoogster]

The purpose of the 2nd Amendment was to give citizens the ability to fight foreign and domestic government forces if necessary, and prevail.
The people as a whole would always be a stronger force than anything that could be brought to bear against it, any military that could be leveraged against it.

In light of that it is quite clear that small arms unable to penetrate even the lightest armored APCs, nevermind take on armor and air power, are certainly inadequate to preserve the balance intended by the founders.




Instead of typing it all out again I will post my comments from a month ago in this thread: http://www.thehighroad.org/showpost.php?p=7675641&postcount=61

So the Constitution protects a broader range of arms, up to and including modern weapons capable of facing a modern military force. If the Constitution was really interpreted the way it was meant people today would have RPGs and SAMs.
While that may seem dangerous, in reality it's not that different than in their times when everyone traveled on horseback and were susceptible to immediate death from any single shot big bore long gun, the typical firearm of the day. Medical care was also limited, and this meant most people hit with a single round, especially from a rifle, musket, fowling piece/shotgun, died.
In contrast someone in a car today hit with a single shot RPG would be dead, so civilians would pose the same risk today as then, and be as capable of taking on military forces with those single shot weapons as they were back then.
The same is true for small aircraft, they would be just as vulnerable as someone on horse was back then to long gun fire, yet the population would have the capability to defend itself from military aircraft.
The only issue is commercial airlines, packing that many people in one thin skinned vulnerable frame would be (and is) stupid.
Yes widespread possession does mean there would be the occasional criminal use of RPGs, but things were dangerous back then as well, when everyone had large bore long guns and anyone shot tended to die. They would also generally be single shot weapons just like back then. It would actually put us pretty close to the situation back then.


So in reality the right under the Federal Constitution is far more reaching than all the cited state constitutions.
If it was interpreted as intended man portable RPGs and SAMs capable of allowing the population to defend against the military forces the 2nd Amendment intended would be protected militia arms, the right of all citizens.
Or a "terrible implement of the soldier... the birthright of Americans."
The civilian population would always pose a greater threat than any military force that could attack it, the intent of the founders.

Or as Tench Coxe put it:
Quote:

As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.

Or Alexander Hamilton:
Quote:

...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 use of arms, who stand ready to defend their rights.

And many more..(similar quotes and thoughts and letters from various founders)

Instead of allowing that the Supreme Court has watered it down so that it no longer allows the citizens to really have the means to fight a modern military force as was the intent, yet still allows for self defense from common criminals with limited small arms but not weapons the population would feel threatened by.

The founders wanted the people to be able to take on the military forces of the world, acting as a great deterrent that would preserve liberty.
Yet today the lowliest armored vehicle will defeat most title 1 small arms a civilian is even allowed to have.
Certainly the intent of the 2nd is unfulfilled, its purpose defeated.

 

[Owen Sparks]

What about brass knuckles, switch blade knives, black jacks, saps, billy clubs and pepper spray? Are these not also "arms" protected by the 2A?

"The right of the people to keep and bear arms shal not be infringed."

Is the government not breaking the law?

 

[Zoogster]

What about brass knuckles, switch blade knives, black jacks, saps, billy clubs and pepper spray? Are these not also "arms" protected by the 2A?

Well arguably arms suitable for taking on and deterring military forces are what the 2nd protected. Since you cannot take on soldiers with brass knuckles there is certainly a legal argument that they would not be protected.
Similar to the logic employed in the Miller case (when evidence that short barreled shotguns had in fact served military purposes was not presented because the defendant died and there was nobody arguing the case or presenting evidence.)
In Miller since they had no evidence that a short barreled shotgun was useful in a militant capacity, they deemed it was not protected, and essentially implied that machineguns and similarly military armaments were protected and that portion of the NFA would be ruled unConstitutional if challenged during their time.

However in light of the Supreme Court alteration of what the right means in more recent times, taking on a more self-defense from criminal tone, such items could be Constitutionally protected.
They may be no good at defending from foreign or domestic forces of a tyrannical government, but they certainly could play a role against a criminal threat.


edit to add: At the time of the founders arms for defense from common criminals was so normal around the world, even in England their former country where an English gentleman could legally walk down the streets of London with a concealed pistol for use against criminals with no permit or license required and which continued for over another 100 years... that they felt no need to protect such a thing in the Bill of Rights.
Nobody would even imagine that the population could be prevented from defending themselves from common criminals back then that was a given, they were more focused on less commonly observed rights like free speech and owning arms for use against governments which governments felt threatened by and infringed upon.

 

[Vern Humphrey]

Well arguably arms suitable for taking on and deterring military forces are what the 2nd protected. Since you cannot take on soldiers with brass knuckles there is certainly a legal argument that they would not be protected.

The US Army issued brass knuckles in WWI -- the M1918 Trench Knife had a brass knuckle grip.

In the Miller Case, the Government lied (and Miller had died before the case got to the Supreme Court.) The Government claimed sawed-off shotguns had no military use -- and yet the Army issued shotguns for use in the trenches in WWI, and continued to ussue them for combat use right through Viet Nam.

Knives and similar close-in weapons continue to be standard issue.

 

[paramedic70002]

I'll let other more knowledgeable folks define arms, but I will point out that I've found some unusual items perfectly legal to own.

Gatling gun, flame thrower, cannon. No special permit or license required. Not sure if any states restrict them but Federally they are OK.

I know that VA bans the Streetsweeper semiauto shotgun by name, apparently due to some bad press in days gone by.

 

[medalguy]

the term 'arms' is in reference to weapons. Firearms, swords, etc..

It's that "etc" that has me worried. Where does the government stop at limiting "non-arms"?

 

[Cosmoline]

Probably shoulder-fired weaponry which does not launch high explosive projectiles. But really it's open to interpretation. We obviously *CAN* have cannon and field pieces, with no federal interference. Just not modern smokeless ones. Which is a generally accepted legal division now but pretty much emerged from happenstance. IIRC the 1898 was supposed to be brought forward over time, but of course it never has been. And with the demise of the state militia systems in the past century, the possibility of organized citizens drilling and maintaining modern artillery has become increasingly distant. We rely on the standing military for these things, and the federalized guard. Maybe not such a good idea in the long run, but there it is. And unless that underlying reality changes, the courts and Congress are *VERY* unlikely to change the status quo.

 

[paramedic70002]

VA and some other states have a volunteer state guard component but the closest they come to "arms" is baton training AFAIK. They DO have specialized units such as a medical detachment for disasters. You have to guy your own uniforms and can NOT be federalized or sent outside of the state. You are a backup component of the NG for in state emergencies.

 

[Stophel]

"well, the 'supreme' court says..." P--s on the "supreme" court. Tyrants in black robes. They, and everyone else THINK they make laws. They don't. And their track record for making proper Constitutional decisisions is not good.

 

[303tom]

A question which has interested me for a long time is what kind of weapons exactly are covered under the second amendment. I've read here and there that an 'arm' is defined as any man-portable weapon, and that there are writings from the founding fathers to back this up. Can a constitutional scholar help me out with this? Anyway if this is true, ownership of all semiauto and full auto rifles, pistols, shotguns, and machine guns are protected, which I mostly agree with. And something like an ICBM is not covered, which in my opinion is a good idea.

What I'm interested in is the murky area in between which contains grenades, mines, mortars, and all the shoulder-fired explosives. All are man-portable, and all have a lot of destructive potential. In our ideal 2A world, anybody would be able to walk into a gun show and pick up a $400 RPG-7 without a background check. Is the safety risk of having large unregulated numbers of these weapons floating around worth it for the just-in-case scenario of a tyrannical government? What is tyranny anyway? Is a hillbilly rocketing the town hall over zoning laws a right or wrong use of the 2A?

As a side note, anti-gun people love to say stuff like, "If the government is coming with tanks and jets, what good will your assault weapon do?" It's kind of an asinine argument but there is some truth to it. If the true purpose of the 2A is to fight a tyrannical power, then I would guess 90% of the weapons in our gun safes are fairly useless. The Iraq invasion gives us a good look at what is really needed to run an insurgency: a disposable pistol for assassination, a toolkit for torture, and bombmaking know-how. All currently unregulated and easy to obtain.

Ain`t that, that thing you got with a hand on the end of it ?

 

[Stophel]

"The purpose of the 2nd Amendment was to give citizens the ability to fight foreign and domestic government forces if necessary, and prevail."

Zoogster, this is it. Short, sweet, and to the point. People today really don't like talking about resistance or rebellion against their government. But that is EXACTLY what the founders of this country did.

 

[joedotnet]

There used to be laws that REQUIRED citizens to carry a weapon.

Sent from my SGH-i937 using Board Express

 

[Owen Sparks]

Well arguably arms suitable for taking on and deterring military forces are what the 2nd protected. Since you cannot take on soldiers with brass knuckles there is certainly a legal argument that they would not be protected.

Then by logical extention shouldn't commoners be able to own our nations service rifle, the M16? Why can't you buy a new one of these?

Actually any weapon can be used by resistance fighters to disarm occupying soldiers. All it takes is a second of distraction to sucker punch someone and take his weapon. Brass knuckles are perfectly suited for this job. I saw an old movie a while back about the French resistance during WWII. Several Nazi soldiers were sitting at a table in a bar getting drunk and harassing the bar maid. The local resistance fighters posing as customers attacked all at once hitting them over the heads with clubs and bottles, cutting their throats and then disposed of the bodies. Any type of firearm would have made noise and alerted other Nazis.

 

[threoh8]

To suggest that the right protected in the Second Amendment is limited to the technology of the late 18th Century (e.g. flintlock musket vs the AR-15 family), and be consistent, one would have to also allow the government to limit the other rights to what technology was available at that time.

"... freedom of speech, or of the press ..." becomes limited to protecting communicating through your own voice - no electronic amplification, no electronic recording or transmission, no radio, no television - or to the use of quill pens or hand-set, single-sheet, manually operated printing presses. Any other form of communication or expression could be regulated, restricted, or banned. Petitions would only be the hand-signed variety.

 

[Owen Sparks]

Again I ask, is our current national service rifle not "useful in a militant capacity"?

 

[NoirFan]

Again I ask, is our current national service rifle not "useful in a militant capacity"?

I would say it's useful mainly in a symbolic sense. First world troops are hard targets; they move in armored convoys and have total air dominance. Insurgents against first world militaries achieve their victories by striking at soft targets like collaborators and the families of soldiers and police, not at the soldiers themselves. Compare US casualties in Iraq to civilian and Iraqi police deaths; civilians are a lot easier to kill than armed soldiers and manipulating them through fear is key to "winning" this kind of war.

This is why it's hard for me to work up enthusiasm for the idea of 2A protection of explosive weapons. Would it be nice for our theoretical anti-tyranny militia to be able to rocket a Humvee? It sure seems like it. But in real world insurgencies that capability doesn't seem to make much difference.

The Minutemen were not very effective against King George's Redcoats, and the gap between military and civilian technology has greatly widened since that time. Owning something like an AR15 is more an ideological 2A statement, than a practical one.

 

[Wanderling]

A question which has interested me for a long time is what kind of weapons exactly are covered under the second amendment. I've read here and there that an 'arm' is defined as any man-portable weapon, and that there are writings from the founding fathers to back this up. Can a constitutional scholar help me out with this? Anyway if this is true, ownership of all semiauto and full auto rifles, pistols, shotguns, and machine guns are protected, which I mostly agree with. And something like an ICBM is not covered, which in my opinion is a good idea.

What I'm interested in is the murky area in between which contains grenades, mines, mortars, and all the shoulder-fired explosives. All are man-portable, and all have a lot of destructive potential. In our ideal 2A world, anybody would be able to walk into a gun show and pick up a $400 RPG-7 without a background check. Is the safety risk of having large unregulated numbers of these weapons floating around worth it for the just-in-case scenario of a tyrannical government? What is tyranny anyway? Is a hillbilly rocketing the town hall over zoning laws a right or wrong use of the 2A?

As a side note, anti-gun people love to say stuff like, "If the government is coming with tanks and jets, what good will your assault weapon do?" It's kind of an asinine argument but there is some truth to it. If the true purpose of the 2A is to fight a tyrannical power, then I would guess 90% of the weapons in our gun safes are fairly useless. The Iraq invasion gives us a good look at what is really needed to run an insurgency: a disposable pistol for assassination, a toolkit for torture, and bombmaking know-how. All currently unregulated and easy to obtain.

1) The founding fathers had no idea about mass fire weapons. In their world, the guns that citizens carried were the same (often better) guns that troops carried. Neither of which packed much lethality. I don't know if citizens could own canons, but even so, the canons weren't really all that useful in everyday situations. Today, we have different kinds of weapons, some of which - like high rate of fire machine and submachine guns, RPGs, flame throwers, tanks etc. - have no justifiable use outside of military. We can't just let anyone buy any weapon simply for the sake of "protecting 2A". The 2A was never written with modern weapons in mind. In order to preserve 2A and right of citizens to bear arms, we need laws that regulate it. Not over-regulate it to the point of taking it away. But no free-for-all either. Some weapons are just way too excessive for justifiable self defense.

2) I am of a strong opinion that a poorly trained, poorly armed bunch of regular Joes with their AR-15s and 1911s, or even with submachine guns and RPGs, is no match for the modern military. In case of government turning on its own citizens, the answer is not to kill the soldiers, but to turn them against the government. Shooting at troops is only going to have the opposite effect. In a modern Western country, Ghandi approach wins. In case of a foreign invasion, of course, it's a different story. There, you bleed the aggressor AND paint yourself as a victim at the same time, if the aggressor is a democracy that to some extend listens to the public opinion at home. If you're dealing with Nazis or any other militarily strong dictatorship, you fight and hope for outside help. Or don't fight and hope for outside help. As much as I respect the Resistance, they didn't bring the Nazis down, they helped the Allies to do it.

 

[Vern Humphrey]

Today, we have different kinds of weapons, some of which - like high rate of fire machine and submachine guns, RPGs, flame throwers, tanks etc. - have no justifiable use outside of military. We can't just let anyone buy any weapon simply for the sake of "protecting 2A". The 2A was never written with modern weapons in mind. In order to preserve 2A and right of citizens to bear arms, we need laws that regulate it. Not over-regulate it to the point of taking it away. But no free-for-all either. Some weapons are just way too excessive for justifiable self defense.

Knock, knock! The purpose of the Second Amendment is to create a "second force" of citizenry capable of resisting the power of the state, should the government try to enslave them.

Which means they need weapons capable of fighting the forces of the state on an equal footing.

And the paradoxical outcome of this is, if the people have the ability to successfully resist a tyranicall state, the state will be very reluctant to put the issue to the test.

In strategic terms, we call this "force in being." The presense of the power to successfully resist changes the dynamics of the situation and reduces the liklihood of bloodshed.

2) I am of a strong opinion that a poorly trained, poorly armed bunch of regular Joes with their AR-15s and 1911s, or even with submachine guns and RPGs, is no match for the modern military. In case of government turning on its own citizens, the answer is not to kill the soldiers, but to turn them against the government. Shooting at troops is only going to have the opposite effect. In a modern Western country, Ghandi approach wins. In case of a foreign invasion, of course, it's a different story. There, you bleed the aggressor AND paint yourself as a victim at the same time, if the aggressor is a democracy that to some extend listens to the public opinion at home. If you're dealing with Nazis or any other militarily strong dictatorship, you fight and hope for outside help. Or don't fight and hope for outside help. As much as I respect the Resistance, they didn't bring the Nazis down, they helped the Allies to do it.

I take it you have never been in combat.

 

[Zoogster]

Neither of which packed much lethality

On the contrary people back then used horses to travel, and large bore guns as used back then were not that different from an RPG today. If you got hit by a musket or blunderbuss in the torso you generally died. If the horse got hit they fell over dying or having to be put down, and posing serious risk of injury or death to the rider in the process.


Grenades and massed grenadiers had lost some popularity by the time of the American Revolution (previously they had been a staple of military forces) but had been quite common for the prior couple hundred years.
The British continued to use grenades to an extent in the American Revolution.

Cannons were widely used, both by militaries and by private traders on the seas. Canister and grapeshot were common loads of the time period, shredding large numbers of men at a time like a large shotgun.
Chain shot was available, also very significant in an anti-personnel role, but typically used to destroy the masts of other ships as it cost more than canister and grapeshot.
Carcass shot was in use at the time by the royal navy, a cannon ball filled with flammable mixtures that was used to cause fires.
Improvised types of antipersonnel shot was also used, stuffing a cannon full of nails, rocks, and similar projectiles to shred many men at a time was common if they didn't have real projectiles on hand or ran out.


There was some fairly devastating things back then, and getting wounded by any of it was far more likely to be a death sentence than in modern times when someone is treated on the field and then rushed to a medical facility.
As late as the Civil War 'good' medical treatment for even a musket projectile in the leg was amputation of the entire limb and not dying of infection.
At the time of the founders you might survive a pistol round if you were lucky, but typically died from a long gun shot to the torso, or any injuries from the artillery of the day.


Finally the effectiveness of citizens is a separate but certainly valid issue. How effective such citizens would or would not be has no impact on the intent of the founders when creating the 2nd Amendment.