Right to Bear Arms - History

When the Right to Bear Arms was recognized in an Amendment to the Constitution of the USA, what sort of arms were they?

Muskets, muzzle loading rifles I think.

What was the upper limit? Could a person own a personal artillery piece back then? Grenades? Hand made flamethrowers? A Ship of the Line with full armament? Even back then there were numerous heavy weapons. Was this discussion ever done back at the time?

Originally posted by AThousandYoung
When the Right to Bear Arms was recognized in an Amendment to the Constitution of the USA, what sort of arms were they?

Muskets, muzzle loading rifles I think.

What was the upper limit? Could a person own a personal artillery piece back then? Grenades? Hand made flamethrowers? A Ship of the Line with full armament? Even back then there were numerous heavy weapons. Was this discussion ever done back at the time?

The question isn't what could they own, but whether a regulation restricting ownership of certain weapons would violate the Natural Right to Self-Defense.

Private merchant ships in the 1700s and beyond usually had some small cannon on them to discourage attack by small boats of pirates. Private citizens owned cannon; in fact, Civil war reenactors still own cannon that could fire grapeshot or canister.

When did weapons start being restricted in this country? The Governator has at least one tank I think but he has to destroy the gun on it I think. And of course there are many other restrictions now.

Originally posted by no1marauder
The question isn't what could they own, but whether a regulation restricting ownership of certain weapons would violate the Natural Right to Self-Defense.

Private merchant ships in the 1700s and beyond usually had some small cannon on them to discourage attack by small boats of pirates. Private citizens owned cannon; in fact, Civil war reenactors still own cannon that could fire grapeshot or canister.

Actually, it wasn't about self-defense. It was about defense of the commonwealth and protection against tyranny. There are very few references of the time to a connection between the second amendment and individual self defense. And of course the preamblo is all about a "well regulated militia," whatever that means.

Originally posted by Kunsoo
Actually, it wasn't about self-defense. It was about defense of the commonwealth and protection against tyranny. There are very few references of the time to a connection between the second amendment and individual self defense. And of course the preamblo is all about a "well regulated militia," whatever that means.

Whatever the Second Amendment itself says, there isn't any reasoned doubt that the Framers believed in a Natural Right to Self-Defense.

Originally posted by Kunsoo
Actually, it wasn't about self-defense. It was about defense of the commonwealth and protection against tyranny. There are very few references of the time to a connection between the second amendment and individual self defense. And of course the preamblo is all about a "well regulated militia," whatever that means.

if you read the framer's correspondence, you can see that they considered a person's right to bear arms as a regulating force against tyranny.

"Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States."

-noah webster.

i could even venture to argue that they believed the people should be better armed than the government!

I think the idea is more that a tremendous number of troops are tied down in martial law against an armed populace that it's impractical to do for any length of time.

Originally posted by Kunsoo
Actually, it wasn't about self-defense. It was about defense of the commonwealth and protection against tyranny. There are very few references of the time to a connection between the second amendment and individual self defense. And of course the preamblo is all about a "well regulated militia," whatever that means.

Actually, it was about self defense.

Prior to the Supreme Court's 2008 decision in District of Columbia v. Heller,1 the courts had yet to definitively state what right the Second Amendment protected. The opposing theories, perhaps oversimplified, were (1) an "individual rights" approach, whereby the Amendment protected individuals' rights to firearm ownership, possession, and transportation; and (2) a "states' rights" approach, under which the Amendment only protected the right to keep and bear arms in connection with organized state militia units.2 Moreover, it was generally believed that the Amendment was only a bar to federal action, not to state or municipal restraints.3

However, the Supreme Court has now definitively held that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia, and to use that weapon for traditionally lawful purposes, such as self-defense within the home. Moreover, this right applies not just to the federal government, but to states and municipalities as well.

In Heller, the Court held that (1) the District of Columbia's total ban on handgun possession in the home amounted to a prohibition on an entire class of "arms" that Americans overwhelmingly chose for the lawful purpose of self-defense, and thus violated the Second Amendment; and (2) the District's requirement that any lawful firearm in the home be disassembled or bound by a trigger lock also violated the Second Amendment, because the law made it impossible for citizens to use arms for the core lawful purpose of self-defense.

The Court reasoned that the Amendment's prefatory clause, i.e., "[a] well regulated

Militia, being necessary to the security of a free State," announced the Amendment's purpose, but did not limit or expand the scope of the operative clause, i.e., "the

right of the people to keep and bear Arms, shall not be infringed." Moreover, the prefatory clause's history comported with the Court's interpretation, because the prefatory clause stemmed from the Anti-Federalists' concern that the federal government would disarm the people in order to disable the citizens' militia, enabling a politicized standing army or a select militia to rule.

Further, the Court distinguished United States v.Miller,4 in which the Court upheld a statute requiring registration under the National Firearms Act of sawed-off shotguns, on the ground that Miller limited the type of weapon to which the Second Amendment right applied to those in common use for lawful purposes.

In McDonald v. Chicago,5 the Court struck down laws enacted by Chicago and the village of Oak Park effectively banning handgun possession by almost all private citizens, holding that the Fourteenth Amendment incorporated the Second Amendment right, recognized in Heller, to keep and bear arms for the purpose of self-defense.

The Court reasoned that this right is fundamental to the nation's scheme of ordered liberty, given that self-defense was a basic right recognized by many legal systems from ancient times to the present, and Heller held that individual self-defense was "the central component" of the Second Amendment right. Moreover, a survey of the contemporaneous history also demonstrated clearly that the Fourteenth Amendment's Framers and ratifiers counted the right to keep and bear arms among those fundamental rights necessary to the Nation's system of ordered liberty.
http://caselaw.lp.findlaw.com/data/constitution/amendment02/

Originally posted by no1marauder
Whatever the Second Amendment itself says, there isn't any reasoned doubt that the Framers believed in a Natural Right to Self-Defense.

Do you have any evidence for that?

Originally posted by VoidSpirit
if you read the framer's correspondence, you can see that they considered a person's right to bear arms as a regulating force against tyranny.

"Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the pe ...[text shortened]... n venture to argue that they believed the people should be better armed than the government!

That is of course different from self-defense.

Originally posted by utherpendragon
[b]Actually, it was about self defense.

Prior to the Supreme Court's 2008 decision in District of Columbia v. Heller,1 the courts had yet to definitively state what right the Second Amendment protected. The opposing theories, perhaps oversimplified, were (1) an "individual rights" approach, whereby the Amendment protected individuals' ri ...[text shortened]...
http://caselaw.lp.findlaw.com/data/constitution/amendment02/

[/b]

I'm missing any quotations from the framers in there. I know that's what five members of the supreme court signed their name to. But I'm looking for quotes from Madison or someone else actually involved with the drafting and passing of the Bill of Rights.

Originally posted by Kunsoo
Do you have any evidence for that?

That cannot be a serious question.

Originally posted by Kunsoo
That is of course different from self-defense.

the purpose is not defined in the usa constitution. it specifies only that the people have the right to keep and bear arms and this right shall not be infringed (ie: by the government).

some states specifically have a self-defense clause in their state constitutions, but this does not preclude the use of arms for other purposes.

Originally posted by VoidSpirit
the purpose is not defined in the usa constitution. it specifies only that the people have the right to keep and bear arms and this right shall not be infringed (ie: by the government).

some states specifically have a self-defense clause in their state constitutions, but this does not preclude the use of arms for other purposes.

Well, that's a different argument.

However, in law, every word in a statute or constitutional provision is presumed to have purpose, meaning, and effect. And of all of the Amendments contained in the Bill of Rights, the Second is the only one containing an explanatory preamble. The law cannot presume that it's an accident. There must be a reason.

Therefor, the following,

"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."

cannot be deemed the equivalent of:

"The right of the people to keep and bear Arms, shall not be infringed."


There has to be some effect and application to the first part of the sentence. It has to help define the right.

What it suggests to me is that there was a debate about it, which perhaps did not make it into the record (which is true of much of the Constitutional Convention). This was compromise language, and as with other legislation, each side of whatever issues were argued hoped to use the ambiguity to their advantage in future legal or political disputes.

Contrary to popular belief, there was considerable gun regulation at the time. Pennsylvania, for instance, required a loyalty oath prior to gun ownership. Pennsylvania, by the way, as of 1776, also had a state Constitutional provision which mentioned both individual self-defense as well as collective defense. But Madison and the others left the individual element out. Why? It's not clear. But under Common Law principle it must be deemed to have been deliberate.

The initial drafts also included a provision which would have allowed religious pacifists to avoid gun ownership and military service, but that didn't make it into the final draft.

One of the rejected proposals also defined, somewhat, a militia. Nothing ever defined "well regulated."

But nowhere is there proof in the convention discussions that the amendment was intended to protect an individual's right to self-defense. You pretty much have to go to the 9th amendment for that, and ultimately the 14th. And that does not necessarily allow you any weapon you want. We have a Supreme Court case which ruled that the ownership of a sawed-off shotgun is not protected by the amendment because it has no practical use in a well-regulated militia. There is also Circuit Court case which held the same for switchblades. The weapon ownership must have some reasonable relationship to the militia purpose. That was weakened by the latest decision, but not explicitly overturned. Scalia doesn't like to do that, although it appears that nunchuks are protected even if switch blades are not.

Originally posted by Kunsoo
[b]Well, that's a different argument.

However, in law, every word in a statute or constitutional provision is presumed to have purpose, meaning, and effect. And of all of the Amendments contained in the Bill of Rights, the Second is the only one containing an explanatory preamble. The law cannot presume that it's an accident. There must be a reason.

The ...[text shortened]... nt of:

"The right of the people to keep and bear Arms, shall not be infringed."

[snip]

perhaps the ambiguity was deliberate as you say, this could have been done in order to give individual states more leeway in deciding right to arms articles in their own constitutions.