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Old January 22, 2013, 06:24 PM   #1
horatioo
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question about "arms" in 2nd amendment

What does "arms" mean?

I read a lot of places where it means portable weapons that an average military guy might carry around. This definition seems to include fully automatic weapons.

I read somewhere else that most of the cannons in use during the time the constitution was written were owned by civilians and the 2nd amendment included weapons like that as arms.

I thought most of the battle ships of the time were commercial ships retrofitted to be battle ships and I included them in an argument I was making one time.

Thanks
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Old January 22, 2013, 06:38 PM   #2
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From my understanding the "common use" you're talking about came from Miller, where the SCOTUS held they didn't know what the second amendment was, but they knew what it protected... the weapons that would be used in a militia. Then a few decades later, along came Heller- they held they knew what the second amendment was- an individual right to bear arms- and that arms were the ones in common use of the time. And while there's some places where Heller and Miller can theoretically grind their gears hashing some stuff out I suppose, for the most part, they're pretty safe saying the militia would be civilian, and the arms in common use, are the ones in common use by civilians. At least that's where I am in my reading.

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Old January 22, 2013, 06:42 PM   #3
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Old January 22, 2013, 06:45 PM   #4
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"Arms" is a term of art that predates 2A and the broad use of firearms by a couple of centuries in various laws related to the right of an individual to self-defense against predation by individuals or mobs.

Arms are what is effective and appropriate to the threat against an individual, and so edged weapons and the like are included, as are firearms. When firearms are replaced by phasers, 2A will mean the same and include them.

The basis of the "militia" is individuals, who by definition had to keep, bear and use contemporary arms so that they could be practiced and effective. The arms contemplated there were whatever modern military arms were, so that the militia could offer an effective defense.

Possession of cannon and Apache helos by an individual, as frivolously imagined by some people I have talked with, are outsized arms compared to the fundamental intent of 2A, but IMNHO, possession of an M4 carbine and large magazines would fit. Standard infantry arms. I think grenades and the like similarly would be excessive in the circumstances of modern life, but not so much, perhaps. The Mexican cartels use them...

I am sure someone can provide a more learned response.
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Old January 22, 2013, 07:22 PM   #5
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I look at it this way…..

He said to them, “But now if you have a purse, take it, and also a bag; and if you don’t have a sword, sell your cloak and buy one.” Luke 22:36

The arms of the times were swords, therefore God intended man to have the right to keep and bear swords.

The arms of the times of the writing of the constitution were flintlock muzzle loaders. The Founding Fathers as well as God intended man to have the right to keep and bear flintlock muzzle loaders.

Today, the arms of the times are many, but let’s just focus on, say the AR15. God intends man to have the right to keep and bear AR15’s.

There is no doubt in my mind about this.
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Old January 22, 2013, 07:53 PM   #6
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The original use of the militia was to fight against foreign enemies (which would include the Indian tribes on the frontier) and domestic tyranny (just as the British subjects in America were subjected to prior to the War).

With that in mind I believe we would have to say the 2A confirms the right of citizens to use at least what would used by militia in fighting battles to defend their country, communities or homes. At a bare minimum this should be the standard issue arms of the infantry soldier: M16/M4 class rifle, sniper rifle up to .50BMG, shotguns, pistols, MP5 submachinegun, etc. These should be 100% allowed without question.,

A good case could be made for other arms commonly issued to individual infantry such as light and medium machine guns suchas M240 and M249, grenades, claymores, grenade launchers, LAWs, etc. If you were fighting an all out battle on the frontier, or an invading or tyrant army and could not wait to be supplied by the national standing army you would want all of those arms at a minimum.

Reality is that we have fallen far from our "inalienable right." From what I understand the Court has ruled that the 2A covers "the" standard infantry arm (rifle) and that "reasonable" restrictions are allowed on this right. Presumably semi-auto only action is one of these reasonable restrictions. We have yet to find out what other restrictions the Court will find reasonable, but I presume they will have difficulty allowing standard infantry arms such as SAW, grenade launcher, LAWs rocket.
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Old January 22, 2013, 08:07 PM   #7
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NWPilgrim, are you okay with people owning grenades and claymore mines etc? I am not sure I am, but maybe I am.

I think the problem is that so many people arent okay with that. If you convince people that is what the constitution supports they are more then okay pretending the constitution says something else.

I dont know.
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Old January 22, 2013, 09:03 PM   #8
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I was ot saying what I want necessarily. I was saying how I read the 2A and what it should mean in that context.

What I said was the standard arms like rifle and pistol should be a no brainer. I also said a good (logic) case could be made for other standard infantry arms such as the SAW, grenades, LAW, etc.

The point I was trying to make is we have so corrupted such simple language about the 2A that not even the standard rifle and pistol is allowed in all parts of the US. Let alone have a rational debate on the full meaning and how that applies to other standard arms.

If we don't like the 2A we should change it. But we should not have Court decisions and laws made that neuter the 2A just because we/they/someone don't like what it means. We should agree on the actual meaning before we launch off into a plethora of gun laws, and if fight the gun laws we should state the truth and not settle for spinless compromises just to feel good.
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Old January 22, 2013, 11:59 PM   #9
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Quote:
Originally Posted by HarrySchell
Possession of cannon and Apache helos by an individual, as frivolously imagined by some people I have talked with, are outsized arms compared to the fundamental intent of 2A,
I disagree.

Outside of the 2nd Amendment itself, the contemporaneous writings of the Founders on the topic of the 2nd Amendment clearly indicate that what they had in mind was "all the terrible implements of the soldier" (Tench Coxe), and that the militia (that is to say, the People) were to be armed sufficiently so as to be stronger than any standing army. Back then, that meant cannon. Today, that means full-auto portable arms, tanks, Bradley Fighting Vehicles, Apache gunships, and the most advanced fighter aircraft the Navy and Air Force have got.

Yeah, I know they won't let me park a fully-armed Apache in the garage, but that IS what the 2nd Amendment means. And always has meant.
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Old January 23, 2013, 12:50 AM   #10
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As with most other rights, the Second Amendment is not an unlimited right. In his dicta from the Heller case, Justice Scalia noted that regulation or prohibition of "dangerous our unusual" weapons would not run afoul of the Second Amendment. What was left ambiguous, however, was what exactly constitutes a "dangerous or unusual" weapon. As is usually the case with restriction of rights, the best test when speaking about the regulation or banning of weapons is to compare the proposed regulation's benefit to public interest against its abridgment of personal liberty. A regulation that greatly increases public safety while only minimally affecting liberty is a reasonable one while the regulation that serves little or not benefit to public safety but greatly diminishes personal liberty is an unreasonable one.

Now, as to high explosives and weapons of mass destruction, I think it's fairly obvious that the benefit to public safety created by banning such things greatly outweighs the abridgment of personal liberty that such a ban represents. These weapons are so indiscriminately destructive that there are very few, if any, ways to utilize them that does not represent an obvious danger to innocent bystanders. I cannot think of any way that a person could use a brick of C4, canister of VX nerve gas, or suitcase nuke to defend himself/herself that would not pose a likely, if not certain, threat to the safety of anyone else around.

Firearms, however, are a different kettle of fish. Firearms do not generate indiscriminate destruction and, in skilled hands, a firearm can be used to destroy only that which the user wishes to destroy. SCOTUS obviously agrees with this notion as they have twice ruled that a total ban of private firearm ownership is unconstitutional.

Where the true debate lies is whether or not specific types of firearms represent a grave enough threat to public safety to justify heavy regulation or outright prohibition of their ownership. Currently, this debate seems to be focused on so-called "assault weapons" but, when the facts are considered, this should be fairly obvious because most of the features which have come do define a firearm as an "assault weapon" are cosmetic and have no bearing on the gun's destructiveness.

Another facet of this debate which has been discussed at length on this very forum is whether or not NFA weapons such as silencers/suppressors, guns with bore diameter over 50 caliber, short barrel rifles/shotguns, and most contentiously fully automatic weapons are destructive enough to warrant a ban. Many argue that fully automatic weapons in particular are indiscriminate by nature and thus warrant heavy regulations or complete bans on private ownership.

I personally do not agree with this sentiment. While fully-automatic fire, by its nature, is indeed more indiscriminate that semi-automatic fire, it is not so to the degree that explosives or WMD's are. A bullet fired by a full-auto weapon is no more destructive than one fired by a semi-auto weapon and the bullets will still only go where the muzzle is pointed. Furthermore, many fully-automatic weapons have a selector switch which allows the user to choose between semi-automatic and fully automatic fire as is appropriate for the situation at hand. Police seem to have found merit with select-fire weapons and I fail to understand how they should be any less concerned with indiscriminate fire than anyone else. Finally, just because a fully automatic weapon can cause indiscriminate destruction, that does not mean that it can only be used to do so. If I want a machine gun to simply burn up lots of ammo at the range because I think it's fun, I'm not hurting anyone else by doing so and thus I do not feel that it should be anyone's business but my own.
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Old January 23, 2013, 04:23 AM   #11
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arms are weapons.

That includes knives, swords, axes, halberds, pikes, bows and crossbows and not just firearms. In my opinion it includes much more than what I just listed.

arms are military weapons.

Weapons used in war.

Not sporting weapons such as a skeet shotgun.

Once you whittle the 2nd amendment down to the point that only sporting firearms are allowed than you enter into a legal trap.
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Old January 23, 2013, 08:39 AM   #12
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"Now, as to high explosives and weapons of mass destruction, I think it's fairly obvious that the benefit to public safety created by banning such things greatly outweighs the abridgment of personal liberty that such a ban represents. These weapons are so indiscriminately destructive that there are very few, if any, ways to utilize them that does not represent an obvious danger to innocent bystanders. I cannot think of any way that a person could use a brick of C4, canister of VX nerve gas, or suitcase nuke to defend himself/herself that would not pose a likely, if not certain, threat to the safety of anyone else around."

The problem with the banning of anything related to the 2nd ammendment, for any reason, starts a crack in the entire debate that weakens further arguments for non restrictions of lesser arms. If the whole idea was to have militia equally armed so that no standing army could act, I believe this was meant to disuade any one president from becomming a king or monarch,(include sir cuomo also) then so be it.
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Old January 23, 2013, 08:52 AM   #13
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Quote:
Originally Posted by Webleymkv
As is usually the case with restriction of rights, the best test when speaking about the regulation or banning of weapons is to compare the proposed regulation's benefit to public interest against its abridgment of personal liberty. A regulation that greatly increases public safety while only minimally affecting liberty is a reasonable one while the regulation that serves little or not benefit to public safety but greatly diminishes personal liberty is an unreasonable one.
One problem with the standard you propose is that it eliminates the constitutional protection stated in the Second Amendment. To any justice predisposed to approving a ban or restriction, the increase in public safety will always outweigh the burden of an infringement.

The more useful test would be:

1. Does the government have a compelling interest in creating the law?

2. Is the statute "narrowly tailored" to meet the government's objectives?

3. Are there less restrictive means of accomplishing the same thing?


A court that reaches its conclusion first then cobbles together ad hoc reasoning in support of that conclusion can distort any test, but at least conventional strict scrutiny puts them to a bit more effort.

Last edited by zukiphile; January 23, 2013 at 02:27 PM.
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Old January 23, 2013, 09:53 AM   #14
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Quote:
Originally Posted by zukiphile
The more useful test would be:

1. Does the government have a compelling interest in creating the law?

2. Is the statute is "narrowly tailored" to meet the government's objectives?

3. Are there less restrictive means of accomplishing the same thing?
This would be the standard "court approved" methodology for "infringing" on a right.


Otherwise, I agree with Webleymkv, except to the extent that I believe there are considerations beyond self-defense.

C4, for example. Defensively it's a stretch, no doubt, but at one time not so long ago, it was completely legal, and quite common, for farmers and folks with similar needs to buy dynamite. I see no reason that C4 wouldn't be similar. Dynamite was baneed for essentially the same reason that they're going after our guns... a few nuts did some really bad stuff so the powers that be took the stuff away.

Personally, I believe the limits should be on items of truly massive destruction only, such a nukes and nerve gas.
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Old January 23, 2013, 10:12 AM   #15
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I believe we as citizens have been more than reasonable in the compromise of our 2A rights. I don't know any civilian that has an Apache, etc., tanks, grenades, claymores, etc. that the government forces have access to that they could use against us. We are already under-armed as compared to the potentially "tyrannical" government that 2A was intended to protect us from.
We need to look at all the various forms of power the federal government has grabbed that the original Founders never meant the federal government to have. Most of the federal laws and programs that the federal government has were meant to be dealt with on the state level. I realize however that if the states tried to recover the authority that was intended to be theirs that the federal government would make it extremely rough on such states up to armed invasion against its citizens. Remember the War of Northern Aggression (aka the Civil War)? What was civil about that?
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Old January 23, 2013, 10:49 AM   #16
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Quote:
Originally Posted by Webleymkv
As with most other rights, the Second Amendment is not an unlimited right. In his dicta from the Heller case, Justice Scalia noted that regulation or prohibition of "dangerous our unusual" weapons would not run afoul of the Second Amendment.
I am well aware that Mr. Justice Scalia wrote this (moderator Frank Ettin keeps beating me over the head with it), but the fact Mr. Justice Scalia wrote that doesn't make it true. It means that's the SCOTUS interpretation and we're stuck with it, but even the SCOTUS has on (rare) occasion reversed itself, indicating that they are not infallible.

No matter how you parse it, there is simply nothing in "shall not be infringed" that in any way opens the door to "reasonable regulation." Regulation = infringement. The Founders were conversant with the word "reasonable." They specifically provided in the 4th Amendment a prohibition against "unreasonable" searches and seizures. That they did NOT provide in the 2nd Amendment for "reasonable" infringement (regulation) should be clear proof that they did not INTEND for the RKBA to be subject to regulation.

In fact, that's just what they said. Exactly.
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Old January 23, 2013, 11:17 AM   #17
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If I had my way full auto guns would still be under NFA restriction but I would lift the registered before 1986 requirement.

To me it is silly that you can have one if you are rich, but a "normal" guy you could never afford one.
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Old January 23, 2013, 12:12 PM   #18
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I have been very conservative in my comments here about the 2nd amendment but I generally think the definition of arms should be broadly (liberally, if you will) defined. However, other points of the amendment give much more trouble.

While I doubt there were many cannon parked in people's carriage houses during the 1780s and 1790s, it is true there were armed merchantmen (commercial sailing ships) at the time. Here the sticking point is that the owners of those ships had to obtain letters to permit them to act as privateers or, private warships. That system was also in place in other countries at the time. Such licenses only authorized the holders to attack only ships of certain other countries that we happened to be at war with. The lack of such a license essentially made them pirates. Perhaps you have heard of pirates. That's where the expression "shores to Tripoli" came from, fighting them where they lived.

Private ship owners did not want to become privateers out of patriotism but rather because of the profit motive, which still exists, apparently.

More to the point, however, is the question of exactly why they just had to go and mention the militia, which, contrary to some folk's idea, was not the whole people. It was a legally defined body (which excluded well over half the population) and it was mostly compulsory. Chances are, were it the same today, people would kick at the idea of compulsory military service, even if it were only for local defense purposes.

If the second amendment were replaced with a rewritten amendment, how doyou think it should read?
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Old January 23, 2013, 12:25 PM   #19
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Quote:
Originally Posted by BlueTrain
While I doubt there were many cannon parked in people's carriage houses during the 1780s and 1790s, it is true there were armed merchantmen (commercial sailing ships) at the time. Here the sticking point is that the owners of those ships had to obtain letters to permit them to act as privateers or, private warships. That system was also in place in other countries at the time. Such licenses only authorized the holders to attack only ships of certain other countries that we happened to be at war with. The lack of such a license essentially made them pirates.

The unauthorized USE of their ships against unauthorized targets made them pirates.

The OWNERSHIP did not and the use of which for any ordinary purpose, such as proficiency training or BOOM! Wow that was fun!, did not.


Quote:
If the second amendment were replaced with a rewritten amendment, how do you think it should read?
Being that a free people should indeed be free, the right of the people to keep and bear the arms of their choosing will not be infringed, questioned or restricted.
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Old January 23, 2013, 12:46 PM   #20
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It is asked often what they meant when the 2nd amendment (and the other amendments in the bill of rights) was written. An interesting question to consider is what they would write today, given the things that have been happening in the last 100 years, or what would appear were the constitution itself rewritten.
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Old January 23, 2013, 12:48 PM   #21
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Bluetrain:

No doubt you're right that there would be major resistance to mandatory militia duty but I think we would be far better off as a nation if we went back to that model for our primary national defense. If nothing else it would make military adventurism less politically popular.

Personally, I think it's almost inevitable that our financial situation will force major military cuts eventually, either that or a major war to prop things up.

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Old January 23, 2013, 03:26 PM   #22
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To nazshooter, I have mentioned useful duties of a real militia several times but even here on this board there doesn't seem to be much interest. However, it is an arguable point as to whether or not it would make the country less likely to engage in foreign adventures, as you put it.

One reason is that the current full integration of the national guard into the overall military picture, as I understand it, was supposed to insure the complete agreement of the citzenry in any major military undertaking. But so far it doesn't seem to bother anyone any more than having females among the casualties. I suspect that the reason is because so relatively few among us actually ever have anything to do with the armed forces anymore, or so I am led to believe. In my own family I served, my son served and my son-in-law is currently serving. I guess we're among the few.

Other countries have, at times, raised military used specifically for home defense. That is, they weren't supposed to be liable for overseas service, although really only a handful of countries ever had overseas colonies. We've had troops stationed overseas for over a hundred years but never in what you would call a colony, unless you count Hawaii.

It is also worth pointing out that required military service such as exists in most countries always meets a certain amount of resistance from those who actually have to go, even including Switzerland, but I suppose that's natural.
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Old January 23, 2013, 03:40 PM   #23
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If the bankruptcy of cities and counties continues, the police forces they have fielded will be decimated. San Bernardino CA is an example.

The militia concept may be the only way for law-abiding citizens to provide for common defense. How that all gets put together and its formality may be very ad hoc or reasonably planned. It is possible that existing police agencies could collaborate in this. More likely, they and politicians will oppose it, for the threat they figure it presents to their authority.

During the Rodney King riots in Los Angeles CA, Korean shop owners armed and collaborated to the defend their properties, and those shops survived without being looted or burned. Adjacent, undefended businesses owned by others, including blacks, were looted if not burned. Los Angeles PD was nowhere to be found.
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Old January 23, 2013, 04:46 PM   #24
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And in New Orleans post-Katrina, members of the police department themselves engaged in looting.
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Old January 23, 2013, 04:49 PM   #25
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Quote:
Originally Posted by BlueTrain
While I doubt there were many cannon parked in people's carriage houses during the 1780s and 1790s, it is true there were armed merchantmen (commercial sailing ships) at the time.
How about prior to 1776?

There was no standing army, other than the British army, prior to the Revolution. And the Founders wanted no part of a standing army after the revolution. So if the cannon were not in the hands (or carriage houses) of "the People," where were they?
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