Right to Bear Arms

12 Key excerpts on "Right to Bear Arms"

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  Gun Control

  A Documentary and Reference Guide

  • Robert J. Spitzer(Author)
  • 2009(Publication Date)
  • Greenwood

    (Publisher)

  Chapter 4 • Early State Court Rulings on Gun Regulations and Rights 105 lation of a state law barring the carrying of such concealed weapons. The man appealed his conviction, arguing that the law should be struck down as in violation of the state’s right to keep and bear arms provision, which said: “the free white men of this state have a right to keep and bear arms for their common defence.” The court rejected the man’s appeal. In its decision, the court discussed at great length the origin and genesis of the Right to Bear Arms, dat- ing it to the British tradition and including discussion of the U.S. Constitution’s Second Amendment. Based on its analysis, the court concluded emphatically that the Right to Bear Arms referenced in all of these documents was a collective right for local or national defense of the people and the country, not an individual right to personal self- defense (such a right did and does exist in the law, but in criminal law and the common law tradition, not in con- stitutional law). Bringing together the British Bill of Rights, the Second Amendment, and the Ten- nessee provision, the court stated flatly that “No private defence, was contemplated” in that the Right to Bear Arms related “to public, and not private, to the common, and not the individual, defence.” The decision therefore made a clear distinction between civilian possession of weapons for citizens’ private use as distinct from that referenced in the various government documents by, for example, parsing the phrase “bear arms” as having “reference to their military use.” Even if a man went hunting “every day for forty years . . . it would never be said of him that he had borne arms,” underscoring the military nature of this phrase.

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  The Militia and the Right to Arms, or, How the Second Amendment Fell Silent

  • H. Richard Uviller, William G. Merkel, Neal Devins, Mark A. Graber, Neal Devins, Mark A. Graber(Authors)
  • 2003(Publication Date)
  • Duke University Press Books

    (Publisher)

  In late-eighteenth-century parlance, bearing arms was a term of art with an obvious military and legal connotation. ‘‘Carrying 26 the militia and the right to arms a gun’’ lacks the implication of bearing arms and, of course, the Con-stitution nowhere mentions a ‘‘right to carry a gun.’’ 73 As a review of the Library of Congress’s data base of congressional proceedings in the revolutionary and early national periods reveals, the thirty uses of ‘‘bear arms’’ and ‘‘bearing arms’’ in bills, statutes, and debates of the Continental, Confederation, and United States’ Congresses between 1774 and 1821 invariably occur in a context exclusively focused on the army or the militia. 74 State supreme courts had several opportunities during the antebel-lum years to assess the meaning of the phrase ‘‘keep and bear arms’’ in state constitutional provisions similar in form and words to the fed-eral Second Amendment. For example, interpreting a provision of the Tennessee Constitution that then declared, ‘‘The free white men of this state have a right to keep and bear arms for their common defence,’’ Tennessee’s highest court wrote: Every free white man may keep and bear arms. But to keep and bear arms for what? If the history of the subject had left in doubt the object for which the right is secured, the words that are employed must completely remove that doubt. It is declared that they may keep and bear arms for the common defence. The word ‘‘common’’ here used, means according to Webster; 1. Belonging equally to more than one, or to many indefinitely. 2. Belonging to the pub-lic. 3. General. 4. Universal. 5. Public. The object then, for which the right of keeping and bearing arms is secured, is the defence of the public. The free white men may keep arms to protect the public liberty, to keep in awe those who are in power, and to maintain the supremacy of the laws and the constitution.

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  Lies the Government Told You

  Myth, Power, and Deception in American History

  • Andrew P. Napolitano(Author)
  • 2010(Publication Date)
  • Thomas Nelson

    (Publisher)

  Lie #6 “The Right of the People to Keep and Bear Arms Shall Not Be Infringed”

  After the Constitution of the United States had been enacted and the issue of the Bill of Rights rose to the forefront, the Second Amendment was “passed [by] the House by a voice vote without objection and hardly a debate.”1 The debate that did exist was centered on whether or not the right to keep and bear arms actually needed to be articulated in the Constitution, since many saw it as a natural and thus fundamental right that could not be taken away by any government, absent due process. George Washington called the Second Amendment the teeth that gave the Constitution its bite.

  Essentially, the right to keep and bear arms is a restatement of the ancient natural right to self defense; it recognizes not only the right to protect oneself from criminal conduct, but also from a tyrannical state or federal government. That is why the Founding Fathers placed it second in the Bill of Rights, following behind only the right to freedom of expression and worship. And for almost one hundred and fifty years, the federal government did not interfere with this fundamental liberty.

  During the early twentieth century, the federal government’s benign attitude began to change. The progressives in the federal government began to erode this natural right, as they did many others, always with “good reason” for the “safety and security of the people.” Their descendants today argue that without gun control the U.S. will turn to anarchy; that, if armed, people will shoot each other on the streets during minor disagreements like traffic disputes. Yet when you ask those who make such claims whether they would shoot another person, the response is always, “Well, no; I

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  The Politics of Gun Control

  • Robert J. Spitzer(Author)
  • 2017(Publication Date)
  • Routledge

    (Publisher)

  Carl T. Bogus (New York: New Press, 2001), 226. See also Lucilius Emery, “The Constitutional Right to Keep and Bear Arms,” Harvard Law Review 28(March 1915): 473–77; Peter Buck Feller and Karl L. Gotting, “The Second Amendment: A Second Look,” Northwestern University Law Review 61 (March–April 1966): 48–49; Joyce Lee Malcolm, To Keep and Bear Arms (Cambridge, MA: Harvard University Press, 1994); Wilbur Edel, Gun Control (Westport, CT: Praeger, 1995), 1–9; and Ralph J. Rohner, “The Right to Bear Arms: A Phenomenon of Constitutional History,” Catholic University of America Law Review 16 (September 1966): 53–84. 8 Feller and Gotting, “Second Amendment,” 48–49; Rohner, “Right to Bear Arms,” 58; David T. Hardy, Origins and Development of the Second Amendment (Southport, CT: Blacksmith, 1986), 35; Lawrence D. Cress, “The Right to Bear Arms,” in By and for the People: Constitutional Rights in American History, ed. Kermit L. Hall (Arlington Heights, IL: Harlan Davidson, 1991), 64–66; National Commission on the Causes and Prevention of Violence (Washington, DC: Government Printing Office, 1969), app. J; and Carl T. Bogus, “The Hidden History of the Second Amendment,” U.C. Davis Law Review (Winter 1998): 375–86. 9 Macaulay, History of England, 1:269. 10 Keith Ehrman and Dennis A. Henigan, “The Second Amendment in the Twentieth Century: Have You Seen Your Militia Lately?” University of Dayton Law Review 15 (1989): 8–10. Firearms have been closely regulated in Britain from medieval times to the present. 11 Daniel J. Boorstin, The Americans: The Colonial Experience (New York: Vintage, 1964), 356; and Stephen Halbrook, That Every Man Be Armed: The Evolution of a Constitutional Right (Oakland, CA: Independent Institute, 1984), 58. 12 Lee Kennett and James L. Anderson, The Gun in America (Westport, CT: Greenwood Press, 1975), 61. See also Stephen Halbrook, “To Keep and Bear Their Private Arms,” Northern Kentucky Law Review 10 (1982): 13–39. 13 Richard L

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  Debunking Glenn Beck

  How to Save America from Media Pundits and Propagandists

  • Karl Alan Rogers Ph.D.(Author)
  • 2011(Publication Date)
  • Praeger

    (Publisher)

  Or perhaps it is just an old-fashioned way of writing that represents a pause without significance or perhaps it is just a smudge. Broadly speaking, Beck adopts the same interpretation of the Second Amendment as did Justice Antonin Scalia in the Supreme Court case of the District of Columbia v. Heller, 2008. 5 Scalia took the “individual right to self-defense” as the basic meaning of the Second Amendment, which won a 5–4 majority in declaring the Washington, D.C., law to be unconstitutional because, by banning handguns and requiring trigger locks on all firearms in the home, it unreasonably infringed on the individual right to self-defense. Scalia added that this right is not absolute, in the sense that it is not a right to keep and carry any weapon in any manner for any purpose, and it is reason- able for the state to regulate the carrying of concealed weapons, prohibit felons and mentally ill people from possessing firearms, prohibit the carrying of fire- arms in schools and government buildings, regulate the sale of firearms, and prohibit the possession and carrying of “dangerous and unusual weapons.” This ruling can be generally taken to be the individualist interpretation of the Second Amendment. Beck considers the debate over the Second Amendment as being not only a debate about whether citizens should have the right to protect themselves or whether this is the exclusive responsibility of the state but also a debate about the balance of power between the citizenry (the people) and the government (the state). He opposes the view that the Right to Bear Arms should be limited to the police, the military, and state organized militias (such as the National Guard) while individual citizens should either have no right to buy and own firearms or only have a strictly limited right (i.e., subject to background checks or only able to buy and own a limited number of firearms of a limited caliber, type, rate of fire, etc.).

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  Cato Supreme Court Review, 2007-2008

  • Ilya Shapiro(Author)
  • 2008(Publication Date)
  • Cato Institute

    (Publisher)

  54 Next he dispatches the argument that the terms ‘‘bear arms’’ or ‘‘keep and bear arms’’ had an exclusively military connotation at the time of ratification. Putting those points together and examining them against the backdrop of the history 53 Heller, 128 S. Ct. at 2816–17. 54 Id. at 2790–91 (2008). 147 C ATO S UPREME C OURT R EVIEW relevant to the Framers—including particularly the disarmament of political dissidents by the Stuart kings in 17th-century England— Justice Scalia concludes the Second Amendment codified a widely recognized, pre-existing right of individuals ‘‘to possess and carry weapons in case of confrontation.’’ 55 Examining the prefatory clause next, Justice Scalia describes the political tensions that gave rise to the Second Amendment and argues persuasively that while maintaining a well-regulated militia happens to be the specific reason mentioned in the text of the amend-ment for prohibiting the government from infringing the people’s right to keep and bear arms, it was certainly not ‘‘the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting.’’ 56 He then shows that the drafting history of the Second Amendment is inconclusive at best, with at least as many clues pointing towards an individual rights interpretation as otherwise. Among the most devastating points in Justice Scalia’s opinion— and one for which the collective rights camp has never had much of a response—is the raft of historical evidence showing that all the major commentators from the time of ratification through the early 20th century understood the Second Amendment as protecting an individual, not a collective or militia-centric, right to arms.

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  Criminal Law

  • Joel Samaha(Author)
  • 2016(Publication Date)
  • Cengage Learning EMEA

    (Publisher)

  ordinance. Second Amendment “the right of law-abiding, responsible citizens to use arms in defense of hearth and home” Copyright 2017 Cengage Learning. All Rights Reserved. May not be copied, scanned, or duplicated, in whole or in part. Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 56 CHAPTER 2 • CONSTITUTIONAL LIMITS ON CRIMINAL LAW According to the majority, “Like most rights, the right secured by the Second Amendment is not unlimited. . . . The right [is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose” (2816–17). It then provided a list of “presumptively lawful” examples, which it made clear was not “exhaustive.” Here’s the list: 1. Carrying concealed weapons 2. Felons possessing firearms 3. Mentally ill persons possessing firearms 4. Carrying firearms in sensitive places such as schools and government buildings 5. Laws imposing conditions and qualifications on the commercial sale of arms 6. Laws banning “dangerous and unusual weapons” not in common use, such as M-16 rifles and firearms used in the military (2817) 7. Laws that regulate “storage of firearms to prevent accidents” (2819–20) Despite all the talk about limits, Heller is still an important decision for at least three reasons. First, it renders the first clause in the Second Amendment irrelevant: “A well regulated Militia, being necessary to the security of a free State. . . .” Second, it doesn’t rule out expanding the right beyond the narrow boundaries of Heller and McDonald.

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  The Truth About Gun Control

  • David B Kopel(Author)
  • 2013(Publication Date)
  • Encounter Books

    (Publisher)

  In every state in which the people have had the opportunity to vote directly, they have endorsed the right to arms by landslide margins. Since 1968, the people of 23 states have chosen, either through their legislature or through a direct vote, to add a right to arms to their state constitution, to readopt the right to arms, or to strengthen an existing right. In addition, 37 state constitutions specifically protect the right of self-defense – sometimes as part of the arms right and sometimes stated separately. R IGHT TO C ARRY By the early 1970s, the legal carrying of handguns for protection in public places had been suppressed in most states. The typical system was that carrying required a permit; the permit required “good cause” in the view of government administrator; and ordinary citizens who merely wanted to protect themselves were almost never considered to have good cause. About a half-dozen states were exceptions to this general rule. Starting in Florida in 1987, state after state enacted licensing-reform laws. The laws prevented abuse of discretion by using objective standards. If an adult passes a fingerprint-based background check and a safety class, then she “shall” be issued a concealed-handgun carry permit. Today in 41 states, a law-abiding, competent adult has a clear path to a lawful concealed carry. So in those 41 states, when Americans go to a shopping mall, a restaurant, a park, or most other public places, they are in a place where some people are lawfully carrying firearms. Whether licensed carry causes a statistically significant decline in violent crime is a subject of scholarly debate. The evidence is overwhelming that there is no statistically significant increase in crime. In every state where “shall issue” has become the law, it has disappeared from the gun-control debate within a few years

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  A History of Private Policing in the United States

  • Wilbur R. Miller(Author)
  • 2018(Publication Date)
  • Bloomsbury Academic

    (Publisher)

  12

  The Supreme Court continued to limit the Right to Bear Arms to militia service through the twentieth century. In 1934, Congress passed the first national arms control legislation, heavily taxing weapons such as sawed-off shotguns that were used in committing crimes like the bank robberies that plagued the first half of the decade. The Supreme Court weighed in after an Arkansas court quashed the indictment of two petty criminals for carrying a sawed-off shotgun across state lines. The lower court argued that bearing arms was an individual right, against a host of case law and legal scholarship. The government appealed to the Supreme Court, which ruled in 1935 that, as Justice McReynolds said, “We construe the Amendment as having relation to the military service and we are unable to say that a sawed-off shotgun has any relation to the militia.” The Federal Government could regulate individual purchase and possession of certain weapons. Since there were no longer state militias, the Court implied that the Right to Bear Arms applied only to the National Guard, leaving states to regulate individual use or not as they chose.13

  The New York state constitutions of 1821 and today do not include a Right to Bear Arms in their bill of rights sections.14 At the other end, the 1845 Texas state constitution’s bill of rights was clear about an individual Right to Bear Arms: “Every citizen shall have the right to keep and bear arms in the lawful defence of himself or the State.” The only regulation of arms referred to bowie knives and daggers. Even if these were used in a homicide without intent to kill, caused by provocation or threat, the offense must be murder rather than the usual manslaughter (Ch. XV, article 610).15 Today’s Constitution, like that of 1876, keeps the same individual language, adding “but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.”16

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  Culture Wars in America

  A Documentary and Reference Guide

  • Glenn H. Utter(Author)
  • 2009(Publication Date)
  • Greenwood

    (Publisher)

  Had the court believed the amendment pro- tected only a militiaman’s privilege or a state power, it would have rejected the case on the grounds that the defendants were neither actively-serving militiamen or states. As the Heller court noted, the Miller court never questioned the defendants’ standing. It questioned only whether a short-barreled shotgun had ‘‘a reasonable relationship to the preservation or efficiency of a well regulated militia,’’ which it Culture Wars in America 152 described as private citizens ‘‘bearing arms sup- plied by themselves and of the kind in common use at the time.’’ As indicated in the Heller decision, the Supreme Court has always recognized that the Second Amendment protects, and was intended by the Framers to protect, a purely individual right of individuals to keep and bear arms useful for defense, hunting, training and all other legiti- mate purposes. SOURCE: National Rifle Association, ‘‘The Second Amendment,’’ http://www.nraila.org/Issues/FactSheets/ Read.aspx?id=177. Reprinted courtesy of the National Rifle Association. ANALYSIS The National Rifle Association and other gun rights organizations expressed their enthusiastic support for the Supreme Court decision in Dis- trict of Columbia et al. v. Heller. In its official comment on the decision, the organiza- tion stated the long-standing position of the organization on the issue of firearm ownership and use. For gun rights groups and individual supporters of the right to keep and bear arms, attempts to limit gun ownership and use represents an attempt by a tyrannical power to squash the prime protection of liberty. Advocates consider the right to keep and bear arms to predate the Constitution, which essentially recog- nizes the existence of a right that must be vehemently protected against what are labeled the misdirected intentions of gun control supporters.

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  The Mythic Meanings of the Second Amendment

  Taming Political Violence in a Constitutional Republic

  • David C. Williams(Author)
  • 2008(Publication Date)
  • Yale University Press

    (Publisher)

  In fact, the social world is full of entities intermediate between the government and individuals, entities com-posed of persons connected through rich cultural and institutional commonal-ities. After decades of neglect, interest in these intermediate groups has begun 76 The Framers’ Constitution to burgeon as some have found a fiercely individualistic world to be hollow and unhealthy. In part III, I will suggest that the Second Amendment, read in its original context, has something to contribute to this revival, and, correla-tively, the revival may contribute to giving the amendment a modern meaning more congruent with its language. THE SCOPE OF THE RIGHT TO ARMS If the Body of the People is the entity that possesses the right to arms, it remains to define the nature of the right. Put simply, the right consists of a right ‘‘to keep and bear arms’’ so as to resist government should it become corrupt. Phrased thus, the right may seem startling, even terrifying, but it contains a number of important qualifications that bear emphasis. No Mandate for the Body of the People First, the right to keep and bear arms belongs only to the Body the People, an entity that is culturally united and institutionally bound into a universal militia. If the Body of the People or a close analogue does not exist today, the amendment simply cannot have its original meaning under modern circumstances. Parts II and III of this book will examine whether an analogue does exist and what the right might mean in its absence. Although the Framers guaranteed that the Body of the People should have the right to arms, they did not constitutionally mandate that Americans must constitute a Body of the People. It probably never occurred to them to try to mandate cultural unity, as the law cannot realistically compel such a result. By contrast, they could realistically have tried to mandate a universal militia, and such a course would have been consistent with their belief in its necessity.

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  Gun Control and the Constitution

  The Courts, Congress, and the Second Amendment

  • Robert J. Cottrol(Author)
  • 2023(Publication Date)
  • Routledge

    (Publisher)

  133 At the time it was drafted, however, the English right to have arms was solely an individual right. By the outbreak of the American Revolution, it had been transformed into both an individual and a collective right.

  128. The Whigs had sizable majorities on the commutes which drafted the Declaration of Rights, and those most outspoken in favor of a general possession of arms for the purpose of resisting tyranny were Whigs. See L. Schwoerer, supra note 120, at 152; and members quoted in j. Somers, supra note 120, at 107-18, with their affiliation as described by Schwoerer. See also D. Lacey, Dissent and Parliamentary Politics in England, 1661-1689, at 382-83, 422-23 (1969).

  129. Rawlinson MS D 1079, supra note 125, at fol. 8.

  130. 10 H.C. Jour ., 1688-93, at 21-22.

  131. 1 W. & M., Sess. 2, ch. 2 (1689).

  132. J. Western, Monarchy and Revolution: The English State in the I680’s, 339 (1972).

  The actual impact of the English right as stated in the new Bill of Rights is far more difficult to determine than its meaning. Modern critics have argued that the limitation to Protestants of the right to have arms and the qualifying clauses further restricting lawful possession by Protestants to those weapons “suitable to their conditions” and “as allowed by Law” made this right so exclusive and uncertain as to be “more nominal than real.”134 But if, at first glance, the article’s exclu-siveness appears striking, much hinges on how these clauses, added at the last moment, were in fact interpreted. There is no doubt that “as allowed by law” included those sixteenth century laws which placed certain restrictions on the type of arms subjects could own, but did not deprive Protestant subjects of their right to have firearms.135 However, the Game Act of 1671 was in direct conflict with that right. Since the Convention Parliament had agreed to restate rights but leave legislative reform for the future,136

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