Right-to-bear-arms question: arms = guns only? How about knives, ray guns, etc.?

Factual Questions
1

First of all, I want this to be a GQ, not a GD, so no gun control debates here, okay? Thanks.

Everybody knows that guns enjoy the (qualified) protection of the Second Ammendment. But the constitution doesn’t say “guns,” it sez “arms.” So what do the courts have to say about non-gun type weapons? Are they protected too? If not, why not? And where do they draw the line between a protected arm, and an unprotected one?

Incidentally, my question applies to high-end arms (grenades, mortars, howitzers, ray guns… you get the idea) and low-end arms (knives, clubs, swords… again, you get the idea).

2

Living in Australia, I am used to living with strict gun controls. This is indeed GQ, so I won’t get into the pros and cons of the Australian and US systems, but I do find the situation in the US quite fascinating.

The US Second Amendment is worded thus:
“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.”

Not being American, I’m not really familiar with ways of er… amending amendments, but I have often wondered if it needs to be altered simply in order to keep up with the modern age. It seems that the logic behind the Amendment still may hold true for internal threats (the South rising again?), but I can’t imagine any other modern-day state attacking this superpower by landing troops on its shores. The only nations with any hope of attacking the US would probably use weapons of mass destruction, biological methods, or at very least, an airbone assault.

There is almost a case for saying, “OK, we can’t justify you guys having guns in your homes any longer, but go right ahead and install a surface-to-air missile in your yard.”

Once again, I don’t want to start a gun control debate, I’m just wondering if the Second Amendment is still suitable for the 21st Century, and if not, how would it likely be changed?

3

An “airbone” assault? Sounds interesting. I think it should have been “airborne”. :smiley:

4

There is precedent for repealing an ammendment - it has been done once before with prohibition, but the first 10 are a special case. For the non-US readers, that group is usually referred to as “The Bill of Rights”, and would be MUCH harder to modify or repeal than a later ammendment. They were enacted as a group immediately when it was realized that the original document had no language about civil rights, and enjoy special status in fact, if not in theory.

For better or worse, the founding fathers chose to ensconce private arms ownership as a civil right, which was not done many other places. Their thinking was very clearly that an armed populace was the ultimate answer to the possibilities of an abusive government. Having arrived where they did by pulling off a revolution, we can understand their point of view.

On the plus side, much of the consititution, and the bill of rights in particular, is an absolute marvel of flexible language that has permitted reinterpretation for changing times without nearly as much rewriting as a more specific document would have required.

5

To answer the original question, when first written, the Constitution’s reference to “arms” basically meant any weapon one could lay one’s hand upon. Be it a musket, fowling piece, cannonade, axe, adz, pitchfork or torch.

The Constitution makes little exception in the First Amendment, what with things like the burning of the American Flag, statues of Christ in vats of urine, and Skinhead hate-pamphlets being well and truly protected as an “unalienable right”. They are controversial, yes, but are held up time and again as… what, valid? Under the First Amendment rights.

The same should, indeed, apply to the Second Amendment. An “arm” is an “arm”, as it were.

6

The Supreme Court of the United States has had only limited influence upon the meaning of this amendment over the years. As a result, we still don’t know exactly what the modern approach to this amendment would be.

The main case that sets forth some guidelines is United States v. Miller, 307 U.S. 174 (1939). This case is of questionable value, because the respondent, Miller, didn’t appear before the Court, having received a trial court determination that the law used to prosecute them violated the Second Amendment. For some reason, they saw no need to stick around and argue the (for them) theoretical correctness of that decision. :wink:

In Miller, the Court held that the purpose of the Amendment was to ensure the ability to provide a well-regulated militia. Therefor, the second clause, the one about the actual right, had to be interpreted with this in mind. In the opinion of the Court, if the weapon in question had no reasonable relationship to the effort to preserve an efficient militia, the right to keep and/or bear it was not preserved by the Amendment. Amazingly enough, the Court didn’t think a sawed off shotgun fell into the category of protected arms.

The Supreme Court has not revisited this decision.

Now, there are some troubles with defining ‘arms’ this way. For one thing, do we regard the modern-day ‘militia’ as the equivalent of the National Guard (or something similar)? If so, would I be able to buy and old MIG or F-4 Phantom and claim my right to do so is protected by the amendment because it is reasonably related to preserving an efficient militia, which these days must include an air force of some sort, thus it is an ‘arm’ (by the way, as used, the term ‘arms’ is almost certainly a short form of ‘firearms’)? If a sawed-off shotgun wasn’t a protected weapon, what sorts of weapons today wouldn’t be protected under the same rationale (perhaps the average shotgun or deer-hunting rifle)? You can see how this seemingly simple definition from Miller quickly gets into trouble.

On top of this, there is underneath the definitional question the whole bubbling pot of discussion regarding the issue of whether the Amendment’s protection is an individual right to own firearms or a right reserved to the states to provide for a militia. Obviously, the Court in 1939 felt it was a state right at its most basic level. But this is hard to accept in light of the placement of the amendment squarely in the forefront of a whole list of amendments protecting individual rights. And while I am not going to open up the can of worms this issue presents (lest we be banished to the land of endless debating to no purpose), one can see that the definition of ‘arms’ would have to vary depending on the underpinnings of the right. A personal right to keep and bear arms would probably have to include the right to own a shotgun or rifle; both have some value to personal defense even today.

So, to answer the OP, the answer is, “No one knows for sure.” :slight_smile:

7

Well, I was going to say that you can own a ray gun if you want to, but then I remembered some states are working on a ban of laser pointers…

Last I checked, we’ve got a bunch of laws on the books against private ownership of grenades, machine guns, sawed-off shotguns, saps, and double-edged knives of a certain length. Seems to me the wording should be, “… shall not be denied unless we decide otherwise…”

I’m reminded of a Charles Addams cartoon. A couple of guys in suits are in an office. One of them has the window open and is pointing a ray gun out the window, down at the street below. He’s saying, “Death ray, fiddlesticks! It doesn’t even slow them down!”

I first read that when I was a little kid and didn’t understand why it was funny. I mean, how else would you test a death ray?

8

To non-Americans, the US Const. provides the following:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of
three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.

9

Aha, I’ve found the issue that will drive this thread to GD.

DSYoungEsq said:

Now wait, is “arms” short for “firearms”, or is “firearms” a more specified version of the word “arms”? Which came first? Were swords and pikes and halberds considered “arms”, long before the invention of the gun? The word “firearm” was just taking an existing word (arms) and adding a descriptive modifier to make it a new word for a new weapon (gunpoweder driven projectile weapon).

Unfortunately, I don’t think we can easily separate the issue of what “arms” means from the rest of the ambiguous wording of what “shall not be infringed” means or from “well-regulated militia”. Understanding exactly what was the original founders’ intent for including the right to keep weapons and their purpose for putting that explanatory clause that may or may not be a qualifier for said right is something hotly debated. And the interpretations of those motivations would play a factor in any attempt to reinterpret the Amendment.

Regarding the Constitutional process, in theory the Second Amendment is subject to exactly the same process as any other part of the Constitution and could be changed just as easily as adding term limits or adding then removing prohibition, or altering the “worth” of black people for population counts, or whatever. In practice, there is a fair amount of emotional baggage on those first 10 Amendments, because of their historical purpose.

10

At least this discussion has it right; the typical second amendment argument is about Joe Citizen and his hunting arsenal.

The current interpretation of the second does place limits on the right. Of course with a given Supreme Court makeup and the right case a lot of things can change.

Theoretically the second amendment could allow for private ownership of a thermonuclear device. I think even the NRA might say that this is taking it a bit too far.

11

Forget about the right to bear arms. What about the right to arm bears???

:smiley:

J.E.T.

12

The answer to this is easy: the term ‘arms’ meaning weapon is from the Latin arma (plural noun only) meaning weapons, defensive weapons, etc. The first line of Vergil’s Aeneid is the classic use of the word.
Having said that, however, note the definition found in the Merriam-Webster Online Dictionary: "a means (as a weapon) of offense or defense; especially : FIREARM "

In short, the term firearm was created to describe arms that used firing of powder to propel an object; by the time of the Constitution, the term ‘arms’ had become something that meant primarily firearms because that is what everyone was using as their primary weapon.

I am aware of no instance of a recorded court decision attempting to establish that the Second Amendment protects the right to keep and bear knives or bayonets.

13

I don’t think “the right to bear arms” is intended to protect the ‘possession’ of any particular weapon. I believe it addresses the God given right to protect yourself. In other words, the US Government will pass no law to require that someone just lie down and take it.
It is also my belief that this was written to ensure that people could protect themselves from the government not so much from each other. This is why the Second Amendment is so important. It’s not about owning guns (or knives,grenades or deathrays, it’s about our Founding Fathers realizing that each individual has the final say in how he will govern his own life and the government will not compel him to change his beliefs just because he is unarmed.
The Bill of Rights is really a non-competition clause, it is saying that God has given us certain rights and that the US government does not have the power to take them away.

14

Sorry, mojofilter, but your interesting theory is not supported by the available data, some of which has been outlined above. If you have relevant evidence to support your hypothesis, we would be happy to review it. :wink:

15

Jeez, it’s bear arms? And all this time I thought it was arm bears. I was for giving guns to Yogi and Booboo.

16

Damn, I just thought it meant we could keep our upper appendages. Now I’ve got to re-think this whole thing!

17

Fifteen posts and no one’s cited Cecil yet?

http://www.straightdope.com/classics/a5_123.html

What’s this board coming to?

18

It’s too late to comment on Cecil’s post, since that was in 1995, so I’ll comment here. He said that the interpretation of the 2d amendment is only protection from the fedl gvt and not from the state (meaning that the state can regulate the right) is a bunch of crock, referring to the other Bill of Rights, such as the 1st, which holds against both the fedl & state.

However, the Bill of Rights WAS only protection from the fedl gvt. Any of the rights in the Bill of Rights which are protection from the states, as well as the fedl gvt, is by virtue of the 14th amendment, and liberal interpretation by the SC. The SC, piecemeal, through the years, has incorporated many of the rights protected in the Bill of Rights into the 14th, but they have not done this to the 2d amendment.

19

But I will. barbitu8, Cecil did NOT say that the first nine amendments were applied to states. He said that the rights contained therein have been construed as applicable to restraining state governmental action. He is right, and the process is indeed applied through the 14th Amendment. I might also note that it is not ‘liberal interpretation’ that has resulted in selective incorporation. Prior to the idea of limiting the due process clause of the 14th Amendment to guaranteeing previously expressed rights and some few others found necessary, the Supreme Court indulged in the fantasy of thinking that they could outline on a case by case basis the various ‘fundamental rights’ protected by the amendment. The result was application of the concept ‘substantial due process’, which pleased no one, as it could be interpreted both to protect individual rights never conceived previously, as well as preventing well-meaning social legislation. Selective incorporation was a more conservative approach to interpretation, which was subsequently supplemented with the return to the concept of fundamental rights and its equal protection clause partner, suspect classification.

20

14th Amendment: “…{N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

That does not expressly state that any State cannot deprive any person of any of the rights in the Bill of Rights. That construction was by the SC, and they did it piecemeal, and they have not included the 2d amendment. I hold to my position. The 14th does not even refer to rights. “Right” is not even mentioned. It is the SC, not the 14th, that has alluded to “fundamental rights.”