The Right to Keep and Bear … What?

For updates since 2003, check my Gun Rights posts.

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The Second Amendment Definition of “Arms”
©2003 Alo Konsen

Introduction

The Second Amendment to the U.S. Constitution reads in its entirety,

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.

Today, the gun control debate has bogged down into verbal trench warfare, with opposing camps firing sound bites, infomercials, and lawsuits across no-man’s land and not having much to show for it. Interestingly, few people focus much attention on just what they are fighting over. Fortunately, a recent court case seems to have resolved the debate in favor of individual rights view of the Second Amendment, and stands some chance of adoption in other jurisdictions. Assuming that this view becomes the law of the land, a new hot-button issue seems likely to emerge: what do we mean when we speak of the “arms” we are guaranteed the right to keep and bear?

Everyone knows that rifles, pistols, and shotguns are “arms,” but what about other weapons like clubs, knives, swords, artillery, bombs, missiles, or weapons of mass destruction?1 Although this question sounds silly at first, Larry Arnn of the Claremont Institute once remarked that if the courts interpreted the Second Amendment as they do the First Amendment, we would all have the right to own nuclear weapons.2 Some scholars think this kind of reading of the Second Amendment means that “individuals may keep and bear … whatever ‘arms’ they desire.”3 So does our Constitution recognize your neighbor’s right to park a brand new M-1 Abrams main battle tank in his driveway? Should we permit gun shops to hold tent sales offering great low prices on military-grade flamethrowers and nerve-gas-tipped artillery shells? Must the U.S. Government allow you to carry a “suitcase nuke” to avoid violating your fundamental Constitutional rights, even if you might trip while carrying it and level a city block?

Part I of this article summarizes the recent Fifth Circuit Court of Appeals decision that acts as the point of departure for this journey into the “what-ifs” of the right to keep and bear arms. Part II looks at the decision’s inconclusive treatment of what “arms” means, and explains why the “textualism” school of constitutional interpretation should control the search for the meaning of “arms,” instead of the “living document” or “framer’s intent” schools. Part III explains what the Founders and their informed contemporaries understood “arms” to mean in their day: that the Second Amendment guarantees an individual’s right to keep and bear any and all weapons, no matter how destructive. Part IV brings that definition forward to modern times and identifies the unacceptable social risks posed by private citizens’ possession and use of today’s most powerful weapons. Part V makes some tentative and preliminary suggestions for a Twenty-Eigth Amendment limiting individual access to excessively destructive weapons that threaten society, while preserving the common-sense meaning of the individual right protected by the text of the Second Amendment.

Part I: United States v. Emerson

The Fifth Circuit Court of Appeals’ recent decision in United States v. Emerson4 revived a long-dormant legal debate over the right to keep and bear arms. Three competing views predominate in the gun control debate, which most scholars call the collective rights view, the sophisticated collective rights view, and the individual rights view. The collective rights view says that the Second Amendment does not apply to individuals but actually does nothing more than guarantee a state’s right to arm its militia.5 The sophisticated collective rights view says that the Second Amendment protects a form of an individual right, but the right can only be exercised by members of a formal state militia, who are bearing arms while actively participating in that militia’s activities.6 The individual rights view says that the Second Amendment recognizes the right of individuals to keep and bear arms.7

The Emerson court broke with long standing precedent and recognized the individual rights view of the Second Amendment, to the exclusion of the other two views (held by every Circuit until Emerson was handed down). But before we analyze Emerson’s constitutional reasoning, we need to get a basic grasp of what the case was all about.

In divorce proceedings, a Texas judge issued a boilerplate temporary restraining order which enjoined Dr. Timothy Emerson from, among other things, threatening his wife or causing bodily injury to her or their child. Later he was indicted for unlawfully possessing a firearm while subject to the order, in violation of 18 U.S.C § 922(g)(8). Emerson asked a federal district court to quash the indictment on several grounds, including a claim that § 922(g)(8)(C)(ii) was on its face a violation of his individual Second Amendment right to keep and bear arms. The district court agreed with Emerson and dismissed the indictment for that reason and others.

The government appealed to the Fifth Circuit Court of Appeals and won reinstatement of the indictment. The Fifth Circuit held that the nexus between firearm possession by Emerson and the threat of lawless violence was just barely enough to justify depriving his Second Amendment rights while the order remained in effect.8

Although Emerson lost in the end, the Fifth Circuit did recognize the validity of one of his novel claims. Emerson argued that the Second Amendment protects the rights of individual citizens to keep and bear arms. The court’s interpretation of the Second Amendment deserves a look, if for no other reason than its sharp break from persuasive precedent. On this argument, the decision raised four main points.

First, the Emerson court ruled that the appearance of “bear Arms” in the Second Amendment accords fully with the plain meaning of the subject of the substantive guarantee (i.e., “the people” are the ones bearing arms), and offers no support for the proposition that the Second Amendment applies only during periods of actual military service or only to those who are members of a select militia.9

Second, Emerson held that the plain meaning of the right of the people to keep arms is that it is an individual, rather than a collective, right and is not limited to keeping arms while engaged in active military service or as a member of a select militia such as the National Guard.10

Third, the Emerson court ruled that taken as a whole the text of the Second Amendment’s substantive guarantee aims at an individual rights interpretation, especially because of the guarantee’s placement within the Bill of Rights and the wording of the other nine Amendments around it, and because of the original Constitution as a whole.11 Specifically, the court said “[it] appears clear that ‘the people,’ as used in the Constitution, including the Second Amendment, refers to individual Americans.”12

Last, Emerson stated that the Second Amendment’s substantive guarantee, read as guaranteeing individual rights, may reasonably be understood as being a guarantee which tends to enable, promote or further the existence, continuation or effectiveness of that “well-regulated Militia” which is “necessary to the security of a free State.”13 As argued elsewhere in the case, the preamble referring to the militia does not contradict the placement of the Second Amendment within the Bill of Rights, the wording of nearby Amendments, and the wording of the rest of the main body of the Constitution.14

So, Emerson makes a pretty air-tight argument for the individual rights view. But if its reasoning ends up as the law of the land, whether by persuading the other Circuits, the Supreme Court, or Congress, a new issue will need to be resolved. Gun-control advocates will not quietly admit defeat and move on to other pursuits. They will likely shift their approach and try to argue that although individuals may keep and bear arms, certain “bad guns” do not count as “arms” under the Second Amendment. The National Rifle Association and its allies will argue the opposite. To break this future semantic stalemate, we will need to know what the word “arms” really means.

Part II: Emerson and the definition of “arms”

To define “arms,” we can turn to any of three main schools of constitutional interpretation that currently hold sway in American law. To line up with most commentators I will call them the “living document” school, the “framers’ intent” school, and the “textualism” school. The Emerson court subscribes to the textualism school, and I think rightfully so.

The “living document” school arose in the 1930s, and advanced the idea of a “dynamic, living Constitution, which changed as social and economic needs demanded.”15 As set out by Justice William Brennan16, this view of law says that courts need not defer to legislatures expressing the will of the majority. The text of any law informs its interpretation, but does not limit the interpreter to the bounds of the text’s plain meaning. A statute or constitution must be interpreted in light of modern social realities, not of any moment in history. The document must be interpreted to give effect to the principles expressed in the text, but the overarching context is today’s social and political scene, not the scene back when the document was written.

I find this theory untenable, mainly because it allows activist judges (both liberal and conservative) to usurp the power to create law, which properly belongs to the legislature. A judge of this stripe sees no problem with twisting the meaning of the text of the law to mean whatever suits his or her fancy, whether the new interpretation makes sense or not. Further, the “living document” school offers precious little guidance on how to assess exactly where the all-important “social realities” are and where they are headed. Under this scheme, there is no need to look for the true meaning of “arms” as it is used in the Second Amendment. “Arms” are whatever society (actually, any sitting judge) says they are.

The “framers’ intent” school offers a better method of interpreting the law, but it still fails to pass muster. A “framers’ intent” devotee looks backward through history and tries to discern what the legislature meant to accomplish when it enacted a given law. Typically this involves trying to figure out what most of the individual politicians had in mind, as revealed in secondary sources like legislative histories. I find this method unsound too, for two reasons. First, the legislature enacted the text of the law in question (not their intentions), so the proper focus of study should logically be the enacted text. Second, the intentions of the legislators almost certainly varied from person to person, so we can never know for certain what they all thought, whose thoughts carried more weight, and how their “corporate intent” can ever be nailed down.

The “textualism” school is the only game in town … because words mean things. A textualist concentrates on the only objectively verifiable part of the law: the enacted text. Legislatures enact laws made of words, not their intentions and not society’s meaning-of-the-moment. Searching for what the words of the text were understood to mean by the rational, reasonable reader of the time is the only logical, stable, proper method for interpreting the law. As Judge Robert Bork puts it17,

All that counts is how the words used in the Constitution would have been understood at the time. The original understanding is thus manifested in the words used and in secondary materials, such as debates at the conventions, public discussion, newspaper articles, dictionaries in use at the time, and the like.

In our situation, we must ask “what did ‘arms’ mean when the Second Amendment was written and ratified, in that society, and in that context?” How would a citizen or judge back then have understood “arms”? Only after we are confident in our answer can we apply it to our own world to predict an outcome. The Emerson court used this method of interpretation, and we will use it too, to discover what “arms” meant to the generations alive near 1787, when the Second Amendment was drafted.

Part III: What “arms” meant, circa 1787

First, a few modern definitions of “arms” present themselves. Merriam-Webster’s Collegiate Dictionary defines the noun arm as “a means (as a weapon) of offense or defense; especially: firearm.”18 Black’s Law Dictionary defines the word arms as “anything that a man wears for his defense, or takes in his hands as a weapon.”19

Federal law fails to define “arms” explicitly, but does identify some sub-groups of arms. For example, the National Firearms Act20 (“NFA”) does not define arms in general terms, but does exhaustively list what items count as “firearms” under Federal law, including shotguns21, rifles22, machine guns23, silencers24, and the catch-all terms “any other weapon”25 or “destructive devices.”26 Almost all the types of weapons listed in the NFA are easily man-portable, except for some rockets, missiles, bombs and mines that would presumably qualify as “destructive devices” but which weigh too much to be easily carried by one person.

The Omnibus Crime Control and Safe Streets Act27 (“OCCSSA”) defines “firearm” as any weapon which is designed as or may be readily convertible to expel a projectile.28 The definition also includes the frame or receiver of such a weapon29, any firearm muffler or firearm silencer30, or any “destructive device.”31 “Destructive devices” include bombs, missiles, rockets, grenades, mines and similar devices, whether they have explosive, incendiary, or poison-gas warheads.

In general, our modern documents offer little help in defining “arms,” but our older documents have information that can enlighten us. Starting with the Declaration of Independence, we find that it specifically mentions arms only once. It recites a litany of King George III’s violations of American rights, stating that he “has constrained our fellow-citizens, taken captive on the high seas, to bear arms against their country, to become the executioners of their friends and brethren, or to fall themselves by their hands.”32 We gain no special insight into the definition of the term here, but it clearly contemplates military weapons.

Eleven years after Thomas Jefferson wrote the Declaration, future President James Madison kept exhaustive records of the debates and goings-on during the Constitutional Convention of 1787, where he was a delegate from Virginia. Although the delegates hashed out many of the details of creating and supplying the militia, only one quote in Madison’s huge record bears closely on their understanding of the term “arms.” During debates over the content of the militia clauses on August 23, 1787, delegate Elbridge Gerry of Massachusetts asked “Will any man say that liberty will be as safe in the hands of eighty or a hundred men, taken from the whole continent, as in the hands of two or three hundred, taken from a single state?”33 Jonathan Dayton of New Jersey argued against Gerry’s ideas about militia uniformity. Dayton thought that in some states “there ought to be a greater proportion of cavalry than in others. In some places, rifles would be most proper; in others, muskets, &c.”34 Looking at his reply, we see that Dayton evidently thought the militia could include mounted troops, not just foot soldiers with muskets. Nowhere in Madison’s record did any delegate express surprise or disagreement with that idea.

The Federalist Papers and other writings of the Founding Fathers and their contemporaries mention “arms” in several contexts. Some clearly refer to man-portable weapons, but others suggest a broader possible definition of the word. For instance, Alexander Hamilton’s essay in Federalist 29 emphasized the deterrent effect of a citizen militia against the U.S. Army35:

… 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 the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.

Referring to the impracticality of training militiamen all the way to professional soldier standards, Hamilton wrote “[l]ittle more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped.”36 As other writings demonstrate below, a properly armed and equipped militia includes infantry, cavalry, and artillery units.

Madison, the eventual author of the Second Amendment, wrote in Federalist 46 of the “last successful resistance of this country against the British arms.” Here the term “arms” refers generally to the British invasion and all its weaponry, including cavalry, artillery, and naval power. Expanding on Hamilton’s theme of deterrence, Madison then argued for the establishment of a militia of “half a million of citizens with arms in their hands”37 as a deterrent against the standing army of any tyrannical federal government that might arise. Although read in a wooden and literal sense he meant man-portable small arms, his other writings and those of his contemporaries show that these men did not always think of arms in such a narrow way.

Moving outward from the Constitutional Convention, we look to records of the debates that the individual states held when deciding whether to ratify the Constitution. Many of these records include references to “arms.” For example, when New York ratified the Constitution, it added a list of proposed Amendments which included the following text: “… That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.”38 Rhode Island’s ratification document echoed that sentiment, saying “… That the people have a right to keep and bear arms; that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural, and safe defence of a free state.”39 The New York and Rhode Island proposals contemplate small arms at a minimum, and do not explicitly limit their definitions to small arms.

Vermont chimed in with a proposed Amendment exactly identical to the future text of the Second Amendment, arguing for an Amendment reading: “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.”40 Virginia added a bit of detail on who would bear arms in its preferred Amendment, which read, “… That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state.”41

The Pennsylvania ratification debate mentioned the need for the militia to be effectively equipped and disciplined, and when referring to “arms” specifically addressed muskets,42 although not in an exclusive way that ruled out other weapons. In the ratification debates of North Carolina, Delegate William R. Davie gave a speech arguing for a strong military to compel other nations to respect international trade rules. He thought America “… should be empowered to compel foreign nations into commercial regulations that were either founded on the principles of justice or reciprocal advantages… . Is not our commerce equally unprotected abroad by arms and negotiation?”43 He clearly thought naval power fell within the definition of “arms.”

The original thirteen states’ constitutions expand the definition a bit beyond the U.S. Constitution, but not much. The original text of the Vermont Constitution mentions “arms” in the same context as the military and “standing armies” in general.44 The Pennsylvania Constitution of 1776, in its Declaration of Rights, contains identical text.45 A common sense reading of both documents suggests that the weapons in question could possibly include all military weaponry customarily in use at the time. Although a broad reading is possible, it is not certain.

Less-official writings of our Founders and their peers mentioned arms in several instances. George Washington’s personal correspondence and official writings are full of references to “arms.” For example, while he commanded the Continental Army, his General Orders repeatedly passed harsh sentences (typically 100 lashes or hanging) on deserters for “bearing arms against these United States.” The severity of the punishments depended on whether the offender simply joined the British and merely “bore arms” or whether he violated the rules of war by committing heinous acts like burning civilian homes.46 Here, Washington made no mention of what type of unit each deserter served in. Common sense suggests he would have applied the penalty identically whether a man was found with the British infantry, artillery, cavalry, or Royal Navy.

In another example of his personal correspondence, Washington wrote: “… your first object should be a well regulated Militia Law; the People, put under good Officers, would behave in quite another Manner; and not only render real Service as Soldiers, but would protect, instead of distressing, the Inhabitants. What I would wish to have particularly insisted upon, in the New Law, should be, that every Man, capable of bearing Arms, should be obliged to turn out, and not buy off his Service by a trifling fine. We want Men, and not Money.”47 Again, Washington referred to soldiers in general here, not just infantry.

Thomas Jefferson mentioned arms in his writings several times. In a letter to William Short, for example, he thought about the likelihood of revolution in France when he wrote “… [i]f, then, France has invaded Spain, an insurrection immediately takes place in Paris, the Royal family is sent to the Temple, then perhaps to the Guillotine; to the 2 or 300,000 men able to bear arms in Paris will flock all the young men of the nation.”48 Later in the same letter, he wrote of “the army of the Pyrennes catch[ing] the same flame and return[ing] to Paris with their arms in their hands.”49 Here he seemed to have small arms in mind. But in other writings he used a broader definition.

Referring to possible British attacks on Norfolk, Jefferson wrote, “Were they even disposed to make an attempt on Norfolk, it is believed to be sufficiently secured by the two frigates Cybele and Chesapeake, by the 12 gun-boats now there, & 4 more from Matthews county expected, — by the works of Fort Nelson; to all of which we would wish a company of artillery, of the militia of the place, to be retained & trained, putting into their hands the guns used at Norfolk, and a company of Cavalry to be employed on the bay shore between Norfolk & Cape Henry…”50

Responding to Alexander Hamilton’s opinions on the international incident involving a French warship equipped with cannons made in America51, Jefferson thought that “Great Britain ought not to complain: for, since the date of the order forbidding that any of the belligerent powers should equip themselves in our ports with our arms, these two cannon are all that have escaped the vigilance of our officers, on the part of their enemies.”52 Later in the same document, Jefferson remarked that “it is equally true that more than ten times that number of Americans are at this moment on board English ships of war, who have been taken forcibly from our merchant vessels, at sea or in port wherever met with, & compelled to bear arms against the friends of their country.”53

Jefferson seemed to think that “arms” included even full-blown naval guns, a category that included some of the most powerful weapons of his day. In fact, he understood the militia mentioned in the Constitution to include units of infantry, cavalry and artillery.54 Therefore, he must have imagined few limits (if any) on the kinds of arms needed to equip that militia of private citizens.

To wrap up our bundle of examples from personal correspondence, we find that another contemporary of the Founders, Joseph Story, thought that “[t]he right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic.”55

Early records of the U.S. House of Representatives often parallel Jefferson’s idea of a muscular militia of private citizens serving in infantry, cavalry, and artillery units.56 The House arranged to loan artillery to the Ohio militia in 1808.57

The early Senate tried to set up militia schools for cavalry and artillery in 182658, appropriated funds for a howitzer-equipped militia in 183259, gave the state militias field artillery, cavalry, and armed ships to defend the nation’s borders in 1836.60 The Senate clearly assumed the existence of a powerful militia61 just like the House did.

The Continental Congress seemingly saw things the same way, providing for a militia that included several kinds of artillery and “every species of troops.”62 It also recorded events at the end of the War of Independence, when “Letters were received from General Carleton and Admiral Digby, enclosing the British proclamation of the cessation of arms.”63 The mention of a British Admiral implied that a nation’s “arms” included naval power, which sounds reasonable when one recalls that America’s early navy consisted in no small part of privateers.64

In fairness, that same body sometimes distinguished between “arms” and “cannon.” It did so in 1776 when considering what kind of relations with France would best suit the colonies. The Continental Congress that year observed that it could pursue “[o]nly a commercial connection; that is, make a treaty to receive her ships into our ports; let her engage to receive our ships into her ports; furnish us with arms, cannon, saltpeter, powder, duck, steel.”65 The key point to remember, though, is that sometimes cannons were indeed seen as militia-ready arms.

We now know that our nation’s oldest writings seem to show that the “arms” which citizens could keep and bear included some of the most advanced and destructive weapons known at the time. Without some counterbalance, the scary modern scenario of the privately-owned suitcase nuke wiping out a city center seems more threatening than perhaps it should. But fortunately for us, some old court cases tackle the definition of “arms” too, and in a very detailed and helpful way. Three cases decided in the 1840s deserve a look.

State v. Buzzard,66 an 1842 Arkansas case, includes a straightforward claim67 that

… the term “arms,” in its most comprehensive signification, probably includes every description of weapon or thing which may be used offensively or defensively, and in the most restricted sense, includes guns or firearms of every description, as well as powder, lead and flints, and such other things as are necessarily used in loading and discharging them, so as to render them effective as instruments of offense or defense, and without which their efficiency for these purposes would be greatly diminished, if not destroyed. [emphasis added]

Reining in this expansive definition, though, Chief Justice Ringo thought it possible to legitimately restrict the right to keep and bear arms. He pointed out that the individual rights protected by the first ten Amendments could not possibly be absolute (and therefore free from all regulation) because otherwise great disorder and conflict would tear society apart.68 He illustrated his point when he mentioned certain justified limits on freedom of speech and of the press that were “necessary to protect the character and secure the rights of others, as well as to preserve good order and the public peace.”69 Justice Dickinson agreed when he wrote, “[t]he motive, then, for granting this power to keep and bear arms could not be extended to an unlimited, uncontrolled right to bear any kind of arms or weapons, upon any and every occasion; still less the terms, for they are restrictive in their language.”70 Here we see an early example of a court applying reasonable and constitutionally sound upper limits on weapon ownership, while still preserving the plain meaning of the Second Amendment’s protected individual right.

The Alabama Supreme Court two years earlier had recognized in State v. Reid71 a similar reason to place legislative limits on the carrying of concealed weapons, explaining that a law “intended merely to promote personal security, and to put down lawless aggression and violence … does not come in collision with the constitution.”72

Nunn v. Georgia,73 decided four years after Buzzard, went furthest of these three cases in liberally defining “arms.” Judge Lumkin’s majority opinion saw no limit on what weapons qualified for Second Amendment protection from both federal and state74 75 infringement:

The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of the free State. [emphasis added]

However, Judge Lumkin also thought it possible to legitimately restrict the right to keep and bear arms. His opinion explained that although the right was a fundamental one, the state legislature could forbid the carrying of concealed weapons so long as the natural right to keep and bear arms remained intact.76

So where does all this historical research bring us? It seems fairly clear that the Founders and their informed contemporaries understood the term “arms” to be synonymous with what we call “weapons.” They did not use that overarching meaning at all times, sometimes referring to particular types of weapons like small arms as simply “arms.” But the Founders’ generation were certainly willing to apply the term to more powerful and traditionally “military-only” weapons. This is evident in the writings that prove they thought it very important to have an armed populace capable of resisting foreign invasion and domestic tyranny alike.

Since we are trying to be faithful textualists, now we need to bring that understanding forward to our time and see what shakes out.

Part IV: 1787′s definition applied to 21st Century America

If we take a textualist approach to interpreting the Constitution, we find that all military weapons are considered “arms” for the purposes of the Second Amendment. Although recognizing the keeping and bearing of arms as a fundamental individual right can rein in judges intent on eroding our constitutional freedoms, it also causes huge problems if we let the right run wild.

In the late 1700s, individual access to military weaponry was a good thing. The citizenry could effectively employ any and all military weapons against enemies, without fear of much collateral damage. Now, though, the technology of war has far outstripped even the wildest dreams of our forebears, and our textualist exercise presents serious problems if applied in isolation.

We can wipe out cities under a nuclear mushroom cloud with the press of a button. We can unleash invisible chemicals that have no scent and no taste, yet can strike crowds of people dead in moments if the smallest amount comes in contact with unprotected skin. We possess germs and viruses that need only be dispersed in small quantities to be effective, that have no known cure, that kill eight of every ten humans infected, and that can circle the globe in hours thanks to international air travel. But worst of all, human nature has not improved since the Eighteenth Century.

We ourselves are the deadliest weapons around. Our capacity for cruelty, pettiness, selfishness, carelessness and rage has reached new heights (or is that depths?) in the last century. In the 1700s, a psychopath could still kill, but his ability to kill was restrained by relatively weak weapons. Now, our movies unsettle us with visions of nuclear missile-equipped madmen. Even the wildest scenarios seem less outlandish by the day, especially after we watched nineteen suicidal fanatics topple the World Trade Center, punch a gaping hole in the Pentagon, and kill thousands in mere moments. Even formerly obscure diseases like anthrax now pose a daily threat thanks to our efficient postal system.

If the reasoning behind Emerson becomes the law of the land, and if the textualist understanding of “arms” takes hold without any limit at all, we might find ourselves living right next to careless or homicidal people who will have suddenly found the ability to take thousands of their fellow humans with them to the grave in a very short time.

Fortunately, reasonable steps can protect us from a completely unfettered textualist application of Second Amendment rights.

Part V: Honestly (and constitutionally) applied common sense … the Twenty-Eighth Amendment

We cannot use the Second Amendment to argue against keeping and bearing any weapon, but we also understand the risk this causes in a society with weapons as destructive as ours. Fortunately, we have ways to preserve society and protect the Second Amendment without illegitimately harming the Constitution. I will not dig too deeply here since that would be beyond the scope of this article, but when I was in the military I was always taught never to discuss a problem without offering a solution. I will therefore suggest some likely starting points from which to search for the right answer.

Look at the preamble to the Constitution, which sets out the reasons for enacting this framework of our law in the first place77.

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Common sense tells us that no interpretation of any legal text can rightly be read so as to threaten the explicitly stated reasons for enacting the text in the first place. I think the preamble supports the idea that we the people can rein in someone’s claim to a “right” if that right presents enough of a threat to our domestic tranquility, and if the general welfare of our people is in enough danger. The danger posed by powerful weapons controlled by incompetent, careless, or malevolent individuals obviously qualifies.

No right is absolute. We correct statutes suffering from a scrivener’s error.78 We permit numerous exceptions to the prohibition on hearsay testimony.79 We recognize the First Amendment’s protection of the freedom of speech and of the press as fundamental, yet we restrain libel80, slander81, pornography82, “fighting words”83, and speech that incites panic84. The Confrontation Clause of the Sixth Amendment protects a criminal defendant’s right “to be confronted with the witnesses against him,”85 we (perhaps unconstitutionally) permit children to accuse adults of molestation while seated behind the safety of a screen through which only the child on the witness stand can see.86 Although judges often exceed their authority when interpreting the Constitution, our legal system does sometimes correctly impose limits and create exceptions to our most fundamental rights in ways that actually preserve the purpose of the Constitution.

Surely, we can come up with reasonable limits on the right to keep and bear arms. To impose these restrictions correctly and legitimately, we would need to enact a Twenty-Eighth Amendment that fleshes out the Second. Perhaps we could limit the right to keep and bear arms to those weapons with destructive power equivalent to the best heavy weapons of the late Eighteenth or early Nineteenth Centuries. This would permit citizens to arm themselves, but not with weapons so capable of killing vast numbers of other people that the risk would outweigh the benefit. This framework might draw the outer boundary at, say, a mid-size howitzer, a backpack sized flamethrower, a shoulder-launched surface-to-air missile, or an anti-tank mine. Such weapons are destructive, to be sure, yet still comparable to the power wielded by a militiaman of two hundred years ago, standing behind an artillery piece or on the bridge of a privateer’s ship, firing at a crowded enemy troop vessel. Therefore, these weapons should be suitable for private ownership.

The kinds of limits I foresee would also preserve the ability to resist any standing army unleashed against us from Washington, albeit not in the same “toe-to-toe on the field of battle” style used by our ancestors in the Revolutionary War. The battle would revert to a guerilla-style conflict, much like the fighting by the French Resistance in occupied France in World War II, or like the efforts of the Contras in Nicaragua in the 1980s. Regardless, no standing army could forever withstand a sustained guerilla war without resorting to weapons of mass destruction … which would irreparably scorch the very earth that the army would seek to rule.

Read honestly, the individual right to keep and bear arms in defense of self and country protects every kind of weapon one could want and afford. However, I am certain that the right can survive in a post-Emerson textualist nation while still protecting us from nuts with nukes, if we impose reasonable limits on the exercise of that right.

I simply think we will have to look outside the Second Amendment to other parts of the Constitution to find the authority to do it.

Footnotes

1 Nuclear, chemical, or biological weapons.
2 Larry Arnn, The Right of the People, Precepts (Claremont Inst., Claremont, Cal.), June 26, 1997, at 1.
3 Kevin D. Szczepanski, Searching for the Plain Meaning of the Second Amendment, 44 Buff. L. Rev. 197, 203 (1996). The argument holds that since “the exact scope of the individual right is not self-evident, and is not expressly defined in the Constitution,” but that under the individual rights interpretation “the federal and the state governments may not infringe on the right,” the logical conclusion is that an individual may keep and bear any weapons desired.
4 2001 U.S. App. LEXIS 22386 (5th Cir).
5 Id., at *23. See also, Carl T. Bogus, The History and Politics of Second Amendment Scholarship: A Primer, 76 Chi.-Kent. L. Rev. 3 (2000).
6 Emerson, at *25
7 Id., at *27
8 Id., at *145
9 Id., at *54.
10 Id., at *56.
11 Id., at *57.
12 Id., at *50
13 Id., at *57.
14Id., at *58.15 Stephen M. Griffin, Constitutional Theory Transformed, 108 Yale L.J. 2115, 2136 (1999).
16 William J. Brennan, Jr., Presentation to the American Bar Association (July 9, 1985), in American Constitutional Law 607, 609 (Mason & Stephenson eds., 8th ed. 1987).
17 Bork, Robert. The Tempting of America, at 144 (1990). See also Justice Antonin Scalia’s highly readable and entertaining treatment of his brand of textualism, A Matter of Interpretation: Federal Courts and the Law. (Amy Gutmann, ed.) Princeton University Press, 1997.18 Merriam-Webster’s Collegiate Dictionary online. The word “arms” in this military context has its origins in the 13th century Middle English armes, meaning “weapons.”
19 Black’s Law Dictionary 109 (6th ed. 1990).
20 26 USC § 5845 et seq.
21 26 USC § 5845(a)(1)-(2)
22 26 USC § 5845(a)(3)-(4)
23 26 USC § 5845(a)(6)
24 26 USC § 5845(a)(7), referencing the silencer definition in 18 USC § 921.
25 26 USC § 5845(a)(5). The Act uses the term “any other weapon” here to mean any of several unorthodox projectile-shooting devices.
26 26 USC § 5845(a)
27 18 USC § 921 et seq.
28 18 USC § 921(a)(3)(A)
29 18 USC § 921(a)(3)(B)
30 18 USC § 921(a)(3)(C)
31 18 USC § 921(a)(4). Interestingly, this section includes some potentially heavy weapons that might not be man-portable.
32 Declaration of Independence
33 Madison, James. The Debates in the Federal Convention of 1787 Which Framed the Constitution of the United States of America, at 453. The Lawbook Exchange, Ltd. (1999).
34 Id.
35 Alexander Hamilton, Federalist 29, Concerning the Militia, 1788
36 Id.
37 James Madison, Federalist 46, The Influence of the State and Federal Governments Compared, 1788
38 The Ratifications of the Twelve States, Reported in the General Convention (hereafter, Ratifications). The Debates in the Several State Conventions on the Adoption of the Federal Constitution (hereafter, Elliot’s Debates), Volume I, 11. New York.
39 Ratifications, Elliot’s Debates, Volume I, 13. Rhode Island.
40 Ratifications, Elliot’s Debates, Volume I, 14. Vermont.
41 The Debates in the Convention of the Commonwealth of Virginia, on the Adoption of the Federal Constitution. June 27, 1788. Elliot’s Debates, Volume III, p. 659
42 The Debates in the Convention of the State of Pennsylvania, on the Adoption of the Federal Constitution. December 11, 1787. Elliot’s Debates, Volume III, p. 521
43 The Debates in the Convention of the State of North Carolina, on the Adoption of the Federal Constitution. July 24, 1788. Elliot’s Debates, Vol. IV, p. 18
44 “That the people have a right to bear arms for the defence of themselves and the State; and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power.” Vermont Constitution, Chapter 1, Article XV, 1777.
45 Pennsylvania Constitution of 1776, Declaration of Rights, Article 13. Quoted in The Founders’ Constitution, Volume 5, Amendment II, Document 5. The University of Chicago Press. <;http://press-pubs.uchicago.edu/founders/documents/amendIIs5.html>;
46 For example, the punishments General Washington imposed on deserters William Timmans and Thomas Crawford illustrate one type of “bearing arms” and its consequences in war: “William Timmans late of the first Maryland regiment charged with Desertion, inlisting with the Enemy and bearing arms against these United States, Marauding, and burning the Houses of different inhabitants of the State of Maryland, found Guilty of the whole of the above Charges and sentenced to be hanged by the Neck till he be dead… . Thomas Crawford late of the same regiment charged with Desertion, Inlisting with the Enemy and bearing Arms against these United States, found Guilty of the two last Charges and sentenced to receive One Hundred lashes on his bare back.” George Washington, November 3, 1781, General Orders. The Writings of George Washington from the Original Manuscript Sources, 1745-1799. John C. Fitzpatrick, Editor. Vol. 23. <;http://memory.loc.gov/ammem/gwhtml/gwhome.html>;.
47 Letter from George Washington to William Livingston, January 24, 1777, The Writings of George Washington from the Original Manuscript Sources, 1745-1799. John C. Fitzpatrick, Editor. Vol. 07. <;http://memory.loc.gov/ammem/gwhtml/gwhome.html>;.
48 Letter from Thomas Jefferson to William Short (March 28, 1823). Thomas Jefferson Papers <;http://memory.loc.gov/ammem/mtjhtml/mtjhome.html>;. Transcribed and edited by Gerard W. Gawalt, Manuscript Division, Library of Congress.
49 Id.
50 Thomas Jefferson to William H. Cabell, Thomas Jefferson Papers (June 29, 1807).
51 Britain and France were at war in 1793, and at the time the U.S. was officially neutral. A French warship had pulled into Charleston, South Carolina, and its crew bought two American cannons from a private citizen in violation of a ban on arms sales to either belligerent power. Britain complained bitterly, but Jefferson thought the whole incident a trivial thing.
52 Thomas Jefferson, “Hamilton’s Opinion on French armed vessel, the Little Sarah” (July 8, 1793). Thomas Jefferson Papers <;http://memory.loc.gov/ammem/mtjhtml/mtjhome.html>;. Transcribed and edited by Gerard W. Gawalt, Manuscript Division, Library of Congress.
53 Id.
54 “… the militia of the State, that is to say, of every man in it able to bear arms; and that militia, too, regularly formed into regiments and battalions, into infantry, cavalry and artillery, trained under officers general and subordinate, legally appointed, always in readiness, and to whom they are already in habits of obedience.” Thomas Jefferson to Antoine Louis Claude Destutt de Tracy, Id. (January 26, 1811).
55 Story, Joseph. Commentaries on the Constitution of the United States, § 1890. Boston, 1833.
56 “By the late returns of the Department of War, the militia force of the several states may be estimated at eight hundred thousand men, infantry, artillery and cavalry. Great part of this force is armed, and measures are taken to arm the whole. An improvement in the organization and discipline of the militia, is one of the great objects which claims the unremitted attention of Congress.” Journal of the House of Representatives of the United States, 1789-1873. December 2, 1817. See also, transcripts from January 29, 1795 and March 30, 1798.
57 “Resolved, That the President of the United States be authorized to loan to the State of Ohio, for the term of seven years, twenty pieces of field artillery, with carriages complete, for the use of the artillery companies of militia, in the said State, under such regulations and restrictions, as to safe-keeping and redelivery, as the President may prescribe.” Id., January 14, 1808.
58 Journal of the Senate of the United States of America, 1789-1873. March 24, 1826. See also, transcripts from April 10, 1828.
59 “Resolved, That the Committee on Military Affairs be instructed to consider the expediency of establishing a national foundry for the making of cannon, howitz, bombs, shot, and other material, for the artillery service of the United States, and for the militia.” Id., March 29, 1832.
60 Id., February 18, 1836.
61 See transcripts from: April 5, 1810; May 15, 1826; and February 26, 1827.
62 “It will be proposed, that the number of one hundred thousand arms, shall be deposited in the respective Arsenals, a train of battering Artillery and every kind of Stores necessary thereto, field Artillery and every necessary equipment for an army of every species of troops.” Journals of the Continental Congress, 1774-1789. March 13, 1787. See also, transcripts from February 1, 1777 and November 2, 1785.
63 Elliot’s Debates, Volume V, April 10, 1787.
64 Basically, privateers were pirates working for the U.S. government as commerce raiders. They kept a percentage of all enemy cargo seized on the open ocean, selling it and using the proceeds to improve their ships and line their pockets. For more information read Zeinert, Karen (ed.), The Memoirs of Andrew Sherburne: Patriot and Privateer of the American Revolution (Linnet Books, 1993).
65 Id., March 4, 1776.
66 State v. Buzzard, 4 Ark. 18 (1842)
67 Id., at 21
68 “These rights are believed to be as essential to the enjoyment of well regulated liberty, and as fully guarded against infringement by the government, as the right to keep and bear arms. Their use, if subject to no legal regulation or limitation whatever, would tend to unhinge society, and most probably soon cause it either to fall back to its natural state, or seek refuge and security from the disorders and suffering incident to such licensed invasion of the rights of others, in some arbitrary or despotic form of government; while their unrestrained exercise, so far from promoting, would surely defeat every object for which the government was formed. And if the right to keep and bear arms be subject to no legal control or regulation whatever, it might, and in time to come doubtless will, be so exercised as to produce in the community disorder and anarchy.” Id., at 21.
69 Id., at 20
70 Id., at 30. As an aside, Dickinson’s idea of the government “granting” the right to keep and bear arms finds scant support in a textualist’s understanding of the Constitutional framework. Rights are inherent to all humans, and do not come from government. The Constitution enumerates and protects rights; it does not “grant” them.
71 1 Ala. 612 (1840)
72 Id., at 617
73 1 Ga. 243 (1846)
74 Lumkin explicitly incorporated the Second Amendment’s protections downward to the state level, saying “The language of the second amendment is broad enough to embrace both Federal and State governments — nor is there anything in its terms which restricts its meaning..” Id., at 250 [emphasis Lumkin's]. This is remarkable, since the Fourteenth Amendment would not be enacted until decades later.
75 Id., at 251
76 Id.
77 U.S. Constitution
78 Green v. Bock Laundry Mach. Co., 490 U.S. 504 (1989)
79 Federal Rules of Evidence 803-805
80 New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
81 Id.
82 Miller v. California, 413 U.S. 15 (1973)
83 Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
84 Schenck v. United States, 249 U.S. 47 (1919)
85 Amendment VI, U.S. Constitution
86 Maryland v. Craig, 497 U.S. 836 (1990)

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