Right to keep and bear arms


Right to keep and bear arms

The right to keep and bear arms, RKBA, [ [http://acronyms.thefreedictionary.com/rkba What does RKBA stand for? Acronyms and abbreviations by the Free Online Dictionary.] ] or right to bear arms is the concept that people, individually or collectively, have a right to weapons. Today this is usually interpreted to mean personal guns or the arming of a state militia. This is an important concept in the United States, where the right is protected in the Second Amendment to the United States Constitution, drafted in 1791, and where the right derived from popular conceptions of English law around the American Revolution, including a tradition of local militias, a common law right to possess weapons, the English Bill of Rights (1689) and a statute, the Assize of Arms, dating back to 1181.

Definitions

Military service

Some historians have found that prior to and through the 18th century, the expression "bear arms" appeared exclusively in military contexts, as opposed to the use of firearms by civilians.Uviller, H. Richard. & Merkel, William G.: "The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent ", pp 23, 194. Duke University Press. ISBN 0-8223-3017-2] [Pepper, John; Petrie, Carol; Wellford, Charles F.: "Firearms and violence", Page 290. National Academies Press, 2004. ISBN 0309091241] [Wills, Garry. "To Keep and Bear Arms". New York Review Of Books, September 21, 1995.] cite book| author=Williams, David H.|title=The mythic meanings of the Second Amendment: taming political violence in a constitutional republic| publisher=Yale University Press|location=New Haven, Conn|year=2003|pages=Pg 5|quote=The amendment thus guarantees a right to arms only within the context of a militia, not an individual right to arms for self-defense or hunting.|isbn=0-300-09562-7|oclc=|doi=]

"In late-eighteenth-century parlance, "bearing arms" was a term of art with an obvious military and legal connotation. ... 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."Uviller, H. Richard. & Merkel, William G.: "The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent ", Page 194. Duke University Press. ISBN 0-8223-3017-2]

However, this unilateral conclusion is disputed and may be due to selection bias, which arises from the use of a limited selection of government documents that overwhelmingly refer to matters of military service.cite journal|author= Cramer, Clayton E.; Olson, Joseph|title= What Did "Bear Arms" Mean in the Second Amendment?|journal= Georgetown Journal of Law & Public Policy|volume= 6|issue= 2|year=2008] Commenting on this previous research, other historians note:

"Searching more comprehensive collections of English language works published before 1820 shows that there are a number of uses that...have nothing to do with military service... [and] The common law was in agreement. Edward Christian’s edition of Blackstone’s Commentaries that appeared in the 1790’s described the rights of Englishmen (which every American colonist had been promised) in these terms 'everyone is at liberty to keep or carry a gun, if he does not use it for the [unlawful] destruction of game.' This right was separate from militia duties."

The Oxford English Dictionary defines the term "to bear arms" as: "to serve as a soldier, do military service, fight," dating to about the year 1330. And, defines the term "to bear arms against" as: "to be engaged in hostilities with." dating the usage back to about the year 1000 with the epic poem "Beowulf". [Oxford English Dictionary, Second Edition, 1989]

Garry Wills, author and history professor at Northwestern University, has written of the origin of the term "bear arms":

"By legal and other channels, the Latin " " entered deeply into the European language of war. Bearing arms is such a synonym for waging war that Shakespeare can call a just war " 'justborne arms" and a civil war "self-borne arms"." Even outside the special phrase "bear arms"," much of the noun's use echoes Latin phrases: to be under arms (" armis"), the call to arms (" arma"), to follow arms ("arma "), to take arms ("arma "), to lay down arms ("arma pœnere"). "Arms" is a profession that one brother chooses the way another choose law or the church. An issue undergoes the arbitrament of arms." ... "One does not bear arms against a rabbit...".

On the other hand, Sayoko Blodgett-Ford notes non-military usage of the phrase in the Pennsylvania ratifying convention:

" [T] he people have a right to bear arms for the defense of themselves and their own state, or the United States, or the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed..."cite journal|author= Blodgett-Ford, Sayoko|title= The Changing Meaning of the Right to Bear Arms|journal= Seton Hall Constitutional Law Journal|date= Fall 1995
pages= 101
]

Don Kates, a professor of constitutional and criminal law, and a criminologist, has written in the "Michigan Law Review" that the Second Amendment clearly refers to personal weapons, since "bear" means "carry," and a person cannot carry certain military weapons, like artillery. According to Garry Wills,

"this gets things exactly backwards, as "Bear Arms" refers to military service, which is why the plural is used (based on Greek 'hopla pherein' and Latin 'arma ferre') – one does not bear arm, or bear an arm. The word means, etymologically, 'equipment' (from the root ar-* in verbs like 'ararisko', to fit out). It refers to the 'equipage' of war. Thus 'bear arms' can be used of naval as well as artillery warfare, since the "profession of arms" refers to all military callings." [Wills, Garry (1999). "A Necessary Evil" pages 256–257. New York, NY. Simon & Schuster.]

Civilian usage definition

The people's right to have their own arms for their defense is described in the philosophical and political writings of Aristotle, Cicero, John Locke, Machiavelli, the English Whigs, and others. [cite book |author=Halbrook, Stephen P.|title=That Every Man Be Armed: The Evolution of a Constitutional Right (Independent Studies in Political Economy)|publisher=The Independent Institute|location=Oakland, CA|year=1994|pages=8|isbn=0-945999-38-0] Though possessing arms appears to be distinct from "bearing" them, the possession of arms is recognized as necessary for and a logical precursor to the bearing of arms. [cite journal|journal=William & Mary Bill of Rights Journal|author=Schmidt, Christopher|title=An International Human Right to Keep and Bear Arms|date=February 2007|publisher=The College of William & Mary School of Law|location=Williamsburg, Virginia|volume=15|issue=3|pages=983] Particularly in the event of oppression or slaughter of people by governments or racial majorities, researchers have noted that exercise of the right to bear arms internationally is intrinsically linked to a people's ability to possess them.cite journal|journal= The Brown Journal of World Affairs|author= Kopel, David B.; Eisen, Joanne D.; Gallant, Paul|title= Guns Ownership and Human Rights|date= 2003|volume= 9|issue= 2|pages= 1–13|quote= And Bougainville is a reminder that sometimes neither the UN, developed democracies such as Australia, nor the "international community" will defend a people against rapine. The only protectors of the birthright of the people of Bougainville [Papua New Guinea] were the people themselves, bearing their "illicit" firearms.]

In commentary written by Justice Cummings in "United States v. Emerson", the United States Court of Appeals for the Fifth Circuit concluded in 2001 that:cite book
author=Merkel, William G.; Uviller, H. Richard
title=The militia and the right to arms, or, How the second amendment fell silent
publisher=Duke University Press
location=Durham, N.C.
year=2002
pages=Pg 19, Chapter 9 (pages 212-225)
isbn=0-8223-3017-2
]

"there are numerous instances of the phrase 'bear arms' being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the 'people' [or 'citizen' or 'citizens'] "to bear arms in defense of themselves [or 'himself'] and the state,' or equivalent words, thus indisputably reflecting that under common usage 'bear arms' was in no sense restricted to bearing arms in military service." [ [http://laws.findlaw.com/5th/9910331cr0.html http://laws.findlaw.com/5th/9910331cr0.html] ]

The bearing of arms by civilians in this sense is exercised in Israel to prevent terrorist attacks on grade schools. [cite web
url= http://www.nationalreview.com/kopel/kopel200409022215.asp
title= Follow the Leader: Israel and Thailand set an example by arming teachers.
date= 2004-09-02
accessdate= 2008-05-17
quote= Teachers and kindergarten nurses now started to carry guns, schools were protected by parents (and often grandpas) guarding them in voluntary shifts. No school group went on a hike or trip without armed guards. The Police involved the citizens in a voluntary civil guard project “Mishmar Esrachi,” which even had its own sniper teams. The Army’s Youth Group program, “Gadna”, trained 15 to 16-year-old kids in gun safety and guard procedures and the older high-school boys got involved with the Mishmar Esrachi. During one noted incident, the “Herzliyah Bus massacre” (March ’78, hijacking of a bus, 37 dead, 76 wounded), these youngsters were involved in the overall security measures in which the whole area between North Tel Aviv and the resort town of Herzlyiah was blocked off, manning roadblocks with the police, guarding schools kindergartens, etc.
]

Similarly, in a released Senate report on the Right to Keep and Bear Arms, Senator Orrin G. Hatch, chairman, U.S. Senate Judiciary Committee, Subcommittee on the Constitution, states: quote|They argue that the Second Amendment's words "right of the people" mean "a right of the state" — apparently overlooking the impact of those same words when used in the First and Fourth Amendments. The "right of the people" to assemble or to be free from unreasonable searches and seizures is not contested as an individual guarantee. Still they ignore consistency and claim that the right to "bear arms" relates only to military uses. This not only violates a consistent constitutional reading of "right of the people" but also ignores that the second amendment protects a right to "keep" arms. "When our ancestors forged a land "conceived in liberty", they did so with musket and rifle. When they reacted to attempts to dissolve their free institutions, and established their identity as a free nation, they did so as a nation of armed freemen. When they sought to record forever a guarantee of their rights, they devoted one full amendment out of ten to nothing but the protection of their right to keep and bear arms against governmental interference. Under my chairmanship the Subcommittee on the Constitution will concern itself with a proper recognition of, and respect for, this right most valued by free men."Right to Keep and Bear Arms, U.S. Senate. 2001 Paladin Press. ISBN 1581602545.]

Likewise, the Supreme Court of the United States affirmed in "District of Columbia v. Heller", No. 07-290, that "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."

Historical sources, protections, and extinguishments of the right

The right to keep and bear arms varies by country (see State (law)) and at times varies by jurisdiction within a sovereign state.

Jurisdictions with English judicial origin

Frequently cited sources:
*Common Law
*English Bill of Rights, 1689 cite web|url=http://www.duhaime.org/LegalResources/LawMuseum/tabid/345/articleType/ArticleView/articleId/110/1689-The-English-Bill-of-Rights.aspx |title=1689: The English Bill of Rights |accessdate=2008-05-10 |last=Duhaime |first=Lloyd |date=2007-05-07 ]

The right to keep and bear arms in jurisdictions operating under English Common Law follows a precedent that predates the invention of firearms, originating contemporaneously with the jury trial and the emergence of the common law system, during the reign of Henry II, who promulgated the Assize of Arms in 1181, which required knights and freemen to keep arms and to bear them in service of the king. [Taylor, H. (1908). [http://books.google.com/books?id=hE0uAAAAIAAJ&pg=PA267&dq=%22assize+of+arms%22+%22duty+being+imposed+upon+every+freeman+to+provide+himself%22+%22for+the+defense+of+the+commonwealth,+with+arms%22&ei=j8zrR-3RAaLstAPapeCYBQ Page 267] . "The science of jurisprudence: a treatise in which the growth of positive law is unfolded by the historical method, and its elements classified and defined by the analytical." New York: Macmillan.] A Common Law right to have arms for self defense was codified in the English Bill of Rights of 1689 (also known as the English Declaration of Rights), at least for Protestants. England, Ireland, the Colonies in North America (which became the United States), Canada, and Australia all received this Common Law inheritance and long maintained a responsibility to keep and bear arms tradition originating from this common basis.

The English Bill of Rights 1689 set out the right of Protestants to have arms suitable for their own defense as allowed by law.cite book | last = Brookhiser | first = Richard | title = What Would the Founders Do? | edition = Paperback edition | origyear = 2006 | year = 2007 | publisher = Basic Books | location = New York, NY | pages = 35 | isbn = 978-0-465-00820-9 ] This was because of the fear the Protestants had in England of being disarmed that led to the Glorious Revolution and subsequently their guaranteed right to self-defense.

William Blackstone wrote in the eighteenth century about the right to have arms being a "natural right of resistance and self-preservation", espousing the individual right to protect oneself.

In modern usage, "arms" is often considered synonymous with "firearms". Historically, however, "arms" has referred to a variety of weapons and armor. [ Wills, Garry "To Keep and Bear Arms". New York Review Of Books, September 21, 1995.] In the United States, the term has been used to refer to edged weapons such as the bayonet and sabre. [David B. Kopel, Clayton E. Cramer, Scott G. Hattrup, "A Tale of Three Cities: The Right to Bear Arms in State Supreme Courts" Temple Law Review.]

Over the last 80 years, in all the countries that derive their laws from English Common Law except the United States, Parliamentary supremacy has permitted statutory law to be developed that extinguishes the historical common law right to have arms for self defense. Similarly, in the United States, the courts have widely allowed local jurisdictions in some states (e.g., New York, Illinois, California, New Jersey) to license and regulate historical common law rights to have arms for self defense.

United Kingdom

Although a right to have and use arms once existed in English law and Scots law, this is no longer the case and has not been so for many decades. Some argue that a general right to keep or bear arms has not existed for centuries. In any case, the modern legal situation is that the possession of firearms is effectively a privilege granted only to persons who can demonstrate both a need and that they are sufficiently responsible.

The Bill of Rights of 1689 included the provision that "the subjects which are Protestants may have Arms for their Defence suitable to their Conditions, and as allowed by Law." [cite web
url = http://www.british-history.ac.uk/report.asp?compid=12995#s11
title = House of Lords Journal Volume 14
date = 12 February 1689
accessdate = 2007-03-07
] The words "as allowed by Law" indicate in England this is considered a qualified rather than an absolute right.Fact|date=June 2008 However this provision, along with many other pieces of ancient law, has been overruled by the doctrine of implied repeal, the Bill of Rights had no special legal protection as a result of parliamentary sovereignty.

The Claim of Right enacted almost identical provisions to the Bill of Rights in Scotland prior to the creation of the United Kingdom and contained the provision that "the disarming of Protestants... [is] contrary to law".

The English Bill of Rights should not be equated to the United States Bill of Rights. In the United Kingdom, Parliament is the ultimate authority and legislation is not constrained by a central codified constitution like that of the United States. More recent statements of rights, such as the UK Human Rights Act 1998 have contained no mention of a right to bear arms, and whilst the law of the European Union makes certain provisions relating to gun ownership, they are focused on the harmonisation of national laws for trade purposes. [cite web
url = http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexapi!prod!CELEXnumdoc&lg=EN&numdoc=31991L0477&model=guichett
title = Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons
accessdate = 2007-03-07
]

Pistols, revolvers, rifles and ammunition were first controlled by the Firearms Act of 1920, which made it illegal to possess these weapons without first obtaining a certificate from the police. Similar provisions were introduced for shotguns in 1967. [cite web
url = http://www.parliament.uk/post/pn087.pdf
title = "Report 87: Psychological Evaluation and Gun Control"
publisher = Parliamentary Office of Science and Technology
date = 1996
accessdate = 2007-03-07
]

The Firearms Act 1968 placed an absolute ban on certain types of weapons, including automatic or self-loading guns. [UK-SLD|1628564|the Firearms Act 1968] Since then only the armed forces and police have had access to these types of arms. The Firearms Act 1982 extended the provision of the 1968 Act, including control of imitation firearms. The Firearms (Amendment) Act 1997 and Firearms (Amendment) (No. 2) Act 1997 introduced further very significant restrictions. [cite web
url = http://www.opsi.gov.uk/ACTS/acts1997/1997005.htm
title = Firearms (Amendment) Act 1997
publisher = Office of Public Sector Information
accessdate = 2007-03-07
and cite web
url = http://www.opsi.gov.uk/ACTS/acts1997/1997064.htm
title = Firearms (Amendment) (No. 2) Act 1997
publisher = Office of Public Sector Information
accessdate = 2007-03-07
] This has led, in effect, to a total ban on private possession of pistols even for competitive sporting purposes. Small-bore rifles remain permitted for competition however.

Following the Dunblane Massacre, the Firearms (Amendment) (No. 2) Act 1997 criminalised the possession of virtually all handguns in the United Kingdom.

The Anti-Social Behaviour Act 2003 has brought certain types of air weapons into the categories of control created by the firearms acts. [cite web
url = http://www.met.police.uk/firearms-enquiries/new_legis.htm
title = "New Legislation"
publisher = The Metropolitan Police
accessdate = 2007-03-07
]

UK legislation often gives considerable powers to ministers to issue regulations that control the way the various acts are applied. In relation to firearms this power generally falls to the Home Secretary. The Home Office therefore has some control of the conditions under which firearms can be licensed. On a few occasions over the years permits have been granted to private individuals to keep firearms for personal protection, for example during "The Troubles" in Northern Ireland, however these are very limited and exceptional cases.

United States

In the United States, the right to keep and bear arms is often presented in the context of military service and the broader right of self defense. Whether this right pertains to individuals acting independently or individuals acting collectively was once a matter of debate, and the basis for any right at all hotly contested. However, on June 26, 2008, the Supreme Court of the United States held that Americans have an individual right to keep and bear arms for self-defense in the case "District of Columbia v. Heller".

Historically, the right to keep and bear arms, whether considered an individual or a collective or a militia right, did not originate fully-formed in the Bill of Rights in 1791; rather, the Second Amendment was the codification of the six centuries old responsibility to keep and bear arms for king and country that was inherited from the English Colonists that settled North America, tracing its origin back to the Assize of Arms of 1181 that occurred during the reign of Henry II. Through being codified in the United States Constitution, the common law right was continued and guaranteed for the People, and statutory law enacted subsequently by Congress cannot extinguish the pre-existing common law right to keep and bear arms.

This right is often presented in the United States as synonymous with the Second Amendment to the United States Constitution, although this belief is controversial. Fact|date=May 2008

*Second Amendment to the United States Constitution Protects the pre-existing right to keep and bear arms.

The right is often presented in the United States as being an unenumerated, pre-existing right, such as provided for by the Ninth Amendment to the United States Constitution, although this belief is controversial.

*Ninth Amendment to the United States Constitution Provides for unenumerated rights, including implicitly a right to keep and bear arms and a right to have arms for defense, hunting, sport, etc..

Some have seen the Second Amendment as derivative of a common law right to keep and bear arms; Thomas B. McAffee & Michael J. Quinlan, writing in the North Carolina Law Review, March 1997, Page 781, have stated "... Madison did not invent the right to keep and bear arms when he drafted the Second Amendment—the right was pre-existing at both common law and in the early state constitutions." cite journal|title=Bringing Forward The Right To Keep And Bear Arms: Do Text, History, Or Precedent Stand In The Way?|journal=North Carolina Law Review|date=1997-03|first=Thomas B.|last=McAffee|coauthors=Michael J. Quinlan|volume=|issue=|pages=781|id= |url=|format=|accessdate=2008-05-10 ]

Akhil Reed Amar similarly notes the basis of Common Law for the first ten amendments of the U.S. Constitution, "following John Randolph Tucker's famous oral argument in the 1887 Chicago anarchist case, Spies v. Illinois":

"Though originally the first ten Amendments were adopted as limitations on Federal power, yet insofar as they secure and recognize fundamental rights – common law rights – of the man, they make them privileges and immunities of the man as citizen of the United States..." cite journal|title=The Bill Of Rights And The Fourteenth Amendment|journal=Yale Law Journal|date=1992-04|first=Akhil|last=Amar|coauthors=|volume=|issue=|pages=1193|id= |url=|format=|accessdate=2008-05-10 ]

Uviller and Merkel hold that the right to bear arms was not reserved for the state, but rather was an individual and personal right for arms only to the extent needed to maintain a well regulated militia to support the state. They also hold that a militia recognizable to the framers of the Constitution has ceased to exist in the United States resulting from deliberate Congressional legislation and also societal neglect; nonetheless, "Technically, all males aged seventeen to forty-five are members of the unorganized militia, but that status has no practical legal significance."cite book
author=Williams, David H.
title=The mythic meanings of the Second Amendment: taming political violence in a constitutional republic
publisher=Yale University Press
location=New Haven, Conn
year=2003
pages=Pg 78
isbn=0-300-09562-7
quote=Technically, all males aged seventeen to forty-five are members of the unorganized militia, but that status has no practical legal significance. Such "militia members" are not required to own guns, to drill together, or to learn virtue. The statutory provision creating this "universal militia" is nothing more than a dim memory of a distant hope.
doi=
] cite book
author=Merkel, William G.; Uviller, H. Richard
title=The militia and the right to arms, or, How the second amendment fell silent
publisher=Duke University Press
location=Durham, N.C.
year=2002
pages=Chapter 7, pages 151-152
isbn=0-8223-3017-2
quote=Given the continued vitality of the social role of armed troops, has the institution of the militia evolved into a viable military force in America today? Medieval monks might enjoy the question: is a military force that developed out of an ancient construct known as "the militia" still a militia though it boasts none of the defining characteristics of that form of military organization, and is, actually, in character the contradiction of many of them? It's a little like the parable of Aristotle's knife: if I break the blade of my knife and replace it, and then put a new handle on it, is it still the same knife?
oclc=
doi=
]

"From the text as well as a fair understanding of the contemporary ethic regarding arms and liberty, it seems to us overwhelmingly evident that the principal purpose of the Amendment was to secure a personal, individual entitlement to the possession and use of arms. We cannot, however, (as the individual rights contingent generally does) disregard entirely the first part of the text proclaiming a well regulated militia necessary to the security of a free state."Uviller, H. Richard. & Merkel, William G.: "The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent ", Page 23. Duke University Press. ISBN 0-8223-3017-2]

"...we understand the Second Amendment as though it read: "Inasmuch as and so long as a well regulated Militia shall be necessary to the security of a free state and so long as privately held arms shall be essential to the maintenance thereof, the right of the people to keep and bear arms shall not be infringed." "..to us, the language of the Amendment cannot support a right to personal weaponry independent of the social value of a regulated organization of armed citizens.."Uviller, H. Richard. & Merkel, William G.: "The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent ", Page 24. Duke University Press. ISBN 0-8223-3017-2]

According to gun-control proponent Sarah Brady, founder of the Brady Campaign, in the United States the meaning of "bear arms" is a matter of recent dispute and continuing political debate, although this belief is controversial.cite book
title = A Good Fight
first = Sarah
last = Brady
publisher = Public Affairs
year = 2002
id = ISBN 1586481053
] cite book
title = The Second Amendment "Right to Bear Arms" and United States v. Emerson
first = Robert J.
last = Spitzer
publisher = 77 St. John's L. Rev
year = 2003
] One argument is whether the expression involves the rights of an "individual" to 'keep and bear arms', or whether, according to Sarah Brady, it relates exclusively to a military service meaning of 'bear arms' as with the functioning and maintenance of an organized "militia", although this belief is controversial.(Brady 2002) pp. 102-104]

Early commentary about the right to bear arms in state courts of the United States

The Second Amendment of the United States Constitution is a Federal provision. Each of the fifty states also has its own state constitution addressing their specific state. Forty-four states have chosen to embody explicitly a right to bear arms into their state's constitution, cite web|url=http://www.law.ucla.edu/volokh/beararms/statecon.htm |title=State Constitutional Right to Keep and Bear Arms Provisions |accessdate=2008-05-10 |last=Volokh |first=Eugene |date=2006 |publisher=UCLA ] and six states have chosen explicitly not to do so.

Of the forty-four states that have chosen to embody explicitly a right to bear arms into their state's constitution, approximately thirty-one have explicitly chosen to include the right to arms for "individual right", "defense of self", "defense of home" or similarly worded reasons. Approximately thirteen states, as with the Federal Constitution, did not choose to include explicitly "individual", "self" or "home" wording associated with a right to bear arms for their specific state.

Of the forty-four states, approximately twenty-eight have explicitly chosen to include the right to bear arms for "security of a free state", "defense of state", "common defense" or similarly worded reasons, as with the Federal Constitution. Approximately sixteen states did not choose to include explicitly "free state", "defense of state" or "common defense" wording for their specific state. Whether the inclusion of these kinds of wording in state constitutions has relevance to the issue of whether implicit "individual" rights exist, or whether such rights (if any) are implicitly protected by the states' constitutions or by the Federal Constitution's Second Amendment, remains a matter of dispute.

Regarding the state interpretations of these state and the federal constitutional rights to bear arms, state courts have addressed the meaning of these specific rights in considerable detail. Two different models have emerged from state jurisprudence: an individual right and a collective right.

In "Bliss v. Commonwealth" (1822, KY),cite court |litigants=Bliss v. Commonwealth |vol=2 |reporter=Littell |opinion=90 |date=KY 1882 |url=http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/bliss_v_commonwealth.txt] which evaluated the right to bear arms in defence of themselves and the state pursuant to Section 28 of the Second Constitution of Kentucky (1799), the right to bear arms in defense of themselves and the state was interpreted as an individual right, for the case of a concealed sword cane. This case has been described as about “a statute prohibiting the carrying of concealed weapons [that] was violative of the Second Amendment””.United States. Anti-Crime Program. Hearings Before Ninetieth Congress, First Session. Washington: U.S. Govt. Print. Off, 1967, p. 246.] As stated by the Kentucky High Court, "But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution." The "constitution" mentioned in this quote refers to Kentucky's Constitution.Right to Keep and Bear Arms, U.S. Senate. 2001 Paladin Press. ISBN 1581602545.] As mentioned in this quotation "as it existed at the adoption of the constitution" was the pre-existing right in force when Kentucky's First Constitution was drawn in 1799. [The Second Amendment became effective December 15, 1791, and was still a new concept in 1799.]

The case prompted outrage in the Kentucky House, all the while recognizing that Section 23 of the Second Constitution of Kentucky (1799), which stated "That the right of the citizens to bear arms in defence of themselves and the State shall not be questioned." [Commonwealth of KY Const. of 1799, art. , x§ 23] did guarantee individuals the right to bear arms.

The result was that the law of the Commonwealth of Kentucky was eventually over-turned by constitutional amendment with Section 26 in Kentucky's Third Constitution (1850) banning the future carrying of concealed weapons, while still asserting that the bearing of arms in defense of themselves and the state was an individual and collective right in the Commonwealth of Kentucky. This recognition, has remained to the present day in the Commonwealth of Kentucky's Fourth Constitution enacted in 1891, in Section 1, Article 7, that guarantees "The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons." As noted in the Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in the 1980’s, vol. 10, no. 1, 1982, p. 155, "The first state court decision resulting from the "right to bear arms" issue was "Bliss v. Commonwealth". The court held that "the right of citizens to bear arms in defense of themselves and the State must be preserved entire, ..."" "This holding was unique because it stated that the right to bear arms is absolute and unqualified." [cite journal |last=Pierce |first=Darell R. |title=Second Amendment Survey |journal=Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in the 1980's |volume=10 |issue=1 |date=1982 |pagest=155] [Two states, Alaska and Vermont, do not require a permit or license for carrying a concealed weapon to this day, following Kentucky's original position.]

That the decision of "Bliss" not be viewed as being solely about the Commonwealth of Kentucky's law is also seen from the defense subsequently given against a murder charge in Kentucky against Mattews Ward, who in 1852 pulled out a concealed pistol and fatally wounded his brother's teacher over an accusation regarding eating chestnuts in class. Ward's defense team consisted of eighteen lawyers, including U.S. Senator John Crittenden, former Governor of Kentucky, and former United States Attorney General. The defense successfully defended Ward in 1854 through an assertion that “a man has a right to carry arms; I am aware of nothing in the laws of God or man, prohibiting it. The Constitution of Kentucky and our Bill of Rights guarantee it. The Legislature once passed an act forbidding it, but it was decided unconstitutional, and overruled by our highest tribunal, the Court of Appeals.” As noted by Cornell, “Ward's lawyers took advantage of the doctrine advanced in "Bliss" and wrapped their client's action under the banner of a constitutional right to bear arms. Ward was acquitted.”cite book
author=Cornell, Saul
title=A WELL-REGULATED MILITIA – The Founding Fathers and the Origins of Gun Control in America
publisher=Oxford University Press
location=New York, New York
year=2006
pages=pp. 147-149
isbn=978-0-19-514786-5
]

In contrast, in "State v. Buzzard" (1842, Ark), the Arkansas high court adopted a militia-based, political right, reading of the right to bear arms under state law, and upheld the 21st section of the second article of the Arkansas Constitution that declared, "that the free white men of this State shall have a right to keep and bear arms for their common defense",Cite court |litigants=State v. Buzzard |vol=4 |reporter=Ark. (2 Pike) |opinion=18 |date=1842 |url=http://www.constitution.org/2ll/2ndcourt/state/191st.htm] while rejecting a challenge to a statute prohibiting the carrying of concealed weapons. Buzzard had carried a concealed weapon and stood "indicted by virtue of the authority of the 13th section of an act of the Legislature prohibiting any person wearing a pistol, dirk, large knife or sword-cane concealed as a weapon, unless upon a journey, under the penalties of fine and imprisonment." The Arkansas high court further declared "That the words "a well regulated militia being necessary for the security of a free State", and the words "common defense" clearly show the true intent and meaning of these Constitutions [i.e., Ark. and U.S.] and prove that it is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then the people, neither individually nor collectively, have the right to keep and bear arms." Joel Prentiss Bishop’s influential "Commentaries on the Law of Statutory Crimes" (1873) took Buzzard's militia-based interpretation, a view that Bishop characterized as the “Arkansas doctrine", as the orthodox view of the right to bear arms in American law.cite book
author=Cornell, Saul
title=A WELL-REGULATED MILITIA – The Founding Fathers and the Origins of Gun Control in America
publisher=Oxford University Press
location=New York, New York
year=2006
pages=p. 188
isbn=978-0-19-514786-5
quote=”Dillon endorsed Bishop's view that "Buzzard's" “Arkansas doctrine,” not the libertarian views exhibited in "Bliss, captured the dominant strain of American legal thinking on this question.”
]

Modern gun rights advocates have disputed this history, claiming that the "individual right" was the orthodox view of the right to bear arms under state law in the 19th century, citing the previously-mentioned "Bliss v. Commonwealth", and even "State v. Buzzard", which recognized the right of an individual to carry a weapon concealed, when upon a journey, in an affirmative defense. Similarly, political scientist Earl Kruschke has categorized both "Bliss" and "Buzzard" as being “cases illustrating the individual view.”cite book
author=Kruschke, Earl R.
title=Gun control: a reference handbook
publisher=ABC-CLIO
location=Santa Barbara, Calif
year=1995
pages=pp. 140-143
isbn=0-87436-695-X
oclc=
doi=
] Since 1873, some legal and constitutional historians have sided with Bishop and not the individual rights model. [ See the symposium in Chicago Kent Law Review 76 and the Fordham Law Review vol. 73] Other legal and constitutional historians have sided with the individual rights model.Cite journal |last=Volokh |first=Eugene |title=Testimony of Eugene Volokh on the Second Amendment, Senate Subcommittee on the Constitution, September 23, 1998 |journal=California Political Review |date=November/December 1988 |pages=pp. 23 |url=http://www.law.ucla.edu/volokh/beararms/testimon.htm#14 |quote="A recent exhaustive study reveals that there was exactly one statement in the 1800s cases or commentaries supporting the collective rights view, a concurring opinion in an 1842 Arkansas state court case."]

In 1905, the Kansas Supreme Court in "Salina v. Blaksley" [Cite court |litigants=City of Salina v. Blaksley |vol=72 |reporter=Kan. |opinion=230 |date=1905 |url=http://www-2.cs.cmu.edu/afs/cs/user/wbardwel/public/nfalist/salina_v_blaksley.txt] made the first "collective right" judicial interpretation.cite book
author=Cornell, Saul
title=A WELL-REGULATED MILITIA – The Founding Fathers and the Origins of Gun Control in America
publisher=Oxford University Press
location=New York, New York
year=2006
pages=p. 258
isbn=978-0-19-514786-5
quote=”... the Kansas Supreme Court had used a similar formulation of the right to bear arms a decade earlier, describing this right as one that “refers to the people as a collective body.””
] The Kansas high court declared: "That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal Constitution, which says: "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.""

A modern formulation of the debate over the Second Amendment as an individual/collective rights dichotomy “was the emergence of the collective rights reading of "Cruikshank"cite book
author=Cornell, Saul
title=A WELL-REGULATED MILITIA – The Founding Fathers and the Origins of Gun Control in America
publisher=Oxford University Press
location=New York, New York
year=2006
pages=p. 198
isbn=978-0-19-514786-5
] that became better known when it was employed in “a short but influential article”cite book
author=Cornell, Saul
title=A WELL-REGULATED MILITIA – The Founding Fathers and the Origins of Gun Control in America
publisher=Oxford University Press
location=New York, New York
year=2006
pages=p. 198
isbn=978-0-19-514786-5
] in the "Harvard Law Review" article in 1915 by the Chief Justice of the Maine Supreme Court, Lucilius A. Emery. He noted that "the right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against the common enemy, foreign or domestic."Cite journal |title=The Constitutional Right to Keep and Bear Arms |volume=28 |journal=Harvard Law Review |pages=473–477 |last=Emery |first=Lucilius A. |year=1914–1915 |url=http://www.guncite.com/journals/har1915.html |doi=10.2307/1326865]

Modern commentary about the right to keep and bear arms in the United States: three models

Modern legal theorists generally identify three models of interpreting the right to bear arms in the United States. These three models are founded on differing readings of the Second Amendment, "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."

The first two models focus on the preamble, or "purpose" clause, of the Amendment — the words "A well regulated Militia, being necessary to the security of a free State." The first model, the collective model, holds that the right to bear arms belongs to the people collectively rather than to individuals, because the right's only purpose is to enable states to maintain a militia. The second model, the modified collective model, is similar to the first. It holds that the right to keep and bear arms exists only for individuals actively serving in the militia, and then only pursuant to such regulations as may be prescribed.cite web
url= http://writ.news.findlaw.com/dorf/20011031.html
title= Federal Court of Appeals Says the Second Amendment Places Limits on Gun Control Legislation
last= Dorf | first= Michael | authorlink= Michael C. Dorf
date= October 31, 2001 | publisher= Findlaw-Writ
accessdate= 2008-03-31
]

The third model, the Individual Rights Model, holds that a right of individuals is to own and possess firearms, much as the First Amendment protects a right of individuals to engage in free speech. This view was adoped by the Supreme Court in "District of Columbia v. Heller" (2008). Prior to the Supreme Court's ruling in "Heller" there was a split among the federal courts, with nine of the federal circuit courts of appeal supporting a modified collective rights view, two of the federal circuits supporting an individual rights view, and one federal circuit court having not addressed the question. [cite web
url= http://www.nytimes.com/2007/05/06/us/06firearms.html?_r=1&ei=5087%0A&em=&en=c529991ff45afe5d&ex=1178596800&pagewanted=print&oref=slogin
title= "A Liberal Case for Gun Rights Sways Judiciary"
last= Liptak |first= Adam |date= May 6, 2007 |publisher= "The New York Times"
accessdate= 2008-03-31
]

Some claim the Individual Rights model must yield to reasonable regulation. [cite web
url= http://writ.news.findlaw.com/amar/20011102.html
title= Guns and the Constitution: Telling The Right Second Amendment Story
last= Amar | first= Akhil | authorlink= Akhil Amar | coauthors= Vikram Amar
date= November 02, 2001 | publisher= Findlaw-Writ
accessdate= 2008-03-31
] Nadine Strossen, President of the ACLU, formulated that argument in an interview. "Let’s assume for the sake of argument it does protect an individual right," said Strossen, "it is no more absolute than freedom of speech or any other right in the Constitution. No right is absolute; the government is always allowed to restrict the right if it can satisfy Constitutional strict scrutiny and show the restriction is narrowly tailored to promote a goal of compelling importance." [ [http://en.wikinews.org/wiki/ACLU_President_Strossen_on_religion%2C_drugs%2C_guns_and_impeaching_George_Bush#Gun_rights Interview with Nadine Strossen] , David Shankbone, "Wikinews", October 30, 2007.]

At the state level, each of the fifty state constitutions, state laws, and state courts address the state-based right to bear arms distinctly within their respective jurisdictions. [Cooley, Thomas M. & Angell, Alexis C.: "A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power of the States of the American Union", Page 427. Boston: Little, Brown & Company. 1890.] The degree and the nature of the protection, prohibition, and regulation at the state level varies from state to state. The District of Columbia, not being a state, falls within the federal jurisdiction.

In the Nineteenth century, in the United States, considerable attention in public discourse and the courts was directed to the issue of the risks of arming of slaves (prior to the Civil War), and later to the right of the Negro people to belong to militia and the arming of the Negro people. Most famously this is seen in the court arguments of the court case Dred Scott v. Sandford, whether the slave Dred Scott could be a citizen, with rights, including the right to bear arms. This debate about the rights of slaves and former slaves often included the usage of the term 'bear arms' with the meaning of individual Negroes having or not having the right to possess firearms.

For the first time, in October 2001, the United States Court of Appeals for the Fifth Circuit stated::

"there are numerous instances of the phrase 'bear arms' being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the 'people' [or 'citizen' or 'citizens'] "to bear arms in defense of themselves [or 'himself'] and the state,' or equivalent words, thus indisputably reflecting that under common usage 'bear arms' was in no sense restricted to bearing arms in military service."United States v. Emerson, 270 F.3d 203 (5th Cir. 2001). ] [ The cited excerpt from the "Emerson" decision reflects some of the court's lengthy analysis of Second Amendment jurisprudence (Spitzer 2003)(Reynolds 2002). This analysis garnered considerable attention and scrutiny by legal experts. Shortly after the decision, Attorney General John Ashcroft directed the adoption of the Emerson court's view as the policy of the Justice Department in a memo to all ninety-three United States Attorneys in November 2001. In contrast, legal critics of the "individualist view" repudiated the "Emerson" analysis on various grounds. Judge Robert M. Parker, while concurring in the "Emerson" result, labeled the majority's analysis as "obiter dicta", irrelevant tothe outcome of the case (see "Emerson", Spitzer 2003). Moreover, the thoroughness of the "Emerson" analysis was criticized because the court's rendered opinion relied substantially on interpretations submitted in a "brief presented by one party" (Spitzer 2003).]

The "Emerson" decision was consistent with a view of Constitutional interpretation known by its principal advocatescite book
last = Uviller
first = H. Richard
coauthors = William B. Merkel
title = The Militia and the Right to Arms
publisher = Duke University Press
date = 2002
pages = pp. 246-247
isbn = 0-8223-3017-2
Per Uviller and Merkel the Standard Model appears to have the endorsement of a large number of reputable law professors, most writing as advocates, who have written a great many articles advocating the hypothesis. Though, the Standard Model has very little support among academic historians, let alone specialists in eighteenth century political thought.] as the "Standard Model" view, and alternatively referred to as the "Individualist view".cite book
title = The Second Amendment "Right to Bear Arms" and United States v. Emerson
first = Robert J.
last = Spitzer
publisher = 77 St. John's L. Rev.
year = 2003
] [ The term "Standard Model" was coined in 1995 by Glenn H. Reynolds in "A Critical Guide to the Second Amendment", 62 TENN. L. REV. 461, 463 (1995).] There is some dispute whether the "individualist view" predates the collective "militia view" in American jurisprudence. Some assert the "militia view" first appeared only in the early to mid 1990s.cite book
title = Telling Miller's Tale: A Reply to Yassky
first = Glenn H.
last = Reynolds
publisher = 65 LAW & CONTEMP. PROBS. 113
year = 2002
] [ " [http://www.claremont.org/publications/pubid.404/pub_detail.asp The Dormant Second Amendment?] " by Daniel C. Palm at the Claremont Institute.] A contrasting opinion asserts the militia view long predates the individualist view, with the individualist view dating back to only 1960.cite book
title = The Right to Bear Arms: A Study in Judicial Misinterpretation
first = Stuart R.
last = Hays
publisher = 2 WM. & MARY L. REV. 381
year = 1960
p. 381.] ["Bliss" dates to 1822, and was the first judicial case to establish the individual view. In contrast, Law review articles advocating the militia (collective) view published before 1960 include: S.T. Ansell, Legal and Historical Aspectsof the Militia, 26 YALE L. J. 471, 474-80 (1917); John Brabner-Smith,Firearm Regulation, 1 LAW & CONTEMP. PROBS. 400, 409-412 (1934); VictorBreen et al., Federal Revenue as a Limitation on State Police Power andthe Right to Bear Arms-Purpose of Legislation as Affecting Its Validity,9 J. B. ASS'N KAN. 178, 181-82 (1940); Lucilius A. Emery, TheConstitutional Right to Keep and Bear Arms, 28 HARV. L. REV. 473, 475-77(1915); George I. Haight, The Right to Keep and Bear Arms, 2 BILL RTS.REV. 31, 33-35 (1941); Daniel J. McKenna, The Right to Keep and BearArms, 12 MARQ. L. REV. 138, 145 (1928)]

In the late Twentieth Century, gun advocates argued that the term 'keep and bear arms' means and has meant keeping and bearing private arms for self defense or hunting purposes. [Wills, Garry (1999). "A Necessary Evil". New York, NY. Simon & Schuster.]

The Second Amendment of the United States has also been viewed by many private Americans, including those who are part of the modern militia movement as providing a means for resisting governmental tyranny, also known as the "insurrectionary theory of the Second Amendment". This view has been fiercely disputed among some historians and legal scholars. The modern militia movement in the United States has sought to advance its case through selective quoting on websites and publications the words of the founding fathers, though the accuracy of these quotations has been debated. What is notable is that the quotations generally align not with the Federalist Framers, but rather with the Anti-Federalist objectors to the Constitution. People sympathetic with the modern militia movement object to this analysis.Mulloy, D. J. (2004). "American extremism history, politics and the militia movement." Pages 116-117. Routledge studies in extremism and democracy. London: Routledge.] cite web
url=http://lawreview.kentlaw.edu/articles/76-1/Rakove%20macro2.pdf
title=Chicago Kent Law Review, Vol. 76:103 Jack N. Rakove
accessdate=2008-01-10
]

Jurisdictions with Civil Law/Roman Law judicial origin

*Corpus Juris Civilis
*Civil law (legal system)
*Roman Law
*Socialist law

Cuba

Chapter 1, Article 3 of the "... all citizens have the right to struggle through all means, including armed struggle. ..."'

Mexico

"Article 10. The inhabitants of the United Mexican States are entitled to have arms of any kind in their possession for their protection and legitimate defense, except such as are expressly forbidden by law, or which the nation may reserve for the exclusive use of the Army, Navy, or National Guard; but they may not carry arms within inhabited places without complying with police regulations." [cite web
url= http://www.ilstu.edu/class/hist263/docs/1917const.html#Article10
title= 1917 Constitution of Mexico (As Amended)
date= |year= |month= |work= |publisher=
pages= Article 10
accessdate= 2008-03-31
]

pain

Per section 149.26 of the "The State shall have exclusive competence over ... the regime for the production, trading, holding and use of weapons"

Jurisdictions with Religious Law judicial origin

*Hindu law
*Religious law
*Sharia

Chinese law

According to Chinese law, privately owned firearms are illegal in the Peoples Republic of China. "Whoever, in violation of firearm control regulations, secretly keeps firearms or ammunition and refuses to relinquish them shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention." cite web|url=http://www.novexcn.com/criminal_law.html |title=CRIMINAL LAW OF THE PEOPLE'S REPUBLIC OF CHINA |accessdate=2008-05-10 ]

Notes and references

Further reading

*
*
*
*
*

ee also

*Grant of Arms
*Gun politics
*Gun politics in the United Kingdom
*Gun politics in the United States
*Law of Arms
*Political arguments of gun politics in the United States
*Second Amendment to the United States Constitution
**District of Columbia v. Heller
*Right of self-defense


Wikimedia Foundation. 2010.

Look at other dictionaries:

  • right to keep and bear arms — noun The right to hold weaponry or armor for personal use, or to declare war if necessary, especially in the United States …   Wiktionary

  • Citizens Committee for the Right to Keep and Bear Arms — Formation 1971 Headquarters Bellevue, Washington Membership 615,000 Chairman Alan Gottlieb Website …   Wikipedia

  • Right to bear arms — may refer to:*Right to keep and bear arms (firearms) *Heraldry (coat of arms) …   Wikipedia

  • Right to bear arms — Die Artikel Waffenrecht (Vereinigte Staaten) und 2. Zusatzartikel zur Verfassung der Vereinigten Staaten überschneiden sich thematisch. Hilf mit, die Artikel besser voneinander abzugrenzen oder zu vereinigen. Beteilige dich dazu an der Diskussion …   Deutsch Wikipedia

  • bear arms — to carry weapons. The court stated that the right of an individual to keep and bear arms is not guaranteed by the Second Amendment. Usage notes: usually used in the phrases right to bear arms and keep and bear arms which, of course, has nothing… …   New idioms dictionary

  • bear arms — phrasal 1. : to carry or possess arms the right of the people to keep and bear arms U.S. Constitution 2. : to serve as a soldier * * * bear arms 1. To serve as a soldier 2. (also (obsolete) give arms) to show or have armorial bearings (heraldry) …   Useful english dictionary

  • Right of self-defense — This article and defense of property deal with the legal concept of justified acts that might otherwise be illegal. For the general act of protecting one s person from attack, see Self defense. For the 1983 Canadian action thriller film, see Self …   Wikipedia

  • bear — / bar/ vb bore / bōr/, borne, / bōrn/, also, born vt 1: to physically carry (as an object or message) the right of the people to keep and bear arms U.S. Constitution amend. II …   Law dictionary

  • arms, right to — Right guaranteed by Second Amendment, U.S. Constitution, to keep and bear arms. This right does not, however, permit a person to carry gun in violation of state or federal gun law. Com. v. Jackson, Mass., 344 N.E.2d 166 …   Black's law dictionary

  • right to arms — Right guaranteed by Second Amendment, U.S. Constitution, to keep and bear arms. This right does not, however, permit a person to carry gun in violation of state or federal gun law. Com. v. Jackson, Mass., 344 N.E.2d 166 …   Black's law dictionary