Wednesday, April 13, 2011

The Right to Keep and Bear ALL Arms: A Historical Analysis and Semantic Explication of the English Word “Arms.”

This is my final semester research paper for my Semantics class at BYU, Provo, UT, taught by Dr. William Eggington.

It's titled "The Right to Keep and Bare ALL Arms: A Historical Analysis and Semantic Explication of the English Word 'Arms'.”

You can view it by click on the following link:

(***NOTE: It appears you have to have a gmail account to view this)

The Right to Keep and Bare ALL Arms: A Historical Analysis and Semantic Explication of the English Word "Arms."

Here is the concluding paragraphs of the paper:

"Once again, can a certain arm be deemed illegal if our constitutional right is one such that the people can keep and bear “arms” in general?  How can Congress deny this right to the people that is bound to uphold, yet acknowledge such a right for itself and it its governmental relatives, namely the law enforcement and military sections of the government? For this is exactly what it has done with many of its laws, banning certain kinds of arms, or more specifically firearms from civilian possession and production, yet granting the law enforcement and military agencies the legal ability to possess such arms/firearms.  How can a legislative body acknowledge such a right while simultaneously condemning it out of the same mouth and in the same law?  Do we maintain the right to keep and bear arms or not?
        Does Congress have the constitutional authority to define what are and aren’t to be considered “arms” in the English language of today, when the Constitution clearly gives no specific definition to what “arms” are to be, but rather retains this word’s historic definition of “weapons of offense and defense in general, and is not limited solely to firearms?”  For that is exactly what happens when Congress attempts to assume a power it clearly does not have in proscribing by law what arms are legal for the people to keep and bear.  For if Congress can outlaw certain kinds of arms from individual citizen possession under the current language of the Constitution, specifically the 2nd Amendment, then does Congress not have absolute power to limit all kinds of arms, and ban from civilian possession and use all firearms, or all knives, or all arms except sticks?  What could stop the Congress from legally banning all arms except scissors, as long as the people’s right to keep and bear “some kind of arm” is not infringed?  That seems to be Congress’s interpretation of the word “arm,” that the people have the right to keep and bear some kind(s) of arm, but only the kind(s) of arm the Congress deems appropriate.  If that were the intentions of the framers and of and those who ratified the Constitution and its Bill of Rights, is it not likely that it would have been worded much more specifically so as to say that long as the people had some kind of arm, the Congress may ban all other kinds of arms?  It seems plausible to assume that if it had been the framers and people’s intention to only allow people to keep and bare some arms, or even limit people to keeping and baring firearms, then they would have spelt out the 2nd Amendment as “the right of the people to keep and bare SOME arms shall not be infringed,” or “the right of the people to keep only firearms, and even then SOME firearms shall not be infringed.”  Being that the plural use of “arm” is used in the language of the 2nd Amendment, it seems unlikely that that is the case in the current language of the 2nd Amendment.

If Congress may not limit the types of arms the people may keep and bare, under the current language of the 2nd Amendment, and it is the sentiment of the majority of the American people that such limitations on arms are necessary and that Congress should be allowed to do so, then there is a simple solution to this problem.  What must happen in order for Congress to have such authority is to pass a constitutional amendment in Congress and submit it to the state legislatures for ratification, granting Congress this authority. But in order to gain the support of those who favor gun-rights, it would be important for this amendment to be worded in such as way as to limit congressional authority in prohibiting certain kinds of arms, and it must also limit the government from allowing itself from possessing those very arms it would ban the citizenry from being able to possess.
There are some very dangerous and deadly “arms” in the world, and what Congress and others are attempting to do in preventing these weapons from getting into the hands of the wrong people, by attempting to ban said arms from civilian production, transfer, and possession by, can be seen as a decent action, taken in order to make the country and world more safe and secure.  But at the same time, Congress, purposefully or not, is assuming a legislative power it is not currently granted by the Constitution, and thus it is establishing itself as an all powerful, arbitrary legislature, which in the eyes of the American Founders, especially James Madison, can be just as dangerous if not even more so than the most dangerous weapon in the world.   For an all powerful, arbitrary legislature is dangerous to the lives of the people and dangerous to their liberties and rights.  It must be noted that James Madison, while like most of his contemporary American revolutionaries in viewing any all powerful, arbitrary legislature as a danger to the sovereign people of a nation, he saw the state legislatures in his time, and the excess democracy then practiced at the expense of the rights of the minority as the ultimate threat to the United States; thus he wanted a stronger federal government and legislature to curb the state legislatures, strong yet still limited in it’s scope of powers.[62]
Thus, there might appear to be two routes that can be taken so as to allow Congress to be able to make laws banning certain kinds of arms from civilian possession and use.  One, which has already been set as precedent by the US Court of Appeals of the District of Columbia, and affirmed by the Supreme Court, is for the courts to decide on what exactly is meant by the word “arms” as used in the Second Amendment.  This of course would require a challenge of all the federal gun control laws that seek to ban certain types of arms from the possession and use by the citizenry.  And in each such challenge in the court system, the courts would have to set precedent as to what weapon is deemed an “arm” as referred to in the Second Amendment and what weapon is not.  This was already done somewhat in Parker v District of Columbia, in which a handgun was ruled to be an “arm” referred to in the Second amendment.  But, keep in mind my earlier warning that in doing so, the courts must look to how the word “arms” was used and what it meant to the general society at the time of the Second Amendment’s adoption as fundamental law, and use that meaning, and the types of weaponry that fit under that meaning, as a starting point, taking nothing from that meaning or the types of weaponry deemed “arms” at that time, but only adding to that meaning or list of “arms” as new weaponry comes to fruition.  And throughout this paper, I have provided the meaning of the word arms as known to the general society of America and even abroad, thus providing a starting point or base point from which the courts can proceed, again taking nothing from that meaning, but only adding to it.  Thus, having acknowledged this power of the federal courts to interpret the meaning of “arms” and determining what kind of weapons or items that can be deemed “arms,” this route isn’t really a feasible or even possible one because of the general meaning of the word “arm” as understood in 1791, which I have proven to mean any weapon or instrument/tool of wielded for the purpose offensive and defensive action in general, and is not limited solely to firearms.  So, in other words, even in 1791, when the Second Amendment was ratified and adopted, the word “arms” was an umbrella term, a very broad term that couldn’t then, nor could it now, be expanded to an even broader meaning.  It is for all intents and purposes as broad as can be.  And thus, the same broad definition of 1791 applies even still today, for it cannot be altered by or taken away from by the judiciary (except as to be expanded upon) or by Congress.  It can only be altered by the sovereign people via a constitutional amendment.  Therefore, in all reality, in order for Congress to be allowed to ban certain types of arms from the possession and use by the citizenry, a constitutional amendment allowing such is in order.  This is the second route.  Congress must introduce and pass such a carefully worded constitutional amendment and submit it to the state legislatures for ratification, so that it can be legally granted the authority to limit the dangerous and deadly arms that it feels would be hazardous to the public safety, without posing the dangerous threat the public’s liberties in arbitrarily assuming more and more powers it does not constitutionally have.  That way, not only do those who favor more gun control win, but those who oppose further gun control may rest assured that Congress will only be able to legally limit and prohibit certain types of arms that the people deem as needing prohibition, all the while protecting the people’s rights and liberty, and preventing their representative government from assuming too much power that it constitutionally does not have.  It is a win-win situation for all involved.  It would also decrease the heated debates, arguing, and rhetoric concerning gun control and gun rights in the nation, thus creating a more harmonious relationship between all Americans from all sides and angles of the American political spectrum.  
In closing, I would like to add my personal opinion as to banning certain kinds of weaponry from possession and use by the citizenry that might not be considered “arms” as referred to in the Second Amendment.  I believe, as I have shown, that, according to how the Second Amendment reads as of now, mankind is allowed to own any kind of weapon or arm they please, so long as they do not use that weapon in a way that violates the rights of others, such as in the commission of crimes such as robbery, theft, murder, rape, assault and battery, etc or torts.  But, I am not an unreasonable man.  I can see the reasonableness of constitutionally banning certain types of weapons, such nuclear weapons or other chemical or biological warfare capable of creating much damage and suffering on a large scale, since the risk of them going off and devastating lots of people, the effects of such being so terrible, either accidentally or by some madman is great enough.  However, I am very cautious about giving our government the ability to ban certain tpyes of arms from manufacture, sale, possession and use by the citizenry while maintaining those privileges for itself and its police and military units.  I do not believe a government can or should possess certain kinds of weapons or arms, such as nuclear weapons, that are banned from the ownership of private individuals.  Thus, I do not agree with the current state of America and the world, where governments and militaries are allowed to possess and use machine guns, rocket launchers, tanks, grenades, and other high-end explosives and weaponry that private individuals are prohibited by law from possessing and lawfully using.  As long as an individual does not use said weapon(s) in a way that would harm the rights of another, there should not and cannot reasonably be a prohibition against owning and using said weapons in ways that do not violate the rights of others while permitting the military and police units of government to possess and use those weapons.  A military or police unit, or even a single member of one of those units, is just as capable of using those weapons unlawfully and to harm others in their rights, including the very citizens it is meant to serve, as a private individual citizen or group of citizens are, on a whim.  We saw this in the Fort Hood shooting massacre in 2009.  Why then do we trust our military to possess those weapons and hope they will use them justly and lawfully when we don’t trust private citizens to do so, and thus ban private citizens from acquiring and using those weapons lawfully?  I do not believe any government or military should be allowed to have access to anything the private citizens of that nation are prohibited by law to have access to, especially weaponry and arms, because such weaponry and arms could be used by those in power upon the people who have compacted to allow that government to exist, and whose rights that government is supposed to protect.  Power corrupts; this is one of the most understood principles of government.  And because power corrupts, it must never be trusted in any fallible human being, and we are all fallible, save He who created us, for I believe in a Creator.  I believe that not only is an armed citizenry a free citizenry, but a citizenry that possess the same arms and weapons as its government, and forbids its government from possessing arms that the citizenry are forbidden by law to possess, is the true definition and mark of a free citizenry ruled by a free government.  Thus, it is of my opinion that if we are to pass a constitutional amendment allowing Congress to ban certain kinds of arms from the possession and use by the citizenry of America, then we should also ban those arms from the possession and use by the federal and state governments as well.  And if that can’t be done without subjecting America to the power of nations that would possess and use such dangerous weapons, thus weakening America and subjecting it to attack, then such weapons should not be banned from anyone whatsoever, be it government or citizenry.  For as the famous American Founder Thomas Paine once said in a 1775 article for the Pennsylvania Magazine, 'I would gladly agree with all the world to lay aside the use of arms, and settle matters by negotiation; but unless the whole will, the matter ends, and I take up my musket and thank heaven he has put it in my power.'”


Response to a blogger on the militia system being abandoned by America, which some might say to mean the 2nd Amendment no longer applies, to which I argue is false:

There have been some that attempt to claim that because the 2nd Amendment contains the militia clause, and that America has all but abandoned the militia system.  Thus, because the militia system was seen as extremely important to the Founders as a primary defense of the country and of the rights of the people, an armed people being the best determent against encroachment of enemies both foreign and domestic, including the American government(s), the militia clause means nothing without a militia system and therefore the 2nd Amendment no longer applies or is no longer relevant.  But this notion of thinking is immensely mistaken on several accounts.  First off, it is true that the militia clause of the 2nd Amendment clearly shows the importance of the militia system in the minds of the Founders, and true, America "gave up the militia system a while ago, but only in practice or in their faith in such a system. Legally though, as provided for in the Constitution, particularly Section 1 Article 8, the militia system still exists and can be called up and into service at any time, lawfully of course, even though we don't necessarily frequently drill in militias or have normally formed militias, and even though many Americans don't even know what a militia is anymore. Thus, if the second part of the 2nd Amendment relating to arms is read solely in the context of the militia system, while the militia system is still provided for in the Constitution and is not amended out of it, even though we don't practice the militia system in modern times, the fed. gov. can't abridge the right of the people to keep and bear arms. Thus, in order for the right to keep and bear arms clause to be null and void, again, if read solely in the context of a militia system, and for Congress to then have the authority to abridge the right of the people to keep and bear arms, the militia system must be legally abandoned by the US and amended out of the Constitution altogether. Abandoning the practice of the militia system, even on the federal level, does not equate to legally abandoning it. As long as the militia system exists within our laws and Constitution, the "right to keep and bear arms" clause remains relevant as well, and the grammaticality of the word "arms" must be considered. It has also been claimed that gun rights can also be cited in the 10th Amendment, in addition to or instead of he 2nd Amendment.  

I too can see the right to keep and bear arms present in the 10th Amendment as well, particularly if one reads the 2nd Amendment to be solely in the context of the militia system. For there are obviously and historically other uses of arms, including firearms, like hunting and sustenance, protection of property and self, sport, etc. And some of these uses of firearms are enumerated in some of the state constitutions, like in the UT constitution or the Kansas constitution for example, which state the following: 

"A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose;"
"The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the Legislature from defining the lawful use of arms."

In terms of whether the militia portion of the 2nd Amendment and the right to keep and bear arms applies only to those actually called into service of the militia or if it applies to every private individual as potential militia members, I tend to agree with the latter side of this debate, laid out persuasively and clearly by Leonard Levy in chapter 6 of his "Origin of the Bill of Rights.
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1 comment:

  1. very thoughtful and accurate words! But for one problem...there no longer exists a civil government on the States. We have instead corporations running things. The Corporation of the United States is NOT the Constitutional Republic formed by the Declaration and the Constitution. We have no private owner ship of anything, not even our persons. The corporation has not legally required amendments since 1871. And those which have been proclaimed ratified, mostly were not.