RIGHT TO BEAR ARMS

The 'right to bear arms' refers to the right that individuals have to weapons. This right is often presented in the context of military service and the broader right of self defense.

Definitions of "bear arms"

In the United States, the meaning of "bear arms" is a matter of recent dispute and continuing political debate.^[1]^[2] One argument is whether the expression involves the rights of the ''individual'', or whether it relates strictly to the functioning and maintenance of the ''militia''.^[3]

Military service definition

Prior to and through the Eighteenth Century, predominate usage of the expression "bear arms" exclusively referred to the profession of military service, as opposed to the use of firearms by civiliansUviller, 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^[4]^[5].

"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"

As an example, the expression 'bear arms' is contained in the United States Declaration of Independence in the sense of 'military service' on a warship, as part of an indictment of the King of Great Britain for conscripting Colonial sailors to serve on British warships.

"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."

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''^[6].
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...".

In the Seventeenth and Eighteenth Centuries, in England and the British Colonies, the militia system was based on the principle of the Twelfth Century Assize of Arms, where there was general obligation of adult males to possess arms and cooperate in the work of defense.^[7]
Also, 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.

Individual right definition

For the first time, in October 2001, contrary to established legal precedent,^[8] a court ruled that the United States Constitution guarantees a right to bear arms for purposes unrelated to military service.^[9] In the case ''United States v. Emerson'', 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."^[10]^[11]

The ''Emerson'' decision was consistent with a view of Constitutional interpretation known by its principal advocates^[12] as the "Standard Model" view, and alternatively referred to as the "Individualist view".^[2]^[14] There is some dispute whether the "individualist view" predates the collective "militia view" in American jurisprudence. At least one legal expert asserts the "militia view" as first appearing only in the early to mid 1990s.^[15]^[16] A contrasting expert opinion states the militia view as long predating the individualist view,^[17]
with the individualist view dating back to only 1960.²^[18]^[19]
In the late Twentieth Century, gun advocates argued that the term 'bear arms' means and has meant keeping and bearing private arms for self defense or hunting purposes.^[20]

"Don Kates writes 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. This gets things exactly backwards. "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."^[21]

The right to arms

In an effort to consolidate power in 17th century England, the Catholic King James II of England sought to disarm Protestants by discharging them from the militia, both in Ireland and in England, replacing them with Catholics. This policy of consolidation also included an aspect of shifting control of the weapons from citizens' militia to the professional army, thereby reducing the number of weapons in the hands of his Protestant subjects and political opponents. This disarmament policy included enforcement of the Game Act, and an archaic measure from 1328 that forbade men to ride armed 'in affray of the peace'.^[22]
In modern usage, "arms" is often considered synonymous with "firearms". Historically, however, "arms" has referred to a variety of weapons and armor. ^[23] In the United States, the term has been used to refer to edged weapons such as the bayonet and sabre. ^[24]

Historical sources or protections of the right

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

Jurisdictions with English judicial origin

Main articles: English law

Frequently cited sources:

★ Common Law

★ English Bill of Rights, 1689 [1]
The responsibility 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.[2]. 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. Subsequent to this, over the last 80 years, in all these countries 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.

England, Wales and Northern Ireland

Although a right to have and use arms once existed in English 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."^[25] The words "as allowed by Law" indicate this was always a qualified rather than an absolute right. However this provision, along with many other pieces of ancient law, is now effectively obsolete.^[26] 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, although the 1998 Human Rights Act is generally considered to have altered the situation slightly.^[27] Thus, over the years, Parliament has fundamentally changed the UK constitutional position. This includes very substantial restrictions on any right to bear arms.
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.^[28]
The Firearms Act 1968 placed an absolute ban on certain types of weapons, including automatic or self-loading guns.^[29] Since then only the armed forces and police have any right 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.^[30] 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.
The Anti-Social Behaviour Act 2003 has brought certain types of air weapons into the categories of control created by the firearms acts.^[31]
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 of America

The right to keep and bear arms 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 among some factions and is not subscribed to by all.

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

★ 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.
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."'' [3]
Akhil Reed Amar similarly notes in the Yale Law Journal, April 1992, Page 1193, 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'...''[4]

Three models

Modern legal theorists generally identify three models in United States to interpret the right to bear arms. Founded on a reading 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.^[32]
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.^[33] Though this Individual Rights model must yield to reasonable regulation.^[34]
United States federal courts have consistently interpreted the federal right to bear arms in United States as the modified collective right, not an individual right^[35] with two recent exceptions in the circuit courts: The 2001 Fifth Circuit court ruling ''United States v. Emerson'' and the 2007 D.C. Circuit court ruling ''Parker v. District of Columbia'', both of which introduce principles of an individual right to firearms. Presently, nine of the federal circuit courts support a modified collective rights view, two of the federal circuit courts an individual rights view, and the Supreme Court and one federal circuit court have not addressed the question.^[36]
At the state level, each of the fifty United States state constitutions, state laws and state courts address the state based right to bear arms distinctly within their respective jurisdictions.^[37] 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.

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."''[9]

Scotland

Main articles: Scots law

Following the Dunblane Massacre, the Cullen Inquiry recommended tighter control of handgun ownership as well as other changes in school security and vetting of people working with children under 18.

Spain

Per section 149.26 of the ''"The State shall have exclusive competence over. ..the use of arms. .."''

Jurisdictions with Religious Law judicial origin

★ Religious law

★ Hindu law

★ Sharia

Notes and references

1. A Good Fight, , Sarah, Brady, Public Affairs, 2002, ISBN 1586481053
2. The Second Amendment "Right to Bear Arms" and United States v. Emerson, , Robert J., Spitzer, 77 St. John's L. Rev., 2003,
3. (Brady 2002) pp. 102-104
4. Pepper, John; Petrie, Carol; Wellford, Charles F.: ''Firearms and violence'', Page 290. National Academies Press, 2004. ISBN 0309091241
5. Wills, Garry. ''To Keep and Bear Arms''. New York Review Of Books, Sept. 21, 1995.
6. Oxford English Dictionary, Second Edition, 1989
7. Osgood, Herbert Levi : ''The American Colonies in the Seventeenth Century '', Page 499. Macmillan & Co., Ltd., 1904.
8. One U.S. legal scholar, in a detailed review of the relevant Supreme Court precedent and associated lower court decisions, characterized "the anomalous Emerson case" as contradicting a previously "unbroken line" of established and binding precedent in Second Amendment jurisprudence (Spitzer 2003).
9. (Brady 2002) pp. 103
10. United States v. Emerson, 270 F.3d 203 (5th Cir. 2001)
11. 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 to
the 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).
12. The Militia and the Right to Arms, , H. Richard, Uviller, Duke University Press, , 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.
13. The Second Amendment "Right to Bear Arms" and United States v. Emerson, , Robert J., Spitzer, 77 St. John's L. Rev., 2003,
14. 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).
15. Telling Miller's Tale: A Reply to Yassky, , Glenn H., Reynolds, 65 LAW & CONTEMP. PROBS. 113, 2002,
16. "The Dormant Second Amendment?" by Daniel C. Palm at the Claremont Institute
17. Spitzer and others assert that the 'militia view' predates the 'individualist view' ... "in numerous court decisions dating back to the nineteenth century, ... and also in numerous law journal articles
dating back decades" (Spitzer 2003)
18. The Right to Bear Arms: A Study in Judicial Misinterpretation, , Stuart R., Hays, 2 WM. & MARY L. REV. 381, 1960, p. 381
19. Law review articles accepting the militia (collective) view
published before 1960 include: S.T. Ansell, Legal and Historical Aspects
of the Militia, 26 YALE L. J. 471, 474-80 (1917); John Brabner-Smith,
Firearm Regulation, 1 LAW & CONTEMP. PROBS. 400, 409-412 (1934); Victor
Breen et al., Federal Revenue as a Limitation on State Police Power and
the Right to Bear Arms-Purpose of Legislation as Affecting Its Validity,
9 J. B. ASS'N KAN. 178, 181-82 (1940); Lucilius A. Emery, The
Constitutional 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 Bear
Arms, 12 MARQ. L. REV. 138, 145 (1928)
20. Wills, Garry (1999). ''A Necessary Evil''. New York, NY. Simon & Schuster
21. Wills, Garry (1999). ''A Necessary Evil'' pages 256-257. New York, NY. Simon & Schuster
22. Malcolm, Joyce Lee (2002). ''Guns and Violence: The English Experience '', Page 57-58. Harvard University Press. ISBN 0674007530
23. Wills, Garry ''To Keep and Bear Arms''. New York Review Of Books, Sept. 21, 1995.
24. 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
25. House of Lords Journal Volume 14
26. Even if this section of the 1689 Bill of Rights were to be considered as remaining in English law the Human Rights Act 1998, which has certain characteristics of a modern "Bill of Rights", effectively overrules it and makes it unconstitutional on the grounds that according privileges solely to "Protestants" is incompatible with the right to freedom from religious persecution.
27. There is also a European Union directive covering control of the acquisition and possession of weapons, which has a binding constitutional effect on member states. This does not confer any additional right to bear arms but is concerned mostly with harmonising national laws for trade purposes. ( Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons
28. ''Report 87: Psychological Evaluation and Gun Control''
29. Firearms Act 1968
30. Firearms (Amendment) Act 1997 and Firearms (Amendment) (No. 2) Act 1997
31. ''New Legislation''
32. Dorf, Michael C. (2001), Findlaw-Writ[5]
33. Dorf, Michael C. (2001), Findlaw-Writ[6]
34. Amar, Akhil and Vikram.(2001) Findlaw-Writ[7]
35. Holder, Angela Roddy: ''The Meaning of the Constitution'', Page 64. Barron's Educational Series, 1997. ISBN 0764100998
36. Liptak, Adam: ''A Liberal Case for Gun Rights Sways Judiciary''. New York Times, May 6, 2007. [8]
37. 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

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