Doest 2A Protect Ordnance (part 2)

For reference, Part 1 is here:

@...: https://forums.gunbroker.com/discussion/1899002/does-2a-protect-ordnance

"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."

Frequently, when arguing 2A rights, opponents will tout "I suppose you think we should be able to have rocket launchers and grenades too, right?" or something similar.

To me, that seems like a conflation of the issue. Arms are not ordnance, certainly not the non-bearable kind, at least. Granted, some rocket launchers, and grenades, are bearable arms and could be protected if "arms" does encompass " bearable ordnance". I could be persuaded these are included ordnance exceptions.

Today I found a scholarly article from Duke Law published in 1986 (see this issue continues to frustrate!) It says the following:

Since "arms" under the second amendment are those which an individual is capable of bearing, artillery pieces, tanks, nuclear devices, and other heavy ordnances are not constitutionally protected.67 Nor are other dangerous and unusual weapons, such as grenades, bombs, bazookas, and other devices which, while capable of being carried by hand, have never been commonly possessed for self-defense. 68

Citation 68 is from a discussion around the Oregon constitution:

"Modern weapons used exclusively by the military are not 'arms' which are commonly possessed by individuals for defense, therefore, the term 'arms' in the constitution does not include such weapons." Id. at 369, 614 P.2d at 99 (interpreting art. I, § 27 of the Oregon Constitution,which protects the right of the people to bear arms in defense of themselves and the state). According to the writings of William Hawkins, an affray could arise in 1716 in England "where a Man arms himself with dangerous and unusual Weapons, in such a Manner as will naturally cause a Terror to the People." 1 W. HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN 135 (1716 & photo.reprint 1973). Hawkins added, however, that "Persons of Quality are in no Danger of Offending against this Statute by wearing common Weapons .... ." Id. at 136.

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3830&context=lcp

(ETA the above link to Duke Law article. D'oh!)

This seems to support my position.

Putting aside the arms/ordnance issue, the whole kit and kaboodle is muddled by the stupid Heller decision that bars certain classes of rifles (confer Heller link at the top of this forum). There's a host of historical context that makes this decision particularly silly, that perhaps we needn't delve into here. But I figured I would mention it because it's recent enough folks remember that nonsense. That aside, Heller does mention the "dangerous and unusual" category as well. It stems from Miller, in my understanding.

What say you? Does "arms" include "ordnance"? If so, is it limited to "bearable ordnance"?

Comments added to that old thread are welcome.

On reflecting on this topic more, recently, I recall a couple of things said there that have shaped my opinion on the topic significantly in recent days.

1) Surely the framers could have mentioned either or both, but they chose "arms". It could be argued that in choosing "arms" they meant to encompass both, but we have to look to external sources to glean that. (said by me)

2) A militia is generally an army or some other fighting organization... If expected to preform as a military unit, what "arms" do the military use? (said by pickenup )

I want to address #1 first. We do not, in fact, need to look to external sources as I had postulated. Amendment 9 is all we need. "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

We can't lose focus on the fact the founders were acknowledging certain preexisting rights, and enumerated a short list of those they felt were a) vulnerable and b) of utmost importance to protect. The fact they COULD have listed "keeping and bearing ordnance" as a protected right (even as a part of the 2nd amendment), but didn't shouldn't be any indication they didn't think there was no right to it. And in light of point 2 above, we can easily discern the founders not only envisioned the citizens keeping and bearing ordnance, they would have preferred it. Certainly they would want the citizen army to be capable of defending foreign invaders, even if ultimately they really didn't want any sort of uprising (insurrection?) they couldn't squelch. Would any of them been upset if a citizen had brought a tank from his personal arsenal to the battle? That's really hard to envision.