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.
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(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"?
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link to scholarly article cited above: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=3830&context=lcp
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I will add one salient comment before the discussion begins, and that is that "bearable" is a dubious limitation, IMO. Many arms can be "kept" that aren't "bearable" per se. 2A would clearly seem to encompass both. And given the militia context, "kept arms" may need to be employed at some point, whether typically borne or not.
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Well this is a big ole can of worms.... do you first look at the word "bear" or the word "arms" or do you have to look at them together exclusively?
Bear arms: From wiki "The right to keep and bear arms (often referred to as the right to bear arms) is a right for people to possess weapons (arms) for their own defense.[1] Only a few countries recognize an individual right to keep and bear arms and protect it constitutionally, with more classifying it as a statutory privilege granted to some segment of the population."
And we can also wonder what the framers meant by "arms".
I mean isn't "arms" short for "armaments"?
If so then we can again look to wiki for this: "A weapon, arm or armament is any implement or device that can be used with the intent to inflict damage or harm. Weapons are used to increase the efficacy and efficiency of activities such as hunting, crime, law enforcement, self-defense, and warfare. In broader context, weapons may be construed to include anything used to gain a tactical, strategic, material or mental advantage over an adversary or enemy target.
While ordinary objects – sticks, rocks, bottles, chairs, vehicles – can be used as weapons, many are expressly designed for the purpose; these range from simple implements such as clubs, axes and swords, to complicated modern firearms, tanks, intercontinental ballistic missiles, biological weapons, and cyberweapons. Something that has been re-purposed, converted, or enhanced to become a weapon of war is termed weaponized, such as a weaponized virus or weaponized laser."
I can't remember all the different times these things have been discussed throughout the history of the USA, but I can say this much, the golden rule is those that have the gold, make the rules... and currently I'm not in favor of those holding the gold and the only difference I can make, short of insurrection is to use my vote and hope enough others vote with me in a fair election (assuming that will exist next time...)
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Good points Ruger4me ! As a point of order, I do not think that "arms" is merely a shortened form of "armaments". This is from Miriam-Webster, and I will also note here that good dictionary definitions are getting harder and harder to find.
It also says this: Noun (2)
Middle English armes (plural), "weapons, the military profession, heraldic devices," borrowed from Anglo-French, plural of arme "weapon," going back to Latin arma (neuter plural) "implements of war, weapons, equipment," derivative, with a suffix *-mo-, from a presumed verbal base *ar-, going back to Indo-European *h2er- "fit, join," whence Greek reduplicated aorist ḗraron "(I) fit together, equipped, fit closely" (from which present tense ararískō, ararískein), ármenos (middle participle) "fitting, suited to," and (with suffixed *-smo- giving initial aspiration?) harmós "joint," hárma, harmat- "chariot, team of horses"; Armenian arari "(I) made," aṙnem "I make"
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I say yes, at least to single person bearable ordinance. We all know the second was not written about hunting or target shooting, but was to protect us citizens from an over reaching government. Therefore, if the military and the police have it, I need it too.
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"A well regulated MILITIA"
A militia is generally an army or some other fighting organization of non-professional soldiers, citizens of a country, or subjects of a state, who may perform military service during a time of need.
If expected to preform as a military unit, what "arms" do the military use?
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pickenup: 31515500119579/comments/31515526156443
"A well regulated MILITIA"
A militia is generally an army or some other fighting organization of non-professional soldiers, citizens of a country, or subjects of a state, who may perform military service during a time of need.
If expected to preform as a military unit, what "arms" do the military use?
Well, they use all manner of arms. But it doesn't really answer the question: does "arms" encompass "ordnance". 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. I've not found good support that their intent was to cover both.
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Mr. P, this article doesn't answer the question about ordinance, but it does have an intersting take on Heller and what some of the words in the 2nd meant at the time is was written in history. I'll keep looking as you have peaked my curiousity, in the mean time if you haven't seen this before, check it out. https://www.theatlantic.com/ideas/archive/2020/02/big-data-second-amendment/607186/
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Ruger4me: 31515500119579/comments/31515484195867
Mr. P, this article doesn't answer the question about ordinance, but it does have an intersting take on Heller and what some of the words in the 2nd meant at the time is was written in history. I'll keep looking as you have peaked my curiousity, in the mean time if you haven't seen this before, check it out. https://www.theatlantic.com/ideas/archive/2020/02/big-data-second-amendment/607186/
Certainly interesting. It's nice to have another tool in the tool belt for analysis of this kind. I'm not sure what weight it deserves at the moment, but it's certainly not zero. To my mind the question of "what did the people do" immediately following the context of the BOR being ratified weighs just as heavily. I note that no one disarmed because of not being in a militia.
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I've been looking for other sources that discuss the type of arms protected by 2A. There are very few. Most reference Miller. This one was particularly good up to the point where he tries to address types of arms. https://repository.law.umich.edu/cgi/viewcontent.cgi?article=3437&context=mlr
The author appears to have little grasp on how firearms work, and makes some grave errors in his analysis as a result (page 261 and following).
Bringing up Miller, he does raise an interesting point: Miller gave a two prong test (which was remanded to a lower court and never ruled on) common use and use in military service.
The problem with the first prong is nothing can become common, if it can't be introduced and allowed in the fist place. No such similar restriction on 1A (such as the use of computerized technology for the spread of speech) exists for example. Can you imagine a restriction on free speech using computers because of some silly "in common use" test? It allows for exactly zero technological advancement. But I digress.
The problem with the second prong in the Miller analysis is that the judge was unaware that shotguns were used in the military. Seemingly judicial notice could have been taken of that fact. Regardless, the issue wasn't settled properly and here we are.
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Mr P. it was a long read but I did enjoy it and agree that the author most likely relied on some other sources when it comes to "how firearms work".
Overall I believe he made a very good argument for the fact that the founders definitely meant the 2nd as an individuals right to keep and bear arms. But I did not necessarily agree on the assumption of what "arms" are protected and what are not.
I don't really agree with any of the laws that have been enacted in the 20th century and beyond.
Thanks for the article.
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Ruger4me: 31515500119579/comments/31515514467611
Mr P. it was a long read but I did enjoy it and agree that the author most likely relied on some other sources when it comes to "how firearms work".
Overall I believe he made a very good argument for the fact that the founders definitely meant the 2nd as an individuals right to keep and bear arms. But I did not necessarily agree on the assumption of what "arms" are protected and what are not.
I don't really agree with any of the laws that have been enacted in the 20th century and beyond.
Thanks for the article.
Glad you enjoyed it. And I'm glad at least one person read that tome! :)
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yeah it took a couple of hours and I didn't read all the citations...
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