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LEGAL THEORY OF THE RIGHT TO KEEP AND BEAR ARMS

RugerNinerRugerNiner Member Posts: 12,613 ✭✭✭
Copyright (c) 1994 Constitution Society. Permission is granted to
copy with attribution for noncommercial purposes.

There is considerable confusion about the legal theory underlying
the "right to keep and bear arms". This is a brief outline for a
clarification of the discussion of this issue.

(1) The Second Amendment to the U.S. Constitution does not
establish the right to keep and bear arms. None of the provisions
of the Constitution establish any "natural" rights. They
recognize such rights, but the repeal of such provisions would
not end such rights. Such rights were considered by many of the
Framers as obvious or "self-evident", but they were immersed in
the prevailing republican thought of the day, as expressed in the
writings of Locke, Montesquieu, Rousseau, Madison, Hamilton, and
others, which discussed "natural rights" in some detail. Others
argued that at least some of the rights needed to be made
explicit in the Bill of Rights to avoid having future generations
with less understanding of republican theory weaken in their
defense of those rights. That has turned out to have been a good
idea.

(2) The right to keep and bear arms is a natural right of
individuals under the theory of democratic government. This was
clearly the understanding and intent of the Framers of the U.S.
Constitution and was a long-established principle of English
common law at the time the Constitution was adopted, which is
considered to be a part of constitutional law for purposes of
interpreting the written Constitution.

(3) What the Second Amendment also does is recognize the right,
power, and duty of able-bodied persons (originally males, but now
females also) to organize into militias and defend the state. It
effectively recognizes that all citizens have military and police
powers, and the "able-bodied" ones -- the militia -- also have
military and police duties, whether exercised in an organized
manner or individually in a crisis. "Able-bodied" is a term of
art established by English common law at the time the
Constitution was adopted, and is the only qualification besides
citizenship on what constitutes the "militia". While not well
defined in modern terms, it is somewhat broader than just able-
"bodied": implicit is also "able-minded" and "virtuous". In other
words, persons might be excluded who were physically able to bear
arms but who were mentally or morally defective. Defense of the
"state" includes self-defense and defense of one's family and
friends who are, after all, part of the state, but by
establishing the defense of the state as primary a basis is laid
for requiring a citizen to risk or sacrifice his life in defense
of the state and is thus a qualification on the implicit right of
self-defense, which is considered to prevail in situations in
which self-sacrifice is not called for.

(4) The U.S. Constitution does not adequately define "arms". When
it was adopted, "arms" included muzzle-loaded muskets and
pistols, swords, knives, bows with arrows, and spears. However, a
common-law definition would be "light infantry weapons which can
be carried and used, together with ammunition, by a single
militiaman, functionally equivalent to those commonly used by
infantrymen in land warfare." That certainly includes modern
rifles and handguns, full-auto machine guns and shotguns, grenade
and grenade launchers, flares, smoke, tear gas, incendiary
rounds, and anti-tank weapons, but not heavy artillery, rockets,
or bombs, or lethal chemical, biological or nuclear weapons.
Somewhere in between we need to draw the line. The standard has
to be that "arms" includes weapons which would enable citizens to
effectively resist government tyranny, but the precise line will
be drawn politically rather than constitutionally. The rule
should be that "arms" includes all light infantry weapons that do
not cause mass destruction. If we follow the rule that personal
rights should be interpreted broadly and governmental powers
narrowly, which was the intention of the Framers, instead of the
reverse, then "arms" must be interpreted broadly.

(5) The right to keep and bear arms does indeed extend to the
states. As do the other rights recognized by other Amendments,
and as reinforced by the Fourteenth Amendment. It is not just a
restriction on the powers of the central government. On the other
hand, the citizens of a state can adopt a constitution that might
restrict the exercise of such rights by delegating the power to
do so to the state government. However, if the restriction of
natural rights is unduly burdensome on those rights, then such a
provision would be incompatible with the U.S. Constitution, its
guarantee of the rights, and its guarantee that all states have a
"republican" form of government - which such restrictions would
compromise.

(6) The legal basis for a government not infringing on the right
to keep and bear arms is not constitutional provisions like the
Second Amendment, but that the power to do so is not one of the
enumerated powers delegated to the government, whether Union or
State. That delegation must be explicit as pertains to arms. They
can't be regulated on the basis of general powers to tax or to
regulate commerce. Arms have a special status under
constitutional law. Some State constitutions may delegate such
powers to the State government. The U.S. Constitution does not
delegate such powers to the Union government. No powers are
delegated to government by the preamble to a constitution, which
is only a statement of purpose, only by provisions in the body of
the document and its amendments.

(7) The legal basis on which the states can regulate arms is in
those situations in which they conflict with property rights. It
is a fundamental principal in law that the owners or managers of
real property have the power to regulate who may enter their
premises, and to set conditions upon their entry. That includes
public property. Citizens have a right to keep and bear arms --
on their own property or property they control -- but not on
someone else's property without his permission.

(8) In other words, citizens have a right to keep and bear arms
in those places and situations where they have a right to be,
unless such rights are disabled by due process of law.
Fundamental natural rights can never be lost, as contractual
rights can be, only the exercise of those rights restricted or
"disabled", to use the legal term. The distinction is very
important. Natural rights are those which the individual brings
with him when he enters into the social contract, and reclaims if
the social contract is broken. The right to keep and bear arms is
such a natural right, as is the right of free speech, religious
belief, and privacy. The alternative is a contractual right
created by a contract, such as the social contract. The right to
vote or to be judged by a jury of one's peers are examples of
rights created by the social contract, albeit important ones that
are also constitutionally protected. Because they are
constitutionally protected, it is only proper to speak of them as
disabled, rather than lost, so long as the subject remains a
citizen or natural person, depending on whether it is a right of
citizenship or personhood.

(9) It is unconstitutional to "disable" any rights by statute
except one set: the rights of majority. The disabilities of
minority do not need to be established by a court trial or
hearing. However, they can be removed sooner than they would be
removed by constitution or statute, by reaching a certain age.
This means it is unconstitutional to disable the right to keep
and bear arms to a class of persons by statute, including those,
such as felons, who have been the subject of due process on
another issue, except through a proceeding in which the court is
explicitly petitioned to disable them, the subject has an
opportunity to argue to the contrary, the petitioner has the
burden of proof that the subject if armed would be a threat to
himself or others, and the court grants that petition. Merely
being convicted of a crime, or declared mentally incompetent, is
not sufficient if the language of the judgement does not also
explicitly disable the right to keep and bear arms, or set
restrictions on such right.

(10) "General police powers" is not a constitutional basis for
states or localities to regulate arms. "General police powers"
are the powers to use the means necessary and sufficient to stop
someone who threatens to commit a major crime, or to arrest
someone who has done so. All citizens have such power. They
differ from regular, professional police only in that the regular
police also have "special police powers" in matters such as minor
offenses, and in that they outrank civilians. Since citizens have
general police powers, they also have the right to such means as
they require to exercise such powers in situations in which they
may be called upon to do so. That includes arms.

(11) To be constitutional, state laws restricting the bearing of
arms must distinguish between public property, private commercial
property which serves the public and which therefore confers
certain rights to the public, and other private property with no
public access rights. It is reasonable and constitutional to
prohibit persons from bearing arms onto purely private property
without notifying the owner or manager and obtaining his or her
permission, except over public easements, such as sidewalks or
the walkway from the street to the front door. On the other hand,
it would be an undue burden on the right to bear arms to forbid
persons from traveling between places where they have a right to
be, and to bear arms while they do so, along public pathways or
private easements, and using their own or a public means of
transportation. It may not, however, be an undue burden to
prohibit the bearing of arms onto certain public property where
persons do not have unrestricted access, such as office buildings
and auditoriums, provided that authorities guarantee the safety
of persons who enter unarmed. Owners of commercial property
serving the public which confers some rights of access to the
public may prohibit the bearing of arms by posting or giving a
notice to that effect, but lacking such notice, bearing arms onto
the premises would be permitted. The rule must be that laws must
not burden the right to bear arms except to the extent that they
would impose a greater burden on the right of property owners to
exclude persons bearing arms.

(12) The law must presume that places of business that cater to
arms, such as gun shops and shooting ranges, and events such as
gun shows, offer presumptive permission to bear arms and that
therefore it is not illegal to bear them there or to travel to
and from them.

(13) A carry permit system essentially is a removal of
restrictions against bearing arms on public and private property
unless there is an express prohibition against doing so, either
in the form of a posted sign or a directive from the owner or his
agent. The rationale for issuing such permits is to equip persons
of good character to more effectively function as militiamen or
police in situations in which regular police are not available or
insufficient. That also includes self-protection, but the key
factor is the duty to perform police duties as necessary. There
also needs to be explicit statutory protection of the state or
other permit issuing authority against criminal or civil
liability for any acts done by the permit holder. One kind of
carry permit is that which is one of the "special police powers"
of regular law-enforcement officers, which allows them to carry
anywhere, even against the express wishes of a property owner.

(14) With the high levels of crime we now endure, the only
effective way to extend police protection to a level that might
deter crime is to recruit a substantial proportion of the public
to go armed, by issuing them carry permits, offering them police
training, and organizing them into a network of militia units
closely coordinated with regular law enforcement agencies. It is
likely that as many as 25% of the adult public could serve in
this way on a regular basis, and another 25% on an occasional
basis, and that if they did, we might expect it to have a
significant positive impact on crime. Some such citizens might
even be granted higher police rank, and perform regular police
duties on a part-time basis. Such involvement of the public in
law enforcement would also have other benefits: breaking down the
social and psychological barriers that now separate the regular
police from civilians, and deterring some of the abuses of
authority that police have sometimes fallen into.

(15) That the militia should be "well-regulated" is not a basis
for restricting the keeping or bearing of arms. The term
originally meant "self-regulated" and militias could be
independent of state or national authority if not called up by
such authority. Militia members may be required to carry certain
standard arms during formations, but they cannot be forbidden
from carrying additional arms of their own unless doing so would
impair normal militia operations. State-appointed officers may
direct when, where and in what manner members of the militia are
to train and perform their duties, but may not forbid them to
meet on their own.

(16) The Union government has the power, under the U.S.
Constitution, to regulate imports and interstate commerce in
arms, but the Framers would not agree with how the "interstate
commerce" clause (Art. 1, Sec. 8) of the Constitution has been
broadly interpreted to include regulation of manufacture,
possession, and local sales and use of items. A strict
constitutional interpretation requires that the Union government
has authority only over transactions that cross state lines, and
not over actions or transactions that occur within state borders,
even if they involve items that may someday cross state borders
or may have once done so. If we want the Union government to have
such authority, and a good case can be made for that, then the
U.S. Constitution needs to be amended to delegate that authority
to it.

(17) The Union government also has excise taxing power, but since
arms have special status under the Constitution, no tax may be
levied that imposes an undue burden on the right to keep and bear
arms. Rights are more fundamental than taxing powers,
particularly since the right to keep and bear arms is recognized
in an amendment which supersedes any prior provisions that
conflict with it, which includes all taxing powers except the
income tax (which does not provide a basis for taxing arms). Arms
may be taxed as general merchandise is, such as with a sales tax,
but any tax law which specifies arms for special taxes, other
than reasonable use fees for public services related to them,
must be considered unconstitutional. That would include taxes on
ammunition and the ingredients to make it. The analogy is to
taxes on newsprint, which may be taxed like other merchandise,
but not in a way that would impose an undue burden on the right
of a free press.

(18) This means that no government has the power, unless that
power is specifically granted to it under its constitution, to
prohibit any person from manufacturing or possessing any gun or
ammunition for it on his own premises or where he has a right to
be, or against using it in a safe and responsible manner, or
against selling or giving it to another person within the borders
of a state.

(19) Since the common law prevailing at the time the Constitution
was adopted defined "militia" to consist of "able-bodied"
citizens, including persons younger than the usual age of
majority, any law restricting the possession, sale or gift of
guns or ammunition to persons under the age of majority or any
other particular age, or to minors (since persons under the age
of majority may have their disabilities of minority removed by a
court), is also unconstitutional, unless the constitution
explicitly includes a disability of the right to keep and bear
arms among the disabilities of minority. The proper test for
being "able-bodied" must involve meeting certain standards that
are independent of age, such as skill, judgement, and level of
maturity. It is possible for persons to be "able-bodied" at quite
a young age, and the law must recognize that competence where it
exists. All citizens above the age of majority would have to be
presumed able-bodied unless they or the state petitioned a court
to rule otherwise and it granted the petition. However, it would
be constitutional to require a reasonable test of competence to
citizens below the age of majority, and to issue credentials to
those qualifying which they would be required to show when
answering calls of the militia or, if the right to keep and bear
arms were included among the rights disabled by minority, when
bearing arms. Early removal of the disabilities of minority would
then also remove the disabilities of the right to keep and bear
arms.

(20) The "full faith and credit" clause of the U.S. Constitution
requires that persons issued a carry permit by one state must
have that permit recognized in other states. This suggests a
uniform standard for qualifying persons for issuance.

REFERENCE: Stephen P. Halbrook, That Every Man be Armed,
available from The Independent Institute, 134 98th Av, Oakland,
CA 94603, 510/568-6047.

Constitution Society, 6900 San Pedro #147-230, San Antonio, TX
78216, 210/224-2868



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Comments

  • pickenuppickenup Member, Moderator Posts: 22,312 ******
    edited November -1
    Interesting read.
    This is their interpretation, of course.

    The gene pool needs chlorine.
  • ZERODINZERODIN Member Posts: 6,338
    edited November -1
    Scared me for a second...the "American Constitution Society" is a law student club full of liberals who hate the Constitution. I almost punched their representative in the face at student organization day, but went and flirted with the girls from the Federalist Society instead. [:D]
  • James R. K.James R. K. Member Posts: 73 ✭✭
    edited November -1
    The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is it's natural manure.
    Thomas Jefferson, 13 November 1787

    [:D] Every time I shoot I hit something [:D]
  • DefenderDefender Member Posts: 1,772 ✭✭✭✭✭
    edited November -1
    This essay is a combination of some real law and feel good, do good bullsnot of the author/s trying to create their version of the US Constitution framer's intent. Nice try but is does not hit the mark.

    Defender
    Private investigator licensed in AZ & CA that specializes in self defense cases.
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