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View Full Version : Educate me about the definition of the term "arms" in 2nd amandment


KCDS
06-14-2011, 1:17 PM
hi everyone, I just have this thought came across my mind: I know that the 2nd amendment says we the people have right to bear arms, but just why the term "arms" limited to be firearms?? I mean what about artillery pieces, armored fighting vehicles, gunship choppers etc?? Wouldn't be all those NFAs and local bans be unconstitutional then? And these days you can do a lot of damages with computer viruses, would that be consider as "arms" as well?? Please educate me.

Bhobbs
06-14-2011, 1:29 PM
Those bans may be unconsitutional but it will take court cases to sort it all out and there are more higher priority items that need to be taken care of first.

Coded-Dude
06-14-2011, 1:35 PM
Well when they said "right to bear arms" , they made no exclusions(i.e. small arms only, no cannons for the people)

IBTBAJ

Stonewalker
06-14-2011, 1:42 PM
You should read the Heller V DC decision. They lay it out pretty well in there.
http://www.law.cornell.edu/supct/html/07-290.ZS.html

Basically it comes down to any weapon that can reasonably be carried, used and maintained by 1 person and is not area-of-effect. All other arms were considered "Ordnance". I'm looking for a cite for that... I think it's in the Heller decision. Maybe somebody could jump in and help me out.

Flopper
06-14-2011, 1:58 PM
Although Heller greatly helped us, the fly in the ointment is that it (in a nutshell) simultaneously limited 2nd Amendment protections to non crew-served, personal weapons useful to/used by the military/militia that are not area-affect weapons or WMD's.

Of course in the real world the term "arms" simply means "weapons," with no distinction as to scope or context; the Heller legal definition was clearly a compromise/acquiescence to the fence-sitters so that they could get the overall 5-4 decision.

The problems with the legal definition are:

1. Ipso facto it infringes the RKBA, and
2. Gives antis legal room to interpret what constitutes arms.

POLICESTATE
06-14-2011, 2:02 PM
Arms have always been defined as weapons. Pretty much any weapon. For instance, to take a country by force of arms is to invade it with some sort of force employing weapons e.g. bows/arrows, swords, pikes, cannon, trebuchet, crossbows, rifles, muskets, slings/rocks, tanks... and the like.

RomanDad
06-14-2011, 2:04 PM
You should read the Heller V DC decision. They lay it out pretty well in there.
http://www.law.cornell.edu/supct/html/07-290.ZS.html

Basically it comes down to any weapon that can reasonably be carried, used and maintained by 1 person and is not area-of-effect. All other arms were considered "Ordnance". I'm looking for a cite for that... I think it's in the Heller decision. Maybe somebody could jump in and help me out.

Heller defines arms as "Weapons typically possessed by law-abiding citizens for lawful purposes."

curtisfong
06-14-2011, 3:00 PM
Heller defines arms as "Weapons typically possessed by law-abiding citizens for lawful purposes."

Which means if possessing a pointy stick is made illegal by DeLeon, pointy sticks are not arms.

Wonderful.

nicki
06-14-2011, 3:44 PM
The definition of constitutionally protected arms IMHO is still in flux.

The individual right portion of the 2nd amendment still is in flux, that will probably be clarified with a few more SCOTUS Spankings.

What hasn't been addressed yet is our 2nd amendment duties. Specifically what are our citizen obligations for participation in the "Militia".

It is addressing the real purpose of the "Militia" that will get us our "real arms".

Nicki

dantodd
06-14-2011, 4:58 PM
SCOTUS did at least semi-chime-in by Granting and Reversing Maloney v. Rice which is a case on a nunchaku ban.

OleCuss
06-14-2011, 6:15 PM
The definition of constitutionally protected arms IMHO is still in flux.

The individual right portion of the 2nd amendment still is in flux, that will probably be clarified with a few more SCOTUS Spankings.

What hasn't been addressed yet is our 2nd amendment duties. Specifically what are our citizen obligations for participation in the "Militia".

It is addressing the real purpose of the "Militia" that will get us our "real arms".

Nicki

Fortunately, state law will tend to help us in that. IRRC, even California law defines its unorganized militia as roughly consisting of all men aged 18-45 who are either citizens or pursuing citizenship (been a while since I looked at the code).

The sexism and ageism isn't likely to stand up to a court challenge so it seems likely that you'll have the militia roughly defined in California law as consisting of men and women aged 18 and over who are able to carry and effectively utilize a weapon.

And California's Military and Veteran's Code isn't all that different from what a lot of states have.

So, since they've legally defined the militia that broadly for at least decades I think it will be difficult to more narrowly define it. . .

curtisfong
06-14-2011, 6:17 PM
Letting the "militia" debate leak into a conditional for RKBA is a mistake IMO.

OleCuss
06-14-2011, 6:40 PM
Not sure I'd like to argue that point. But if the argument arises - especially if raised by a state such as California - then they'll have to deal with their own quite broad legal definition of who is in the militia.

Dreaded Claymore
06-14-2011, 7:13 PM
Letting the "militia" debate leak into a conditional for RKBA is a mistake IMO.

In the context that it's currently debated in, yeah. The Supreme Court held in Heller that the right of self-defense that the 2A protects is unconnected with service in the militia.

Eventually (probably at least fifty years) we might get around to talking about the militia. There might be another part of the right that is connected with service in the militia, and that would have implications for whether people are allowed to own crew-served weapons or weapons with an indiscriminate area of effect. Those weapons are useful for militia service but are not useful for personal self-defense.

dantodd
06-14-2011, 8:35 PM
In the context that it's currently debated in, yeah. The Supreme Court held in Heller that the right of self-defense that the 2A protects is unconnected with service in the militia.

Eventually (probably at least fifty years) we might get around to talking about the militia. There might be another part of the right that is connected with service in the militia, and that would have implications for whether people are allowed to own crew-served weapons or weapons with an indiscriminate area of effect. Those weapons are useful for militia service but are not useful for personal self-defense.

I agree. In a generation or two as new lawyers and judges climb the ranks they will be immersed from law school in a post-Heller doctrine. Once the Supreme Court is full of these people we can re-address the prefatory clause.

Just as it took generations to go from the 14th amendment to the Civil Rights Act (nearly 100 years.) As was the case then we need to wait until the anti-rights democrats on the court die and their bigoted thinking is excised from our nation. Then later democrats (or whatever the progressive party is in 100 years) will support our 2A rights just as they now support race-based civil rights.(no dig on the fine D's we have here and throughout the nation who support our 2A rights. It was merely factual statement of who opposed civil rights and now gun rights.)

OleCuss
06-14-2011, 9:11 PM
I agree. In a generation or two as new lawyers and judges climb the ranks they will be immersed from law school in a post-Heller doctrine. Once the Supreme Court is full of these people we can re-address the prefatory clause.

Just as it took generations to go from the 14th amendment to the Civil Rights Act (nearly 100 years.) As was the case then we need to wait until the anti-rights democrats on the court die and their bigoted thinking is excised from our nation. Then later democrats (or whatever the progressive party is in 100 years) will support our 2A rights just as they now support race-based civil rights.(no dig on the fine D's we have here and throughout the nation who support our 2A rights. It was merely factual statement of who opposed civil rights and now gun rights.)

Great post! Nailed it.