2nd Amendment: What does 'bear Arms' really mean? Exclusive: Brent Smith previews upcoming SCOTUS case with quotes from our founders

[Reptile]

Well, our vaunted United States Supreme Court has agreed to take up a case regarding the Second Amendment. This is pretty uncommon, but it does happen – mostly because the Supremes over the years haven't dared to actually do their jobs to the fullest, so their decisions seem to encompass a narrow scope and half-measures, never fully putting to bed that the Second Amendment clearly gives the right of an individual to "keep," which means to own, and "bear," which means to carry, arms on one's person.


The Second Amendment makes no distinction between open and concealed carry, and thus any argument against either is moot. Nor does it make mention of licenses and/or permits, which is what this upcoming case is about, so these, too, are moot.


The case itself is a travesty of justice and should never have gotten to the high court.

The fact is that the Second Amendment, like all the first 10 amendments, is as permanent and binding as every article of the Constitution. And thanks to Article VI, Clause 2, these amendments, like the articles, are "the supreme Law of the Land. …"


What I'm saying is that if the courts actually did what they are charged to do, every challenge to the Second Amendment would be rejected, on its face, by every court in the land – period.


How am I so sure of this? Well, as I've said any number of times, I'm not a constitutional scholar or great jurist with an army of researchers, but I can read.


And as usual, the founders had plenty to say on the subject, affirming that the framers did intend the Second Amendment to encompass an individual's right to carry guns for self-protection.

The first state Declaration of Rights to use the term "bear Arms" was that of Pennsylvania in 1776: "that the people have a right to bear Arms in defense of themselves and the state." Pretty clear. No ambiguity there.


Noah Webster was certainly in a position to know what the Second Amendment phrase "bear Arms," meant. A prominent Federalist, he wrote the first major pamphlet in support of the Constitution when it was proposed in 1787, in which he stated: "before a standing army can rule, the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed. …" Again, pretty straightforward.


In fact, in Webster's famous dictionary, first published in 1828, it defines "bear" as "to wear; to bear a mark of authority or distinction; as to bear a sword, a badge, a name; to bear Arms in a coat." Continuing to the word "Arms"; "weapons of offense, or armor for defense and protection of the body." So according to Webster, "bear Arms" is to carry or wear weapons openly or concealed. Further, Webster defines "pistol" as a: "small firearm, or smallest firearm used … small pistols are carried in the pocket."


Thomas Jefferson was an admirer of the writings of Italian Cesare Beccaria. Beccaria wrote an essay on "Crimes and Punishments" that greatly influenced the Eighth Amendment on cruel and unusual punishment. Jefferson wrote word for word passages from Beccaria in a commonplace book (a journal). One such passage was a denouncement of laws which forbid "di portor le armi" – in other words, to forbid the bearing, carrying or wearing of Arms. At the end of this rather lengthy passage was the money quote, as it were:


"… Does the execution of this law deprive the subject of that personal liberty, so dear to mankind and to the wise legislator; and does it not subject the innocent to all the disagreeable circumstances that should only fall on the guilty? It certainly makes the situation of the assaulted worse, and of the assailants better, and rather encourages than prevents murder, as it requires less courage to attack unarmed than armed."

Beccaria's passage was the source in Jefferson's proposed Virginia Constitution of 1776: "No free man shall ever be debarred the use of Arms." By the way, Thomas Jefferson carried pocket pistols – concealed pocket pistols – without a permit!


John Adams wrote of the right of "Arms in the hands of citizens, to be used at individual discretion … in private self-defense."


In 1789, mere days after Madison proposed the Bill of Rights, Tench Coxe, a friend and correspondent of both Madison and Jefferson, wrote that this would confirm to the people "their right to keep and bear their private Arms." Interestingly, neither man corrected Mr. Coxe by writing that the Second Amendment was only referencing the militia – because it wasn't then, and isn't still.


Finally, there is the question of having to register your weapon or obtain a license to carry. Is this an infringement of the Second Amendment? Yes, it is. Sen. Ted Cruz described it well: "Would one need to register or obtain a license to exercise their religious or political beliefs or free association such as the First Amendment delineates? Wouldn't you think it absurd to require a permit before objecting to unreasonable search and seizure?"

The bottom line is that an infringement is an infringement regardless of the right it infringes upon, and it is clear that most, if not all, gun-control measures infringe upon an individuals right to keep and bear Arms.

2nd Amendment: What does 'bear Arms' really mean? | WND | by Brent Smith

Brent Smith previews upcoming SCOTUS case with quotes from our founders

www.wnd.com

 

[paul73]

bear arms:

 

[cathouse01]

Unfortunately it is much more complex than this. First of all, it wasn’t until after the Civil War and the ratification of the 13th and 14th amendments that the idea of “Incorporation”, the doctrine by which portions of the Bill of Rights have been made applicable to the states, came to the fore. Prior to that, the Supreme Court ruling in 1833 in Barron v. Baltimore that held the Bill of Rights applied only to the federal government and not to any state government was the law of the land. This made sense at the time since the U.S. Constitution set up the Federal government; States had their own constitutions and one of the major purposes of the U.S. Constitution was to keep the federal government from medaling in the State’s affairs. It was only after the Civil War, with the Southern states' reluctance to enforce the 13th and 14th amendments, did the idea of incorporation gain impetus.

The issue with Incorporation is that it is not complete. That is, there is no single article or amendment that incorporates all of the Bill of Rights and applies them to the states. So various parts of the Bill of Rights have been incorporated separately through various Supreme Court cases. The most recent such case relevant to the Second Amendment was McDonald v. City of Chicago, where the Court held that the 14th Amendment incorporates the 2nd Amendment as recognized in Heller (since the District of Columbia is a federal enclave and not a state, Heller did not address the question of incorporation).

The issue with Heller is that, while it clarified that the Second Amendment guaranteed the right of the people to own arms for self defense, it didn’t say anything about the right to “bear” arms outside the home and also left open the governments ability to put limitations on that right.

So right now the Second Amendments has been found to guarantee an individual right to keep arms for self defense (Heller) and that right has been incorporated by the Fourteenth Amendment to apply to the states (McDonald).

What has not been clearly stated by the Court is that the 2nd gives individuals the right to bear arms outside the home. This will be decided in New York State Rifle & Pistol Association Inc. v. Corlett.

The other thing that SCOTUS has left undefined is what level of scrutiny laws that impact individuals' 2nd Amendment rights should be subject to. None of the rights as called out in the Bill of Rights is absolute. For example, there are libel laws that limit your freedom of speech. In determining if a law unconstitutionally infringes on a right, the court uses three levels of “scrutiny”. Here is a simple chart that describes the levels:



To date, when evaluating most gun restrictions the courts have used either the Rational Basis Review or Intermediate Scrutiny. Traditionally, Strict Scrutiny has been used for laws burdening fundamental rights. The fact that the courts are not applying Strict Scrutiny to laws burdening the right to keep and bear arms means that they are not considering it a fundamental right.

The real question is will the current Supreme Court use New York State Rifle & Pistol Association Inc. v. Corlett to not only find that the Second protects the right to bear arms outside the home for self defense (Heller already found that it protects an individual’s right to keep arms and McDonald already found it applies to the states), but will also use it to insist that courts treat the right to keep and bear arms protected in the Second Amendment as a fundamental right, and therefore requiring lower courts to use Strict Scrutiny when deciding if a particular law that affects the right to keep and bear arms meets the requirements of equal protection.

 

[mac1911]

To bear arms is .....the use of or force of ....
Bear Arms= when gov gets to pushy the free people will bring on the pressure, or bear down on those oppressors with arms.

make no mistake the drafters of the US Constitution did not use the word arms loosely

arms​

/ärmz/

noun

1. 
   weapons and ammunition; armaments.
   "arms exports"
   synonyms: weapons (of war), weaponry, firearms, guns, ordnance, cannon, artillery, armaments, munitions, instruments of war, war machines, military supplies, materiel

 

[MaverickNH]

The best and broadest conceivable outcome of this case would be that each state would provide a process for non-prohibited persons to obtain a license to carry a concealed weapon outside their home, with any number of state-imposed administrative requirements and restrictions. No chance of "Constitutional Carry" for all. None.

MA could probably get away with a scheme where the state must grant an LTC to non-prohibited persons, with a mandatory 1yr restricted LTC "probation period" before review and removal of restrictions thereafter, and yearly re-applications (as for Non-Res LTCs). MA would likely extend state definitions of prohibited persons disqualifiers and get away with it for another decade.

This case is an essential step, but a baby step.

 

[Howland]

Unfortunately it is much more complex than this. First of all, it wasn’t until after the Civil War and the ratification of the 13th and 14th amendments that the idea of “Incorporation”, the doctrine by which portions of the Bill of Rights have been made applicable to the states, came to the fore. Prior to that, the Supreme Court ruling in 1833 in Barron v. Baltimore that held the Bill of Rights applied only to the federal government and not to any state government was the law of the land.

Only one of the original Bill of Rights was an express limitation on the federal government, the First Amendment with it's "Congress shall make no law..." verbiage. The remainder were declarations of liberties generally accepted to be the natural condition of free people.

For the non-incorporation theory to be presumed, one must believe that the precise right enumerated in each article can be proscribed in every state and territory yet still leaving those rights intact. That would be an absurdity. If that were the case, then the rights would be nonexistent. The non-incorporation theory and the Supremacy Clause are mutually exclusive and fundamentally in conflict. If one is true, the other must be false. Which is which? One is in the Constitution, the other is not in the Constitution.

 

[Mtn_Guy]

Unfortunately it is much more complex than this. First of all, it wasn’t until after the Civil War and the ratification of the 13th and 14th amendments that the idea of “Incorporation”, the doctrine by which portions of the Bill of Rights have been made applicable to the states, came to the fore. Prior to that, the Supreme Court ruling in 1833 in Barron v. Baltimore that held the Bill of Rights applied only to the federal government and not to any state government was the law of the land. This made sense at the time since the U.S. Constitution set up the Federal government; States had their own constitutions and one of the major purposes of the U.S. Constitution was to keep the federal government from medaling in the State’s affairs. It was only after the Civil War, with the Southern states' reluctance to enforce the 13th and 14th amendments, did the idea of incorporation gain impetus.

The issue with Incorporation is that it is not complete. That is, there is no single article or amendment that incorporates all of the Bill of Rights and applies them to the states. So various parts of the Bill of Rights have been incorporated separately through various Supreme Court cases. The most recent such case relevant to the Second Amendment was McDonald v. City of Chicago, where the Court held that the 14th Amendment incorporates the 2nd Amendment as recognized in Heller (since the District of Columbia is a federal enclave and not a state, Heller did not address the question of incorporation).

The issue with Heller is that, while it clarified that the Second Amendment guaranteed the right of the people to own arms for self defense, it didn’t say anything about the right to “bear” arms outside the home and also left open the governments ability to put limitations on that right.

So right now the Second Amendments has been found to guarantee an individual right to keep arms for self defense (Heller) and that right has been incorporated by the Fourteenth Amendment to apply to the states (McDonald).

What has not been clearly stated by the Court is that the 2nd gives individuals the right to bear arms outside the home. This will be decided in New York State Rifle & Pistol Association Inc. v. Corlett.

The other thing that SCOTUS has left undefined is what level of scrutiny laws that impact individuals' 2nd Amendment rights should be subject to. None of the rights as called out in the Bill of Rights is absolute. For example, there are libel laws that limit your freedom of speech. In determining if a law unconstitutionally infringes on a right, the court uses three levels of “scrutiny”. Here is a simple chart that describes the levels:

View attachment 480796

To date, when evaluating most gun restrictions the courts have used either the Rational Basis Review or Intermediate Scrutiny. Traditionally, Strict Scrutiny has been used for laws burdening fundamental rights. The fact that the courts are not applying Strict Scrutiny to laws burdening the right to keep and bear arms means that they are not considering it a fundamental right.

The real question is will the current Supreme Court use New York State Rifle & Pistol Association Inc. v. Corlett to not only find that the Second protects the right to bear arms outside the home for self defense (Heller already found that it protects an individual’s right to keep arms and McDonald already found it applies to the states), but will also use it to insist that courts treat the right to keep and bear arms protected in the Second Amendment as a fundamental right, and therefore requiring lower courts to use Strict Scrutiny when deciding if a particular law that affects the right to keep and bear arms meets the requirements of equal protection.

Well that was rather articulate for 3:02AM...

Edit: that was articulate for other times of the day as well... well done.

 

[cathouse01]

Only one of the original Bill of Rights was an express limitation on the federal government, the First Amendment with it's "Congress shall make no law..." verbiage. The remainder were declarations of liberties generally accepted to be the natural condition of free people.

For the non-incorporation theory to be presumed, one must believe that the precise right enumerated in each article can be proscribed in every state and territory yet still leaving those rights intact. That would be an absurdity. If that were the case, then the rights would be nonexistent. The non-incorporation theory and the Supremacy Clause are mutually exclusive and fundamentally in conflict. If one is true, the other must be false. Which is which? One is in the Constitution, the other is not in the Constitution.

Actually, since the U.S. Constitution was specifically written to define and constrain the Federal government (not the states) without incorporation it actually is possible for states to constrain the freedoms called out in the Bill of Rights. The original interpretation was that the Bill of Rights applied to the Federal government and the Federal Government only. As long as the Federal Government did not interfere with the enumerated rights, all was good. For example, most of the original 13 states had established religions, New York until 1847, Maryland until 1867. Until 1833 the established church of the Commonwealth of Massachusetts was the Congregational Church.

 

[cathouse01]

Well that was rather articulate for 3:02AM...

Edit: that was articulate for other times of the day as well... well done.

That’s what happens when your kids invite you over for UNO’s take out deep dish pizza with the grand kids and you discover that you really still like the Numero Uno (Sausage, pepperoni, onions, peppers, mushrooms, Uno's own chunky vine-ripened tomato sauce, mozzarella and romano) but it no longer likes you.

 

[Howland]

Actually, since the U.S. Constitution was specifically written to define and constrain the Federal government (not the states) without incorporation it actually is possible for states to constrain the freedoms called out in the Bill of Rights. The original interpretation was that the Bill of Rights applied to the Federal government and the Federal Government only. As long as the Federal Government did not interfere with the enumerated rights, all was good. For example, most of the original 13 states had established religions, New York until 1847, Maryland until 1867. Until 1833 the established church of the Commonwealth of Massachusetts was the Congregational Church.

The existence of official religions in most if not all of the new states was the very reason for the "Congress shall make no law..." limitation in the First Amendment but they did include the free exercise clause to prevent states from suppressing denominations not enjoying the official sponsorship of the states. I know how courts have interpreted it but it still defies reason that state suppression of any of these rights is not a violation, particularly in light of the Supremacy Clause.

 

[cathouse01]

The existence of official religions in most if not all of the new states was the very reason for the "Congress shall make no law..." limitation in the First Amendment but they did include the free exercise clause to prevent states from suppressing denominations not enjoying the official sponsorship of the states. I know how courts have interpreted it but it still defies reason that state suppression of any of these rights is not a violation, particularly in light of the Supremacy Clause.

My interpretation is that the Supremacy Clause relates to those laws made in pursuance of the powers that the U.S. Constitution assigned to the Federal Government. Those powers were explicitly delegated by the States as part of the Constitutional Convention, e.g. the power to enter into treaties with foreign powers. It said nothing about the powers that the States retained for themselves and, in fact, it is explicitly called out in the Tenth Amendment that:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

This is why the whole mechanism of incorporation came into being, using the Due Process clause of the Fourteenth Amendment to make the Bill of Rights applicable to the states.

 

[milktree]

The existence of official religions in most if not all of the new states was the very reason for the "Congress shall make no law..." limitation in the First Amendment but they did include the free exercise clause to prevent states from suppressing denominations not enjoying the official sponsorship of the states. I know how courts have interpreted it but it still defies reason that state suppression of any of these rights is not a violation, particularly in light of the Supremacy Clause.

Um.. I think the point of that was to prevent a *NATIONAL* religion, while still allowing the several states to have state religions.

 

[Chevy 2 65]

The only right you can get arrested for if you leave your state. (for some).
Good thing the the 4th and 5th are still good when crossing state lines. (sometimes)

 

[fshalor]

bear arms:
View attachment 480556

I stopped reading Reptiles repost when the author went on about how the 2nd gives a right to do something. No. It restricts the government from interfering in a natural right.

The only way to ensuring the original intent survives is for everyone to stop misunderstanding the darn article itself.

 

[Howland]

My interpretation is that the Supremacy Clause relates to those laws made in pursuance of the powers that the U.S. Constitution assigned to the Federal Government. Those powers were explicitly delegated by the States as part of the Constitutional Convention, e.g. the power to enter into treaties with foreign powers. It said nothing about the powers that the States retained for themselves and, in fact, it is explicitly called out in the Tenth Amendment that:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

This is why the whole mechanism of incorporation came into being, using the Due Process clause of the Fourteenth Amendment to make the Bill of Rights applicable to the states.

Absolutely correct, but it doesn't limit the supremacy of the Constitution to only those acts of Congress that carry out those enumerated powers. The Due Process clause simply reiterates the Supremacy Clause. It's the, "We really, really mean it" clause.

Um.. I think the point of that was to prevent a *NATIONAL* religion, while still allowing the several states to have state religions.

Exactly! And this is precisely why it was the only one of the Bill of Rights that was a limitation on the power of the Congress.

 

[cathouse01]

In discussing this you do come to the realization of why we do need the Supreme Court and why they really need to be strict constructionists. I think we can all agree that the Second protects the peoples right to keep and bear arms. The question of how to apply this to the states is, in most cases, moot since most of the states have their own RKBA clause in their state constitutions. It only becomes important in states that either don’t have a RKBA in their constitution or, in Massachusetts’s case, have one that has been bastardized by the State Supreme Court to only apply to members of an organized state militia.

 

[EC1]

bear arms​

phrase
A person's right to bear arms is their right to own and use guns, as a means of defence.

nuff said

 

[Broc]

 

[AHM]

Hat tip: Instapundit reader Flight Er Doc

 

[Mesatchornug]

Hat tip: Instapundit reader Flight Er Doc

Glock must've paid through the nose to license that HK Space Magic(tm)

 

[AHM]

Glock must've paid through the nose to license that HK Space Magic(tm)

Hat tip: Instapundit reader rosignol

 

[Arto]

A great book on the subject - the author used to be a prof at Bentley

Joyceleemalcolm.com

www.joyceleemalcolm.com

 

[peterk123]

You guys are over thinking this second amendment thing. Just do what antifa, blm and the other various gang bangers do, buy it on the streets and just don't worry about it.


All kidding aside, that is what it will come down to if we are relying on the Supreme Court. Because if they did their job and not pay politics, this country would be very different right now.