Right to keep and bear arms

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The right to keep and bear arms, RKBA, or right to bear arms is the concept that people, individually or collectively, have a right to weapons. Today this is usually interpreted to mean personal guns or the arming of a state militia. This is an important concept in the United States, where the right is protected in the Second Amendment to the United States Constitution, drafted in 1791, and where the right derived from concepts of English law around the American Revolution, including a tradition of local militias, a common law right to possess weapons, the English Bill of Rights (1689) and a statute, the Assize of Arms, dating back to 1181. In short, the right of individuals, for their own defense, and not that of the state, did NOT originate with the American Constitution's Second Amendment.


[edit] Definitions

[edit] Military service

Some historians claim that prior to and through the 18th century, the expression "bear arms" appeared exclusively in military contexts, as opposed to the use of firearms by civilians.

"In late-eighteenth-century parlance, bearing arms was a term of art with an obvious military and legal connotation. ... As a review of the Library of Congress's data base of congressional proceedings in the revolutionary and early national periods reveals, the thirty uses of 'bear arms' and 'bearing arms' in bills, statutes, and debates of the Continental, Confederation, and United States' Congresses between 1774 and 1821 invariably occur in a context exclusively focused on the army or the militia."[1]

However, this unilateral conclusion is disputed and is likely due to selection bias, which arises from the use of a limited selection of government documents that overwhelmingly refer to matters of military service.[2] Commenting on this previous research, other historians note:

"Searching more comprehensive collections of English language works published before 1820 shows that there are a number of uses that...have nothing to do with military service...[and] The common law was in agreement. Edward Christian’s edition of Blackstone’s Commentaries that appeared in the 1790’s described the rights of Englishmen (which every American colonist had been promised) in these terms 'everyone is at liberty to keep or carry a gun, if he does not use it for the [unlawful] destruction of game.' This right was separate from militia duties."[2]

The Oxford English Dictionary defines the term to bear arms as: "to serve as a soldier, do military service, fight," dating to about the year 1330. And, defines the term to bear arms against as: "to be engaged in hostilities with." dating the usage back to about the year 1000 with the epic poem Beowulf.[3]

Garry Wills, author and history professor at Northwestern University, has written of the origin of the term bear arms:

"By legal and other channels, the Latin "arma ferre" entered deeply into the European language of war. Bearing arms is such a synonym for waging war that Shakespeare can call a just war " 'justborne arms" and a civil war "self-borne arms." Even outside the special phrase "bear arms," much of the noun's use echoes Latin phrases: to be under arms (sub armis), the call to arms (ad arma), to follow arms (arma sequi), to take arms (arma capere), to lay down arms (arma pœnere). "Arms" is a profession that one brother chooses the way another choose law or the church. An issue undergoes the arbitrament of arms." ... "One does not bear arms against a rabbit...".[1]

On the other hand, Sayoko Blodgett-Ford notes non-military usage of the phrase in the Pennsylvania ratifying convention:

"[T]he people have a right to bear arms for the defense of themselves and their own state, or the United States, or the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed..."[4]
Don Kates, a professor of constitutional and criminal law, and a criminologist, has written in the Michigan Law Review that the Second Amendment clearly refers to personal weapons, since "bear" means "carry," and a person cannot carry certain military weapons, like artillery. According to Garry Wills,
"this gets things exactly backwards, as "Bear Arms" refers to military service, which is why the plural is used (based on Greek 'hopla pherein' and Latin 'arma ferre') – one does not bear arm, or bear an arm. The word means, etymologically, 'equipment' (from the root ar-* in verbs like 'ararisko', to fit out). It refers to the 'equipage' of war. Thus 'bear arms' can be used of naval as well as artillery warfare, since the "profession of arms" refers to all military callings."[5]

[edit] Civilian usage definition

The people's right to have their own arms for their defense is described in the philosophical and political writings of Aristotle, Cicero, John Locke, Machiavelli, the English Whigs, and others.[6] Though possessing arms appears to be distinct from "bearing" them, the possession of arms is recognized as necessary for and a logical precursor to the bearing of arms.[7] Particularly in the event of oppression or slaughter of people by governments or racial majorities, researchers have noted that exercise of the right to bear arms internationally is intrinsically linked to a people's ability to possess them.[8]

In commentary written by Justice Cummings in United States v. Emerson, the United States Court of Appeals for the Fifth Circuit concluded in 2001 that:

"there are numerous instances of the phrase 'bear arms' being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the 'people' [or 'citizen' or 'citizens'] "to bear arms in defense of themselves [or 'himself'] and the state,' or equivalent words, thus indisputably reflecting that under common usage 'bear arms' was in no sense restricted to bearing arms in military service."[9]

The bearing of arms by civilians in this sense is exercised in Israel to prevent terrorist attacks on grade schools.[10]

Similarly, in a released Senate report on the Right to Keep and Bear Arms, Senator Orrin G. Hatch, chairman, U.S. Senate Judiciary Committee, Subcommittee on the Constitution, states:
They argue that the Second Amendment's words "right of the people" mean "a right of the state" — apparently overlooking the impact of those same words when used in the First and Fourth Amendments. The "right of the people" to assemble or to be free from unreasonable searches and seizures is not contested as an individual guarantee. Still they ignore consistency and claim that the right to "bear arms" relates only to military uses. This not only violates a consistent constitutional reading of "right of the people" but also ignores that the second amendment protects a right to "keep" arms. "When our ancestors forged a land "conceived in liberty", they did so with musket and rifle. When they reacted to attempts to dissolve their free institutions, and established their identity as a free nation, they did so as a nation of armed freemen. When they sought to record forever a guarantee of their rights, they devoted one full amendment out of ten to nothing but the protection of their right to keep and bear arms against governmental interference. Under my chairmanship the Subcommittee on the Constitution will concern itself with a proper recognition of, and respect for, this right most valued by free men."[11]

Likewise, the Supreme Court of the United States affirmed in District of Columbia v. Heller, No. 07-290, that "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."

[edit] Historical sources, protections, and extinguishments of the right

The right to keep and bear arms varies by country and at times varies by jurisdiction within a sovereign state.

[edit] Jurisdictions with English judicial origin

Frequently cited sources:

The right to keep and bear arms in jurisdictions operating under English Common Law follows a precedent that predates the invention of firearms, originating contemporaneously with the jury trial and the emergence of the common law system, during the reign of Henry II, who promulgated the Assize of Arms in 1181, which required knights and freemen to keep arms and to bear them in service of the king.[12] A Common Law right to have arms for self defense was codified in the English Bill of Rights of 1689 (also known as the English Declaration of Rights), at least for Protestants. England, Ireland, the Colonies in North America (which became the United States), Canada, and Australia all received this Common Law inheritance and long maintained a responsibility to keep and bear arms tradition originating from this common basis.

The English Bill of Rights 1689 set out the right of Protestants to have arms suitable for their own defense as allowed by law. This was because of the fear the Protestants had in England of being disarmed that led to the Glorious Revolution and subsequently their guaranteed right to self-defense.

William Blackstone wrote in the eighteenth century about the right to have arms being a "natural right of resistance and self-preservation", espousing the individual right to protect oneself.

In modern usage, "arms" is often considered synonymous with "firearms". Historically, however, "arms" has referred to a variety of weapons and armor. In the United States, the term has been used to refer to edged weapons such as the bayonet and sabre.[13]

Over the last 80 years, in all the countries that derive their laws from English Common Law except the United States, Parliamentary supremacy has permitted statutory law to be developed that extinguishes the historical common law right to have arms for self defense. Similarly, in the United States, the courts have widely allowed local jurisdictions in some states (e.g., New York, Illinois, California, New Jersey) to license and regulate historical common law rights to have arms for self defense.

[edit] United Kingdom

Although a right to have and use arms once existed in English law and Scots law, this is no longer the case and has not been so for many decades. Some argue that a general right to keep or bear arms has not existed for centuries. In any case, the modern legal situation is that the possession of firearms is effectively a privilege granted only to persons who can demonstrate both a need and that they are sufficiently responsible.

The Bill of Rights of 1689 included the provision that "the subjects which are Protestants may have Arms for their Defence suitable to their Conditions, and as allowed by Law." The words "as allowed by Law" indicate in England this is considered a qualified rather than an absolute right. However this provision, along with many other pieces of ancient law, has been overruled by the doctrine of implied repeal, the Bill of Rights had no special legal protection as a result of parliamentary sovereignty.

The Claim of Right enacted almost identical provisions to the Bill of Rights in Scotland prior to the creation of the United Kingdom and contained the provision that "the disarming of Protestants...[is] contrary to law".

The English Bill of Rights should not be equated to the United States Bill of Rights. In the United Kingdom, Parliament is the ultimate authority and legislation is not constrained by a central codified constitution like that of the United States. More recent statements of rights, such as the UK Human Rights Act 1998 have contained no mention of a right to bear arms, and whilst the law of the European Union makes certain provisions relating to gun ownership, they are focused on the harmonisation of national laws for trade purposes.

Pistols, revolvers, rifles and ammunition were first controlled by the Firearms Act of 1920, which made it illegal to possess these weapons without first obtaining a certificate from the police. Similar provisions were introduced for shotguns in 1967.

The Firearms Act 1968 placed an absolute ban on certain types of weapons, including automatic or self-loading guns.[14] Since then only the armed forces and police have had access to these types of arms. The Firearms Act 1982 extended the provision of the 1968 Act, including control of imitation firearms. The Firearms (Amendment) Act 1997 and Firearms (Amendment) (No. 2) Act 1997 introduced further very significant restrictions. This has led, in effect, to a total ban on private possession of pistols even for competitive sporting purposes. Small-bore rifles remain permitted for competition however.

Following the Dunblane Massacre, the Firearms (Amendment) (No. 2) Act 1997 criminalised the possession of virtually all handguns in the United Kingdom.

The Anti-Social Behaviour Act 2003 has brought certain types of air weapons into the categories of control created by the firearms acts.[15]

UK legislation often gives considerable powers to ministers to issue regulations that control the way the various acts are applied. In relation to firearms this power generally falls to the Home Secretary. The Home Office therefore has some control of the conditions under which firearms can be licensed. On a few occasions over the years permits have been granted to private individuals to keep firearms for personal protection, for example during "The Troubles" in Northern Ireland, however these are very limited and exceptional cases.

[edit] United States

see also: Firearm case law in the United States, Gun laws in the United States (by state)

In the United States, the right to keep and bear arms is often presented in the context of military service and the broader right of self defense. Whether this right pertains to individuals acting independently or individuals acting collectively is a matter of debate, and the basis for any right at all is hotly contested. On June 26, 2008, the Supreme Court of the United States held that Americans have an individual right to keep and bear arms in the case District of Columbia v. Heller.

Historically, the right to keep and bear arms, whether considered an individual or a collective or a militia right, did not originate fully-formed in the Bill of Rights in 1791; rather, the Second Amendment was the codification of the six centuries old responsibility to keep and bear arms for king and country that was inherited from the English Colonists that settled North America, tracing its origin back to the Assize of Arms of 1181 that occurred during the reign of Henry II. Through being codified in the United States Constitution, the common law right was continued and guaranteed for the People, and statutory law enacted subsequently by Congress cannot extinguish the pre-existing common law right to keep and bear arms.

This right is often presented in the United States as synonymous with the Second Amendment to the United States Constitution, although this belief is controversial.

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.

The right is often presented in the United States as being an unenumerated, pre-existing right, such as provided for by the Ninth Amendment to the United States Constitution, although this belief is controversial.

  • Ninth Amendment to the United States Constitution Provides for unenumerated rights, including implicitly a right to keep and bear arms and a right to have arms for defense, hunting, sport, etc..
The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people.

Some have seen the Second Amendment as derivative of a common law right to keep and bear arms; Thomas B. McAffee & Michael J. Quinlan, writing in the North Carolina Law Review, March 1997, Page 781, have stated "... Madison did not invent the right to keep and bear arms when he drafted the Second Amendment—the right was pre-existing at both common law and in the early state constitutions."

Akhil Reed Amar similarly notes the basis of Common Law for the first ten amendments of the U.S. Constitution, "following John Randolph Tucker's famous oral argument in the 1887 Chicago anarchist case, Spies v. Illinois":
Though originally the first ten Amendments were adopted as limitations on Federal power, yet insofar as they secure and recognize fundamental rights – common law rights – of the man, they make them privileges and immunities of the man as citizen of the United States...

Uviller and Merkel hold that the right to bear arms was not reserved for the state, but rather was an individual and personal right for arms only to the extent needed to maintain a well regulated militia to support the state. They also hold that a militia recognizable to the framers of the Constitution has ceased to exist in the United States resulting from deliberate Congressional legislation and also societal neglect; nonetheless, "Technically, all males aged seventeen to forty-five are members of the unorganized militia, but that status has no practical legal significance."

"From the text as well as a fair understanding of the contemporary ethic regarding arms and liberty, it seems to us overwhelmingly evident that the principal purpose of the Amendment was to secure a personal, individual entitlement to the possession and use of arms. We cannot, however, (as the individual rights contingent generally does) disregard entirely the first part of the text proclaiming a well regulated militia necessary to the security of a free state."[16]
"...we understand the Second Amendment as though it read: "Inasmuch as and so long as a well regulated Militia shall be necessary to the security of a free state and so long as privately held arms shall be essential to the maintenance thereof, the right of the people to keep and bear arms shall not be infringed." "..to us, the language of the Amendment cannot support a right to personal weaponry independent of the social value of a regulated organization of armed citizens.."[17]

According to gun-control proponent Sarah Brady, founder of the Brady Campaign, in the United States the meaning of "bear arms" is a matter of recent dispute and continuing political debate, although this belief is controversial. One argument is whether the expression involves the rights of an individual to 'keep and bear arms', or whether, according to Sarah Brady, it relates exclusively to a military service meaning of 'bear arms' as with the functioning and maintenance of an organized militia, although this belief is controversial.[18]

[edit] Early commentary about the right to bear arms in state courts of the United States

The Second Amendment of the United States Constitution is a Federal provision. Each of the fifty states also has its own state constitution addressing their specific state. Forty-four states have chosen to embody explicitly a right to bear arms into their state's constitution, and six states have chosen explicitly not to do so.

Of the forty-four states that have chosen to embody explicitly a right to bear arms into their state's constitution, approximately thirty-one have explicitly chosen to include the right to arms for "individual right", "defense of self", "defense of home" or similarly worded reasons. Approximately thirteen states, as with the Federal Constitution, did not choose to include explicitly "individual", "self" or "home" wording associated with a right to bear arms for their specific state.

Of the forty-four states, approximately twenty-eight have explicitly chosen to include the right to bear arms for "security of a free state", "defense of state", "common defense" or similarly worded reasons, as with the Federal Constitution. Approximately sixteen states did not choose to include explicitly "free state", "defense of state" or "common defense" wording for their specific state. Whether the inclusion of these kinds of wording in state constitutions has relevance to the issue of whether implicit "individual" rights exist, or whether such rights (if any) are implicitly protected by the states' constitutions or by the Federal Constitution's Second Amendment, remains a matter of dispute.

Regarding the state interpretations of these state and the federal constitutional rights to bear arms, state courts have addressed the meaning of these specific rights in considerable detail. Two different models have emerged from state jurisprudence: an individual right and a collective right.

In Bliss v. Commonwealth (1822, KY), which evaluated the right to bear arms in defence of themselves and the state pursuant to Section 28 of the Second Constitution of Kentucky (1799), the right to bear arms in defense of themselves and the state was interpreted as an individual right, for the case of a concealed sword cane. This case has been described as about “a statute prohibiting the carrying of concealed weapons [that] was violative of the Second Amendment””.[19] As stated by the Kentucky High Court, "But it should not be forgotten, that it is not only a part of the right that is secured by the constitution; it is the right entire and complete, as it existed at the adoption of the constitution; and if any portion of that right be impaired, immaterial how small the part may be, and immaterial the order of time at which it be done, it is equally forbidden by the constitution." The "constitution" mentioned in this quote refers to Kentucky's Constitution.[11] As mentioned in this quotation "as it existed at the adoption of the constitution" was the pre-existing right in force when Kentucky's First Constitution was drawn in 1799.[20]

The case prompted outrage in the Kentucky House, all the while recognizing that Section 23 of the Second Constitution of Kentucky (1799), which stated "That the right of the citizens to bear arms in defence of themselves and the State shall not be questioned."[21] did guarantee individuals the right to bear arms.

The result was that the law of the Commonwealth of Kentucky was eventually over-turned by constitutional amendment with Section 26 in Kentucky's Third Constitution (1850) banning the future carrying of concealed weapons, while still asserting that the bearing of arms in defense of themselves and the state was an individual and collective right in the Commonwealth of Kentucky. This recognition, has remained to the present day in the Commonwealth of Kentucky's Fourth Constitution enacted in 1891, in Section 1, Article 7, that guarantees "The right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons." As noted in the Northern Kentucky Law Review Second Amendment Symposium: Rights in Conflict in the 1980’s, vol. 10, no. 1, 1982, p. 155, "The first state court decision resulting from the "right to bear arms" issue was Bliss v. Commonwealth. The court held that "the right of citizens to bear arms in defense of themselves and the State must be preserved entire, ..."" "This holding was unique because it stated that the right to bear arms is absolute and unqualified."[22]

That the decision of Bliss not be viewed as being solely about the Commonwealth of Kentucky's law is also seen from the defense subsequently given against a murder charge in Kentucky against Mattews Ward, who in 1852 pulled out a concealed pistol and fatally wounded his brother's teacher over an accusation regarding eating chestnuts in class. Ward's defense team consisted of eighteen lawyers, including U.S. Senator John Crittenden, former Governor of Kentucky, and former United States Attorney General. The defense successfully defended Ward in 1854 through an assertion that “a man has a right to carry arms; I am aware of nothing in the laws of God or man, prohibiting it. The Constitution of Kentucky and our Bill of Rights guarantee it. The Legislature once passed an act forbidding it, but it was decided unconstitutional, and overruled by our highest tribunal, the Court of Appeals.” As noted by Cornell, “Ward's lawyers took advantage of the doctrine advanced in Bliss and wrapped their client's action under the banner of a constitutional right to bear arms. Ward was acquitted.”

In contrast, in State v. Buzzard (1842, Ark), the Arkansas high court adopted a militia-based, political right, reading of the right to bear arms under state law, and upheld the 21st section of the second article of the Arkansas Constitution that declared, "that the free white men of this State shall have a right to keep and bear arms for their common defense", while rejecting a challenge to a statute prohibiting the carrying of concealed weapons. Buzzard had carried a concealed weapon and stood "indicted by virtue of the authority of the 13th section of an act of the Legislature prohibiting any person wearing a pistol, dirk, large knife or sword-cane concealed as a weapon, unless upon a journey, under the penalties of fine and imprisonment." The Arkansas high court further declared "That the words "a well regulated militia being necessary for the security of a free State", and the words "common defense" clearly show the true intent and meaning of these Constitutions [i.e., Ark. and U.S.] and prove that it is a political and not an individual right, and, of course, that the State, in her legislative capacity, has the right to regulate and control it: This being the case, then the people, neither individually nor collectively, have the right to keep and bear arms." Joel Prentiss Bishop’s influential Commentaries on the Law of Statutory Crimes (1873) took Buzzard's militia-based interpretation, a view that Bishop characterized as the “Arkansas doctrine", as the orthodox view of the right to bear arms in American law.

Modern gun rights advocates have disputed this history, claiming that the individual right was the orthodox view of the right to bear arms under state law in the 19th century, citing the previously-mentioned Bliss v. Commonwealth, and even State v. Buzzard, which recognized the right of an individual to carry a weapon concealed, when upon a journey, in an affirmative defense. Similarly, political scientist Earl Kruschke has categorized both Bliss and Buzzard as being “cases illustrating the individual view.” Since 1873, some legal and constitutional historians have sided with Bishop and not the individual rights model.[23] Other legal and constitutional historians have sided with the individual rights model.[24]

In 1905, the Kansas Supreme Court in Salina v. Blaksley made the first collective right judicial interpretation. The Kansas high court declared: "That the provision in question applies only to the right to bear arms as a member of the state militia, or some other military organization provided for by law, is also apparent from the second amendment to the federal Constitution, which says: "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.""

A modern formulation of the debate over the Second Amendment as an individual/collective rights dichotomy “was the emergence of the collective rights reading of Cruikshank" that became better known when it was employed in “a short but influential article” in the Harvard Law Review article in 1915 by the Chief Justice of the Maine Supreme Court, Lucilius A. Emery. He noted that "the right guaranteed is not so much to the individual for his private quarrels or feuds as to the people collectively for the common defense against the common enemy, foreign or domestic."

[edit] Modern commentary about the right to keep and bear arms in the United States: three models
see also: Second Amendment to the United States Constitution

Modern legal theorists generally identify three models of interpreting the right to bear arms in the United States. These three models are founded on differing readings of the Second Amendment, "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."

The first two models focus on the preamble, or "purpose" clause, of the Amendment — the words "A well regulated Militia, being necessary to the security of a free State." The first model, the collective model, holds that the right to bear arms belongs to the people collectively rather than to individuals, because the right's only purpose is to enable states to maintain a militia. The second model, the modified collective model, is similar to the first. It holds that the right to keep and bear arms exists only for individuals actively serving in the militia, and then only pursuant to such regulations as may be prescribed.

The third model, the Individual Rights Model, holds that a right of individuals is to own and possess firearms, much as the First Amendment protects a right of individuals to engage in free speech. This view was adoped by the Supreme Court in District of Columbia v. Heller (2008). Prior to the Supreme Court's ruling in Heller there was a split among the federal courts, with nine of the federal circuit courts of appeal supporting a modified collective rights view, two of the federal circuits supporting an individual rights view, and one federal circuit court having not addressed the question.

Some claim the Individual Rights model must yield to reasonable regulation. Nadine Strossen, President of the ACLU, formulated that argument in an interview. "Let’s assume for the sake of argument it does protect an individual right," said Strossen, "it is no more absolute than freedom of speech or any other right in the Constitution. No right is absolute; the government is always allowed to restrict the right if it can satisfy Constitutional strict scrutiny and show the restriction is narrowly tailored to promote a goal of compelling importance."

At the state level, each of the fifty state constitutions, state laws, and state courts address the state-based right to bear arms distinctly within their respective jurisdictions.[25] The degree and the nature of the protection, prohibition, and regulation at the state level varies from state to state. The District of Columbia, not being a state, falls within the federal jurisdiction.

In the Nineteenth century, in the United States, considerable attention in public discourse and the courts was directed to the issue of the risks of arming of slaves (prior to the Civil War), and later to the right of the Negro people to belong to militia and the arming of the Negro people. Most famously this is seen in the court arguments of the court case Dred Scott v. Sandford, whether the slave Dred Scott could be a citizen, with rights, including the right to bear arms. This debate about the rights of slaves and former slaves often included the usage of the term 'bear arms' with the meaning of individual Negroes having or not having the right to possess firearms.

For the first time, in October 2001, the United States Court of Appeals for the Fifth Circuit stated:

"there are numerous instances of the phrase 'bear arms' being used to describe a civilian's carrying of arms. Early constitutional provisions or declarations of rights in at least some ten different states speak of the right of the 'people' [or 'citizen' or 'citizens'] "to bear arms in defense of themselves [or 'himself'] and the state,' or equivalent words, thus indisputably reflecting that under common usage 'bear arms' was in no sense restricted to bearing arms in military service."[26][27]

The Emerson decision was consistent with a view of Constitutional interpretation known by its principal advocates as the "Standard Model" view, and alternatively referred to as the "Individualist view".[28] There is some dispute whether the "individualist view" predates the collective "militia view" in American jurisprudence. Some assert the "militia view" first appeared only in the early to mid 1990s.[29] A contrasting opinion asserts the militia view long predates the individualist view, with the individualist view dating back to only 1960.

In the late Twentieth Century, gun advocates argued that the term 'keep and bear arms' means and has meant keeping and bearing private arms for self defense or hunting purposes.[30]

The Second Amendment of the United States has also been viewed by many private Americans, including those who are part of the modern militia movement as providing a means for resisting governmental tyranny, also known as the "insurrectionary theory of the Second Amendment". This view has been fiercely disputed among some historians and legal scholars. The modern militia movement in the United States has sought to advance its case through selective quoting on websites and publications the words of the founding fathers, though the accuracy of these quotations has been debated. What is notable is that the quotations generally align not with the Federalist Framers, but rather with the Anti-Federalist objectors to the Constitution. People sympathetic with the modern militia movement object to this analysis.[31]

[edit] Jurisdictions with Civil Law/Roman Law judicial origin

[edit] Cuba

Chapter 1, Article 3 of the Constitution of Cuba "... all citizens have the right to struggle through all means, including armed struggle. ..."'

[edit] Mexico

"Article 10. The inhabitants of the United Mexican States are entitled to have arms of any kind in their possession for their protection and legitimate defense, except such as are expressly forbidden by law, or which the nation may reserve for the exclusive use of the Army, Navy, or National Guard; but they may not carry arms within inhabited places without complying with police regulations."

[edit] Spain

Per section 149.26 of the Spanish Constitution "The State shall have exclusive competence over ... the regime for the production, trading, holding and use of weapons"

[edit] Chinese law

According to Chinese law, privately owned firearms are illegal in the Peoples Republic of China. Whoever, in violation of firearm control regulations, secretly keeps firearms or ammunition and refuses to relinquish them shall be sentenced to fixed-term imprisonment of not more than two years or criminal detention.[32]

[edit] Notes and references

  1. 1.0 1.1 Uviller, H. Richard. & Merkel, William G.: The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent , Page 194. Duke University Press. ISBN 0-8223-3017-2
  2. 2.0 2.1 Cramer, Clayton E.; Olson, Joseph (2008). "What Did "Bear Arms" Mean in the Second Amendment?". Georgetown Journal of Law & Public Policy 6 (2).
  3. Oxford English Dictionary, Second Edition, 1989
  4. Blodgett-Ford, Sayoko (Fall 1995). "The Changing Meaning of the Right to Bear Arms". Seton Hall Constitutional Law Journal: 101.
  5. Wills, Garry (1999). A Necessary Evil pages 256–257. New York, NY. Simon & Schuster.
  6. Halbrook, Stephen P. (1994). That Every Man Be Armed: The Evolution of a Constitutional Right (Independent Studies in Political Economy). Oakland, CA: The Independent Institute, 8. ISBN 0-945999-38-0.
  7. Schmidt, Christopher (February 2007). "An International Human Right to Keep and Bear Arms". William & Mary Bill of Rights Journal 15 (3): 983. Williamsburg, Virginia: The College of William & Mary School of Law.
  8. Kopel, David B.; Eisen, Joanne D.; Gallant, Paul (2003). "Guns Ownership and Human Rights". The Brown Journal of World Affairs 9 (2): 1–13. “And Bougainville is a reminder that sometimes neither the UN, developed democracies such as Australia, nor the "international community" will defend a people against rapine. The only protectors of the birthright of the people of Bougainville [Papua New Guinea] were the people themselves, bearing their "illicit" firearms.”
  9. http://laws.findlaw.com/5th/9910331cr0.html
  10. Follow the Leader: Israel and Thailand set an example by arming teachers. 2004-09-02 "Teachers and kindergarten nurses now started to carry guns, schools were protected by parents (and often grandpas) guarding them in voluntary shifts. No school group went on a hike or trip without armed guards. The Police involved the citizens in a voluntary civil guard project “Mishmar Esrachi,” which even had its own sniper teams. The Army’s Youth Group program, “Gadna”, trained 15 to 16-year-old kids in gun safety and guard procedures and the older high-school boys got involved with the Mishmar Esrachi. During one noted incident, the “Herzliyah Bus massacre” (March ’78, hijacking of a bus, 37 dead, 76 wounded), these youngsters were involved in the overall security measures in which the whole area between North Tel Aviv and the resort town of Herzlyiah was blocked off, manning roadblocks with the police, guarding schools kindergartens, etc."
  11. 11.0 11.1 Right to Keep and Bear Arms, U.S. Senate. 2001 Paladin Press. ISBN 1581602545.
  12. Taylor, H. (1908). Page 267. The science of jurisprudence: a treatise in which the growth of positive law is unfolded by the historical method, and its elements classified and defined by the analytical. New York: Macmillan.
  13. David B. Kopel, Clayton E. Cramer, Scott G. Hattrup, A Tale of Three Cities: The Right to Bear Arms in State Supreme Courts Temple Law Review.
  14. Official text of the Firearms Act 1968 as amended and in force today within the United Kingdom, from the UK Statute Law Database
  15. [http://www.met.police.uk/firearms-enquiries/new_legis.htm New Legislation] The Metropolitan Police
  16. Uviller, H. Richard. & Merkel, William G.: The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent , Page 23. Duke University Press. ISBN 0-8223-3017-2
  17. Uviller, H. Richard. & Merkel, William G.: The Militia and the Right to Arms, Or, How the Second Amendment Fell Silent , Page 24. Duke University Press. ISBN 0-8223-3017-2
  18. (Brady 2002) pp. 102-104
  19. United States. Anti-Crime Program. Hearings Before Ninetieth Congress, First Session. Washington: U.S. Govt. Print. Off, 1967, p. 246.
  20. The Second Amendment became effective December 15, 1791, and was still a new concept in 1799.
  21. Commonwealth of KY Const. of 1799, art. , x§ 23
  22. Two states, Alaska and Vermont, do not require a permit or license for carrying a concealed weapon to this day, following Kentucky's original position.
  23. See the symposium in Chicago Kent Law Review 76 and the Fordham Law Review vol. 73
  24. ]http://www.law.ucla.edu/volokh/beararms/testimon.htm#14] "A recent exhaustive study reveals that there was exactly one statement in the 1800s cases or commentaries supporting the collective rights view, a concurring opinion in an 1842 Arkansas state court case."
  25. Cooley, Thomas M. & Angell, Alexis C.: A Treatise on the Constitutional Limitations which Rest Upon the Legislative Power of the States of the American Union, Page 427. Boston: Little, Brown & Company. 1890.
  26. United States v. Emerson, 270 F.3d 203 (5th Cir. 2001).
  27. The cited excerpt from the Emerson decision reflects some of the court's lengthy analysis of Second Amendment jurisprudence (Spitzer 2003)(Reynolds 2002). This analysis garnered considerable attention and scrutiny by legal experts. Shortly after the decision, Attorney General John Ashcroft directed the adoption of the Emerson court's view as the policy of the Justice Department in a memo to all ninety-three United States Attorneys in November 2001. In contrast, legal critics of the "individualist view" repudiated the Emerson analysis on various grounds. Judge Robert M. Parker, while concurring in the Emerson result, labeled the majority's analysis as obiter dicta, irrelevant to the outcome of the case (see Emerson, Spitzer 2003). Moreover, the thoroughness of the Emerson analysis was criticized because the court's rendered opinion relied substantially on interpretations submitted in a "brief presented by one party" (Spitzer 2003).
  28. The term "Standard Model" was coined in 1995 by Glenn H. Reynolds in A Critical Guide to the Second Amendment, 62 TENN. L. REV. 461, 463 (1995).
  29. "The Dormant Second Amendment?" by Daniel C. Palm at the Claremont Institute.
  30. Wills, Garry (1999). A Necessary Evil. New York, NY. Simon & Schuster.
  31. Mulloy, D. J. (2004). American extremism history, politics and the militia movement. Pages 116-117. Routledge studies in extremism and democracy. London: Routledge.

[edit] Further reading

  • Cramer, Clayton E. (1994). For the Defense of Themselves and the State: The Original Intent and Judicial Interpretation of the Right to Keep and Bear Arms. Praeger Publishers. ISBN 0-275-94913-3.
  • Dizard, Jan E.; Robert Merrill Muth, and Stephen P. Andres, Jr. (1999). Guns in America: A Reader. New York University Press. ISBN 0-8147-1878-7.
  • Halbrook, Stephan P. (1989). A Right to Bear Arms: State and Federal Bills of Rights and Constitutional Guarantees. Greenwood Press. ISBN 0-313-26539-9.
  • Spitzer, Robert J. (1998). The Politics of Gun Control. Chatham House Publishers. ISBN 1-566-43021-6.
  • Uviller, H. Richard; William G. Merkel (2002). The Militia and the Right to Arms. Duke University Press. ISBN 0-8223-3017-2.

[edit] See also

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