Definitions of "to bear arms"

Military service definition

"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."

"He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands."

"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."

"By legal and other channels, the Latin " " 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 ( armis), the call to arms ( arma), to follow arms (arma ), to take arms (arma ), 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 doesn't bear arms against a rabbit...".
   On a lighter note, now that our technology has become sufficiently advanced to allow the possibility of such things, the 2nd amendment could be taken to literally mean "The right to bear arms". Meaning every American citizen has a legal right to have bear arms. Grizzlies or black bears would probably be most common.

Insurrectionary theory

The Second Amendment of the United States has been viewed by some Americans, as 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 both historians and legal scholars. The modern militia movement has sought to advance their case through selective quoting on websites and publications the words of the founding fathers, though their accuracy is 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.

The right to have arms

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.

Historical sources or protections of the right

The right to bear arms varies by country (see State (law)) and at times varies by jurisdiction within a sovereign state.

Jurisdictions with English judicial origin

Frequently cited sources:

• Common Law
• English Bill of Rights, 1689

The responsibility 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. 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. Subsequent to this, over the last 80 years, in all these countries 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 (for example, New York, Illinois, California, New Jersey) to license and regulate historical common law rights to have arms for self defense.

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 hasn't been so for many decades. Some argue that a general right to keep or bear arms hasn't 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're 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 this was always 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 shouldn't be equated to the United States Bill of Rights. In the United Kingdom, Parliament is the ultimate authority and legislation isn't 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're 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. 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. 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.

United States of America

The right to keep and bear arms didn't 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 can't 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 among some factions and isn't subscribed to by all.

Second Amendment to the United States Constitution Protects the pre-existing right to keep and bear arms.

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.. 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 didn't 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 in the Yale Law Journal, April 1992, Page 1193, 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 also hold that the right to bear arms wasn't reserved exclusively for the state, but rather was an individual and personal right for arms only to the extent needed to maintain a well regulated militia. Yet they and other scholars 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."

"...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 shan't be infringed." "..to us, the language of the Amendment can't support a right to personal weaponry independent of the social value of a regulated organization of armed citizens.."

Three models

Modern legal theorists generally identify three models of interpreting the United States right to bear arms. 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, shan't 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. Additionally, this 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."
   United States federal courts have consistently interpreted the federal right to bear arms in the United States Constitution as the modified collective right, not an individual right with two recent exceptions in the circuit courts: The 2001 Fifth Circuit ruling in United States v. Emerson and the 2007 D.C. Circuit ruling in District of Columbia v. Heller, both of which rely on principles of an individual right to firearms. A Supreme Court review of the Heller case will likely occur by summer 2008, with oral arguments taking place in March 2008. Presently, nine of the federal circuit courts of appeal support a modified collective rights view, two of the federal circuits support an individual rights view, and the Supreme Court and one federal circuit court have not addressed the question.
   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. 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, contrary to established legal precedent, a court ruled that the United States Constitution guarantees a right to bear arms for purposes unrelated to military service. In the case United States v. Emerson, 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."

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". There is some dispute whether the "individualist view" predates the collective "militia view" in American jurisprudence. At least one legal expert asserts the "militia view" as first appearing only in the early to mid 1990s. A contrasting expert opinion states the militia view as long predating the individualist view, with the individualist view dating back to only 1960.
   In the late Twentieth Century, gun advocates argued that the term 'bear arms' means and has meant keeping and bearing private arms for self defense or hunting purposes.

"Don Kates writes in the Michigan Law Review that the (Second) amendment clearly refers to personal weapons, since "bear" means "carry," and a person can't carry certain military weapons, like artillery. This gets things exactly backwards. "Bear Arms" refers to military service, which is why the plural is used (based on Greek 'hopla pherein' and Latin 'arma ferre') -- one doesn't 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."

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, didn't 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 didn't 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 constitutional rights to bear arms, the state courts have addressed the meaning of their specific state rights under their specific state's constitution. Two different models have emerged in state jurisprudence.
   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. As stated by the Kentucky High Court, "But it shouldn't be forgotten, that it isn't only a part of the right that's secured by the constitution; it's 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's equally forbidden by the constitution." As mentioned in this quotation "as it existed at the adoption of the constitution" would have had to have been the pre-existing right in force when Kentucky's First Constitution was drawn in 1799.
   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 shan't be questioned." did guarantee individuals the right to bear arms in defense of themselves and the state.
   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. In contrast to this, all states currently regulate the possession and use of firearms to some extent."
   In contrast, in State v. Buzzard (1842, Ark), the Arkansas high court adopted a militia-based 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 [for example,Ark. and U.S.] and prove that it's 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. Other legal and constitutional historians have sided with the Individual Rights Model
   In 1905, the Kansas Supreme Court in Salina v. Blaksley made the first collective right judicial interpretation, despite the U.S. Supreme Court ruling in Presser v. Illinois which some people view as having ruled otherwise in 1886. The Kansas high court declared: The modern formulation of the debate over the Second Amendment as an individual/collective rights dichotomy entered Federal law and scholarship when it was employed in a widely-cited Harvard Law Review article in 1915 by the Chief Justice of the Maine Supreme Court, Lucilius A. Emery. He noted that "the right guaranteed isn't 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."

Jurisdictions with Civil Law/Roman Law judicial origin

Corpus Juris Civilis

Civil law (legal system)

Roman Law

Socialist law

Cuba

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

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."(External Link)

Spain

Per section 149.26 of the "The State shall have exclusive competence over. ..the use of arms. .."

Jurisdictions with Religious Law judicial origin

Hindu law

Religious law

Sharia

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.

Notes and references

Further Information

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