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DEFINITIONS OF "BEAR ARMS" Military service definition Prior to and through the Eighteenth Century, predominate usage of the expression "bear arms" exclusively referred to the profession of military service, as opposed to the use of firearms by . ''To Keep and Bear Arms''. New York Review Of Books, Sept. 21, 1995.. "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.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" As an example, the expression 'bear arms' is contained in the United States Declaration Of Independence in the sense of 'military service' on a warship, as part of an indictment of the King of Great Britain for conscripting Colonial sailors to serve on British warships. "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." The ''Oxford English Dictionary, Second Edition, 1989. 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 "''''), 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...". In the Seventeenth and Eighteenth Centuries, in England and the British Colonies, the militia system was based on the principle of the Twelfth Century Assize Of Arms , where there was general obligation of adult males to possess arms and cooperate in the work of defense.Osgood, Herbert Levi : ''The American Colonies in the Seventeenth Century '', Page 499. Macmillan & Co., Ltd., 1904. Also, 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. Individual right definition For the first time, in October 2001, contrary to established legal precedent,One U.S. legal scholar, in a detailed review of the relevant Supreme Court precedent and associated lower court decisions, characterized "the anomalous Emerson case" as contradicting a previously "unbroken line" of established and binding precedent in Second Amendment jurisprudence (Spitzer 2003). a court ruled that the United States Constitution guarantees a right to bear arms for purposes unrelated to military service.(Brady 2002) pp. 103 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' 'citizen' or 'citizens' "to bear arms in defense of themselves '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."United States v. Emerson, 270 F.3d 203 (5th Cir. 2001)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 dating back decades" (Spitzer 2003) published before 1960 include: S.T. Ansell, Legal and Historical Aspects of the Militia, 26 YALE L. J. 471, 474-80 (1917); John Brabner-Smith, Firearm Regulation, 1 LAW & CONTEMP. PROBS. 400, 409-412 (1934); Victor Breen et al., Federal Revenue as a Limitation on State Police Power and the Right to Bear Arms-Purpose of Legislation as Affecting Its Validity, 9 J. B. ASS'N KAN. 178, 181-82 (1940); Lucilius A. Emery, The Constitutional Right to Keep and Bear Arms, 28 HARV. L. REV. 473, 475-77 (1915); George I. Haight, The Right to Keep and Bear Arms, 2 BILL RTS. REV. 31, 33-35 (1941); Daniel J. McKenna, The Right to Keep and Bear Arms, 12 MARQ. L. REV. 138, 145 (1928) 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.Wills, Garry (1999). ''A Necessary Evil''. New York, NY. Simon & Schuster
THE RIGHT TO ARMS In an effort to consolidate power in 17th century England, the Catholic King James II Of England sought to disarm Protestants by discharging them from the militia, both in Ireland and in England, replacing them with Catholics. This policy of consolidation also included an aspect of shifting control of the weapons from citizens' militia to the professional army, thereby reducing the number of weapons in the hands of his Protestant subjects and political opponents. This disarmament policy included enforcement of the Game Act, and an archaic measure from 1328 that forbade men to ride armed 'in affray of the peace'.Malcolm, Joyce Lee (2002). ''Guns and Violence: The English Experience '', Page 57-58. Harvard University Press. ISBN 0674007530 In modern usage, "arms" is often considered synonymous with "firearms". Historically, however, "arms" has referred to a variety of weapons and armor. Wills, Garry ''To Keep and Bear Arms''. New York Review Of Books, Sept. 21, 1995. In the United States, the term has been used to refer to edged weapons such as the Bayonet and Sabre . 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 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 See Also: English law Frequently cited sources: The responsibility to keep and bear arms in jurisdictions operating under s. 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 (e.g., New York, Illinois, California, New Jersey) to license and regulate historical common law rights to have arms for self defense. England, Wales and Northern Ireland Although a right to have and use arms once existed in English 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. |
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