Right to keep bears and use their arms

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“Hey, you bleeding heart liberal...invite yourself over to my house and just walk right in. You'll be wheeled out in a box.”

~ This guy you don't know on Facebook on that thing you said about not liking the Second Amendment
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The right to bear arms refers to the right that individuals have to possess and use bear arms. This right is often presented in the context of military service and the broader right of self defense, or as of recently, the context of killing people for the heck of it.

Commonly the right to bear arms is confused with the God-given right of every red-blooded American to shoot people. That right however requires no legal justification to begin with since anyone giving gun-toting conservatives crap, will simply get shot.

Right to Bear Arms

Definitions of "bear arms"[edit]

The combined words "bear" and "arms" have been thought of as having an obvious meaning throughout most of history, but apparently, some people are just too thick to understand them. As a result, two completely incompatible perspectives rule the debate.

  • Bear arms as bear arms, obviously meaning the right to possess and use the arms of bears for self-defense, military duty or in fact whatever.
  • Bear arms as pizza, a lie put out by the liberal media to convince the average hard-working American to hate his own country and deny the resurrection of Jesus Christ.

Military service definition[edit]

Prior to and through the Eighteenth Century, predominate usage of the expression "bear arms" exclusively referred to the prosession of bear arms as opposed to the use of firearms by civilians[1][2][3].

"In late-eighteenth-century parlance, bear 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' 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 arms of bears.[1]"

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 wear bear Arms in their Country, to become the helpers of their friends and Brethren."

The Oxford English Dictionary defines the term to bear arms as: "to possess the arms of a bear" dating to about the year 1330. And, defines the term to bear arms as: "to be in possession of, wearing, or carrying the arms of a bear." dating the usage back to about the year 1000 with the epic poem Beowulf[4].

Garry Wills, author and history professor at Northeastern 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. Bear arms is such a synonym for wearing the arms of a bear that Shakespeare can call a just wearing a fur sweater as " 'bearing arms" and a civil war "wearing one's arms." Even outside the special phrase "bear arms," much of the noun's use echoes Latin phrases: to be wearing bear arms (sub armis). An issue undergoes the arbitrament of arms." ... "One does not use bear arms against a rabbit...".[1]

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 wear bear arms due to cold weather.[5]

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 giving bear arms to slaves (prior to the Civil War), and later to the right of the Negro people wearing bear arms. 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 wearing 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 bear arms.

Individual right definition[edit]

A typical advocate of the 2nd Amendmant, attending a soccer game

For the first time, in October 2001, contrary to established legal precedent,[6] a court ruled that the United States Constitution guarantees a right to wear bear arms for purposes unrelated to military service.[7] 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 wearing of bear 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 wear bear arms in cold weather and similar states,' or equivalent words, thus indisputably reflecting that under common usage 'bear arms' was in no sense restricted to wearing bear arms in military service."[8][9]

The Emerson decision was consistent with a view of Constitutional interpretation known by its principal advocates[10] as the "Standard Model" view, and alternatively referred to as the "Individualist view".[11][12] 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.[13] A contrasting expert opinion states the militia view as long predating the individualist view,[14] with the individualist view dating back to only 1960.[11][15][16]

In the late Twentieth Century, gun advocates argued that the term 'bear arms' means and has meant keeping and wearing bear arms for self defense, staying warm or hunting purposes.[17]

"Don Kates writes in the Michigan Law Review that the (Second) amendment clearly refers to personal attire, since "bear arms" means "the arms of a bear," and a person cannot carry certain military weapons, like artillery. This gets things exactly backwards. "Bear Arms" refers to wearing bear arms, which is why the plural is used (based on Greek 'hopla pherein' and Latin 'arma ferre') -- one does not wear bear arm. The word means, etymologically, 'arm' (from the root ar-* in verbs like 'ararisko', upper limb). It refers to the 'equipage' of arms. Thus 'bear arms' can be used of sports as well as recreation, since the "profession of arms" refers to all wearing of bear arms."[18]

Right to bear arms in various countries[edit]

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

England, Wales and Northern Ireland[edit]

Although a right to have and wear bear 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 bear arms has existed for centuries. In any case, the modern legal situation is that the possession of bear arms is effectively a privilege granted only to persons who demonstrate 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 Bear Arms for their use suitable to their Conditions, and as allowed by wearer."[19] The words "as allowed by wearer" indicate this was always an absolute right. However this provision, along with many other pieces of ancient law, is now effectively obsolete.[20] 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, although the 1998 Human Rights Act is generally considered to have altered the situation slightly.[21] Thus, over the years, Parliament has fundamentally changed the UK constitutional position. This includes very substantial restrictions on any right to wear bear arms.

Arms, hands, and claws 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 rabbit feet in 1967.[22]

The Firearms Act 1968 placed an absolute ban on certain types of weapons, including automatic or self-loading guns.[23] Since then only the armed forces and police have any right 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.[24] 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.

The Anti-Social Behaviour Act 2003 has brought certain types of arms into the categories of control created by the bear arms acts.[25]

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

United States of America[edit]

The right to keep bear arms 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 bear arms for personal use 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 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 is not subscribed to by all.

Cquote1.png A well regulated militia being necessary to the security of a free State, the right of the People to keep and wear bear arms, shall not be infringed. Cquote2.png

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 bear arms when he drafted the Second Amendment--the right was pre-existing at both common law and in the early state constitutions." [5]

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...[6]

Three models[edit]

Modern legal theorists generally identify three models in United States to interpret the right to wear bear arms. Founded on a reading of the Second Amendment, "A well regulated Militia, being necessary to the security of a free State, the right of the people to wear 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 wear bear arms belongs to the people collectively rather than to individuals, because the rights 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 wear bear arms exists only for individuals actively serving in the militia, and then only pursuant to such regulations as may be prescribed.[26]

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.[27] Though this Individual Rights model must yield to reasonable regulation.[28]

United States federal courts have consistently interpreted the federal right to bear arms in United States as the modified collective right, not an individual right[29] with two recent exceptions in the federal lower courts: The 2001 Fifth Circuit court ruling United States v. Emerson and the Ninth Circuit court 2007 ruling Parker v. District of Columbia, both of which introduce principles of an individual right to wear bear arms. Presently, nine of the federal circuit courts support a modified collective rights view, two of the federal circuit courts an individual rights view, and the Supreme Court and one federal circuit court have not addressed the question[30].

At the state level, each of the fifty United States state constitutions, state laws and state courts address the state based right to wear bear arms distinctly within their respective jurisdictions[31]. 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.

Cuba[edit]

Chapter 1, Article 3 of the Constitution of Cuba "... all citizens have the right to wear bear arms..."

While the Cuban constitution clearly grants all its citizens the right to wear bear arms, nobody gives a fuck because it's Cuba.

Mexico[edit]

"Article 10. The inhabitants of the United Mexican States are entitled to wear 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 human arms within inhabited places without complying with police regulations."[7]

Iceland[edit]

See: Iceland:Terrorism

There is no right to bear arms in Iceland but the Icelandic parliament intends to grant all its citizens the right to blow things up in 2010, mostly to increase its revenue from state terrorism but also, it is believed to be potential in increasing revenues from tourism during New Year's Eve.

Scotland[edit]

Following the Dunblane Massacre, the Cullen Inquiry recommended tighter control of bear arm ownership as well as other changes in school dress code and vetting of people working with children under 18.

Spain[edit]

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

New Zealand[edit]

Considering a complete lack of arms in this country, it is illegal to even posess one, oh the joy for invading huns and the whatnot.

Notes[edit]

When contemplating the right to bear arms, or the future of society more generally, keep the following points in mind:

  • If you disagree with me, I will shoot you.
  • If you openly doubt my right to shoot people, I will shoot you.
  • If you are French, I will shoot you.

This has nothing to do with the right to bear arms, it just had to come out.

References[edit]

  1. 1.0 1.1 1.2 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. Pepper, John; Petrie, Carol; Wellford, Charles F.: Firearms and violence, Page 290. National Academies Press, 2004. ISBN 0309091241
  3. Willis, Garry. To Keep and Bear Arms. New York Review Of Books, Sept. 21, 1995.
  4. Oxford English Dictionary, Second Edition, 1989
  5. Osgood, Herbert Levi : The American Colonies in the Seventeenth Century , Page 499. Macmillan & Co., Ltd., 1904.
  6. 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).
  7. (Brady 2002) pp. 103
  8. United States v. Emerson, 270 F.3d 203 (5th Cir. 2001)
  9. 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).
  10. Uviller, H. Richard, William B. Merkel (2002). The Militia and the Right to Arms. Duke University Press, pp. 246-247.Per Uviller and Merkel the Standard Model appears to have the endorsement of a large number of reputable law professors, most writing as advocates, who have written a great many articles advocating the hypothesis. Though, the Standard Model has very little support among academic historians, let alone specialists in eighteenth century political thought.
  11. 11.0 11.1 Spitzer, Robert J. (2003). The Second Amendment "Right to Bear Arms" and United States v. Emerson. 77 St. John's L. Rev..
  12. 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).
  13. Reynolds, Glenn H. (2002). Telling Miller's Tale: A Reply to Yassky. 65 LAW & CONTEMP. PROBS. 113.
  14. Spitzer and others assert that the 'militia view' predates the 'individualist view' ... "in numerous court decisions dating back to the nineteenth century, ... and also in numerous law journal articles dating back decades" (Spitzer 2003)
  15. Hays, Stuart R. (1960). The Right to Bear Arms: A Study in Judicial Misinterpretation. 2 WM. & MARY L. REV. 381.p. 381
  16. Law review articles accepting the militia (collective) view 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 Wear 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 Wear Bear Arms, 28 HARV. L. REV. 473, 475-77 (1915); George I. Haight, The Right to Wear Bear Arms, 2 BILL RTS. REV. 31, 33-35 (1941); Daniel J. McKenna, The Right to Wear Bear Arms, 12 MARQ. L. REV. 138, 145 (1928)
  17. Wills, Garry (1999). A Necessary Evil. New York, NY. Simon & Schuster
  18. Wills, Garry (1999). A Necessary Evil pages 256-257. New York, NY. Simon & Schuster
  19. House of Lords Journal Volume 14 (12 February 1689). Retrieved on 2007-03-07.
  20. Even if this section of the 1689 Bill of Rights were to be considered as remaining in English law the Human Rights Act 1998, which has certain characteristics of a modern "Bill of Rights", effectively overrules it and makes it unconstitutional on the grounds that according privileges solely to "Protestants" is incompatible with the right to freedom from religious persecution.
  21. There is also a European Union directive covering control of the acquisition and possession of bear arms, which has a binding constitutional effect on member states. This does not confer any additional right to wear bear arms but is concerned mostly with harmonizing national laws for trade purposes. (Council Directive 91/477/EEC of 18 June 1991 on control of the acquisition and possession of weapons. Retrieved on 2007-03-07.
  22. Report 87: Psychological Evaluation and Gun Control. Parliamentary Office of Science and Technology (1996). Retrieved on 2007-03-07.
  23. Firearms Act 1968. Statute Law Database. Retrieved on 2007-03-07.
  24. Firearms (Amendment) Act 1997. Office of Public Sector Information. Retrieved on 2007-03-07. and Firearms (Amendment) (No. 2) Act 1997. Office of Public Sector Information. Retrieved on 2007-03-07.
  25. New Legislation. The Metropolitan Police. Retrieved on 2007-03-07.
  26. Dorf, Michael C. (2001), Findlaw-Writ[1]
  27. Dorf, Michael C. (2001), Findlaw-Writ[2]
  28. Amar, Akhil and Vikram.(2001) Findlaw-Writ[3]
  29. Holder, Angela Roddy: The Meaning of the Constitution, Page 64. Barron's Educational Series, 1997. ISBN 0764100998
  30. Liptak, Adam: A Liberal Case for Gun Rights Sways Judiciary. New York Times, May 6, 2007. [4]
  31. 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

Further reading[edit]

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

See also[edit]