Types of weapons protected by 2nd Amend.
rkessler at sulross.edu
Fri Apr 17 13:11:37 PDT 2009
There seems to be some confusion among the public and some posters as to the
types of weapons protected by the 2nd Amend.
Below are direct quotes from Heller regarding the types of weapons protected
by the 2nd Amend. Except for handguns, this is all dicta, but it's the best
we have so far. Note also that the weapon must be small and light enough to
be borne or carried.
"At the time of the founding, as now, to "bear" meant to "carry." See
Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English
Language (1796); 2 Oxford English Dictionary 20 (2d ed.1989) (hereinafter
Oxford). When used with "arms," however, the term has a meaning that refers
to carrying for a particular purpose-confrontation. In [citation omitted]. .
., in the course of analyzing the meaning of "carries a firearm" in a
federal criminal statute, Justice GINSBURG wrote that "[s]urely a most
familiar meaning is, as the Constitution's Second Amendment ... indicate[s]:
'wear, bear, or carry ... upon the person or in the clothing or in a pocket,
for the purpose ... of being armed and ready for offensive or defensive
action in a case of conflict with another person.' " [citation omitted]
(dissenting opinion) (quoting Black's Law Dictionary 214 (6th ed.1998)). We
think that Justice GINSBURG accurately captured the natural meaning of "bear
arms." Although the phrase implies that the carrying of the weapon is for
the purpose of "offensive or defensive action," it in no way connotes
participation in a structured military organization." (at 2793)
" . . . the Second Amendment extends, prima facie, to all instruments that
constitute bearable arms, even those that were not in existence at the time
of the founding." (at 2791-92), AND
"We also recognize another important limitation on the right to keep and
carry arms. Miller said, as we have explained, that the sorts of weapons
protected were those 'in common use at the time.'" . . . We think that
limitation is fairly supported by the historical tradition of prohibiting
the carrying of 'dangerous and unusual weapons.'' .(at 2817- 18)
"It may be objected that if weapons that are most useful in military
service-M-16 rifles and the like-may be banned, then the Second Amendment
right is completely detached from the prefatory clause. But as we have said,
the conception of the militia at the time of the Second Amendment's
ratification was the body of all citizens capable of military service, who
would bring the sorts of lawful weapons that they possessed at home to
militia duty. It may well be true today that a militia, to be as effective
as militias in the 18th century, would require sophisticated arms that are
highly unusual in society at large. Indeed, it may be true that no amount of
small arms could be useful against modern-day bombers and tanks. But the
fact that modern developments have limited the degree of fit between the
prefatory clause and the protected right cannot change our interpretation of
the right."(at 2817).
Prof. of Criminal Justice
Sul Ross State Univ.
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