The Right to Keep & Bear ALL Arms: A Historical Analysis & Semantic Explication of the English Word "Arms."

The Right to Keep and Bear ALL Arms:

A Historical Analysis and Semantic Explication of the English Word “Arms.”

Introduction

America’s reputation for its 2nd Amendment rights to private gun ownership is well known throughout the entire world.  Indeed, America is one of the few nations that still legally protect the right of individuals to possess and use firearms and arms in general, having inherited such ideas from their English heritage.  Many other nations on the other hand have introduced legislation that provides extremely strict limitations on individual citizens owning, buying, possessing, or using a firearm and other types of arms.  One such nation among the multitude is Japan.  In Japan, only law enforcement officers and other government officials are permitted to carry firearms, while individual citizen are generally prohibited from purchasing, possessing, or using a firearm.  China also has similar gun-control laws, where the possibility of individual citizens purchasing and possessing a firearm is relatively low, as in Japan.  

Also, some countries and even some Americans have criticized America for its protection of this right to keep and bear arms.  During a recent 2011 press conference between the American president Barack Obama and Mexican president Felipe Calderon, one Mexican journalist showed his apparent lack of understanding of the distinction between American fundamental law and statutory law, as well as the concept of a separation of powers.  This journalist asked President Obama, in Spanish, if he could and would consider vetoing the 2nd Amendment right for individuals to keep and bear arms, being that many firearms produced in America are somehow finding their way across the Mexican-American boarder as clandestine items and ending up in the hands of the Mexican drug cartels, which have been responsible for much of the violence in Mexico.  

So strong and well known is America’s reputation for gun-rights and individual gun ownership that it has often been portrayed with pride, albeit humorously, by American film companies in multiple movies about America.  One such scene can be found in the 1993 Disney film, “The Adventures of Huck Finn.”  In this scene, Huck, Jim, and The Duke and the King, who are pretending to be from England, arrive in a little Mississippi River town in America’s South, where they are met by the local sheriff.  Their encounter with the sheriff is interrupted by a scuffle between two dirty, drunken Americans; one pulls a gun on the other and shoots him, while the sheriff pulls his gun on the shooter and shoots him dead.  The sheriff then turns to the supposed English gentleman and says, smoking gun in hand, “welcome to America!”.  Indeed, the story of America’s Westward expansion and the age of the cowboy is chalk full of scenes of gun violence and lawlessness, and where each individual member of a town or city possesses a firearm of some kind.  This is the topic of countless of American Western films, and even pooped up in the recent 2011 Dreamworks animated movie, “Rango,” in which Rango, a chameleon who ends up in a struggling desert boomtown, asks the residents of the town if anyone has access to a firearm.  The humorous response the residents give him in return is in the form of every single one of them, including the children, pulling out, cocking, and pointing their several firearms per individual at Rango.

However, such pride in and humorous use of America’s right to keep and bear arms has not been without controversy.  Just recently in January of this year, 2011, the American gun-debate controversy was brought up again to a new level when Arizona congressional representative Gabrielle Giffords was shot clean through the head and countless others present were shot, wounded and killed by the alleged shooter and Arizona resident, Jared Loughner.  This horrific and unfortunate incident prompted politicians in the various states and in Washington DC alike to bring back to the table new gun-regulation and gun control legislation.  

Indeed, the 2nd Amendment may just be the most hotly debated and controversial amendment to the American Constitution.  But it is also a relatively recent controversy that has developed only within the last 80 years or so of American history.  As will be shown in the following paragraphs of this article, the 2nd Amendment, along with the rest of the Bill of Rights became part of America’s fundamental law, unalterable except by the people themselves as a whole, in 1791.  Yet Congress’s first significant attempt to regulate and control the 2nd Amendment came only recently, in 1934.  Yet since 1934, it has developed into the hotly debated and bitter issue it is today, and given Americans divisive feelings on this issue, including those in Congress and in the courts, it doesn’t seem to be going away anytime in the near future, perhaps maybe even ever, unless certain action are taken, actions that will be explained in later in this article. Thus, the important issue that will be discussed in this article will involve the constitutional authority of Congress to legislatively limit the types of arms the people may keep and bear.  This article will look at the existence of such authority and will determine whether Congress does actually possess such authority, as the Constitution now stands.  This inquiry will be examined through the prism of a semantic explication of the English word “arms” in the 2nd Amendment clause “the right of the people to keep and bear arms shall not be infringed.”  It will be presented and proved by linguistic and semantic evidence, as well as additional supporting evidence from the historical findings of professional historians of American history, actual primary historical sources from the eras involved, news media sources, and legal court and legislative findings and sources by the American courts and the American Congress.  

As gun violence continues to occur throughout the world, particularly in America, this issue concerning American gun rights will only continue to grow worse and more contentious.  It is therefore a very relevant and very important issue in our current time and in the future, and it is of immense worth to consider the semantics of the word “arms” that appears in the 2nd Amendments, so as to determine if Congress truly does or does not have the authority to limit the types of arms the people may keep and bear.  For if Congress truly doesn’t have such authority to limit, via statutory legislation what kinds of the arms the people may or may not keep and bear, and if the sentiments of the American population are such that they would like Congress to be able to do so, a constitutional amendment allowing Congress this authority is in order.  And if this is indeed that big of an issue with the American people, they must act quickly in order to get said constitutional amendment passed by Congress, ratified by the individual state legislatures, and added to the Constitution.

An Historical Analysis of Congressional Legislation Concerning Firearm Limitations

Before explicating the word “arms,” and delving into the semantic realm of this article, it is necessary to explain the current American laws concerning the 2nd Amendment.  The first congressional attempt to limit the types of arms the people may keep and bear was the National Firearms Act of 1934, which placed a $200 tax on making and transferring certain kinds of firearms defined by the act, among other regulations.  The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) webpage says the following of the NFA:  “[a]s the legislative history of the law discloses, its underlying purpose was to curtail, if not prohibit, transactions in NFA firearms. Congress found these firearms to pose a significant crime problem because of their frequent use in crime, particularly the gangland crimes of that era such as the St. Valentine’s Day Massacre.”  This is the first act by Congress to attempt to define what firearms are, in effect, an attempt to define what “arms” are and which it could limit or prohibit the people from possessing, albeit in a round-about way via taxation and registration.

In 1975, the District of Columbia city council passed and enacted its infamous “Firearms Control Regulation Act of 1975,” which outlawed residents of the District of Columbia from possessing handguns, automatic firearms, and high-capacity, semi-automatic firearms.  The 2007 congressional bill, titled “District of Columbia Personal Protection Act,” stated in its “Congressional Findings” section, “[t]he law-abiding citizens of the District of Columbia are deprived by local laws of handguns, rifles, and shotguns that are commonly kept by law-abiding persons throughout the United States for sporting use and for lawful defense of their persons, homes, businesses, and families.”  It also stated that “[l]egislation is required to correct the District of Columbia’s law in order to restore the fundamental rights of its citizens under the Second Amendment to the United States Constitution and thereby enhance public safety.”  However, after these findings, Congress also stated in this same piece of legislation that while individuals maintain the right to keep and bear arms, including handguns, rifles, and shotguns, or “any firearm neither prohibited by Federal law nor subject to the National Firearms Act,” Congress still has the authority to ban certain kinds of firearms from possession by individual citizens in the District of Columbia .  Such certain kinds of firearms that are still banned by this same piece of legislation in the District of Columbia are a “sawed-off shotgun, a machine gun, and a short-barreled rifle.”

In 1986, President Ronald Reagan signed into law the “Firearms Owner’s Protection Act,” which contained a controversial amendment that made it “unlawful, with certain exceptions, for any individual to transfer or possess a machinegun,” the exception being machineguns that were manufactured and possessed before May 19th, 1986.  Thus, new machine guns could not be manufactured, possessed or transferred by any individual or person in the United States, except for those allowed by and for the US armed services and government police officials.  This very bill sought to limit the types of arms the people may keep and bear.  It of course did not say citizens could not possess any machine gun period, but rather, attempted to limit the amount of machine guns owned by individuals, and prohibiting Americans from owning or producing (unless having a specific government issued permit to do so) any new machine guns manufactured after May 19th, 1986.  It thus prohibits the transfer and possession of newly manufactured machineguns to private citizens.  It is, however, by way of this law, legal to transfer these newly made machine guns to government agencies and it is thus legal for those agencies to possess them.  Indeed, the government website for the Bureau of Alcohol, Tobacco, Firearms and Explosives (AFT) states the following concerning federal legislation on machinegun bans:

“In 1986, this Act amended the NFA [National Firearms Act] definition of “silencer” by adding combinations of parts for silencers and any part intended for use in the assembly or fabrication of a silencer. The Act also amended the GCA [Gun Control Act] to prohibit the transfer or possession of machineguns. Exceptions were made for transfers of machineguns to, or possession of machineguns by, government agencies, and those lawfully possessed before the effective date of the prohibition, May 19, 1986.”

In addition, Title II of the Gun Control Act (GCA) of 1968 “also amended the NFA [National Firearms Act of 1934] definitions of “firearm” by adding “destructive devices” and expanding the definition of “machinegun.”  Thus, we have seen Congress attempt to define and regulate, even limit what kinds of arms the people may keep and bear since 1934, when the National Firearms Act was passed by Congress.  In this act, Congress has attempted to define what a firearm is, and what types of firearms may be possessed and transferred by America’s private citizenry.  The very fact that the first true self-powered machine gun was invented by an American citizen by the name of Hiram Maxim in the 1880’s, as well as the fact that the 6-shooter revolver and countless other firearms and explosives (grenades included) predate this 1934 act by decades shows a discrepancy between Congress only recently asserting their supposed authority to regulate the types of arms the people may keep and bear and the actual development, existence and use of said arms, even at the encouragement of the federal government, as was the case with the Gatling Gun during the American Civil War.

In 1994, President Bill Clinton signed a bill, title “Violent Crime Control and Law Enforcement Act of 1994” that placed a limited 10 year ban on assault rifles/semi-automatic weapons.  The bill stated, under Title XI, Subtitle A, that the Public Safety and Recreational Firearms Use Protection Act “amends the Federal criminal code to prohibit the manufacture, transfer, or possession of a semiautomatic assault weapon (SAW) as defined or listed under this Act,” and that this will be inapplicable to “the transfer or possession of any SAW lawfully possessed on the date of this Act's enactment.”  This subtitle placing a ban on assault weapons expired 10 years after its original passage, and is thus no longer in the congressional lawbooks.

On January 8, 2011, Arizona resident and American citizen Jared Loughner arrived at a Safeway store parking lot in Tuscon, Arizona, where Arizona Congresswoman Gabrielle Giffords was speaking to her constituents.  Pulling a 9mm Glock 19 semi-automatic pistol containing a 33-round magazine, Jared Loughner allegedly opened fire, shooting the Congresswoman clean through the head.  Loughner also allegedly wounded and killing others at the event, including a little child at her first political event ever, and an Arizona state judge.  The total number shot and wounded was 13, including Congresswoman Giffords, while the total number shot and killed was 6.  

The news of this horrible incident spread rapidly over the nation via media organizations on TV, Radio, and the Internet.  Not but mere minutes after the shooting, the entire United States was a in a rage over what had happened, and almost instantaneously, federal legislators and American citizens alike began calling for stricter firearms laws, including a no-gun zone around politicians, stricter regulations on who could obtain and possess firearms, and bans on certain kinds of firearms like the semi-automatic Glock 19 used by the alleged shooter Jared Loughner.  Indeed, New York Representative Carolyn McCarthy has called for a ban on the sale to citizens of magazines capable of containing large amounts of ammunition.  

Not long after the incident, there appeared in Brigham Young University’s campus newspaper, “The Daily “Universe,” a article titled “The Right to Bear Some Arms,” in which the author attempted to argue that due to the tragic incident in Tuscon, Arizona, the government should begin to regulate what kinds of weapons people may possess, in particular, the amount of ammunition firearm clips may possess.  Indeed, the crux of this individual’s argument was that “[l]awmakers should summon up the guts to challenge the lobbying powerhouse that is the NRA and expand those limitations to the type of guns that have no practical hunting or self-defense purposes.”

And finally, before proceeding to the explication of “arms,” it is also important to note that all 10 amendments that compose the Bill of Rights were hand picked by James Madison from a list of about 200 suggested amendments, suggested by the state ratifying conventions prior to the ratification of the Constitution.  As the Pulitzer Prize winning and National Humanities medal receiving American historian Gordon S. Wood has written in his latest publication, “Empire of Liberty: A History of the Early Republic, 1789-1815,” James Madison specifically ignored all suggestions having to do with altering the form and powers of the national government and picked those “concerned with personal rights and that he thought no one could argue with.”  Indeed, Wood continues in saying that James Madison specifically wrote up 9 amendments he felt were the most important and that nobody would disagree with, and submitted them to the House.  They were altered and revised by the House, before being passed, which process and vote was open to the public, and were then submitted to the Senate, where they were altered and revised, behind closed doors, passed by the Senate and then resubmitted to the House for further revising and their final vote.  After submission and passing by Congress, both the Senate and the House, the 10 amendments that came out of Congress were passed to the states to be ratified by the state legislatures, in which the necessary ¾’s majority was met with ease, thus adding the new 10 amendments to the Constitution, to become the Bill of Rights.  

What is essential to keep in mind, given this brief history lessen, is that the current wording of all 10 amendments in the Bill of Rights, including the term “arms” in the 2nd Amendment, was altered and revised, then subsequently passed by two legislative houses, the Senate containing 22 duly an democratically elected members, and the House containing 59 duly and democratically elected members.  Thus, the 59 representative altered and revised, as well as voted on the 10 amendments twice, while the 22 senators revised the amendments once, and voted on them twice. The 2nd Amendment underwent 3 drafts, one initial draft proposed by Madison to the House, one passed by the House and sent to the Senate, and the last revised and passed by the Senate and re-submitted to the House, which eventually passed.  And throughout each of these drafts, the words “keep and bear arms” remained in each one of them.  As if this wasn’t enough of a refining process, each state legislature was presented with the amendments and was given the option of either ratifying or rejecting them, in which 10 of the 13 states chose ratification while the other 3 didn’t even bother voting upon them.  Thus, it is almost unthinkable that the amendments and their wording could be refined any further, and there can be no doubt that what was produced in the Bill of Rights was the exact intention of all those involved in the writing, revising, passing, and ratification process of the first 10 amendment.  In other words, there can be no confusion applied to the wording of each amendment, specifically concerning the 2nd Amendment and its usage of “arms.”

Development of the Latinate Word “Arms” and of the People’s Right to Have Them

In order to be able to fully explicate the English word “arms,” and insert this explication into the ongoing battle between guns rights supporters and opponents in America, a look at the history and development of the word and what exactly it has applied to by those who have used it throughout the history of the English language is firstly in order.  The English and the American claim to their right to have arms dates back to the reign of Alfred the Great in 9th Century Saxon England, and can be traced throughout English history from the Viking invasions during the 9th Century, the Norman Invasion of the 11th Century, to the English Civil War of the 17th Century and Glorious Revolution of 1689, up to “the shot heard ‘round the world” on the Lexington Green in Massachusetts, the beginning of the American Revolution and the culmination of the Revolution with the adoption American Federal Constitution and it’s Bill of Rights.  Tracing the use of the word “arms” throughout this long Anglo history can better demonstrate what the wording of the 2nd Amendment to the U.S. Constitution really infers and if the American Congress truly does have authority to limit the types of arms the people may keep and bear, or whether such 20th and 21st Century attempts to do so are actually assumptions of power not granted by the Constitution.

American historian Leonard W. Levy, in chapter 6 of “Origins of the Bill of Rights,” describes where exactly this American right to keep and bear arms first appeared on the law books in England.  Levy begins this arms sojourn with the English Assize of Arms in 1181.  But this history lesson actually begins nearly 300 years earlier in the 9th Century.  Under the reign of the Saxon king, “Alfred the Great,” “all English citizens from the nobility to the peasants were obliged to privately purchase weapons and be available for military duty.”  It must be remembered that during Alfred’s reign, the Viking invasion of the English mainland was in full force.  This can explain Alfred’s requirement of his subjects to be armed and ready for military service.  

In addition, the British claim their right to bear arms comes from the 12th Century during the reign of King Henry II.  In 1181, Henry II put out a proclamation that all freemen in England must arm themselves in preparation for serving the king in protecting the country.  The Assize of Arms order all freemen should individually possess certain kinds of armor according to each individual’s social station, and that all free layman have at least a lance as their arm/weapon.  Levy also provides that King Henry III, in the 13th Century, “required every subject aged fifteen to fifty, including even landless farmers, to own a weapon other than a knife.”  In addition, “in 1285, Edward I commanded that all persons comply with the earlier Assizes and added that ‘anyone else who can afford them shall keep bows and arrows’.”  And in 1369, “the [English] King ordered that the sheriffs of London require all citizens ‘at leisure time on holidays’ to ‘use in their recreation bowes and arrows’ and to stop all other games which might distract them from this practice.”  Even further than this, King Henry VIII, in 1511, “expanded the requirement of longbow ownership, requiring all citizens to ‘use and exercyse shootyng in longbowes, and also have a bowe and arrowes contynually’ in the house.  Fathers were required by law to purchase bows and arrows for their sons between the age of 7 and 14 and to train them in longbow use.”  

Unfortunately, the translation of the 1181 Assize of Arms into modern-day English give us no hint as to what word was used in the original Middle English of the era.  It seems that modern-day English word “arms” translates as geatwe in Old English, meaning the plural form of equipment, arms, trappings, ornaments, or garments.  However, the mostly Germanic Old English had begun to transform during the 12th and 13th Centuries into Middle English, shortly after the Norman invasion of William the Conqueror in 1066, when an influx of Latin words and words from the Latinate French language came into the Germanic Old English language of the kingdom of England.  And because King Henry II and King Henry III were descendants of the French Norman invader William the Conqueror, it seems more likely that the French version of geatwe, armes, where modern-day English’s “arms” descends from, would have been used in these two proclamations by both of the Henrys during their respectable reigns.  

The earliest written use of the French word armes appears around 1300 AD, and is cited in the Oxford English Dictionary (OED).  The sentence reads, “Þin armes he haþ and scheld To fiȝte wiþ upon þe feld (a1300 K. Horn 516).”  Another usage comes from 1382 in the Wycliffe Bible, in John 18, saying “He cam with lanternis, and brondis, and armys.”  Therefore, given the timing of the Assize of Arms in 1181 by King Henry II, the 13th Century proclamation by the King Henry III, King Edward I’s proclamation of 1285, and the first recorded written use of the use of the French word armes in 1300 AD, it is highly plausible, if not the actual case that the word used in all three of these Middle English proclamations was armes.  Thus it is plain to see that modern-day English word “arms,” although commonly used to refer to guns or firearms in modern times, can be traced back to an era in the English language prior to the introduction and creation of firearms in England. Indeed, it is evident that the main form of arms in Old and Middle English England, prior to the introduction of firearms, were body armor, lances, shields, knives, bows and arrows, swords, axes, etc.  Indeed, it appears that firearms were not introduced into Europe until the 1st half of the 1300’s, let alone England until 1326.

There was also a debate that was carried on in late 16th Century England concerning which form of weaponry, or rather, which “arm” was most effective; the firearm or the bow?  It was argued by some that the English longbow was a much more effective arm than the musket because of its lightweight, its “higher rate of fire,” its reliability and relative safety in use, it accuracy and long range, and its easier maintenance.  There were, of course, rebuttals from those who favored the firearm/musket, which indicated reasons why the musket was better than the bow.  This evidence shows that even during the age of the firearm, albeit the early firearm age, the bow was still used and still favored as an effective arm, and that the musket and the bow were both indeed arms.   

An additional piece of evidence that shows that other forms of weaponry besides firearms were considered arms, even during the age of firearms is History Channel’s 2005 production entitled “The Conquerors,” Cromwell: Conqueror of Ireland.”  In this production, it is explained that individual cavalrymen in the British conqueror Oliver Cromwell’s era would normally carry flintlock pistols as one of their arms, but “his most potent weapon was a three-foot, double edged sword.”   This sword, swung downward from horseback was a very effective weapon to use on infantrymen marching below the height of the horse and its rider.  Thus firearms were not the only category of arms still used, even during an era when relatively large portions of British army men were typically armed with guns.  According to this same source, one other portion of Cromwell’s army consisted of musketeers who carried matchlock muskets, while the other remaining portions of the infantry were “pikemen,” being labeled such because they carried long spears.  It must be remembered that Cromwell’s siege of Ireland, where such an army armed in such a manner, happened in the late 1640’s, a period in history well after the advent and introduction of firearms into Europe, and in particular, the British Isles.  Pikemen and musketeers being used simultaneously is also mentioned by Kenneth Chase in his book “Firearms: A Global History to 1700,” on the same pages as the aforementioned discussion on the bow vs. firearm debate.

Further proof that the word “arms” is and has been used as an umbrella term for various types of weapons can be seen in a description of the contents of the 1715 magazine in Williamsburg, VA, built by the governor of the then British colony of Virginia, Governor Spotswood, at the request of the Virginia General Assembly for the housing of the colony’s arms.  A magazine, according to the OED, is defined as “[a] building, room, or compartment (of a ship, etc.), for the storage of arms, ammunition, or other military provisions.”  In fact, Samuel Johnson, in his 1755 dictionary defines a magazine as “a storehouse, commonly an arsenal or armoury, or repository of provisions.”  In the Williamsburg magazine Governor Spotswood had placed and stored, “shot, powder, flints, tents, tools, swords, pikes, canteens, cooking utensils, and as many as 3,000 Brown Bess flintlocks.”  Being that a magazine was a building for storing arms and other military equipment, these provisions stored in the magazine in 1715, in particular the muskets, the shot and powder, the swords, and the pikes could all be viewed as arms, showing that arms is an umbrella term for any kind of weapon or tool used in defensive or offensive activities.  

Thomas Paine, in “Rights of Man,” published in 1791 in England, describes the scene of the storming of the Bastille in 1789 by the Parisian people.  In his description, he uses the word “arms” to refer to many different types of weapons that the people procure in order to storm the Bastille and defend the city of Paris from the enemy.  Paine writes,

“The foreign troops began to advance towards the city. The Prince de Lambesc, who commanded a body of German cavalry, approached by the Place of Louis XV., which connects itself with some of the streets. In his march, he insulted and struck an old man with a sword. The French are remarkable for their respect to old age; and the insolence with which it appeared to be done, uniting with the general fermentation they were in, produced a powerful effect, and a cry of "To arms! to arms!" spread itself in a moment over the city.

Arms they had none, nor scarcely anyone who knew the use of them; but desperate resolution, when every hope is at stake, supplies, for a while, the want of arms. Near where the Prince de Lambesc was drawn up, were large piles of stones collected for building the new bridge, and with these the people attacked the cavalry. A party of French guards upon hearing the firing, rushed from their quarters and joined the people; and night coming on, the cavalry retreated.

The streets of Paris, being narrow, are favourable for defence, and the loftiness of the houses, consisting of many stories, from which great annoyance might be given, secured them against nocturnal enterprises; and the night was spent in providing themselves with every sort of weapon they could make or procure: guns, swords, blacksmiths' hammers, carpenters' axes, iron crows, pikes, halberts, pitchforks, spits, clubs, etc., etc. The incredible numbers in which they assembled the next morning, and the still more incredible resolution they exhibited, embarrassed and astonished their enemies. Little did the new ministry expect such a salute. Accustomed to slavery themselves, they had no idea that liberty was capable of such inspiration, or that a body of unarmed citizens would dare to face the military force of thirty thousand men. Every moment of this day was employed in collecting arms, concerting plans, and arranging themselves into the best order which such an instantaneous movement could afford.

There was, adjoining to the city a large magazine of arms deposited at the Hospital of the Invalids, which the citizens summoned to surrender; and as the place was neither defensible, nor attempted much defence, they soon succeeded. Thus supplied, they marched to attack the Bastille; a vast mixed multitude of all ages, and of all degrees, armed with all sorts of weapons.”

This shows another example of various types of weapons, from guns to swords, hammers, axes, pitchforks, clubs, pikes, even rocks being considered as “arms.”  Thus we see that the word “arms,” even in those days referred primarily to the predominant firearm/gun, yet when those were not available, people armed themselves with any other types of weapons that could, which were also considered “arms.”  Thus, arms once again appears to be used as an umbrella term, sheltering multiple forms of weapons under it’s umbrella top.

The OED entry for the definition of “arms” provids a 1641 quote from the 16th Century English author, John Rastell’s “Termes De la Ley,” which says, “[a]rms, in the understanding of the Law, is extended to any thing that a man, in his anger or fury, takes into his hand to cast at, or strike another.”  The OED also provided a link to a Middle English Dictionary, which defines arms as “(a) [t]he weapons of a warrior; also, defensive arms and armor; (b) in sg.: a weapon…”  Concerning definition (a), this Middle English Dictionary provided a written citation of the word arms in a written piece from between 1150-1275 AD, which says, “[f]rom þe wode þu mitht te faren wid wilis ant wid armes.”  This quotation was taken from “The Proverbs of Alfred,” Trin-C B.14.39.  Also provided are citations from sources from 1300 AD up until 1500 AD.  Definition (b) provides a quotation from a source dating back to between 1300-1325 AD, which states, “Four hondred & four score mid treson he slou þere, Of hom þat were onywar & wiþ oute arme al so.”  This source is taken from Robert of Gloucester, Chronicle, Version A, Clg A.11.  One other citation provided by the OED comes from a 1794 text, (J. Trusler Eng. Synon. I. 37)  “By arms, we understand those instruments of offence generally made use of in war; such as firearms, swords, etc. By weapons, we more particularly mean instruments of other kinds (exclusive of fire-arms), made use of as offensive on special occasions.”  However, the next source cited below that is from 1870, and refers to muskets as arms: (Instr. Musketry 7) “Each lesson in cleaning arms‥to occupy half an hour.”

In addition to these citations of the use of the word “arms” and what arms have been referred to over the history of the use of the word, it will be necessary to study the word “firearm.”  We need only look at the word “firearm” to decipher that it is only one type of an arm among many.  The OED defines firearms as “[a] weapon from which missiles are propelled by the combustion of gunpowder or other explosive.”  Indeed, it provides that “firearm” is a combination of the two words fire+arm.  Thus, a firearm is only one type of arm, while other arms include non-firearm weapons, like swords, knives, bows and arrows, spears, indeed, anything that could be used for offense or defense.  Relying on the claim that modern-day Congress in America has the authority via the Constitution to limit the types of arms the people may keep and bear, we see that such an assertion appears to contradict the usage of the word “arm” in the 2nd Amendment.  This is especially so in light of that fact that even during the era when the Constitution was written and its amendments ratified and added, there were not only different kinds of arms, but different kinds of firearms.  In the late 18th century, there were primarily four different types of firearms: muskets, rifles (a musket with a grooved barrel, providing increased accuracy and range, making it a more deadly, as opposed to a smooth barrel musket), pistols, and cannon/artillery.  In addition, multi-barrel pistols and multi-volley artillery existed as well, which made it possible for the wielder of said weapon to wound or eliminate more of the enemy in a quicker amount of time, which has been the weapons designer’s main goal since the invention of weaponry.  Thus, if it truly were the purpose of the framers and those who ratified the 2nd Amendment to the Constitution to allow Congress to limit the types of arms the people may keep and bear, it seems very plausible to assert that they would have provided such language in the Constitution.  We see that rifles were much more dangerous than smooth-barrel muskets, in that they had an increased range and a more deadly accuracy, yet there was no attempt by the government then to eliminate rifles from the kinds of arms the people keep and bear due to it’s deadly nature.  

It could be plausibly asked that if the framers and ratifiers of the Constitution had truly given Congress authority to limit the types of arms the people may keep and bear, then why had they not done so as a congressional legislative act back in the 1790’s or 19th Century, limiting the citizenry to having only to possess smooth-barrel muskets?  Indeed, why even stop at smooth-barrel muskets, for aren’t they even more dangerous and deadly than mere bows and arrows, swords, knives and spears?  And while limiting the people to merely no-firepower arms, they could have done what Congress is doing now, in allowing the armed forces to possess the best of the best in terms of arms and firearms, while barring the people from possessing such arms.  For just as now, even during that era of the late 18th to early 19th Century were certain kinds of arms more dangerous than others, and even then were firearms used in burglary, murder, and other crimes where individuals got hurt because of said arms.  One only need look at the nature of dueling to see this point.  

In fact, Thomas Paine, after he had returned to American from France had an attempt made upon his life by an individual with a musket.  Paine, who had been granted some land in the New York countryside had been living in a cottage upon that land and had a tenant who he did not get along with very well.  He therefore dismissed this individual, named Christopher Derrick, from his tenantship, who then sought revenge on Paine.  “On Christmas Eve, the revengeful Derrick borrowed a local musket under false pretenses, went out rum drinking, and around eight o’clock in the evening swaggered onto Paine’s property.  Derrick stumbled through the snow toward the cottage, saw the outline of Paine through a curtained window, took aim with his musket and fired.”  Derrick missed, due to his drunkenness, and Paine “refused to press charges,” given that he believed that “violence was never justified as a means of revenge,” in this case revenge being taken by Paine on Derrick.   It is very interesting that for as long as the firearm has been used in violent crime throughout the history of America, be it in the Old West or in the big cities like New York or Boston, Congress has only sought to legislatively prohibit certain kinds of firearms from the possession of civilians relatively recently.

If Congress has truly possessed this authority to prohibit certain kinds of arms from the possession of civilians since the Constitution’s inception, then why has it waited until the 20th Century to use this authority?  If violations of law with these dangerous arms have always been an issue in America, it would have made sense for Congress to ban certain kinds of arms a long time ago, instead of waiting until the 20th Century.  The year 1934, with its National Firearms Act could not have been, and indeed was not the only time criminals used high capacity, modern gun technology.  The six-shooter revolver had been invented in the 1830’s, while the repeating rifle had been invented around the time of the American Civil War.  Indeed, automatic firepower had been around since the late 19th century, with the invention of the Maxim Machine Gun and automatic pistols, shotguns, and rifles, ad other machineguns coming into play in the early 20th century, prior to the 1934 NFA.  It was these automatic firearms, in particular the machine guns that the 1934 NFA attempted to curb. Why had the U.S. Congress waited so long to use its supposed authority to limit the types of weapons the people may keep and bear, if such congressional authority already existed?  

If Congress truly possessed such power, then why had it encouraged the development of new weaponry during the Civil War, to which the American citizen, Richard Gatling responded by inventing the first true machine gun, the Gatling Gun?  And why had Congress given this private citizen, Richard Gatling a patent on his weapon if they had the authority to limit and ban that weapon from being produced and owned by private citizens like Gatling?  It appears that the answers to these questions is that Congress might not actually have the authority to limit the kinds of arms the people may keep and bear, if logic and reason prevails.  Congress’s actions of the past and the umbrella term and definition of “arms,” as it now stands in the 2nd Amendment of the U.S. Constitution shows otherwise.  

This travel through time, observing the history of the use of the word “arms” and the development of the English and American sense of a right to keep and bear arms divulges that the word “arms” is rather plastic.  While it refers to any kind of weapon in general, it usually follows new developments in weapons technology and the inventions of new kinds of arms, like firearms, and tends to commonly refer to those arms that are the most predominant in a society, as have been the case with firearms in Anglo society during the last few centuries.  However, even though the word “arms” may commonly be attached by speakers of English to the typical and most predominant type of weapon in use in a society, this does not mean that the word loses all older notions and forms of weaponry that were once deemed “arms,” yet are now somewhat antiquated.  These older forms of weaponry, once labeled “arms,” yet now displaced by newer, more effective forms of weaponry do not leave the umbrella term of “arms.”  Examples of such antiquated weaponry that still remain under the umbrella term “arms” are bows and arrows, knives, swords, spears, cross-bows, cannon, black powder firearms, rocks, sticks, axes, etc.  And all of these weapons, although antiquated and used primarily for other activities outside of hunting, self-defense, or warfare, perhaps even primarily for historic purposes, are still “arms.”  It could be said that with the term “arms,” once an arm, always an arm, albeit an older form of an arm.

Defensive Arms and The Anglo-American Right to Self-Defense

It is interesting to note that the OED defines “arms” as “instruments of offence used in war; weapons.”  Excluding the word “weapons” for the moment, the important word to note in this definition is “offense,” which contrasts with “defense.”   The OED defines “offense” as “[t]he action of attacking or assailing; assault, attack.”  “Defense,” on the other hand is defined as “[t]he action of guarding or protecting from attack,” chiefly, “[g]uarding or protecting from attack; resistance against attack; warding off of injury; protection. (The chief current sense.)”  America’s definition of “arms”, and in particular, the right to keep and bear arms seems to be seen almost purely in the light of defense.  And not only in America does this view of arms predominate, but Americans received this definition from British radical Whig writers of the 17th and 18th centuries, as well as from the 12th and 13th centuries when the Assize of Arms was issued by Henry II and when Henry III’s proclamation went forth.  Indeed, the 1689 English Declaration of Rights stated “[t]hat the Subjects which are Protestants may have Arms for their defence suitable to their Conditions, and as allowed by Law.”  Not only this, but the English radical Whig and Commonwealthmen writers, as well as other political writers of the 17th and 18th centuries expressed similar sentiments as well.  For example, Sir William Blackstone, the famous British jurist and judge, whom Americans and British Whigs alike loved to quote, wrote in his 1765 Commenentaries on the Laws of England, “[t]he fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law…which serve[s] principally as outworks or barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.”  The British Whig James Burgh, in his 1774 Political Disquisitions, “supported the right of Americans to be armed in order to preserve their freedoms.”  Richard Price, another English Whig thinker who immigrated to America in the 1790’s and became an American citizen, wrote in 1784 that “[f]ree states ought to be bodies of armed citizens, well regulated and well disciplined, and always ready to turn out, when properly called upon, to execute the law, quell riots, and to keep the peace.”  And not only did English Whig thinkers support the right of the people to keep and bear arms for their self-defense, but 18th Century Americans as well, having been influenced by those English Whig and political thinkers, as well as the laws of England, wrote about the necessity of protecting the right of the people to be armed as a means of defense.  Such renowned American Founding Fathers as John Adams, Samuel Adams, James Wilson, James Madison, George Washington, and Thomas Jefferson, and all other Americans supported and vocalized their thoughts on this right of the citizenry to keep and bear arms.  Thomas Paine’s words come to mind, written in his 1775 article title “Thoughts on Defensive War,” which states, “I am thus far a Quaker, that I would gladly agree with all the world to lay aside the use of arms, and settle matters by negotiation; but unless the whole will, the matter ends, and I take up my musket and thank heaven he has put it in my power.”  

To look at the definition of arms in the dictionaries from around the time in which the American Founders lived, there are several options one could choose from.  One such option is to look at the Dr. Samuel Johnston’s 1755 dictionary, title “A Dictionary of the English Language,” published in London.  Dr. Johnson’s dictionary defines arms as “weapons of offence, or armour of defence.”  This obviously shows the armor aspect of the Assize of Arms of 1181 and the need for shields.  Thus, armor itself, be it in any form, appears to fit under the umbrella term of “arms” as well.  Dr. John also defines firearms as “arms which owe their efficacy to fire; guns (fire and arms).”  This case is especially interesting and important because Samuel Johnson, like Paine in the aforementioned quote of his, is labeling firearms as a type of arm, an arm that works by means of fire.  Johnson also goes as far as to define the words “gun,” as “the general name for firearms; the instrument from which shot is discharged by fire,” “cannon,” “handgun,” and “pistol.”  In addition, Dr. Johnson defines a magazine as “a storehouse, commonly an arsenal or armoury, or repository of provisions.”

Another option is to consult the American, Noah Webster’s 1828 dictionary.  Webster’s 1828 dictionary entry for “arms” defines them as “[w]eapons of offense, or armor for defense and protection of the body.” Indeed, Webster defines arms in terms of the law as the “any thing which a man takes in his hand in anger, to strike or assault another,” which harkens back to John Rastell’s use of the word “arms” as aforementioned.  Webster’s 1913 entry for arms defines them as “[i]nstruments or weapons of offense or defense,” while the in law arms are defined as “[a]nything which a man takes in his hand in anger, to strike or assault another with; an aggressive weapon.”  Webster even defines small arms as “portable firearms known as muskets, rifles, carbines, pistols, etc” (1913 entry).  His 1828 entry for the definition of firearms is “[a]rms or weapons which expel their charge by the combustion of powder, as pistols, muskets, &c.”

Thus, these dictionary definitions from the mid 18th Century and from era of the early American Republic are further proof that the word “arms,” as used in the 2nd Amendment is a general term for all kinds of offensive and defensive weapons or instruments used with the intent of harming an other individual for whatever offensive or defensive reason.  However, it appears that the OED definition of “arms,” although correct in what it says about instruments of offense, leaves out the important word and notion of instruments of defense as well.  Thus, if I were to modify this definition in the OED, I would include the word “defense” so that the full definition read “instruments of offence used in war; instruments of defense used in war and in time of peace, purely for defensive purposes; weapons.”  I believe the OED’s current definition is fundamentally flawed in leaving out this defensive nature of “arms.”  Therefore, given this information concerning the defensive and offensive notions of arms, the word “arms” could and should be explicated by means of the Natural Semantic Metalanguage (NSM) as follows:

1.) Semantic Explication of “Arms (defensive):” 

1. Some people do good things to other people; some people do bad things to other people

2. There are many things people do good or bad things with 

3. All things can be something Z; some things Z are more good than other things Z when doing something good or bad to other people

4. Some people do good things to other people with these things; some people do bad things to other people with these things 

5. When a person X does something bad to person Y, with or without something Z, and something bad can happen to Y or Y’s things because of X and what X does, Y can do something A with something Z to person X.  

6. When this happens, people think Y’s doing something A with Z to X is good.

2.) Explication of “arms” (offensive):

1. Some people do good things to other people; some people do bad things to other people

2. There are many things people do good or bad things with 

3. All things can be something Z; some things Z are more good than other things Z when doing something good or bad to other people

4. When person X wants do something bad to person Y,” and person Y knows this to be true, Y can do something to X with something Z before X can do something bad to Y.

5. When this happens, people think what Y does to X with something Z, before X can do something bad to X (with something Z) can sometimes be good.

In both of these explications, things, or in particular “something Z” can be used either defensively or offensively.  No matter the instrument, it can be used defensively and offensively, and depending on the circumstances concerning offensive actions, this can be viewed by society as either good or bad.  Thus, an arm is any kind of instrument or thing in general that can be used offensively or defensively in doing something to someone else, particularly with intent to harm or do physical damage to this someone else.  Under this definition of an arm, we can count just about any kind of thing, instrument, or tool that can be used by an individual human being in doing something harmful to another individual either defensively or offensively.  Thus arms can range from rocks, sticks, projectile objects like arrows, rocks, spears, bullets, firearms, or indeed any instrument a human being can get his/her hands on to either protect oneself in doing damage to another individual or in purely offensive ways of doing harmful damage to another human being.  Because of this dual defensive and offensive nature of arms, two separate explications are necessary, one for the defensive nature of arms and one for offensive nature of arms, which each can act as cultural scripts as well.  But no matter whether an arm is being used offensively or defensively, and arm is still an arm, and some arms are better than others in completing the offensive or defensive act, and some are more appropriate to use during certain situations.  Thus, we see in component c.) of each explication the description of all items, instruments, tools, or things in general being considered an arm.  In addition, while all instruments or tools can be considered and used as an arm, some tools are better than others in doing something to someone else with the intent of harming them (again, defensively or offensively).  

Also, some tools are more appropriate for accomplishing that intent to harm or do something bad to someone else than are others, be it functionally or socially/humanely.  An example of the latter would be the use of a bazooka to stop a burglar from robbing one’s property and harming him/herself and his/her family, instead of a simple gun.  While both weapons would succeed in stopping the burglar, society and humaneness would tell us that such use of a bazooka in such a situation would not be appropriate, and would be excessive.  An example of the former, namely functionally better weapons could be firearms verses bows and arrows.  Both weapons will aide the bearer in his/her intent to harm the other person, but one is more effective and is newer technology while the other is less effective and antiquated technology.  But the fact still remains that both weapons involved in this compare and contrast example still fit under the umbrella term “arms.”  

Concerning the defensive nature of arms, we see in component a.), people tend to interact with each other and do things to each other.  These things people do to each other can either be good or bad, beneficial, or harmful.  In component b.), these things that people do to each other can be done with certain additional items, instruments, or tools, which can be arms.  These things that could be used as arms vary, and could indeed be anything.  Component c.) has already been explained.  Component d.) shows how people can use these arms for good or for bad, the good or the bad depending on for what purpose the bearer of the arms is using it.  An arm used for protection of oneself, one’s property, and one’s family can be a good thing in American and English society, as already provided in the aforementioned views on arming the citizenry for their protection.  These arms could be used for bad purposes in the form of an unprovoked attacker attempting to use that weapon to unjustly and illegally hurt or rob an individual.  Component e.) describes such a defensive nature of action involving the arm.  When an individual approaches another individual with the intent of doing harm to the other in some way, be it physically or burglarizing the other individual, the victim has a right to defend him/herself, his/her property, or his/her family with some item or instrument, or rather, arms, by using this arm against the offender with intent to harm the individual or stop the attack.  Arms used in this manner, as a means of self-defense or defense of one’s rights is often seen as good in American society and in view of American law.  Thus, we see in America that both the laws and society recognize the use of arms by individuals as a means to protection and defense.  

The most obvious source of this notion of self-defense comes in the 2nd Amendment of the American Constitution, which states, “[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.”  Other such notions can be found, as aforementioned, in the English heritage of Americans and the English Common Law, in the political English radical Whigs and Commonwealthmen of the 17th and 18th Centuries, in the political and personal writings of 18th Century Americans, both during and after the American Revolution, and in such fundamental legal documents as not only the federal Constitution, but in each of the 13 original state constitutions as well.  

In all but 2 of the original 13 state constitutions of the 1770’s and 1780’s, the use of the word “arms” appears in 11 of the state constitutions’ bills/declarations of rights.  Only Maryland’s and New York’s bills of rights provide no such use of the word “arms,” but do provide phraseology and clauses concerning the necessity and presence of a state militia, which necessarily implies the ability, legal obligation, and right of the citizenry composing the militia to provide arms for themselves, thus being able to keep and bear arms.

Modern-Day Usage of “Arms”

It has thus been shown that the word “arms” has taken on reference to a plethora of weapons and instruments for the use of offensive and defensive action against an attacker or intruder of some kind.  And while the word “arms” always retains what it absorbs into its definition, ranging from rocks, sticks, bows and arrows, spears, swords, knives, shields, armor, and most recently, firearms, English speaking societies have usually used this word to refer to the most predominant types of arms in use, the most technologically advanced arms, and the most effective ones.  Ever since what appears to be the mid 17th Century, the firearm has increased in use and in effectiveness, to the point where while other more antiquated arms still exist, they are being replaced in times of combat solely by firearms, to be left for the purpose of collection or for purposes other than military combat (e.g. hunting, leisure/recreation, other practicable purposes).  But the fact still remains that these older forms of arms are indeed still arms, and they too have been regulated by the Congress and other state legislatures in modern times.  

Next to banning knives on airplanes, Congress passed in 1958 a law that sought to define the word “switchblade,” and banned the possession production of them in certain areas by civilians.  In Title 15 of the U.S. Code, chapter 29, switchblades are defined as “any knife having a blade which opens automatically, by hand pressure applied to a button or other device in the handle of the knife, or by operation of inertia, gravity, or both.”  They have been banned from production and manufacture, and introduction into or transfer within the interstate commerce market, with a penalty of $2000 and/or up to 5 years in prison, except by those manufactures with a contract with the armed forces.  Also exempt from the law is “any common carrier or contract carrier, with respect to any switchblade knife shipped, transported, or delivered for shipment in interstate commerce in the ordinary course of business.”  They have also been banned from possession by anyone except, like in the examples of machines guns and other banned types of arms, the armed forces (and one armed-individuals), and have been banned from possession on any U.S. territory or possession, as well as on Indian country and “the special maritime and territorial jurisdiction of the United States.”  Thus, Congress has not only confined itself to seeking to define and prohibit certain kinds of firearms from manufacture or possession by private civilians, but has also done the same with knives, thus continuing to move along the spectrum of arms, banning what it sees fit, even though it might not actually have the authority to do so.

Even though Congress has sought to limit other kinds of arms besides firearms, firearms still tend to be its objective, and indeed, when one hears the word arms in our current era in history, and even back in the late 18th, 19th and 20th centuries, the image that predominantly comes to mind is that of the firearm.  When looking at the Corpus of Historic American English, use of the word “arms” refers primarily to firearms.  In an 1815 fiction work titled “The Battle of New Orleans,” by C.E. Grice, there appears a clause that says “Colonel Oakwood Present arms; shoulder arms; order arms; rest.”  It is obvious given the context and date in history of this quote, that the arms that were being shouldered were muskets or rifles.  Another quote, taken from an 1819 work called “Percy’s Masque,” by James Abraham Hillhouse, concerns an older period of history, during the days of kings and knights in Europe, and thus when the word “arms” appears, it refers to swords and other older forms of arms prior to the advent of firearms.  But this is only so because of the context of the story.  The quote reads, 

“Look! West. Lady Westmoreland What! ho! to arms! Treason! to arms! Knights. Knights (in different parts of the hall.) Arms! -- Hark you? -- Sirs, they cry to arms. Seneschal. Seneschal (hastily approaching.) What means that shout? West. Lady Westmoreland (loudly.) Treason! to arms! Ho! Treason! A confused multitude of voices repeat the cry, and knights rush to the door, but are driven in. Percy and Douglas, meanwhile, lean in silence on their swords.”

Another quote comes from an 1825 fiction piece called “The Rebels; or, Boston Before the Revolution,” written by Lydia Maria Francis Child, which says, “…they scarcely noticed a human figure, save the sentinels, who, with shouldered arms, slowly paced their accustomed rounds.”  Once again shouldered arms could only refer to muskets.  Another example is from an 1855 written piece of work called “The Sea Witch Or, The African Quadroon: The Story of the Slave Coast,” By Maturin Murray Ballou, which says, “but from the habit of constantly wearing their arms, even to pistols, when on the coast, they had been found in a very good situation at even the shortest notice for defending themselves.”  A further example is found in “The Cruise of the Jasper B,” written by Don Marquis in 1916.  This quote reads, “More than that, we will have the advantage in arms; here is a magazine rifle for each of you, while they, if I am not mistaken, will attack with pistols.”  The last example comes from a play script titled “Bambam and the Uncivil War,” by O Oyam, dating from 2001, which says, “SGT. BUTLER Company, halt, one two. Present Arms! Order arms! Parade Rest!”  As can be seen from these examples from the Corpus of Historic American English, most modern day uses of the word “arms,” even those citations dating back to the early 19th Century focus primarily on firearms, being that firearms were, and still are the predominant type of arms used in military, hunting, police and criminal activities by civilians and government agencies alike.  But, it must be remembered that although the word “arms” has been used almost entirely in reference to firearms in the last couple centuries, other types of weapons or instruments of offensive and defensive action remain under the umbrella term of “arms.”

What of a Supposed Congressional Authority to Limit the Arms the People May Keep and Bear?

Having come full circle back to the immensely important question posed at the start of this analysis of the word “arms,” the issue this article seeks to solve, does such an alleged authority to limit the types of arms the people may keep and bear actually exist within the scope of powers granted to Congress by the Constitution?  It is plain to see that Congress has obviously claimed this power and has assumed it as its own by means of the very legislative acts it has enacted and have been signed into law.  But does mere congressional legislation concerning a certain issue automatically grant such power to Congress?  Can a legislative branch of government, bound by a popularly ratified constitution grant itself new additional powers by mere enactment of law?  In American law and government, such arbitrary assumption of power cannot be done by a legislative branch, or by any other branch in the federal government in America.  

Returning back to the example of the Mexican journalist asking President Obama whether he could and would veto the 2nd Amendment, President Obama gave the right answer; he told this journalist that as the 2nd Amendment is part of the Constitution, and that the president himself is bound by the Constitution, he could not do so.  President Obama, as well as any individual who has studied the history of the American Revolution and the American governmental system knows that all branches of the federal government are explicitly bound by the popularly ratified, federal Constitution, which is the supreme and fundamental law of the land.  It is an already known and accepted fact that the powers of Congress, as well as the executive and judiciary branches are of a limited nature, spelled out exactly and specifically enumerated in plain language in the Constitution, so plain that any individual could understand.  In fact, many of the non-attorney framers present at the Philadelphia Convention in 1787 were very worried about the wording and language of the adopted Constitution and how it would be interpreted by legislators.  The scope of powers Congress has been delegated by the people of the U.S. are laid down in the federal Constitution, particularly in Article 1 Section 8, but in other articles and sections as well.  Thus, before going any further, an examination of the Constitution for such a power granted to Congress is essential.  

Going through the entire Constitution, the word “arms” appears only once, in the 2nd Amendment.  Nowhere in Article 1 Section 8 or in any other part of the Constitution does the word “arms” appear.  This is crucial information to know, because outside of the Bill of Rights, Congress was given no authority to legislate concerning arms.  It was given power and responsibility to provide for the arming of the militia, as stated in Article 1 Section 8, Clause 13, but arming the militia and the topic of what instruments are defined as “arms” are not the same thing.  Some have argued that Congress may seek to regulate and control arms via the so-called “Commerce Clause,” through the “General Welfare Clause,” or perhaps through some other clause in Article 1 Section 8.  But this cannot be so.  During the ratification period of the 1787 Constitution, before any amendments had been added, one of the principle criticisms made by those who opposed the Constitution was that it contained no Bill of Rights.  Those who supported the ratification of the Constitution made the counter-argument that a Bill of Rights was unnecessary because all powers granted to the federal government were specifically enumerated in the Constitution and were thus limited and few.  All the powers not specifically granted to the new federal government were retained by the people, and thus no declaration of rights was necessary.  Indeed, the Federalist supporters of the Constitution felt a Bill of Rights might be dangerous, in that it might be construed by future congressmen and officials of the government that the rights listed in the Bill of Rights were the only rights retained by the people, and everything else was fair game for the Congress to legislate on.  But the Anti-Federalist opponents of the new Constitution didn’t buy into that argument, and insisted on a Bill of Rights.  

The Federalists eventually gave in, and James Madison, himself a Federalist led the way in the creation of a Bill of Rights from a list of 200 or so proposed amendments to the Constitution, and fought in the Congress to get it passed and submitted for ratification to the state legislatures.  James Madison had intended to have these amendments placed within Article 1 Section 8 itself, so that there could be no doubt that these amendments limited Congress even further in the scope of its powers, but others fought to have it placed at the end.  Either way, no matter the position of the amendments within the actual text of the Constitution, the language of the amendments is clear and specific.  And because of the nature of an amendment, which is an official alteration of the text of a document, these 10 new amendments that made up the Bill of Rights therefore amended all of legislative authority of the Congress, placing additional limitations and prohibitions on the law making abilities of Congress.  It is therefore obvious that when the 2nd Amendment says, “the right of the people to keep and bear arms shall not be infringed,” this means that Congress can pass no law infringing upon the right of the people to have arms.  Any law that might do so is unconstitutional, and therefore not within the scope of congressional legislative authority.  This puts to rest any claims by those who would support gun-bans that Congress has such authority to do so via some clause in Article 1, Section 8, and indeed, any attempt by any governmental branch or administration to infringe upon this right of the people.  The amendments to the Constitution affect the entire Constitution as a whole, and thus prohibit any attempts to infringe upon the people’s right to keep and bear arms.  Thus, the “Commerce Clause “can’t allow Congress to do so, nor can the “General Welfare Clause,” the “Common Defense Clause” or any clause for that matter.  

James Madison was the primary author of the Virginia Plan, which was transformed into the Constitution of 1787 by the framers in the Philadelphia Convention, Madison too being one of the framers, who took meticulous notes of the happenings and debates of that convention.  In addition, he led the charge in Congress for passing amendments to the Constitution and was the initial author himself of these amendments, which later became the Bill of Rights.  Thus, while his opinions and writings concerning the Constitution cannot be taken as the sole authority from which to judge an act’s constitutionality, his opinions and words nevertheless carry significant weight that few other framers and ratifiers of the Constitution carry. In his opposition piece to the “Alien and Sedition Acts” of 1798, titled the “Virginia Report of 1799,” Madison said the following concerning powers granted and not granted to Congress by the Constitution:

“Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the Constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by Congress. If it be not. Congress cannot exercise it."

In addition to this, Madison wrote in the same 1799 piece, speaking of the unconstitutionality of the “Sedition Act” of 1798, which forbade civilians from criticizing the government and its officials in writing, especially in the press, that because the 1st Amendment in the Bill of Rights effectively forbids Congress from making any law that would abridge the freedom of speech or of the press, he said that this “amendment is a denial to Congress of all power over the press,” or an absolute.  Not only this, but while drafting the amendments to be proposed to Congress, Madison took “pains to employ language of ‘requisite latitude’ to state the rights broadly,” seeing the language of the amendments as extremely important.  Indeed, Madison, when participating in Congress in the making of the Bill of Rights, paid very special attention to the wording of the 1st Amendment after it had been changed by the Senate.  He led the House to re-alter the wording that the Senate had changed so that it matched exactly his and others sentiments on the rights of conscience.  If Madison had said and done these things concerning the 1st Amendment, it seems plausible to assume he would have done the same concerning the rest of the amendments he proposed and that were eventually passed by Congressed and ratified by the states.  Thus, I believe Madison’s own words from his “Virginia Report of 1799” can be expressed in the same way and with the same meaning concerning the 2nd Amendment: the power of Congress to legislate concerning what kinds of arms the people may keep and bear, “exercised by” the multiple acts cited in the earlier portions of this article are “positively forbidden by one of the amendments to the Constitution.  The [2nd] Amendment is a denial to congress of all power over” legislating concerning what kinds of arms the people may keep and bear. 

Having seen that the 2nd Amendment effectively prohibits Congress from passing any law that would infringe upon the people’s right to have arms, as well as any other federal government entity from infringing upon this right, what if we turn to the 2nd Amendment itself?  Is such a power to limit the types of arms the people may keep and bear implied within the 2nd Amendment wording and usage of the word “arms?”  The linguistic and semantic, as well as historical evidence provided throughout this analysis of the word “arms” clearly shows that the maxim posed in this article holds true, that an instrument, tool or weapon, once considered or labeled an arm, always remains under the umbrella term “arm;” in essence, once and arm, always an arm.  Thus, if the word “arms” applies to every kind of weapon, instrument or tool used by man in an offensive or defensive manner, with the intent of inflicting pain or harm on another individual, including rocks, sticks, bows and arrows, spears, swords, knives, guns, ammunition/bullets, armor, and so forth, then it appears that Congress cannot indeed have the authority to ban certain kinds of arms from civilian production and possession.  For any attempt by Congress to ban certain kinds of arms from possession by the citizenry could lead to Congress next assuming it has the authority to ban all kinds of arms save rocks or sticks, being that all other forms are too deadly and dangerous.  And if the argument holds true that Congress has no such authority, then Congress has attempted to arbitrarily assume powers not granted to it by the Constitution, by mere unopposed legislation concerning this manner, and the courts must rule such laws as unconstitutional and the executive branches must then stop executing these unconstitutional laws.

In light of this evidence above, turning briefly once more to Congress’s 2007 “District of Columbia Personal Protection Act,” Congress attempts to protect the citizens’ rights to “arm” themselves, labeling such appropriate “arms” for this right as handguns, rifles, and shotguns.  But are not all of these types of “firearms” “arms” as well, as the 2nd Amendment says?  It seems that Congress has tried to set itself up as a benevolent, yet all powerful legislative entity, maintaining supreme and ultimate authority to bind the people by their laws in all cases whatsoever, yet demonstrating their mercy and benevolence toward the people by legislatively granting them only a portion of their right to keep and bear arms as it sees fit to give, according to the times and circumstances of those times.  This smacks of the tyrannical rhetoric used by the British Parliament in the years of colonial debate leading up to the American Revolution in 1775, in particular, the 1766 Declaratory Act.  It also contradicts the predominant belief at the time, a belief that continues today, yet seems to be on the verge of being forgotten, that legislatures cannot give or create rights.  

Thomas Paine, in “Rights of Man” describes this principle best when he rights, “[i]t is a perversion of terms to say that a charter gives rights. They do not give rights to A, but they make a difference in favour of A by taking away the right of B, and consequently are instruments of injustice. Rights are inherently in all the inhabitants.”  While attempting to protect this right of the people to keep and bear arms, Congress is apparently seeking to undermine that very right by allowing possessions of certain kinds of firearms and arms, yet maintaining congressional bans on other certain kinds of firearms and arms, namely the aforementioned machine gun, saw-off shotgun, and the short-barreled rifle, as well as the ban on switchblade knives.  It seems Congress is also attempting to legislatively define the term “arms,” when only language and history can do so.  This historical use of the term “arms,” as provided in earlier sections of this paper, is codified and constituted legal language within the Constitution, and is therefore law, subject to change only by popular amendment.

Indeed, Congress’s contradictory actions and opinions, found within in the very same law, viz the 2007 “District of Columbia Personal Protection Act,” seems like American history repeating itself.  By this I recall the American-British colonial debate of the 1760’s and 1770’s, and in particular the Stamp Act and the Declaratory Act.  For it seems Congress is taking a leaf out of the British Parliament’s book, in repealing its own Stamp Act in a way, but subsequently issuing its own American “Declaratory Act,” like that of the British Parliament in 1766, which stated the British Parliament had the authority to legislatively bind the Americans “in all cases whatsoever.”  But the main difference is that Congress’s own declaratory act relates in this case only to “arms.”  How can Congress give from one hand and take from the other?  Indeed, can Congress even interpret what they feel the people’s rights are?  We know that a legislative body cannot create rights, for rights, be they natural or civil, exist as part of us by our being human, and are permanent gifts from our Maker, as Thomas Paine submits in the 1st part of his “Rights of Man” and as Thomas Jefferson wrote in the Declaration of Independence.  How can Congress say that this specific kind of firearm is legal to keep and bear, but this kind over here is not?  If we maintain a constitutionally recognized natural right to keep and bear arms, how is it that Congress can recognize that right and be bound by it, but attempt to infringe it, in this case all this happening in the very same law?  

Once again, can a certain arm be deemed illegal if our constitutional right is one such that the people can keep and bear “arms” in general?  How can Congress deny this right to the people that is bound to uphold, yet acknowledge such a right for itself and it its governmental relatives, namely the law enforcement and military sections of the government? For this is exactly what it has done with many of its laws, banning certain kinds of arms, or more specifically firearms from civilian possession and production, yet granting the law enforcement and military agencies the legal ability to possess such arms/firearms.  How can a legislative body acknowledge such a right while simultaneously condemning it out of the same mouth and in the same law?  Do we maintain the right to keep and bear arms or not?

Does Congress have the constitutional authority to define what are and aren’t to be considered “arms” in the English language of today, when the Constitution clearly gives no specific definition to what “arms” are to be, but rather retains this word’s historic definition of “weapons of offense and defense in general, and is not limited solely to firearms?”  For that is exactly what happens when Congress attempts to assume a power it clearly does not have in proscribing by law what arms are legal for the people to keep and bear.  For if Congress can outlaw certain kinds of arms from individual citizen possession under the current language of the Constitution, specifically the 2nd Amendment, then does Congress not have absolute power to limit all kinds of arms, and ban from civilian possession and use all firearms, or all knives, or all arms except sticks?  What could stop the Congress from legally banning all arms except scissors, as long as the people’s right to keep and bear “some kind of arm” is not infringed?  That seems to be Congress’s interpretation of the word “arm,” that the people have the right to keep and bear some kind(s) of arm, but only the kind(s) of arm the Congress deems appropriate.  If that were the intentions of the framers and of and those who ratified the Constitution and its Bill of Rights, is it not likely that it would have been worded much more specifically so as to say that long as the people had some kind of arm, the Congress may ban all other kinds of arms?  It seems plausible to assume that if it had been the framers and people’s intention to only allow people to keep and bear some arms, or even limit people to keeping and baring firearms, then they would have spelt out the 2nd Amendment as “the right of the people to keep and bear SOME arms shall not be infringed,” or “the right of the people to keep only firearms, and even then SOME firearms shall not be infringed.”  Being that the plural use of “arm” is used in the language of the 2nd Amendment, it seems unlikely that that is the case in the current language of the 2nd Amendment.

Conclusion

If Congress may not limit the types of arms the people may keep and bear, under the current language of the 2nd Amendment, and it is the sentiment of the majority of the American people that such limitations on arms are necessary and that Congress should be allowed to do so, then there is a simple solution to this problem.  What must happen in order for Congress to have such authority is to pass a constitutional amendment in Congress and submit it to the state legislatures for ratification, granting Congress this authority. But in order to gain the support of those who favor gun-rights, it would be important for this amendment to be worded in such as way as to limit congressional authority in prohibiting certain kinds of arms, and it must also limit the government from allowing itself from possessing those very arms it would ban the citizenry from being able to possess.  

There are some very dangerous and deadly “arms” in the world, and what Congress and others are attempting to do in preventing these weapons from getting into the hands of the wrong people, by attempting to ban said arms from civilian production, transfer, and possession by can be seen as a decent action, taken in order to make the country and world more safe and secure.  But at the same time, Congress, purposefully or not, is assuming a legislative power it is not currently granted by the Constitution, and thus it is establishing itself as an all powerful, arbitrary legislature, which in the eyes of the American Founders, especially James Madison, can be just as dangerous if not even more so than the most dangerous weapon in the world.   For an all powerful, arbitrary legislature is dangerous to the lives of the people and dangerous to their liberties and rights.  It must be noted that James Madison, while like most of his contemporary American revolutionaries in viewing any all powerful, arbitrary legislature as a danger to the sovereign people of a nation, he saw the state legislatures in his time, and the excess democracy then practiced at the expense of the rights of the minority as the ultimate threat to the United States; thus he wanted a stronger federal government and legislature to curb the state legislatures, strong yet still limited in it’s scope of powers.  

Thus, it is important that Congress introduce and pass such a carefully worded constitutional amendment and submit it to the state legislatures for ratification, so that it can be legally granted the authority to limit the dangerous and deadly arms that it feels would be hazardous to the public safety, without posing the dangerous threat the public’s liberties in arbitrarily assuming more and more powers it does not constitutionally have.  That way, not only do those who favor more gun control win, but those who oppose further gun control may rest assured that Congress will only be able to legally limit and prohibit certain types of arms that the people deem as needing prohibition, all the while protecting the people’s rights and liberty, and preventing their representative government from assuming too much power that it constitutionally does not have.  It is a win-win situation for all involved.  It would also decrease the heated debates, arguing, and rhetoric concerning gun control and gun rights in the nation, thus creating a more harmonious relationship between all Americans from all sides and angles of the American political spectrum.

New version:

The Right to Keep and Bear ALL Arms:

A Historical Analysis and Semantic Explication of the English Word “Arms.”  

By Casey W. Beres

Introduction

America’s reputation for its 2nd Amendment rights to private gun ownership is well known throughout the entire world.  Indeed, America is one of the few nations that still legally protect the right of individuals to possess and use firearms and arms in general, having inherited such ideas from their English heritage.[1]  Many other nations on the other hand have introduced legislation that provides extremely strict limitations on individual citizens owning, buying, possessing, or using a firearm and other types of arms.  One such nation among the multitude is Japan.  In Japan, only law enforcement officers and other government officials are permitted to carry firearms, while individual citizen are generally prohibited from purchasing, possessing, or using a firearm.[2]  China also has similar gun-control laws, where the possibility of individual citizens purchasing and possessing a firearm is relatively low, as in Japan.[3] 

Also, some countries and even some Americans have criticized America for its protection of this right to keep and bear arms.  During a recent 2011 press conference between the American president Barack Obama and Mexican president Felipe Calderon, one Mexican journalist showed his apparent lack of understanding of the distinction between American fundamental law and statutory law, as well as the concept of a separation of powers.  This journalist asked President Obama, in Spanish, if he could and would consider vetoing the 2nd Amendment right for individuals to keep and bear arms, being that many firearms produced in America are somehow finding their way across the Mexican-American boarder as clandestine items and ending up in the hands of the Mexican drug cartels, which have been responsible for much of the violence in Mexico.[4] 

So strong and well known is America’s reputation for gun-rights and individual gun ownership that it has often been portrayed with pride, albeit humorously, by American film companies in multiple movies about America.  One such scene can be found in the 1993 Disney film, “The Adventures of Huck Finn.”  In this scene, Huck, Jim, and The Duke and the King, who are pretending to be from England, arrive in a little Mississippi River town in America’s South, where they are met by the local sheriff.  Their encounter with the sheriff is interrupted by a scuffle between two dirty, drunken Americans; one pulls a gun on the other and shoots him, while the sheriff pulls his gun on the shooter and shoots him dead.  The sheriff then turns to the supposed English gentleman and says, smoking gun in hand, “welcome to America!”.  Indeed, the story of America’s Westward expansion and the age of the cowboy is chalk full of scenes of gun violence and lawlessness, and where each individual member of a town or city possesses a firearm of some kind.  This is the topic of countless of American Western films, and even popped up in the recent 2011 Dreamworks animated movie, “Rango,” in which Rango, a chameleon who ends up in a struggling desert boomtown, asks the residents of the town if anyone has access to a firearm.  The humorous response the residents give him in return is in the form of every single one of them, including the children, pulling out, cocking, and pointing their several firearms per individual at Rango.

         However, such pride in and humorous use of America’s right to keep and bear arms has not been without controversy.  Just recently in January of this year, 2011, the American gun-debate controversy was brought up again to a new level when Arizona congressional representative Gabrielle Giffords was shot clean through the head and countless others present were shot, wounded and killed by the alleged shooter and Arizona resident, Jared Loughner.  This horrific and unfortunate incident prompted politicians in the various states and in Washington DC alike to bring back to the table new gun-regulation and gun control legislation. 

Indeed, the 2nd Amendment may just be the most hotly debated and controversial amendment to the American Constitution.  But it is also a relatively recent controversy that has developed only within the last 80 years or so of American history.  As will be shown in the following paragraphs of this article, the 2nd Amendment, along with the rest of the Bill of Rights became part of America’s fundamental law, unalterable except by the people themselves as a whole, in 1791.  Yet Congress’s first significant attempt to regulate and control the 2nd Amendment came only recently, in 1934.  Yet since 1934, it has developed into the hotly debated and bitter issue it is today, and given Americans divisive feelings on this issue, including those in Congress and in the courts, it doesn’t seem to be going away anytime in the near future, perhaps maybe even ever, unless certain action are taken, actions that will be explained in later in this article. Thus, the important issue that will be discussed in this article will involve the constitutional authority of Congress to legislatively limit the types of arms the people may keep and bear.  This article will look at the existence of such authority and will determine whether Congress does actually possess such authority, as the Constitution now stands.  This inquiry will be examined through the prism of a semantic explication of the English word “arms” in the 2nd Amendment clause “the right of the people to keep and bear arms shall not be infringed.”  It will be presented and proved by linguistic and semantic evidence, as well as additional supporting evidence from the historical findings of professional historians of American history, actual primary historical sources from the eras involved, news media sources, and legal court and legislative findings and sources by the American courts and the American Congress. 

         As gun violence continues to occur throughout the world, particularly in America, this issue concerning American gun rights will only continue to grow worse and more contentious.  It is therefore a very relevant and very important issue in our current time and in the future, and it is of immense worth to consider the semantics of the word “arms” that appears in the 2nd Amendments, so as to determine if Congress truly does or does not have the authority to limit the types of arms the people may keep and bear.  For if Congress truly doesn’t have such authority to limit, via statutory legislation what kinds of the arms the people may or may not keep and bear, and if the sentiments of the American population are such that they would like Congress to be able to do so, a constitutional amendment allowing Congress this authority is in order.  And if this is indeed that big of an issue with the American people, they must act quickly in order to get said constitutional amendment passed by Congress, ratified by the individual state legislatures, and added to the Constitution.

An Historical Analysis of Congressional Legislation Concerning Firearm Limitations

         Before explicating the word “arms,” and delving into the semantic realm of this article, it is necessary to explain the current American laws concerning the 2nd Amendment.  The first congressional attempt to limit the types of arms the people may keep and bear was the National Firearms Act of 1934, which placed a $200 tax on making and transferring certain kinds of firearms defined by the act, among other regulations.  The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) webpage says the following of the NFA:  “[a]s the legislative history of the law discloses, its underlying purpose was to curtail, if not prohibit, transactions in NFA firearms. Congress found these firearms to pose a significant crime problem because of their frequent use in crime, particularly the gangland crimes of that era such as the St. Valentine’s Day Massacre.”  This is the first act by Congress to attempt to define what firearms are, in effect, an attempt to define what “arms” are and which it could limit or prohibit the people from possessing, albeit in a round-about way via taxation and registration.[5]

         In 1975, the District of Columbia city council passed and enacted its infamous “Firearms Control Regulation Act of 1975,” which outlawed residents of the District of Columbia from possessing handguns, automatic firearms, and high-capacity, semi-automatic firearms.  The 2007 congressional bill, titled “District of Columbia Personal Protection Act,” stated in its “Congressional Findings” section, “[t]he law-abiding citizens of the District of Columbia are deprived by local laws of handguns, rifles, and shotguns that are commonly kept by law-abiding persons throughout the United States for sporting use and for lawful defense of their persons, homes, businesses, and families.”  It also stated that “[l]egislation is required to correct the District of Columbia’s law in order to restore the fundamental rights of its citizens under the Second Amendment to the United States Constitution and thereby enhance public safety.”  However, after these findings, Congress also stated in this same piece of legislation that while individuals maintain the right to keep and bear arms, including handguns, rifles, and shotguns, or “any firearm neither prohibited by Federal law nor subject to the National Firearms Act,” Congress still has the authority to ban certain kinds of firearms from possession by individual citizens in the District of Columbia .[6]  Such certain kinds of firearms that are still banned by this same piece of legislation in the District of Columbia are a “sawed-off shotgun, a machine gun, and a short-barreled rifle.”

         In 1986, President Ronald Reagan signed into law the “Firearms Owner’s Protection Act,” which contained a controversial amendment that made it “unlawful, with certain exceptions, for any individual to transfer or possess a machinegun,” the exception being machineguns that were manufactured and possessed before May 19th, 1986.[7]  Thus, new machine guns could not be manufactured, possessed or transferred by any individual or person in the United States, except for those allowed by and for the US armed services and government police officials.[8]  This very bill sought to limit the types of arms the people may keep and bear.  It of course did not say citizens could not possess any machine gun period, but rather, attempted to limit the amount of machine guns owned by individuals, and prohibiting Americans from owning or producing (unless having a specific government issued permit to do so) any new machine guns manufactured after May 19th, 1986.[9]  It thus prohibits the transfer and possession of newly manufactured machineguns to private citizens.  It is, however, by way of this law, legal to transfer these newly made machine guns to government agencies and it is thus legal for those agencies to possess them.  Indeed, the government website for the Bureau of Alcohol, Tobacco, Firearms and Explosives (AFT) states the following concerning federal legislation on machinegun bans:

“In 1986, this Act amended the NFA [National Firearms Act] definition of “silencer” by adding combinations of parts for silencers and any part intended for use in the assembly or fabrication of a silencer. The Act also amended the GCA [Gun Control Act] to prohibit the transfer or possession of machineguns. Exceptions were made for transfers of machineguns to, or possession of machineguns by, government agencies, and those lawfully possessed before the effective date of the prohibition, May 19, 1986.”

In addition, Title II of the Gun Control Act (GCA) of 1968 “also amended the NFA [National Firearms Act of 1934] definitions of “firearm” by adding “destructive devices” and expanding the definition of “machinegun.”  Thus, we have seen Congress attempt to define and regulate, even limit what kinds of arms the people may keep and bear since 1934, when the National Firearms Act was passed by Congress.  In this act, Congress has attempted to define what a firearm is, and what types of firearms may be possessed and transferred by America’s private citizenry.[10]  The very fact that the first true self-powered machine gun was invented by an American citizen by the name of Hiram Maxim in the 1880’s, as well as the fact that the 6-shooter revolver and countless other firearms and explosives (grenades included) predate this 1934 act by decades shows a discrepancy between Congress only recently asserting their supposed authority to regulate the types of arms the people may keep and bear and the actual development, existence and use of said arms, even at the encouragement of the federal government, as was the case with the Gatling Gun during the American Civil War.

         In 1994, President Bill Clinton signed a bill, titled “Violent Crime Control and Law Enforcement Act of 1994” that placed a limited 10 year ban on assault rifles/semi-automatic weapons.  The bill stated, under Title XI, Subtitle A, that the Public Safety and Recreational Firearms Use Protection Act “amends the Federal criminal code to prohibit the manufacture, transfer, or possession of a semiautomatic assault weapon (SAW) as defined or listed under this Act,” and that this will be inapplicable to “the transfer or possession of any SAW lawfully possessed on the date of this Act's enactment.”[11]  This subtitle placing a ban on assault weapons expired 10 years after its original passage, and is thus no longer in the congressional lawbooks.[12]

Indeed, in 2008, there was a landmark ruling by the United States Supreme Court, in District of Columbia v Heller, that affirmed the ruling of the intermediate appellate court in Parker v District of Columbia, which struck down multiple sections of the “Firearms Control Regulation Act of 1975,” meant solely for the District of Columbia, establishing that the right of Americans to keep and bear arms extended to individual, private citizens, for lawful uses, including the right to self-defense in one’s home.  In Parker, the clause in the “Firearms Control Regulation Act of 1975” that prohibited individuals from owning handguns, except for current or retired law officers or those who had registered their handgun prior to 1976 was struck down as unconstitutional.  In the language of the US Appeals Court for the District of Columbia, “once it is determined—as we have done—that handguns are 'Arms' referred to in the Second Amendment, it is not open to the District to ban them.”  As will be shown throughout this essay, I believe it beyond the scope of the Congress to determine which types of weapons are deemed “arms” in the language of the Second Amendment, and as such, be able to ban certain kinds of arms.  That responsibility would naturally fall within the scope of the powers of the federal courts, in their rightful role as interpreters of the law.  But even then, I also believe it beyond the power of the courts to limit what types of arms the people may keep and bear by simply ruling that certain types of arms, particularly firearms, are not “arms” as referred to in the Second Amendment.  This is not to say that the court cannot rule out other certain kinds of weaponry as the “arms” referred to in the Second Amendment, for it might be possible for them to do so.  But a word of caution must be given to this idea, for in doing so, the history of the word itself and how it was used in the past at the time of the adoption of the Second Amendment dictates what exactly are referred to as “arms” in the Second Amendment.  In other words, when courts are to rule on what modern weaponry is referred to as an “arm” in the Second Amendment, judges must use as a starting point in interpreting the law set forth in the Constitution, in particular the use of the word “arms,” what the codified word meant to the general society at the time of the ratification of the Second Amendment, and use that meaning as the first starting point and moving on from there, without taking away from the original meaning of the word as codified in 1791, but only adding to it.  And as will be shown, the word “arms” included various types of weaponry in 1791, of which firearms were just a small portion.  Thus, I believe that a federal judge cannot rule a machinegun as a type of weaponry not referred to in the Second Amendment use of the word “arms” simply because it didn’t exist at the time of the adoption of the Second Amendment.  Rather, a machine gun is a type of firearm, and firearms did exists in 1791, and as such, must be ruled as an “arm” referred to in the Second Amendment in its use of the word “arms.”  But more on this idea of the courts being able to define the word “arms” will be said later, after I have provided the general definition of the word “arms” as codified in 1791 and understood by the general society at that time.  The purpose in citing Parker as well as Heller is merely to give a full historical analysis of congressional rulings on the banning of certain kinds of arms from the possession of the citizenry.#

         On January 8, 2011, Arizona resident and American citizen Jared Loughner arrived at a Safeway store parking lot in Tuscon, Arizona, where Arizona Congresswoman Gabrielle Giffords was speaking to her constituents.  Pulling a 9mm Glock 19 semi-automatic pistol containing a 33-round magazine, Jared Loughner allegedly opened fire, shooting the Congresswoman clean through the head.  Loughner also allegedly wounded and killing others at the event, including a little child at her first political event ever, and an Arizona state judge.  The total number shot and wounded was 13, including Congresswoman Giffords, while the total number shot and killed was 6.[13] 

The news of this horrible incident spread rapidly over the nation via media organizations on TV, Radio, and the Internet.  Not but mere minutes after the shooting, the entire United States was a in a rage over what had happened, and almost instantaneously, federal legislators and American citizens alike began calling for stricter firearms laws, including a no-gun zone around politicians, stricter regulations on who could obtain and possess firearms, and bans on certain kinds of firearms like the semi-automatic Glock 19 used by the alleged shooter Jared Loughner.[14]  Indeed, New York Representative Carolyn McCarthy has called for a ban on the sale to citizens of magazines capable of containing large amounts of ammunition.[15] 

Not long after the incident, there appeared in Brigham Young University’s campus newspaper, “The Daily “Universe,” a article titled “The Right to Bear Some Arms,” in which the author attempted to argue that due to the tragic incident in Tuscon, Arizona, the government should begin to regulate what kinds of weapons people may possess, in particular, the amount of ammunition firearm clips may possess.  Indeed, the crux of this individual’s argument was that “[l]awmakers should summon up the guts to challenge the lobbying powerhouse that is the NRA and expand those limitations to the type of guns that have no practical hunting or self-defense purposes.”[16]

         And finally, before proceeding to the explication of “arms,” it is also important to note that all 10 amendments that compose the Bill of Rights were hand picked by James Madison from a list of about 200 suggested amendments, suggested by the state ratifying conventions prior to the ratification of the Constitution.  As the Pulitzer Prize winning and National Humanities medal receiving American historian Gordon S. Wood has written in his latest publication, “Empire of Liberty: A History of the Early Republic, 1789-1815,” James Madison specifically ignored all suggestions having to do with altering the form and powers of the national government and picked those “concerned with personal rights and that he thought no one could argue with.”[17]  Indeed, Wood continues in saying that James Madison specifically wrote up 9 amendments he felt were the most important and that nobody would disagree with, and submitted them to the House.  They were altered and revised by the House, before being passed, which process and vote was open to the public, and were then submitted to the Senate, where they were altered and revised, behind closed doors, passed by the Senate and then resubmitted to the House for further revising and their final vote.  After submission and passing by Congress, both the Senate and the House, the 10 amendments that came out of Congress were passed to the states to be ratified by the state legislatures, in which the necessary ¾’s majority was met with ease, thus adding the new 10 amendments to the Constitution, to become the Bill of Rights. 

What is essential to keep in mind, given this brief history lessen, is that the current wording of all 10 amendments in the Bill of Rights, including the term “arms” in the 2nd Amendment, was altered and revised, then subsequently passed by two legislative houses, the Senate containing 22 duly an democratically elected members, and the House containing 59 duly and democratically elected members.  Thus, the 59 representative altered and revised, as well as voted on the 10 amendments twice, while the 22 senators revised the amendments once, and voted on them twice. The 2nd Amendment underwent 3 drafts, one initial draft proposed by Madison to the House, one passed by the House and sent to the Senate, and the last revised and passed by the Senate and re-submitted to the House, which eventually passed.  And throughout each of these drafts, the words “keep and bear arms” remained in each one of them.[18]  As if this wasn’t enough of a refining process, each state legislature was presented with the amendments and was given the option of either ratifying or rejecting them, in which 10 of the 13 states chose ratification while the other 3 didn’t even bother voting upon them.  Thus, it is almost unthinkable that the amendments and their wording could be refined any further, and there can be no doubt that what was produced in the Bill of Rights was the exact intention of all those involved in the writing, revising, passing, and ratification process of the first 10 amendment.  In other words, there can be no confusion applied to the wording of each amendment, specifically concerning the 2nd Amendment and its usage of “arms.”[19]

Development of the Latinate Word “Arms” and of the People’s Right to Have Them

         In order to be able to fully explicate the English word “arms,” and insert this explication into the ongoing battle between guns rights supporters and opponents in America, a look at the history and development of the word and what exactly it has applied to by those who have used it throughout the history of the English language is firstly in order.  The English and the American claim to their right to have arms dates back to the reign of Alfred the Great in 9th Century Saxon England, and can be traced throughout English history from the Viking invasions during the 9th Century, the Norman Invasion of the 11th Century, to the English Civil War of the 17th Century and Glorious Revolution of 1689, up to “the shot heard ‘round the world” on the Lexington Green in Massachusetts, the beginning of the American Revolution and the culmination of the Revolution with the adoption American Federal Constitution and it’s Bill of Rights.  Tracing the use of the word “arms” throughout this long Anglo history can better demonstrate what the wording of the 2nd Amendment to the U.S. Constitution really infers and if the American Congress truly does have authority to limit the types of arms the people may keep and bear, or whether such 20th and 21st Century attempts to do so are actually assumptions of power not granted by the Constitution.

American historian Leonard W. Levy, in chapter 6 of “Origins of the Bill of Rights,” describes where exactly this American right to keep and bear arms first appeared on the law books in England.  Levy begins this arms sojourn with the English Assize of Arms in 1181.  But this history lesson actually begins nearly 300 years earlier in the 9th Century.  Under the reign of the Saxon king, “Alfred the Great,” “all English citizens from the nobility to the peasants were obliged to privately purchase weapons and be available for military duty.”[20]  It must be remembered that during Alfred’s reign, the Viking invasion of the English mainland was in full force.  This can explain Alfred’s requirement of his subjects to be armed and ready for military service. 

In addition, the British claim their right to bear arms comes from the 12th Century during the reign of King Henry II.  In 1181, Henry II put out a proclamation that all freemen in England must arm themselves in preparation for serving the king in protecting the country.  The Assize of Arms order all freemen should individually possess certain kinds of armor according to each individual’s social station, and that all free layman have at least a lance as their arm/weapon.[21]  Levy also provides that King Henry III, in the 13th Century, “required every subject aged fifteen to fifty, including even landless farmers, to own a weapon other than a knife.”[22]  In addition, “in 1285, Edward I commanded that all persons comply with the earlier Assizes and added that ‘anyone else who can afford them shall keep bows and arrows’.”  And in 1369, “the [English] King ordered that the sheriffs of London require all citizens ‘at leisure time on holidays’ to ‘use in their recreation bowes and arrows’ and to stop all other games which might distract them from this practice.”  Even further than this, King Henry VIII, in 1511, “expanded the requirement of longbow ownership, requiring all citizens to ‘use and exercyse shootyng in longbowes, and also have a bowe and arrowes contynually’ in the house.  Fathers were required by law to purchase bows and arrows for their sons between the age of 7 and 14 and to train them in longbow use.” 

Unfortunately, the translation of the 1181 Assize of Arms into modern-day English give us no hint as to what word was used in the original Middle English of the era.  It seems that modern-day English word “arms” translates as geatwe in Old English, meaning the plural form of equipment, arms, trappings, ornaments, or garments.[23]  However, the mostly Germanic Old English had begun to transform during the 12th and 13th Centuries into Middle English, shortly after the Norman invasion of William the Conqueror in 1066, when an influx of Latin words and words from the Latinate French language came into the Germanic Old English language of the kingdom of England.  And because King Henry II and King Henry III were descendants of the French Norman invader William the Conqueror, it seems more likely that the French version of geatwe, armes, where modern-day English’s “arms” descends from, would have been used in these two proclamations by both of the Henrys during their respectable reigns. 

The earliest written use of the French word armes appears around 1300 AD, and is cited in the Oxford English Dictionary (OED).  The sentence reads, “Þin armes he haþ and scheld To fiȝte wiþ upon þe feld (a1300 K. Horn 516).”  Another usage comes from 1382 in the Wycliffe Bible, in John 18, saying “He cam with lanternis, and brondis, and armys.”[24]  Therefore, given the timing of the Assize of Arms in 1181 by King Henry II, the 13th Century proclamation by the King Henry III, King Edward I’s proclamation of 1285, and the first recorded written use of the use of the French word armes in 1300 AD, it is highly plausible, if not the actual case that the word used in all three of these Middle English proclamations was armes.  Thus it is plain to see that modern-day English word “arms,” although commonly used to refer to guns or firearms in modern times, can be traced back to an era in the English language prior to the introduction and creation of firearms in England. Indeed, it is evident that the main form of arms in Old and Middle English England, prior to the introduction of firearms, were body armor, lances, shields, knives, bows and arrows, swords, axes, etc.  Indeed, it appears that firearms were not introduced into Europe until the 1st half of the 1300’s, let alone England until 1326.[25]

         There was also a debate that was carried on in late 16th Century England concerning which form of weaponry, or rather, which “arm” was most effective; the firearm or the bow?  It was argued by some that the English longbow was a much more effective arm than the musket because of its lightweight, its “higher rate of fire,” its reliability and relative safety in use, it accuracy and long range, and its easier maintenance.  There were, of course, rebuttals from those who favored the firearm/musket, which indicated reasons why the musket was better than the bow.[26]  This evidence shows that even during the age of the firearm, albeit the early firearm age, the bow was still used and still favored as an effective arm, and that the musket and the bow were both indeed arms.  

An additional piece of evidence that shows that other forms of weaponry besides firearms were considered arms, even during the age of firearms is History Channel’s 2005 production entitled “The Conquerors,” Cromwell: Conqueror of Ireland.”  In this production, it is explained that individual cavalrymen in the British conqueror Oliver Cromwell’s era would normally carry flintlock pistols as one of their arms, but “his most potent weapon was a three-foot, double edged sword.”   This sword, swung downward from horseback was a very effective weapon to use on infantrymen marching below the height of the horse and its rider.  Thus firearms were not the only category of arms still used, even during an era when relatively large portions of British army men were typically armed with guns.  According to this same source, one other portion of Cromwell’s army consisted of musketeers who carried matchlock muskets, while the other remaining portions of the infantry were “pikemen,” being labeled such because they carried long spears.  It must be remembered that Cromwell’s siege of Ireland, where such an army armed in such a manner, happened in the late 1640’s, a period in history well after the advent and introduction of firearms into Europe, and in particular, the British Isles.[27]  Pikemen and musketeers being used simultaneously is also mentioned by Kenneth Chase in his book “Firearms: A Global History to 1700,” on the same pages as the aforementioned discussion on the bow vs. firearm debate.[28]

         Further proof that the word “arms” is and has been used as an umbrella term for various types of weapons can be seen in a description of the contents of the 1715 magazine in Williamsburg, VA, built by the governor of the then British colony of Virginia, Governor Spotswood, at the request of the Virginia General Assembly for the housing of the colony’s arms.  A magazine, according to the OED, is defined as “[a] building, room, or compartment (of a ship, etc.), for the storage of arms, ammunition, or other military provisions.”  In fact, Samuel Johnson, in his 1755 dictionary defines a magazine as “a storehouse, commonly an arsenal or armoury, or repository of provisions.”[29]  In the Williamsburg magazine Governor Spotswood had placed and stored, “shot, powder, flints, tents, tools, swords, pikes, canteens, cooking utensils, and as many as 3,000 Brown Bess flintlocks.”  Being that a magazine was a building for storing arms and other military equipment, these provisions stored in the magazine in 1715, in particular the muskets, the shot and powder, the swords, and the pikes could all be viewed as arms, showing that arms is an umbrella term for any kind of weapon or tool used in defensive or offensive activities.[30] 

         Thomas Paine, in “Rights of Man,” published in 1791 in England, describes the scene of the storming of the Bastille in 1789 by the Parisian people.  In his description, he uses the word “arms” to refer to many different types of weapons that the people procure in order to storm the Bastille and defend the city of Paris from the enemy.  Paine writes,

“The foreign troops began to advance towards the city. The Prince de Lambesc, who commanded a body of German cavalry, approached by the Place of Louis XV., which connects itself with some of the streets. In his march, he insulted and struck an old man with a sword. The French are remarkable for their respect to old age; and the insolence with which it appeared to be done, uniting with the general fermentation they were in, produced a powerful effect, and a cry of "To arms! to arms!" spread itself in a moment over the city.

Arms they had none, nor scarcely anyone who knew the use of them; but desperate resolution, when every hope is at stake, supplies, for a while, the want of arms. Near where the Prince de Lambesc was drawn up, were large piles of stones collected for building the new bridge, and with these the people attacked the cavalry. A party of French guards upon hearing the firing, rushed from their quarters and joined the people; and night coming on, the cavalry retreated.

The streets of Paris, being narrow, are favourable for defence, and the loftiness of the houses, consisting of many stories, from which great annoyance might be given, secured them against nocturnal enterprises; and the night was spent in providing themselves with every sort of weapon they could make or procure: guns, swords, blacksmiths' hammers, carpenters' axes, iron crows, pikes, halberts, pitchforks, spits, clubs, etc., etc. The incredible numbers in which they assembled the next morning, and the still more incredible resolution they exhibited, embarrassed and astonished their enemies. Little did the new ministry expect such a salute. Accustomed to slavery themselves, they had no idea that liberty was capable of such inspiration, or that a body of unarmed citizens would dare to face the military force of thirty thousand men. Every moment of this day was employed in collecting arms, concerting plans, and arranging themselves into the best order which such an instantaneous movement could afford.

There was, adjoining to the city a large magazine of arms deposited at the Hospital of the Invalids, which the citizens summoned to surrender; and as the place was neither defensible, nor attempted much defence, they soon succeeded. Thus supplied, they marched to attack the Bastille; a vast mixed multitude of all ages, and of all degrees, armed with all sorts of weapons.”[31]

This shows another example of various types of weapons, from guns to swords, hammers, axes, pitchforks, clubs, pikes, even rocks being considered as “arms.”  Thus we see that the word “arms,” even in those days referred primarily to the predominant firearm/gun, yet when those were not available, people armed themselves with any other types of weapons that could, which were also considered “arms.”  Thus, arms once again appears to be used as an umbrella term, sheltering multiple forms of weapons under it’s umbrella top.

The OED entry for the definition of “arms” provids a 1641 quote from the 16th Century English author, John Rastell’s “Termes De la Ley,” which says, “[a]rms, in the understanding of the Law, is extended to any thing that a man, in his anger or fury, takes into his hand to cast at, or strike another.”[32]  The OED also provided a link to a Middle English Dictionary, which defines arms as “(a) [t]he weapons of a warrior; also, defensive arms and armor; (b) in sg.: a weapon…”  Concerning definition (a), this Middle English Dictionary provided a written citation of the word arms in a written piece from between 1150-1275 AD, which says, “[f]rom þe wode þu mitht te faren wid wilis ant wid armes.”  This quotation was taken from “The Proverbs of Alfred,” Trin-C B.14.39.  Also provided are citations from sources from 1300 AD up until 1500 AD.  Definition (b) provides a quotation from a source dating back to between 1300-1325 AD, which states, “Four hondred & four score mid treson he slou þere, Of hom þat were onywar & wiþ oute arme al so.”  This source is taken from Robert of Gloucester, Chronicle, Version A, Clg A.11.[33]  One other citation provided by the OED comes from a 1794 text, (J. Trusler Eng. Synon. I. 37)  “By arms, we understand those instruments of offence generally made use of in war; such as firearms, swords, etc. By weapons, we more particularly mean instruments of other kinds (exclusive of fire-arms), made use of as offensive on special occasions.”  However, the next source cited below that is from 1870, and refers to muskets as arms: (Instr. Musketry 7) “Each lesson in cleaning arms‥to occupy half an hour.”[34]

         In addition to these citations of the use of the word “arms” and what arms have been referred to over the history of the use of the word, it will be necessary to study the word “firearm.”  We need only look at the word “firearm” to decipher that it is only one type of an arm among many.  The OED defines firearms as “[a] weapon from which missiles are propelled by the combustion of gunpowder or other explosive.”  Indeed, it provides that “firearm” is a combination of the two words fire+arm.[35]  Thus, a firearm is only one type of arm, while other arms include non-firearm weapons, like swords, knives, bows and arrows, spears, indeed, anything that could be used for offense or defense.  Relying on the claim that modern-day Congress in America has the authority via the Constitution to limit the types of arms the people may keep and bear, we see that such an assertion appears to contradict the usage of the word “arm” in the 2nd Amendment.  This is especially so in light of that fact that even during the era when the Constitution was written and its amendments ratified and added, there were not only different kinds of arms, but different kinds of firearms.  In the late 18th century, there were primarily four different types of firearms: muskets, rifles (a musket with a grooved barrel, providing increased accuracy and range, making it a more deadly, as opposed to a smooth barrel musket), pistols, and cannon/artillery.  In addition, multi-barrel pistols and multi-volley artillery existed as well, which made it possible for the wielder of said weapon to wound or eliminate more of the enemy in a quicker amount of time, which has been the weapons designer’s main goal since the invention of weaponry.[36]  Thus, if it truly were the purpose of the framers and those who ratified the 2nd Amendment to the Constitution to allow Congress to limit the types of arms the people may keep and bear, it seems very plausible to assert that they would have provided such language in the Constitution.  We see that rifles were much more dangerous than smooth-barrel muskets, in that they had an increased range and a more deadly accuracy, yet there was no attempt by the government then to eliminate rifles from the kinds of arms the people keep and bear due to it’s deadly nature. 

         It could be plausibly asked that if the framers and ratifiers of the Constitution had truly given Congress authority to limit the types of arms the people may keep and bear, then why had they not done so as a congressional legislative act back in the 1790’s or 19th Century, limiting the citizenry to having only to possess smooth-barrel muskets?  Indeed, why even stop at smooth-barrel muskets, for aren’t they even more dangerous and deadly than mere bows and arrows, swords, knives and spears?  And while limiting the people to merely no-firepower arms, they could have done what Congress is doing now, in allowing the armed forces to possess the best of the best in terms of arms and firearms, while barring the people from possessing such arms.  For just as now, even during that era of the late 18th to early 19th Century were certain kinds of arms more dangerous than others, and even then were firearms used in burglary, murder, and other crimes where individuals got hurt because of said arms.  One only need look at the nature of dueling to see this point. 

In fact, Thomas Paine, after he had returned to American from France had an attempt made upon his life by an individual with a musket.  Paine, who had been granted some land in the New York countryside had been living in a cottage upon that land and had a tenant who he did not get along with very well.  He therefore dismissed this individual, named Christopher Derrick, from his tenantship, who then sought revenge on Paine.  “On Christmas Eve, the revengeful Derrick borrowed a local musket under false pretenses, went out rum drinking, and around eight o’clock in the evening swaggered onto Paine’s property.  Derrick stumbled through the snow toward the cottage, saw the outline of Paine through a curtained window, took aim with his musket and fired.”  Derrick missed, due to his drunkenness, and Paine “refused to press charges,” given that he believed that “violence was never justified as a means of revenge,” in this case revenge being taken by Paine on Derrick.[37]   It is very interesting that for as long as the firearm has been used in violent crime throughout the history of America, be it in the Old West or in the big cities like New York or Boston, Congress has only sought to legislatively prohibit certain kinds of firearms from the possession of civilians relatively recently.

         If Congress has truly possessed this authority to prohibit certain kinds of arms from the possession of civilians since the Constitution’s inception, then why has it waited until the 20th Century to use this authority?  If violations of law with these dangerous arms have always been an issue in America, it would have made sense for Congress to ban certain kinds of arms a long time ago, instead of waiting until the 20th Century.  The year 1934, with its National Firearms Act could not have been, and indeed was not the only time criminals used high capacity, modern gun technology.  The six-shooter revolver had been invented in the 1830’s, while the repeating rifle had been invented around the time of the American Civil War.[38]  Indeed, automatic firepower had been around since the late 19th century, with the invention of the Maxim Machine Gun and automatic pistols, shotguns, and rifles, ad other machineguns coming into play in the early 20th century, prior to the 1934 NFA.[39]  It was these automatic firearms, in particular the machine guns that the 1934 NFA attempted to curb. Why had the U.S. Congress waited so long to use its supposed authority to limit the types of weapons the people may keep and bear, if such congressional authority already existed? 

If Congress truly possessed such power, then why had it encouraged the development of new weaponry during the Civil War, to which the American citizen, Richard Gatling responded by inventing the first true machine gun, the Gatling Gun?  And why had Congress given this private citizen, Richard Gatling a patent on his weapon if they had the authority to limit and ban that weapon from being produced and owned by private citizens like Gatling?[40]  It appears that the answers to these questions is that Congress might not actually have the authority to limit the kinds of arms the people may keep and bear, if logic and reason prevails.  Congress’s actions of the past and the umbrella term and definition of “arms,” as it now stands in the 2nd Amendment of the U.S. Constitution shows otherwise.    

         This travel through time, observing the history of the use of the word “arms” and the development of the English and American sense of a right to keep and bear arms divulges that the word “arms” is rather plastic.  While it refers to any kind of weapon in general, it usually follows new developments in weapons technology and the inventions of new kinds of arms, like firearms, and tends to commonly refer to those arms that are the most predominant in a society, as have been the case with firearms in Anglo society during the last few centuries.  However, even though the word “arms” may commonly be attached by speakers of English to the typical and most predominant type of weapon in use in a society, this does not mean that the word loses all older notions and forms of weaponry that were once deemed “arms,” yet are now somewhat antiquated.  These older forms of weaponry, once labeled “arms,” yet now displaced by newer, more effective forms of weaponry do not leave the umbrella term of “arms.”  Examples of such antiquated weaponry that still remain under the umbrella term “arms” are bows and arrows, knives, swords, spears, cross-bows, cannon, black powder firearms, rocks, sticks, axes, etc.  And all of these weapons, although antiquated and used primarily for other activities outside of hunting, self-defense, or warfare, perhaps even primarily for historic purposes, are still “arms.”  It could be said that with the term “arms,” once an arm, always an arm, albeit an older form of an arm.

Defensive Arms and The Anglo-American Right to Self-Defense

         It is interesting to note that the OED defines “arms” as “instruments of offence used in war; weapons.”[41]  Excluding the word “weapons” for the moment, the important word to note in this definition is “offense,” which contrasts with “defense.”   The OED defines “offense” as “[t]he action of attacking or assailing; assault, attack.”[42]  “Defense,” on the other hand is defined as “[t]he action of guarding or protecting from attack,” chiefly, “[g]uarding or protecting from attack; resistance against attack; warding off of injury; protection. (The chief current sense.)”[43]  America’s definition of “arms”, and in particular, the right to keep and bear arms seems to be seen almost purely in the light of defense.  And not only in America does this view of arms predominate, but Americans received this definition from British radical Whig writers of the 17th and 18th centuries, as well as from the 12th and 13th centuries when the Assize of Arms was issued by Henry II and when Henry III’s proclamation went forth.  Indeed, the 1689 English Declaration of Rights stated “[t]hat the Subjects which are Protestants may have Arms for their defence suitable to their Conditions, and as allowed by Law.”[44]  Not only this, but the English radical Whig and Commonwealthmen writers, as well as other political writers of the 17th and 18th centuries expressed similar sentiments as well.  For example, Sir William Blackstone, the famous British jurist and judge, whom Americans and British Whigs alike loved to quote, wrote in his 1765 Commenentaries on the Laws of England, “[t]he fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law…which serve[s] principally as outworks or barriers to protect and maintain inviolate the three great and primary rights, of personal security, personal liberty, and private property.”[45]  The British Whig James Burgh, in his 1774 Political Disquisitions, “supported the right of Americans to be armed in order to preserve their freedoms.”  Richard Price, another English Whig thinker who immigrated to America in the 1790’s and became an American citizen, wrote in 1784 that “[f]ree states ought to be bodies of armed citizens, well regulated and well disciplined, and always ready to turn out, when properly called upon, to execute the law, quell riots, and to keep the peace.”  And not only did English Whig thinkers support the right of the people to keep and bear arms for their self-defense, but 18th Century Americans as well, having been influenced by those English Whig and political thinkers, as well as the laws of England, wrote about the necessity of protecting the right of the people to be armed as a means of defense.  Such renowned American Founding Fathers as John Adams, Samuel Adams, James Wilson, James Madison, George Washington, and Thomas Jefferson, and all other Americans supported and vocalized their thoughts on this right of the citizenry to keep and bear arms.[46]  Thomas Paine’s words come to mind, written in his 1775 article title “Thoughts on Defensive War,” which states, “I am thus far a Quaker, that I would gladly agree with all the world to lay aside the use of arms, and settle matters by negotiation; but unless the whole will, the matter ends, and I take up my musket and thank heaven he has put it in my power.” 

         To look at the definition of arms in the dictionaries from around the time in which the American Founders lived, there are several options one could choose from.  One such option is to look at the Dr. Samuel Johnston’s 1755 dictionary, title “A Dictionary of the English Language,” published in London.  Dr. Johnson’s dictionary defines arms as “weapons of offence, or armour of defence.”  This obviously shows the armor aspect of the Assize of Arms of 1181 and the need for shields.  Thus, armor itself, be it in any form, appears to fit under the umbrella term of “arms” as well.  Dr. John also defines firearms as “arms which owe their efficacy to fire; guns (fire and arms).”  This case is especially interesting and important because Samuel Johnson, like Paine in the aforementioned quote of his, is labeling firearms as a type of arm, an arm that works by means of fire.  Johnson also goes as far as to define the words “gun,” as “the general name for firearms; the instrument from which shot is discharged by fire,” “cannon,” “handgun,” and “pistol.”  In addition, Dr. Johnson defines a magazine as “a storehouse, commonly an arsenal or armoury, or repository of provisions.”[47]

         Another option is to consult the American, Noah Webster’s 1828 dictionary.  Webster’s 1828 dictionary entry for “arms” defines them as “[w]eapons of offense, or armor for defense and protection of the body.” Indeed, Webster defines arms in terms of the law as the “any thing which a man takes in his hand in anger, to strike or assault another,” which harkens back to John Rastell’s use of the word “arms” as aforementioned.  Webster’s 1913 entry for arms defines them as “[i]nstruments or weapons of offense or defense,” while the in law arms are defined as “[a]nything which a man takes in his hand in anger, to strike or assault another with; an aggressive weapon.”  Webster even defines small arms as “portable firearms known as muskets, rifles, carbines, pistols, etc” (1913 entry).  His 1828 entry for the definition of firearms is “[a]rms or weapons which expel their charge by the combustion of powder, as pistols, muskets, &c.”[48]

         Thus, these dictionary definitions from the mid 18th Century and from era of the early American Republic are further proof that the word “arms,” as used in the 2nd Amendment is a general term for all kinds of offensive and defensive weapons or instruments used with the intent of harming an other individual for whatever offensive or defensive reason.  However, it appears that the OED definition of “arms,” although correct in what it says about instruments of offense, leaves out the important word and notion of instruments of defense as well.  Thus, if I were to modify this definition in the OED, I would include the word “defense” so that the full definition read “instruments of offence used in war; instruments of defense used in war and in time of peace, purely for defensive purposes; weapons.”  I believe the OED’s current definition is fundamentally flawed in leaving out this defensive nature of “arms.”  Therefore, given this information concerning the defensive and offensive notions of arms, the word “arms” could and should be explicated by means of the Natural Semantic Metalanguage (NSM) as follows:

1.) Semantic Explication of “Arms (defensive):”

a.)   Some people do good things to other people; some people do bad things to other people

b.)   There are many things people do good or bad things with

c.)   All things can be something Z; some things Z are more good than other things Z when doing something good or bad to other people

d.)   Some people do good things to other people with these things; some people do bad things to other people with these things

e.)   When a person X does something bad to person Y, with or without something Z, and something bad can happen to Y or Y’s things because of X and what X does, Y can do something A with something Z to person X. 

f.) When this happens, people think Y’s doing something A with Z to X is good.

2.) Explication of “arms” (offensive):

a.)   Some people do good things to other people; some people do bad things to other people

b.)   There are many things people do good or bad things with

c.)   All things can be something Z; some things Z are more good than other things Z when doing something good or bad to other people

d.)   When person X wants do something bad to person Y,” and person Y knows this to be true, Y can do something to X with something Z before X can do something bad to Y.

e.)   When this happens, people think what Y does to X with something Z, before X can do something bad to X (with something Z) can sometimes be good.

In both of these explications, things, or in particular “something Z” can be used either defensively or offensively.  No matter the instrument, it can be used defensively and offensively, and depending on the circumstances concerning offensive actions, this can be viewed by society as either good or bad.  Thus, an arm is any kind of instrument or thing in general that can be used offensively or defensively in doing something to someone else, particularly with intent to harm or do physical damage to this someone else.  Under this definition of an arm, we can count just about any kind of thing, instrument, or tool that can be used by an individual human being in doing something harmful to another individual either defensively or offensively.  Thus arms can range from rocks, sticks, projectile objects like arrows, rocks, spears, bullets, firearms, or indeed any instrument a human being can get his/her hands on to either protect oneself in doing damage to another individual or in purely offensive ways of doing harmful damage to another human being.  Because of this dual defensive and offensive nature of arms, two separate explications are necessary, one for the defensive nature of arms and one for offensive nature of arms, which each can act as cultural scripts as well.  But no matter whether an arm is being used offensively or defensively, and arm is still an arm, and some arms are better than others in completing the offensive or defensive act, and some are more appropriate to use during certain situations.  Thus, we see in component c.) of each explication the description of all items, instruments, tools, or things in general being considered an arm.  In addition, while all instruments or tools can be considered and used as an arm, some tools are better than others in doing something to someone else with the intent of harming them (again, defensively or offensively). 

Also, some tools are more appropriate for accomplishing that intent to harm or do something bad to someone else than are others, be it functionally or socially/humanely.  An example of the latter would be the use of a bazooka to stop a burglar from robbing one’s property and harming him/herself and his/her family, instead of a simple gun.  While both weapons would succeed in stopping the burglar, society and humaneness would tell us that such use of a bazooka in such a situation would not be appropriate, and would be excessive.  An example of the former, namely functionally better weapons could be firearms verses bows and arrows.  Both weapons will aide the bearer in his/her intent to harm the other person, but one is more effective and is newer technology while the other is less effective and antiquated technology.  But the fact still remains that both weapons involved in this compare and contrast example still fit under the umbrella term “arms.” 

Concerning the defensive nature of arms, we see in component a.), people tend to interact with each other and do things to each other.  These things people do to each other can either be good or bad, beneficial, or harmful.  In component b.), these things that people do to each other can be done with certain additional items, instruments, or tools, which can be arms.  These things that could be used as arms vary, and could indeed be anything.  Component c.) has already been explained.  Component d.) shows how people can use these arms for good or for bad, the good or the bad depending on for what purpose the bearer of the arms is using it.  An arm used for protection of oneself, one’s property, and one’s family can be a good thing in American and English society, as already provided in the aforementioned views on arming the citizenry for their protection.  These arms could be used for bad purposes in the form of an unprovoked attacker attempting to use that weapon to unjustly and illegally hurt or rob an individual.  Component e.) describes such a defensive nature of action involving the arm.  When an individual approaches another individual with the intent of doing harm to the other in some way, be it physically or burglarizing the other individual, the victim has a right to defend him/herself, his/her property, or his/her family with some item or instrument, or rather, arms, by using this arm against the offender with intent to harm the individual or stop the attack.  Arms used in this manner, as a means of self-defense or defense of one’s rights is often seen as good in American society and in view of American law.  Thus, we see in America that both the laws and society recognize the use of arms by individuals as a means to protection and defense. 

The most obvious source of this notion of self-defense comes in the 2nd Amendment of the American Constitution, which states, “[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.”  Other such notions can be found, as aforementioned, in the English heritage of Americans and the English Common Law, in the political English radical Whigs and Commonwealthmen of the 17th and 18th Centuries, in the political and personal writings of 18th Century Americans, both during and after the American Revolution, and in such fundamental legal documents as not only the federal Constitution, but in each of the 13 original state constitutions as well. 

         In all but 2 of the original 13 state constitutions of the 1770’s and 1780’s, the use of the word “arms” appears in 11 of the state constitutions’ bills/declarations of rights.  Only Maryland’s and New York’s bills of rights provide no such use of the word “arms,” but do provide phraseology and clauses concerning the necessity and presence of a state militia, which necessarily implies the ability, legal obligation, and right of the citizenry composing the militia to provide arms for themselves, thus being able to keep and bear arms.[49]

Modern-Day Usage of “Arms”

It has thus been shown that the word “arms” has taken on reference to a plethora of weapons and instruments for the use of offensive and defensive action against an attacker or intruder of some kind.  And while the word “arms” always retains what it absorbs into its definition, ranging from rocks, sticks, bows and arrows, spears, swords, knives, shields, armor, and most recently, firearms, English speaking societies have usually used this word to refer to the most predominant types of arms in use, the most technologically advanced arms, and the most effective ones.  Ever since what appears to be the mid 17th Century, the firearm has increased in use and in effectiveness, to the point where while other more antiquated arms still exist, they are being replaced in times of combat solely by firearms, to be left for the purpose of collection or for purposes other than military combat (e.g. hunting, leisure/recreation, other practicable purposes).  But the fact still remains that these older forms of arms are indeed still arms, and they too have been regulated by the Congress and other state legislatures in modern times. 

Next to banning knives on airplanes, Congress passed in 1958 a law that sought to define the word “switchblade,” and banned the possession and production of them in certain areas by civilians.  In Title 15 of the U.S. Code, chapter 29, switchblades are defined as “any knife having a blade which opens automatically, by hand pressure applied to a button or other device in the handle of the knife, or by operation of inertia, gravity, or both.”  They have been banned from production and manufacture, and introduction into or transfer within the interstate commerce market, with a penalty of $2000 and/or up to 5 years in prison, except by those manufactures with a contract with the armed forces.  Also exempt from the law is “any common carrier or contract carrier, with respect to any switchblade knife shipped, transported, or delivered for shipment in interstate commerce in the ordinary course of business.”  They have also been banned from possession by anyone except, like in the examples of machines guns and other banned types of arms, the armed forces (and one armed-individuals), and have been banned from possession on any U.S. territory or possession, as well as on Indian country and “the special maritime and territorial jurisdiction of the United States.”[50]  Thus, Congress has not only confined itself to seeking to define and prohibit certain kinds of firearms from manufacture or possession by private civilians, but has also done the same with knives, thus continuing to move along the spectrum of arms, banning what it sees fit, even though it might not actually have the authority to do so.

         Even though Congress has sought to limit other kinds of arms besides firearms, firearms still tend to be its objective, and indeed, when one hears the word arms in our current era in history, and even back in the late 18th, 19th and 20th centuries, the image that predominantly comes to mind is that of the firearm.  When looking at the Corpus of Historic American English, use of the word “arms” refers primarily to firearms.  In an 1815 fiction work titled “The Battle of New Orleans,” by C.E. Grice, there appears a clause that says “Colonel Oakwood Present arms; shoulder arms; order arms; rest.”  It is obvious given the context and date in history of this quote, that the arms that were being shouldered were muskets or rifles.  Another quote, taken from an 1819 work called “Percy’s Masque,” by James Abraham Hillhouse, concerns an older period of history, during the days of kings and knights in Europe, and thus when the word “arms” appears, it refers to swords and other older forms of arms prior to the advent of firearms.  But this is only so because of the context of the story.  The quote reads,

“Look! West. Lady Westmoreland What! ho! to arms! Treason! to arms! Knights. Knights (in different parts of the hall.) Arms! -- Hark you? -- Sirs, they cry to arms. Seneschal. Seneschal (hastily approaching.) What means that shout? West. Lady Westmoreland (loudly.) Treason! to arms! Ho! Treason! A confused multitude of voices repeat the cry, and knights rush to the door, but are driven in. Percy and Douglas, meanwhile, lean in silence on their swords.”

Another quote comes from an 1825 fiction piece called “The Rebels; or, Boston Before the Revolution,” written by Lydia Maria Francis Child, which says, “…they scarcely noticed a human figure, save the sentinels, who, with shouldered arms, slowly paced their accustomed rounds.”  Once again shouldered arms could only refer to muskets.  Another example is from an 1855 written piece of work called “The Sea Witch Or, The African Quadroon: The Story of the Slave Coast,” By Maturin Murray Ballou, which says, “but from the habit of constantly wearing their arms, even to pistols, when on the coast, they had been found in a very good situation at even the shortest notice for defending themselves.”  A further example is found in “The Cruise of the Jasper B,” written by Don Marquis in 1916.  This quote reads, “More than that, we will have the advantage in arms; here is a magazine rifle for each of you, while they, if I am not mistaken, will attack with pistols.”  The last example comes from a play script titled “Bambam and the Uncivil War,” by O Oyam, dating from 2001, which says, “SGT. BUTLER Company, halt, one two. Present Arms! Order arms! Parade Rest!”  As can be seen from these examples from the Corpus of Historic American English, most modern day uses of the word “arms,” even those citations dating back to the early 19th Century focus primarily on firearms, being that firearms were, and still are the predominant type of arms used in military, hunting, police and criminal activities by civilians and government agencies alike.  But, it must be remembered that although the word “arms” has been used almost entirely in reference to firearms in the last couple centuries, other types of weapons or instruments of offensive and defensive action remain under the umbrella term of “arms.”[51]

What of a Supposed Congressional Authority to Limit the Arms the People May Keep and Bear?

         Having come full circle back to the immensely important question posed at the start of this analysis of the word “arms,” the issue this article seeks to solve, does such an alleged authority to limit the types of arms the people may keep and bear actually exist within the scope of powers granted to Congress by the Constitution?  It is plain to see that Congress has obviously claimed this power and has assumed it as its own by means of the very legislative acts it has enacted and have been signed into law.  But does mere congressional legislation concerning a certain issue automatically grant such power to Congress?  Can a legislative branch of government, bound by a popularly ratified constitution grant itself new additional powers by mere enactment of law?  In American law and government, such arbitrary assumption of power cannot be done by a legislative branch, or by any other branch in the federal government in America. 

Returning back to the example of the Mexican journalist asking President Obama whether he could and would veto the 2nd Amendment, President Obama gave the right answer; he told this journalist that as the 2nd Amendment is part of the Constitution, and that the president himself is bound by the Constitution, he could not do so.  President Obama, as well as any individual who has studied the history of the American Revolution and the American governmental system knows that all branches of the federal government are explicitly bound by the popularly ratified, federal Constitution, which is the supreme and fundamental law of the land.  It is already known and accepted fact that the powers of Congress, as well as the executive and judiciary branches are of a limited nature, spelled out exactly and specifically enumerated in plain language in the Constitution, so plain that any individual could understand.[52]  In fact, many of the non-attorney framers present at the Philadelphia Convention in 1787 were very worried about the wording and language of the adopted Constitution and how it would be interpreted by legislators.[53]  The scope of powers Congress has been delegated by the people of the U.S. are laid down in the federal Constitution, particularly in Article 1 Section 8, but in other articles and sections as well.  Thus, before going any further, an examination of the Constitution for such a power granted to Congress is essential. 

         Going through the entire Constitution, the word “arms” appears only once, in the 2nd Amendment.  Nowhere in Article 1 Section 8 or in any other part of the Constitution does the word “arms” appear.  This is crucial information to know, because outside of the Bill of Rights, Congress was given no authority to legislate concerning arms.  It was given power and responsibility to provide for the arming of the militia, as stated in Article 1 Section 8, Clause 13, but arming the militia and the topic of what instruments are defined as “arms” are not the same thing.  Some have argued that Congress may seek to regulate and control arms via the so-called “Commerce Clause,” through the “General Welfare Clause,” or perhaps through some other clause in Article 1 Section 8.  But this cannot be so.  During the ratification period of the 1787 Constitution, before any amendments had been added, one of the principle criticisms made by those who opposed the Constitution was that it contained no Bill of Rights.  Those who supported the ratification of the Constitution made the counter-argument that a Bill of Rights was unnecessary because all powers granted to the federal government were specifically enumerated in the Constitution and were thus limited and few.  All the powers not specifically granted to the new federal government were retained by the people, and thus no declaration of rights was necessary.  Indeed, the Federalist supporters of the Constitution felt a Bill of Rights might be dangerous, in that it might be construed by future congressmen and officials of the government that the rights listed in the Bill of Rights were the only rights retained by the people, and everything else was fair game for the Congress to legislate on.[54]  But the Anti-Federalist opponents of the new Constitution didn’t buy into that argument, and insisted on a Bill of Rights. 

The Federalists eventually gave in, and James Madison, himself a Federalist led the way in the creation of a Bill of Rights from a list of 200 or so proposed amendments to the Constitution, and fought in the Congress to get it passed and submitted for ratification to the state legislatures.  James Madison had intended to have these amendments placed within Article 1 Section 8 itself, so that there could be no doubt that these amendments limited Congress even further in the scope of its powers, but others fought to have it placed at the end.  Either way, no matter the position of the amendments within the actual text of the Constitution, the language of the amendments is clear and specific.  And because of the nature of an amendment, which is an official alteration of the text of a document, these 10 new amendments that made up the Bill of Rights therefore amended all of legislative authority of the Congress, placing additional limitations and prohibitions on the law making abilities of Congress.  It is therefore obvious that when the 2nd Amendment says, “the right of the people to keep and bear arms shall not be infringed,” this means that Congress can pass no law infringing upon the right of the people to have arms.  Any law that might do so is unconstitutional, and therefore not within the scope of congressional legislative authority.  This puts to rest any claims by those who would support gun-bans that Congress has such authority to do so via some clause in Article 1, Section 8, and indeed, any attempt by any governmental branch or administration to infringe upon this right of the people.  The amendments to the Constitution affect the entire Constitution as a whole, and thus prohibit any attempts to infringe upon the people’s right to keep and bear arms.  Thus, the “Commerce Clause “can’t allow Congress to do so, nor can the “General Welfare Clause,” the “Common Defense Clause” or any clause for that matter. 

James Madison was the primary author of the Virginia Plan, which was transformed into the Constitution of 1787 by the framers in the Philadelphia Convention, Madison too being one of the framers, who took meticulous notes of the happenings and debates of that convention.  In addition, he led the charge in Congress for passing amendments to the Constitution and was the initial author himself of these amendments, which later became the Bill of Rights.  Thus, while his opinions and writings concerning the Constitution cannot be taken as the sole authority from which to judge an act’s constitutionality, his opinions and words nevertheless carry significant weight that few other framers and ratifiers of the Constitution carry. In his opposition piece to the “Alien and Sedition Acts” of 1798, titled the “Virginia Report of 1799,” Madison said the following concerning powers granted and not granted to Congress by the Constitution:

“Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the Constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by Congress. If it be not. Congress cannot exercise it."[55]

In addition to this, Madison wrote in the same 1799 piece, speaking of the unconstitutionality of the “Sedition Act” of 1798, which forbade civilians from criticizing the government and its officials in writing, especially in the press, that because the 1st Amendment in the Bill of Rights effectively forbids Congress from making any law that would abridge the freedom of speech or of the press, he said that this “amendment is a denial to Congress of all power over the press,” or an absolute.  Not only this, but while drafting the amendments to be proposed to Congress, Madison took “pains to employ language of ‘requisite latitude’ to state the rights broadly,” seeing the language of the amendments as extremely important.[56]  Indeed, Madison, when participating in Congress in the making of the Bill of Rights, paid very special attention to the wording of the 1st Amendment after it had been changed by the Senate.  He led the House to re-alter the wording that the Senate had changed so that it matched exactly his and others sentiments on the rights of conscience.[57]  If Madison had said and done these things concerning the 1st Amendment, it seems plausible to assume he would have done the same concerning the rest of the amendments he proposed and that were eventually passed by Congressed and ratified by the states.  Thus, I believe Madison’s own words from his “Virginia Report of 1799” can be expressed in the same way and with the same meaning concerning the 2nd Amendment: the power of Congress to legislate concerning what kinds of arms the people may keep and bear, “exercised by” the multiple acts cited in the earlier portions of this article are “positively forbidden by one of the amendments to the Constitution.  The [2nd] Amendment is a denial to congress of all power over” legislating concerning what kinds of arms the people may keep and bear.[58]

         Having seen that the 2nd Amendment effectively prohibits Congress from passing any law that would infringe upon the people’s right to have arms, as well as any other federal government entity from infringing upon this right, what if we turn to the 2nd Amendment itself?  Is such a power to limit the types of arms the people may keep and bear implied within the 2nd Amendment wording and usage of the word “arms?”  The linguistic and semantic, as well as historical evidence provided throughout this analysis of the word “arms” clearly shows that the maxim posed in this article holds true, that an instrument, tool or weapon, once considered or labeled an arm, always remains under the umbrella term “arm;” in essence, once and arm, always an arm.  Thus, if the word “arms” applies to every kind of weapon, instrument or tool used by man in an offensive or defensive manner, with the intent of inflicting pain or harm on another individual, including rocks, sticks, bows and arrows, spears, swords, knives, guns, ammunition/bullets, armor, and so forth, then it appears that Congress cannot indeed have the authority to ban certain kinds of arms from civilian production and possession.  For any attempt by Congress to ban certain kinds of arms from possession by the citizenry could lead to Congress next assuming it has the authority to ban all kinds of arms save rocks or sticks, being that all other forms are too deadly and dangerous.  And if the argument holds true that Congress has no such authority, then Congress has attempted to arbitrarily assume powers not granted to it by the Constitution, by mere unopposed legislation concerning this manner, and the courts must rule such laws as unconstitutional and the executive branches must then stop executing these unconstitutional laws.

         In light of this evidence above, turning briefly once more to Congress’s 2007 “District of Columbia Personal Protection Act,” Congress attempts to protect the citizens’ rights to “arm” themselves, labeling such appropriate “arms” for this right as handguns, rifles, and shotguns.  But are not all of these types of “firearms” “arms” as well, as the 2nd Amendment says?  It seems that Congress has tried to set itself up as a benevolent, yet all powerful legislative entity, maintaining supreme and ultimate authority to bind the people by their laws in all cases whatsoever, yet demonstrating their mercy and benevolence toward the people by legislatively granting them only a portion of their right to keep and bear arms as it sees fit to give, according to the times and circumstances of those times.  This smacks of the tyrannical rhetoric used by the British Parliament in the years of colonial debate leading up to the American Revolution in 1775, in particular, the 1766 Declaratory Act.  It also contradicts the predominant belief at the time, a belief that continues today, yet seems to be on the verge of being forgotten, that legislatures cannot give or create rights. 

Thomas Paine, in “Rights of Man” describes this principle best when he rights, “[i]t is a perversion of terms to say that a charter gives rights. They do not give rights to A, but they make a difference in favour of A by taking away the right of B, and consequently are instruments of injustice. Rights are inherently in all the inhabitants.”[59]  While attempting to protect this right of the people to keep and bear arms, Congress is apparently seeking to undermine that very right by allowing possessions of certain kinds of firearms and arms, yet maintaining congressional bans on other certain kinds of firearms and arms, namely the aforementioned machine gun, saw-off shotgun, and the short-barreled rifle, as well as the ban on switchblade knives.  It seems Congress is also attempting to legislatively define the term “arms,” when only language and history can do so.  This historical use of the term “arms,” as provided in earlier sections of this paper, is codified and constituted legal language within the Constitution, and is therefore law, subject to change only by popular amendment.

Indeed, Congress’s contradictory actions and opinions, found within in the very same law, viz the 2007 “District of Columbia Personal Protection Act,” seems like American history repeating itself.  By this I recall the American-British colonial debate of the 1760’s and 1770’s, and in particular the Stamp Act and the Declaratory Act.  For it seems Congress is taking a leaf out of the British Parliament’s book, in repealing its own Stamp Act in a way, but subsequently issuing its own American “Declaratory Act,” like that of the British Parliament in 1766, which stated the British Parliament had the authority to legislatively bind the Americans “in all cases whatsoever.”  But the main difference is that Congress’s own declaratory act relates in this case only to “arms.”[60]  How can Congress give from one hand and take from the other?  Indeed, can Congress even interpret what they feel the people’s rights are?  We know that a legislative body cannot create rights, for rights, be they natural or civil, exist as part of us by our being human, and are permanent gifts from our Maker, as Thomas Paine submits in the 1st part of his “Rights of Man” and as Thomas Jefferson wrote in the Declaration of Independence.[61]  How can Congress say that this specific kind of firearm is legal to keep and bear, but this kind over here is not?  If we maintain a constitutionally recognized natural right to keep and bear arms, how is it that Congress can recognize that right and be bound by it, but attempt to infringe it, in this case all this happening in the very same law? 

Once again, can a certain arm be deemed illegal if our constitutional right is one such that the people can keep and bear “arms” in general?  How can Congress deny this right to the people that is bound to uphold, yet acknowledge such a right for itself and it its governmental relatives, namely the law enforcement and military sections of the government? For this is exactly what it has done with many of its laws, banning certain kinds of arms, or more specifically firearms from civilian possession and production, yet granting the law enforcement and military agencies the legal ability to possess such arms/firearms.  How can a legislative body acknowledge such a right while simultaneously condemning it out of the same mouth and in the same law?  Do we maintain the right to keep and bear arms or not?

         Does Congress have the constitutional authority to define what are and aren’t to be considered “arms” in the English language of today, when the Constitution clearly gives no specific definition to what “arms” are to be, but rather retains this word’s historic definition of “weapons of offense and defense in general, and is not limited solely to firearms?”  For that is exactly what happens when Congress attempts to assume a power it clearly does not have in proscribing by law what arms are legal for the people to keep and bear.  For if Congress can outlaw certain kinds of arms from individual citizen possession under the current language of the Constitution, specifically the 2nd Amendment, then does Congress not have absolute power to limit all kinds of arms, and ban from civilian possession and use all firearms, or all knives, or all arms except sticks?  What could stop the Congress from legally banning all arms except scissors, as long as the people’s right to keep and bear “some kind of arm” is not infringed?  That seems to be Congress’s interpretation of the word “arm,” that the people have the right to keep and bear some kind(s) of arm, but only the kind(s) of arm the Congress deems appropriate.  If that were the intentions of the framers and of and those who ratified the Constitution and its Bill of Rights, is it not likely that it would have been worded much more specifically so as to say that long as the people had some kind of arm, the Congress may ban all other kinds of arms?  It seems plausible to assume that if it had been the framers and people’s intention to only allow people to keep and bear some arms, or even limit people to keeping and baring firearms, then they would have spelt out the 2nd Amendment as “the right of the people to keep and bear SOME arms shall not be infringed,” or “the right of the people to keep only firearms, and even then SOME firearms shall not be infringed.”  Being that the plural use of “arm” is used in the language of the 2nd Amendment, it seems unlikely that that is the case in the current language of the 2nd Amendment.

Conclusion

If Congress may not limit the types of arms the people may keep and bear, under the current language of the 2nd Amendment, and it is the sentiment of the majority of the American people that such limitations on arms are necessary and that Congress should be allowed to do so, then there is a simple solution to this problem.  What must happen in order for Congress to have such authority is to pass a constitutional amendment in Congress and submit it to the state legislatures for ratification, granting Congress this authority. But in order to gain the support of those who favor gun-rights, it would be important for this amendment to be worded in such as way as to limit congressional authority in prohibiting certain kinds of arms, and it must also limit the government from allowing itself from possessing those very arms it would ban the citizenry from being able to possess. 

  There are some very dangerous and deadly “arms” in the world, and what Congress and others are attempting to do in preventing these weapons from getting into the hands of the wrong people, by attempting to ban said arms from civilian production, transfer, and possession by, can be seen as a decent action, taken in order to make the country and world more safe and secure.  But at the same time, Congress, purposefully or not, is assuming a legislative power it is not currently granted by the Constitution, and thus it is establishing itself as an all powerful, arbitrary legislature, which in the eyes of the American Founders, especially James Madison, can be just as dangerous if not even more so than the most dangerous weapon in the world.   For an all powerful, arbitrary legislature is dangerous to the lives of the people and dangerous to their liberties and rights.  It must be noted that James Madison, while like most of his contemporary American revolutionaries in viewing any all powerful, arbitrary legislature as a danger to the sovereign people of a nation, he saw the state legislatures in his time, and the excess democracy then practiced at the expense of the rights of the minority as the ultimate threat to the United States; thus he wanted a stronger federal government and legislature to curb the state legislatures, strong yet still limited in it’s scope of powers.[62] 

Thus, there might appear to be two routes that can be taken so as to allow Congress to be able to make laws banning certain kinds of arms from civilian possession and use.  One, which has already been set as precedent by the US Court of Appeals of the District of Columbia, and affirmed by the Supreme Court, is for the courts to decide on what exactly is meant by the word “arms” as used in the Second Amendment.  This of course would require a challenge of all the federal gun control laws that seek to ban certain types of arms from the possession and use by the citizenry.  And in each such challenge in the court system, the courts would have to set precedent as to what weapon is deemed an “arm” as referred to in the Second Amendment and what weapon is not.  This was already done somewhat in Parker v District of Columbia, in which a handgun was ruled to be an “arm” referred to in the Second amendment.  But, keep in mind my earlier warning that in doing so, the courts must look to how the word “arms” was used and what it meant to the general society at the time of the Second Amendment’s adoption as fundamental law, and use that meaning, and the types of weaponry that fit under that meaning, as a starting point, taking nothing from that meaning or the types of weaponry deemed “arms” at that time, but only adding to that meaning or list of “arms” as new weaponry comes to fruition.  And throughout this paper, I have provided the meaning of the word arms as known to the general society of America and even abroad, thus providing a starting point or base point from which the courts can proceed, again taking nothing from that meaning, but only adding to it.  Thus, having acknowledged this power of the federal courts to interpret the meaning of “arms” and determining what kind of weapons or items that can be deemed “arms,” this route isn’t really a feasible or even possible one because of the general meaning of the word “arm” as understood in 1791, which I have proven to mean any weapon or instrument/tool of wielded for the purpose offensive and defensive action in general, and is not limited solely to firearms.  So, in other words, even in 1791, when the Second Amendment was ratified and adopted, the word “arms” was an umbrella term, a very broad term that couldn’t then, nor could it now, be expanded to an even broader meaning.  It is for all intents and purposes as broad as can be.  And thus, the same broad definition of 1791 applies even still today, for it cannot be altered by or taken away from by the judiciary (except as to be expanded upon) or by Congress.  It can only be altered by the sovereign people via a constitutional amendment.  Therefore, in all reality, in order for Congress to be allowed to ban certain types of arms from the possession and use by the citizenry, a constitutional amendment allowing such is in order.  This is the second route.  Congress must introduce and pass such a carefully worded constitutional amendment and submit it to the state legislatures for ratification, so that it can be legally granted the authority to limit the dangerous and deadly arms that it feels would be hazardous to the public safety, without posing the dangerous threat the public’s liberties in arbitrarily assuming more and more powers it does not constitutionally have.  That way, not only do those who favor more gun control win, but those who oppose further gun control may rest assured that Congress will only be able to legally limit and prohibit certain types of arms that the people deem as needing prohibition, all the while protecting the people’s rights and liberty, and preventing their representative government from assuming too much power that it constitutionally does not have.  It is a win-win situation for all involved.  It would also decrease the heated debates, arguing, and rhetoric concerning gun control and gun rights in the nation, thus creating a more harmonious relationship between all Americans from all sides and angles of the American political spectrum.  

In closing, I would like to add my personal opinion as to banning certain kinds of weaponry from possession and use by the citizenry that might not be considered “arms” as referred to in the Second Amendment.  I believe, as I have shown, that, according to how the Second Amendment reads as of now, mankind is allowed to own any kind of weapon or arm they please, so long as they do not use that weapon in a way that violates the rights of others, such as in the commission of crimes such as robbery, theft, murder, rape, assault and battery, etc or torts.  But, I am not an unreasonable man.  I can see the reasonableness of constitutionally banning certain types of weapons, such nuclear weapons or other chemical or biological warfare capable of creating much damage and suffering on a large scale, since the risk of them going off and devastating lots of people, the effects of such being so terrible, either accidentally or by some madman is great enough.  However, I am very cautious about giving our government the ability to ban certain tpyes of arms from manufacture, sale, possession and use by the citizenry while maintaining those privileges for itself and its police and military units.  I do not believe a government can or should possess certain kinds of weapons or arms, such as nuclear weapons, that are banned from the ownership of private individuals.  Thus, I do not agree with the current state of America and the world, where governments and militaries are allowed to possess and use machine guns, rocket launchers, tanks, grenades, and other high-end explosives and weaponry that private individuals are prohibited by law from possessing and lawfully using.  As long as an individual does not use said weapon(s) in a way that would harm the rights of another, there should not and cannot reasonably be a prohibition against owning and using said weapons in ways that do not violate the rights of others while permitting the military and police units of government to possess and use those weapons.  A military or police unit, or even a single member of one of those units, is just as capable of using those weapons unlawfully and to harm others in their rights, including the very citizens it is meant to serve, as a private individual citizen or group of citizens are, on a whim.  We saw this in the Fort Hood shooting massacre in 2009.  Why then do we trust our military to possess those weapons and hope they will use them justly and lawfully when we don’t trust private citizens to do so, and thus ban private citizens from acquiring and using those weapons lawfully?  I do not believe any government or military should be allowed to have access to anything the private citizens of that nation are prohibited by law to have access to, especially weaponry and arms, because such weaponry and arms could be used by those in power upon the people who have compacted to allow that government to exist, and whose rights that government is supposed to protect.  Power corrupts; this is one of the most understood principles of government.  And because power corrupts, it must never be trusted in any fallible human being, and we are all fallible, save He who created us, for I believe in a Creator.  I believe that not only is an armed citizenry a free citizenry, but a citizenry that possess the same arms and weapons as its government, and forbids its government from possessing arms that the citizenry are forbidden by law to possess, is the true definition and mark of a free citizenry ruled by a free government.  Thus, it is of my opinion that if we are to pass a constitutional amendment allowing Congress to ban certain kinds of arms from the possession and use by the citizenry of America, then we should also ban those arms from the possession and use by the federal and state governments as well.  And if that can’t be done without subjecting America to the power of nations that would possess and use such dangerous weapons, thus weakening America and subjecting it to attack, then such weapons should not be banned from anyone whatsoever, be it government or citizenry.  For as the famous American Founder Thomas Paine once said in a 1775 article for the Pennsylvania Magazine, “I would gladly agree with all the world to lay aside the use of arms, and settle matters by negotiation; but unless the whole will, the matter ends, and I take up my musket and thank heaven he has put it in my power.”#

[1] Leonard W. Levy, Origins of the Bill of Rights (New Haven: Yale University Press, 1999), 149.

[2] Dave B. Kopel, The Second Amendment Project, Japanese Gun Control, Asia-Pacific Law Review, available from http://www.davekopel.com/2a/lawrev/japanese_gun_control.htmh; Internet; accessed 3 April, 2011.  Also see Gun Policy.org, International Firearm Injury Prevention and Policy, Japan-Gun Facts, Firgures and the Law, Gun Regulation, available from http://www.gunpolicy.org/firearms/region/japan; Internet; accessed 3 April 2011.

[3] Gun Policy.org, International Firearm Injury Prevention and Policy, Japan-Gun Facts, Firgures and the Law, Gun Regulation, available from http://www.gunpolicy.org/firearms/region/china; Internet; accessed 3 April 2011.

[4] The White House Press Briefings, “Remarks by President Obama and President Calderon of Mexico at Joint Press Conference, available from http://www.whitehouse.gov/the-press-office/2011/03/03/remarks-president-obama-and-president-calder-n-mexico-joint-press-confer; Internet; accessed 3 April 2011.

[5] Bureau of Alcohol, Tobacco, Firearms and Explosives, “National Firearms Act,” available from http://www.atf.gov/firearms/nfa/; Internet; accessed 3 April 2011.

[6] The Library of Congress, Thomas, 110 HR 1399 IH, “District of Columbia Personal Protection Act,” available from http://thomas.loc.gov/home/gpoxmlc110/h1399_ih.xml; Internet; accessed 3 April 2011.

[7] The Library of Congress, Thomas, “Firearms Owner’s Protection Act,” available from http://thomas.loc.gov/cgi-bin/bdquery/z?d099:SN00049:@@@L&summ2=m&; Internet; accessed 3 April 2011.

[8] Bureau of Alcohol, Tobacco, Firearms and Explosives, “National Firearms Act,” available from http://www.atf.gov/firearms/nfa/; Internet; accessed 3 April 2011.

[9] Bureau of Alcohol, Tobacco, Firearms and Explosives, “National Firearms Act,” Machine Guns, available from http://www.atf.gov/firearms/faq/national-firearms-act-machine-guns.html; Internet; accessed 3 April 2011.

[10] Bureau of Alcohol, Tobacco, Firearms and Explosives, “National Firearms Act,” available from http://www.atf.gov/firearms/nfa/; Internet; accessed 3 April 2011.

[11]The Library of Congress, Thomas, HR 3355, “Violent Crime Control and Law Enforcement Act of 1994,” available from http://thomas.loc.gov/cgi-bin/bdquery/z?d103:HR03355:@@@L&summ2=m&; Internet; accessed 3 April 2011.

[12] Open Congress, U.S Gun Control Legislation, 103rd Congress (1993-1994), HR 3355, Subtile A, “Violent Crime Control and Law Enforcement Act of 1994,” available from http://www.opencongress.org/wiki/U.S._gun_control_legislation#103rd_Congress_.281993-1994.29; Internet; accessed 3 April 2011.

[13] CNN Justic, “Latest Developments in Arizona Shooting,” 9 January 2011, available from http://articles.cnn.com/2011-01-09/justice/arizona.shooting.developments_1_gunman-arizona-state-shooting?_s=PM:CRIME; Internet; accessed 3 April 2011.  Also see The New York Times, Times Topics, “Arizona Shooting,” available from http://topics.nytimes.com/top/reference/timestopics/subjects/a/arizona_shooting_2011/index.html; Internet; accessed 3 April 2011.

[14] Congress.org, “Republican Proposes Gun Control Bill,” available from http://www.congress.org/news/2011/01/12/republican_proposes_gun_control_bill; Internet; accessed 3 April 2011.

[15] Congress.org, “Republican Proposes Gun Control Bill,” available from http://www.congress.org/news/2011/01/12/republican_proposes_gun_control_bill; Internet; accessed 3 April 2011.

[16] Brigham Young University, Daily Universe, “The Right to Bear Some Arms,” 10 Janurary 2011, available from http://universe.byu.edu/node/13048; Internet; accessed 3 April 2011.

[17] Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-815 (New York, Oxford University Press, 2009), 68.

[18] Creating the Bill of Rights: The Documentary Record from the First Federal Congress, ed. Helen E. Veit, Kenneth R. Bowling, and Charlene Bangs Bickford (Baltimore, London, The John Hopkins University Press, 1991), 12, 38, 48.

[19] Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815 (New York, Oxford University Press, 2009), 53, 68-72.

[20] Constitution Society, “The Right To Keep And Bear Arms Report of the Subcommittee on the Constitution of the United States Senate Nintey Seventh Congress, Second Session, Feb. 1982,” available from http://www.constitution.org/mil/rkba1982.htm; Internet; accessed 3 April 2011.

[21] Constitution Society, “Assize of Arms (1181),” available from http://www.constitution.org/sech/sech_034.htm; Internet; accessed 3 April 2011.

[22] Leonard W. Levy, Origins of the Bill of Rights (New Haven: Yale University Press, 1999), 149.

[23] Old English dictionary, “arms,” available from http://home.comcast.net/~modean52/oeme_dictionaries.htm; Internet; accessed 3 April 2011.

[24] "arm, n.2". OED Online. March 2011. Oxford University Press. http://www.oed.com/view/Entry/10809?rskey=QcUvWJ&result=2&isAdvanced=false (accessed March 31, 2011).

[25] Kenneth Warren Chase, Firearms: A Global History to 1700 (New York: Cambridge University Press, 2003), 1, 59.

[26] Ibid., (73-76).

[27] History Channel, “The Conquerors,” Cromwell: Conqueror of Ireland, 2005, available from http://shop.history.com/detail.php?p=68950; Internet; accessed 3 April 2011.

[28] Kenneth Warren Chase, Firearms: A Global History to 1700 (New York: Cambridge University Press, 2003), 73-76.

[29] Samuel Johnson, A Dictionary of the English Language, (London, 1755).

[30] Colonial Williamsburg, “That the Future may Learn from the Past,” History, Places, Magazine, available from http://www.history.org/almanack/places/hb/hbmag.cfm; Internet; accessed 3 April 2011.

[31] Thomas Paine, Rights of Man, 1791, USHistory.org, available from http://www.ushistory.org/paine/rights/c1-012.htm; Internet; accessed 3 April 2011.

[32] "arm, n.2". OED Online. March 2011. Oxford University Press. http://www.oed.com/view/Entry/10809?rskey=QcUvWJ&result=2&isAdvanced=false (accessed March 31, 2011).

[33] Middle English Dictionary Entry, “armes,” available from http://quod.lib.umich.edu.erl.lib.byu.edu/cgi/m/mec/med-idx?type=id&id=MED2266&egs=all; Internet; accessed 3 April 2011.

[34] "arm, n.2". OED Online. March 2011. Oxford University Press. http://www.oed.com/view/Entry/10809?rskey=QcUvWJ&result=2&isAdvanced=false (accessed March 31, 2011).

[35] "firearm, n.". OED Online. March 2011. Oxford University Press. http://www.oed.com/view/Entry/70516?redirectedFrom=firearm (accessed March 31, 2011).

[36] History Channel, Tales of the Gun: “Early Machine Guns: Advent of Rapid Firepower,” 1998, available from http://shop.history.com/detail.php?p=68903&v=history_show_tales-of-the-gun; Internet; accessed 31 March 2011.

[37] John Keane, Tom Paine, A Political Life (Boston, New York, Toronto, London: Little Brown And Company, 1995,) 505-506.

[38] Colt Defense Weapons System, “Colt History,” available from http://www.colt.com/mil/history.asp; Internet; accessed 31 March 2011.  Also see Henry Repeating Arms Company, “Henry History,” available from http://www.henryrepeating.com/history.cfm; Internet; accessed 31 March 2011.

[39] History Channel, Tales of the Gun: “The Guns of Browning,” available from http://shop.history.com/detail.php?p=68621&v=history_show_tales-of-the-gun; Internet; accessed 31 March 2011, 1999.  Also see History Channel, Tales of the Gun: “Early Machine Guns: Advent of Rapid Firepower,” 1998, available from http://shop.history.com/detail.php?p=68903&v=history_show_tales-of-the-gun; Internet; accessed 31 March 2011.

[40] History Channel, Tales of the Gun: “Early Machine Guns: Advent of Rapid Firepower,” 1998, available from http://shop.history.com/detail.php?p=68903&v=history_show_tales-of-the-gun: Internet; accessed 31 March 2011.

[41] "arm, n.2". OED Online. March 2011. Oxford University Press. http://www.oed.com/view/Entry/10809?rskey=QcUvWJ&result=2&isAdvanced=false (accessed March 31, 2011).

[42] "offence | offense, n.". OED Online. March 2011. Oxford University Press. http://www.oed.com/view/Entry/130599?rskey=0Ee9hg&result=1&isAdvanced=false (accessed April 01, 2011

[43] "defence | defense, n.". OED Online. March 2011. Oxford University Press. http://www.oed.com/view/Entry/48780?rskey=ibRh8w&result=1&isAdvanced=false (accessed April 01, 2011).

[44] Yale Law School, The Avalon Project: Documents in Law, History, and Diplomacy, “English Bill of Rights 1689,” available from http://avalon.law.yale.edu/17th_century/england.asp; Internet; accessed 1 April 2011.

[45] UCLA Law School, Sources on the Second Amendment and Rights to Keep and Bear Arms in State Constitutions, 18th- and 19th- Century Commentary, “William Blackstone, Commentaries on the Laws of England (1765),” available from http://www2.law.ucla.edu/volokh/2amteach/sources.htm#TOC6; Internet; accessed 3 April 2011.

[46] Leonard W. Levy, Origins of the Bill of Rights (New Haven: Yale University Press, 1999), 149-153.

[47] Samuel Johnson, A Dictionary of the English Language, (London, 1755).

[48] Noah Webster’s 1828 American Dictionary, available from http://www.1828-dictionary.com/d/search/word,arms; Internet; accessed 1 April 2011.

[49] Leonard W. Levy, Origins of the Bill of Rights (New Haven: Yale University Press, 1999), 156.

[50] Cornell University Law School, U.S. Code, Title 15, Chapter 29, “Manufacture, Transportation, or Distribution of Switchblade Knives,” available from http://www.law.cornell.edu/uscode/15/usc_sup_01_15_10_29.html; Internet; accessed 31 March 2011.

[51]Brigham Young University, “Corpus of Historic American English,” available from http://corpus.byu.edu/coha/; Internet; accessed 31 March 2011.

[52] Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage Books, 1996), 144, 344.

[53] Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage Books, 1996), 343.

[54] Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage Books, 1996), 144.

[55] Constitution Society, “Virginia Report of 1799,” James Madison, 1799~1800, available from http://www.constitution.org/rf/vr_1799.htm; Internet; accessed 5 April 2011.

[56] Jack N. Rakove, “James Madison and the Bill of Rights: A Broader Context,” Presidential Studies Quarterly, Vol. 22, No. 4, America’s Bill of Rights, Market Economies and Republican Governments (Fall, 1992), pp. 667-677. 

[57] Jack N. Rakove, Declaring Rights: a Brief History with Documents (Boston, New York: Bedford Books, 1998), 187.

[58] Constitution Society, “Virginia Report of 1799,” James Madison, 1799~1800, available from http://www.constitution.org/rf/vr_1799.htm; Internet; accessed 5 April 2011.

[59] Thomas Paine, Rights of Man, 1791, USHistory.org, available from http://www.ushistory.org/paine/rights/c2-051.htm; Internet; accessed 3 April 2011.

[60] Open Congress, HR 1399, “District of Columbia Personal Protection Act,” available from http://www.opencongress.org/bill/110-h1399/show; Internet; accessed 1 April 2011.

[61] Thomas Paine, Rights of Man, 1791, Constitution.org, available from http://www.constitution.org/tp/rightsman1.htm; Internet; accessed 3 April 2011.  Consult paragraphs 79-82.  Thomas Jefferon, “Declaration Of Independence,” Preamble.

[62] Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution (New York: Vintage Books,1996), 290.